W. Birkenfeld Trust v. Bailey, CY-92-3062-AAM.

• Decision Date: 10 October 1993
• Docket Number: No. CY-92-3062-AAM.,CY-92-3062-AAM.
• Citation: 837 F. Supp. 1083
• Parties: The W. BIRKENFELD TRUST, a Washington Trust, et al., Plaintiffs, v. Barbara BAILEY; et al., Defendants.
• Court: U.S. District Court — District of Washington

837 F. Supp. 1083

The W. BIRKENFELD TRUST, a Washington Trust, et al., Plaintiffs, v. Barbara BAILEY; et al., Defendants.

No. CY-92-3062-AAM.

United States District Court, E.D. Washington.

October 10, 1993.

Michael Haglund, Haglund & Kirtley, Portland, OR, for plaintiffs.

Jim Johnson, Sr. Asst. Atty. Gen., Washington Office of Atty. Gen., Olympia, WA, for State of Wash.

Eric S. Gould, Dept. of Justice, Washington, DC, for Federal defendants.

David Swartling, Mill Cogan Meyers Swartling, Seattle, WA, Stephanie Striffler, Martin Dolan, Trial Div., Salem, OR, for State of Or.

Gary K. Kahn, Reeves, Kahn & Eder, Portland, OR, for Proposed Intervenor Friends of the Columbia Gorge.

Robert Leick, Stevenson, WA, Daniel R. Ritter, Davis Wright Termaine, Seattle, WA, for Skamania County.

Gerald A. Mastosich, Goldendale, WA, P. Stephen DiJulio, Foster Pepper & Shefelman, Seattle, WA, for Klickitat County.

ORDER MODIFYING DISMISSAL ORDER AND DENYING MOTION FOR RECONSIDERATION

McDONALD, District Judge.

This matter comes before the court on the following motions: the plaintiffs' motion for reconsideration of the court's dismissal of their second cause of action, 827 F.Supp. 651 (Ct.Rec. 129); the Columbia River Gorge Commission's motion for permission to file a late response to the plaintiffs' motion for reconsideration (Ct.Rec. 141); and the Columbia River Gorge Commissioners' motion to modify the order of dismissal (Ct.Rec. 126). Michael E. Haglund represents the plaintiffs. Lawrence Watters represents the individual members of the Columbia River Gorge Commission, Gary K. Kahn represents the Intervenor Friends of the Columbia Gorge, and Eric S. Gould represents the federal defendants. For the reasons set forth below, the court grants the Commissioners' motion to modify the order of dismissal and their motion for leave to file a late response, but denies the plaintiffs' motion for reconsideration.

This civil action challenging the statutory and constitutional validity of the Final Management Plan for the Columbia River Gorge National Scenic Area was brought by several landowners within the Columbia River Gorge. Hood River, Klickitat, Wasco and Skamania Counties, although named as defendants in the complaint, filed cross-claims virtually identical in nature to the claims filed by plaintiffs. The remaining defendants, the individual members of the Gorge Commission, the federal defendants and the Intervenor Friends of the Columbia River Gorge, filed three separate motions to dismiss the action for lack of jurisdiction. The four county defendants chose to align themselves with the plaintiffs to oppose the motions to dismiss.

On May 27, 1993, this court entered an order dismissing the plaintiffs' complaint and all five claims contained therein on jurisdictional grounds. Neither plaintiffs nor defendants sought to obtain a Rule 54(b) certificate to give the court's decision final judgment status for purpose of appeal.¹ Hence, the court did not make an express determination as to whether there was any reason to delay the entry of judgment; nor did it expressly direct the Clerk to enter judgment.

On July 14, 1993, the plaintiffs moved the court to reconsider its order of dismissal. The subject of the motion is limited to a portion of plaintiffs' second claim for relief which seeks to overturn the Columbia River Gorge Commission's decision requiring the future closure of a quarry owned by J. Arlie Bryant, Inc. (Bryant). Plaintiffs contend that Bryant's as-applied challenge is ripe for review, despite Bryant's failure to pursue all state court remedies, because the available state court remedies are allegedly inadequate to justly compensate Bryant for the taking of its property. The Gorge Commissioners, the federal defendants and the Friends of the Columbia Gorge urge the court to reject the plaintiffs' motion as untimely or, alternatively, deny the motion on the basis that Bryant's claim is unripe for review.

As a preliminary matter, the court must address the Commissioners' motion for leave to file a late response. Counsel for the Commissioners states that he was unable to respond to the plaintiffs motion in a timely fashion due to an exceptional number of deadlines imposed on him by other courts in unrelated matters. As the plaintiffs have not opposed the request for late-filing and are not prejudiced by the same,

IT IS HEREBY ORDERED that the Commissioners' motion for leave to file a late response is GRANTED. The Clerk is directed to accept the response for filing. The response shall be deemed to have been filed on the day it was submitted to the court.

IT IS FURTHER ORDERED that the Commissioners' unopposed motion to modify the order of dismissal is GRANTED. The Clerk shall substitute the phrase "Intervenor Friends of the Columbia Gorge" for the word "Commissioners" where the latter appears on page 10, line 19; page 12, line 19; and page 14, line 13.

Because the plaintiffs filed their motion for reconsideration prior to the entry of a final judgment, they have complied with the time requirements of Rule 54(b). Therefore, the court shall entertain the motion.

Rule 54(b) provides that absent an express entry of a final judgment, all orders of a district court are "subject to reopening at the discretion of the district judge." Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 12, 103 S.Ct. 927, 935, 74 L.Ed.2d 765 (1983). The district court's discretion, however, may be properly exercised only within the confines of the "Law of the Case" doctrine. This judicially created doctrine is a rule of practice which, "as most commonly defined, ... posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in...