Pakootas v. Teck Cominco Metals

1 FILED IN THE 2 EASTERU N. S D. I SD TI RS IT CR TI C OT F C WO AU SR HT I NGTON Apr 10, 2024 4 SEAN F. MCAVOY, CLERK 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON JOSEPH A. PAKOOTAS, an individual and enrolled member of the Confederated No. 2:04-CV-00256-SAB Tribes of the Colville Reservation; and DONALD R. MICHEL, an individual and ORDER DENYING MOTION enrolled member of the Confederated FOR RECONSIDERATION Tribes of the Colville Reservation, and THE CONFEDERATED TRIBES OF THE COLVILLE RESERVATION, 17 Plaintiffs, 18 and THE STATE OF WASHINGTON, 20 Plaintiff-Intervenor, 21 v. TECK COMINCO METALS, LTD., a Canadian corporation, 24 Defendant.

26 Before the Court is Plaintiff Confederated Tribes of the Colville Reservation’s Motion for Reconsideration or in the Alternative for Immediate Review Pursuant to 28 U.S.C. § 1292, ECF No. 2838.

1 Plaintiff Confederated Tribes of the Colville Reservation (CCT) requests that the Court reconsider its Order Granting Defendant’s Motion for Partial Summary Judgment on Cultural Resource Damages, ECF No. 2831, or certify the controlling issues of law for appeal to the Ninth Circuit Court of Appeals pursuant to 28 U.S.C. § 1292(b).

6 CCT argues that CCT had not previously asserted any claims for “cultural resource damages” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and Teck’s motion encouraged this error by conflating resource injury and resulting service loss by labelling them both “cultural.” CTT states that this framing misconstrued CCT’s natural resource damage claim and distracted this Court from the regulatory framework and supporting authority. Upon review, and being fully informed, this Court disagrees and denies the motion and certifies the controlling issues of law for appeal pursuant to 28 U.S.C. § 1292(b).

15 Reconsideration is an extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources.” Kona Enterprises, Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). A motion for reconsideration may be reviewed under either Federal Rule of Civil Procedure 59(e) (motion to alter or amend a judgment) or 60(b) (relief from judgment). Sch.

20 Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993). “A district court may properly reconsider its decision if it ‘(1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law.’” Smith v. Clark Cnty. Sch.

24 Dist., 727 F.3d 950, 955 (9th Cir. 2013) (quoting Sch. Dist. No. 1J, 5 F.3d at 1263).

25 “There may also be other, highly unusual, circumstances warranting reconsideration.” Sch. Dist. No. 1J, 5 F.3d at 1263. Whether to grant a motion for reconsideration is within the sound discretion of the court. Navajo Nation v. 1|| Confederated Tribes and Bands of the Yakima Nation, 331 F.3d 1041, 1046 (9th Cir. 2003).

3 Plaintiff did not meet the standard for reconsideration outlined in case law.

No new evidence was discovered, nor did the Court commit clear error or make an 5|| initial determination that was manifestly unjust, and there was not an intervening change in controlling law. Whether termed cultural resource damages or lost services, this is not the type of loss contemplated by Congress when passing and amending CERCLA. Therefore, CCT’s motion for reconsideration is denied and 9|| the Court certifies this issue for appeal pursuant to 28 U.S.C. § 1292(b) 10 Accordingly, IT IS HEREBY ORDERED: 11 1. Plaintiff Confederated Tribes of the Colville Reservation’s Motion for 12)| Reconsideration or in the Alternative for Immediate Review Pursuant to 28 U.S.C. 1292, ECF No. 2838, is DENIED.

14 2. The controlling issues of law related to service loss/cultural resource 15|| damages under CERCLA are certified for appeal pursuant to 28 U.S.C. § 1292(b).

16 IT IS SO ORDERED. The District Court Clerk is hereby directed to file 17|| this Order and provide copies to counsel.

18 DATED this 10th day of April 2024.

22) byt Stanley A. Bastian 9s Chief United States District Judge

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