Hammond v. Kempthorne, Civil Action No. 01-2345(PLF).

• Decision Date: 29 August 2006
• Docket Number: Civil Action No. 01-2345(PLF).
• Citation: 448 F.Supp.2d 114
• Parties: Robert G. HAMMOND, et al., Plaintiffs, v. Dirk KEMPTHORNE, et al.,<SMALL><SUP>1</SUP></SMALL> Defendants.
• Court: U.S. District Court — District of Columbia

448 F.Supp.2d 114

Robert G. HAMMOND, et al., Plaintiffs, v. Dirk KEMPTHORNE, et

al.,¹ Defendants.

Civil Action No. 01-2345(PLF).

United States District Court, District of Columbia.

August 29, 2006.

Melvin Goldstein, Goldstein & Associates, P.C., Washington, DC, for Plaintiffs.

Lori Caramanian, U.S. Department of Justice Environment & Natural Resources Division, Denver, CO, for Defendants.

OPINION AND ORDER

PAUL L. FRIEDMAN, District Judge.

On March 31, 2005, this Court issued an Order granting partial summary judgment in favor of plaintiffs on Count 1 of their Complaint, in which plaintiffs alleged that the Bureau of Land Management ("BLM") had improperly segmented its analysis of a refined petroleum products pipeline (the "Williams Project") under the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq. ("NEPA"), by failing to consider a proposed separate pipeline, known as the Equilon or Shell Project, in the same Environmental Impact Statement ("EIS"). The Court ordered the BLM to prepare a supplemental EIS to evaluate why it was appropriate to limit the scope of the EIS to the Williams Project.² On April 14, 2005, both the federal defendants and defendant-intervenor, Williams Petroleum Services, LLC ("Williams"), (collectively, "defendants") filed a motion to alter or amend the judgment or, in the alternative, for relief from judgment, pursuant to Rules 59(e) and 60(b) of the Federal Rules of Civil Procedure.

I. BACKGROUND

The circumstances under which this action arose are fully discussed in Hammond v. Norton, 370 F.Supp.2d 226 (D.D.C.2005). Plaintiffs brought this case under NEPA and other federal environmental statutes to challenge the decisions of the BLM and other federal agencies in facilitating the construction of a refined petroleum products pipeline from Bloomfield, New Mexico to Salt Lake City, Utah. Primarily at issue is the relationship between the proposed Bloomfield to Salt Lake City pipeline, known as the Williams Project, and another proposed pipeline set to run from Odessa, Texas to Bloomfield. The proponent of the Odessa to Bloomfield project, Equilon Pipeline, LLC ("Equilon"), was originally partnered with Williams in a joint venture to construct a single pipeline encompassing both of the proposed segments and running all the way from West Texas to Salt Lake City.

When the BLM, the agency primarily responsible for reviewing applications for rights-of-way for utility corridors across federal lands, made it clear to Williams and Equilon that, for purposes of NEPA environmental review, it would consider both the Williams and Equilon pipelines as a single project, rather than two separate endeavors, Williams and Equilon terminated the joint venture and applied separately for rights-of-way to construct their respective pipelines across federal lands. BLM ultimately granted Williams' application for a right-of-way after preparing a final environmental impact statement ("FEIS") that did not address the environmental impacts of the proposed Equilon pipeline.

Plaintiffs filed this lawsuit in November of 2001, raising a host of claims, the foremost of which was an assertion that the BLM improperly limited the scope of the Williams FEIS to exclude the Equilon pipeline. In March of 2003, defendants filed individual cross-motions for partial summary judgment. The Court's March 31, 2005 Order granted summary judgment for defendants on all but one count of the complaint, Count 1. As the Court explained in its subsequent Opinion, in Count 1 plaintiffs asserted that the BLM violated NEPA by failing to evaluate the impact of the Williams and Equilon projects in a single EIS. The issue the Court focused on in determining whether the EIS had been improperly segmented to avoid consideration of connected actions was whether the Williams Project "had substantial independent utility." Hammond v. Norton, 370 F.Supp.2d at 247-54; see Taxpayers Watchdog v. Stanley, 819 F.2d 294, 299 (D.C.Cir.1987) (citing Piedmont Heights Civic Club v. Moreland, 637 F.2d 430, 439 (5th Cir.1981)). This inquiry turned upon whether the Williams Project would have adequate petroleum supply to serve a significant purpose even if a second related project was not built. Hammond v. Norton, 370 F.Supp.2d at 247-54 (citing Coalition on Sensible Transportation v. Dole, 826 F.2d 60, 69 (D.C.Cir.1987)). The Court concluded that BLM acted arbitrarily and capriciously in concluding that the Williams pipeline had independent utility and that the Equilon project was not a connected action. It therefore ordered that the federal defendants prepare a supplemental EIS "addressing only the issue of whether the Williams and Equilon pipeline projects are connected actions under 40 C.F.R. § 1508.25(a)(1)." March 31, 2005 Order at 2.

On April 14, 2005, the federal defendants and defendant-intervenor Williams filed separate motions to alter or amend the judgment or, in the alternative, for relief from judgment, pursuant to Rules 59(e) and 60(b) of the Federal Rules of Civil Procedure. These motions are based on the BLM's April 11, 2005 discovery that the Shell Pipeline Company, Equilon's successor in interest, withdrew its application for the Equilon project right-of-way in January 2005. See Federal Defendants' Motion to Alter or Amend Judgment or, in the Alternative, for Relief from Judgment ("Fed. Def.'s Motion") at 3; Statement of Points and Authorities in Support of Defendant-Intervenor's Motion to Alter or Amend Judgment ("Def.-Intervenor's Statement") at 4. According to the BLM, its New Mexico and Utah offices are separate state offices with separate administrative boundaries and are under the supervision of different State Directors who have delegated authority from the Secretary. Fed. Def.'s Motion at 3. The BLM did not know that the Equilon Project had been withdrawn in January 2005 because its New Mexico office did not communicate to its Utah office that the Equilon right-ofway application had been withdrawn. Id. at 3-4. Not until after this Court issued its Order on March 31, 2005 did Mark Mackiewicz, the BLM's project manager for the Williams Project in Utah, contact the New Mexico office of BLM to determine the status of the Equilon Project, whereupon Mackiewicz found that Shell had withdrawn its application for a rightof-way for the Equilon Project and that the Project no longer existed. Id.; see Declaration of Mark Mackiewicz, Exh. A to Fed. Def.'d Motion ("Mackiewicz Decl.") ¶¶ 3, 3.³ Once Mr. Mackiewicz learned of this new development, he alerted the Department of Justice attorney assigned to this case. Mackiewicz Decl. ¶ 3. The BLM's Alburquerque Field Office confirmed the withdrawal of the right-of-way application via a letter to Shell on January 6, 2005. Id.

II. DISCUSSION

Motions to alter or amend a judgment under Rule 59(e) "are not to be used to relitigate matters already argued and disposed of; they are intended to permit the court to correct errors of fact appearing on the face of the record, or errors of law." Independent Petroleum Ass'n of America v. Babbitt, 178 F.R.D. 323, 324 (D.D.C.1998) (citing U.S. v. Western Electric Co., Inc., 690 F.Supp. 22, 25 (D.D.C.1988)). A Rule 59(e) motion will not be granted unless there is an "intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C.Cir.1996) (citing National Trust v. Dep't of State, 834 F.Supp. 453, 455 (D.D.C.1993), aff'd in part and reed in part on other grounds sub nom, Sheridan Kalorama Historical Ass'n v. Christopher, 49 F.3d 750 (D.C.Cir.1995)). As for Rule 60(b), it provides in pertinent part that "upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding [where] ... it is no longer equitable that the judgment should have prospective application; or ... [for] any other reason justifying relief from the operation of the judgment." FED.R.Civ.P. 60(b). For a judgment to no longer be equitable, one must identify a "significant change in circumstances" justifying modification. Rufo v. Inmates of the Suffolk County Jail, 502 U.S. 367, 383, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992).

A. Effect of Withdrawal of Equilon Project on Pending Motions

Defendants argue that the Court should amend the judgment entered on March 31, 2005 because: (1) newly discovered evidence shows that carrying out the Court's Order would result in manifest injustice; (2) the relief ordered by the Court is moot; and (3) the preparation of separate EISs for the Williams and Equilon projects was appropriate in the first place. Plaintiffs disagree with all of these assertions. In addition, they argue that under the Administrative Procedure Act, 5 U.S.C. § 706, the validity of the BLM's Record of Decision is to be adjudicated on the basis of the record developed by the agency at the time it issued its decision, not based on developments that took place after the administrative record was closed.

Defendants' primary argument is that Shell has withdrawn the Equilon Project and it would be manifestly unjust under Rule 59(e) to require the BLM to evaluate a non-existent project. See Federal Defendants' Sur-Reply in Support of Motion to Alter or Amend Judgment or in the Alternative for Relief from Judgment ("Fed. Def.'s Sur-Reply") at 2-4; Def.Intervenor's Statement at 5. In addition, defendants argue that the relief ordered by the Court—the preparation of a supplemental EIS evaluating the issue of whether the Williams and Equilon pipeline projects are connected actions—is moot because it would serve no purpose for the Court to order the BLM to evaluate a project that has been terminated. Fed. Def.'s Sur-Reply at 4; see also Federal Defendants' Reply in Support of Motion to Alter or Amend Judgment or, in the Alternative, for Relief from Judgment ("Fed. Def.'s Reply") at 6-8.

The...