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Community Association for Restoration of Environment Inc. v. Cow Palace LLC

United States District Court, Eastern District of Washington

January 28, 2015

COMMUNITY ASSOCIATION FOR RESTORATION OF THE ENVIRONMENT, INC, a Washington Non-Profit Corporation; and CENTER FOR FOOD SAFETY, INC., a Washington, D.C. Non-Profit Corporation, Plaintiffs,
COW PALACE, LLC, a Washington Limited Liability Company, et al., Defendants.


THOMAS O. RICE United States District Judge

BEFORE THE COURT are Defendant Cow Palace, LLC’s Motion for Certification for Interlocutory Appeal of Order Re: Cross Motions for Summary Judgment and Motion to Stay Proceedings Pending Interlocutory Appeal (ECF No. 322) and Motion to Expedite (ECF No. 323). These matters were submitted for consideration without oral argument. The Court has reviewed the briefing and the record and files herein, and is fully informed.


On January 14, 2015, this Court issued its Order Re: Cross Motions for Summary Judgment (“Order”). ECF No. 320. In its Order, this Court found, inter alia, no genuine issue of material fact that Defendants’ application, storage, and management of manure at Cow Palace Dairy violated RCRA’s substantial and imminent endangerment and open dumping provisions. Id. at 109. Trial regarding several other issues of liability and remedies is currently set to begin March 23, 2015, for this matter. Multiple other dairies face proceedings before this Court involving the same or similar issues. See CARE v. George & Margaret LLC, No. 13-cv-3017-TOR; CARE v. Henry Bosma Dairy; No. 13-cv-3019.

In the instant Motion, Defendant Cow Palace seeks certification for interlocutory appeal and a stay of these proceedings pending appeal. ECF No. 322. If the Court grants this Motion, Defendant seeks final resolution from the Ninth Circuit regarding whether RCRA applies to dairies’ manure management operations. Id. at 2. Plaintiffs oppose both certification for interlocutory appeal and a stay of these proceedings. ECF No. 325.

Given the quickly-approaching trial date, this Court will first consider whether, if it were to grant certification for interlocutory appeal, it would stay these proceedings pending resolution by the Ninth Circuit. After all, an interlocutory appeal makes little sense with final resolution of this case less than two months away, unless this Court also stays these proceedings.


A. Stay of Proceedings

If a party successfully appeals under 28 U.S.C. § 1292(b), such application “shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.” 28 U.S.C. 1292(b). “The district court has broad discretion to stay proceedings as an incident to its power to control its own docket.” Clinton v. Jones, 520 U.S. 681, 706 (1997). Courts traditionally consider four factors when determining whether to grant a stay pending the appeal of a civil order: (1) the likelihood of the moving party’s success on the merits; (2) whether the moving party will be irreparably injured if a stay is not granted; (3) whether a stay will substantially injure the opposing party; and (4) the public interest. See Nken v. Holder, 556 U.S. 418, 426 (2009) (citing Hilton v. Braunskill, 481 U.S. 770, 776 (1987)).

Here, this Court finds the public interest in addressing current levels of contamination and minimizing any further risk of harm immeasurably outweighs any argument in favor of staying these proceedings pending appeal. As this Court determined in its previous Order, the Dairy’s operations may currently be presenting an imminent and substantial engagement to the nearby residents who are consuming the nitrate-contaminated groundwater. ECF No. 320 at 104-05. Any delay in these proceedings only increases the already-present risk to the public health. Accordingly, this Court declines to stay these proceedings if it grants certification for interlocutory appeal.

B. Certification for Interlocutory Appeal

Pursuant to 28 U.S.C. § 1292(b), an otherwise non-final order may be subject to interlocutory appeal if the district court certifies, in writing, the following: (1) the order involves a “controlling issue of law, ” (2) the controlling issue of law is one to which there is a “substantial ground for difference of opinion, ” and (3) “an immediate appeal from the order may materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b). If permission for interlocutory appeal is required, “the district court may amend its order, either on its own or in response to a party’s motion, to include the required permission or statement.” Fed. R. App. Proc. 5(a)(3). As the Ninth Circuit has noted “the legislative history of 1292(b) indicates that this section was to be used only in exceptional situations in which allowing an interlocutory appeal would avoid protracted and expensive litigation.” In re Cement Antitrust Litig., 673 F.2d 1020, 1026 (9th Cir. 1982) (emphasis added); see also Coopers & Lybrand v. Livesay, 437 U.S. 463, 474 (1978) (“[E]ven if the district judge certifies the order under § 1292(b), the appellant still ‘has the burden of persuading the court of appeals that exceptional circumstances justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment.”).

Here, this Court declines to certify its Order for interlocutory appeal. Although the first two factors are arguably satisfied, this Court finds that an immediate interlocutory appeal will not materially advance the termination of litigation, even considering the lenient “may” standard afforded by the statutory text. Trial is scheduled to begin in less than two months. Defendant’s Motion comes after two years of extensive discovery and dispositive motion practice and immediately before final resolution of this matter at trial. Without a stay of proceedings, which this Court declines to grant as discussed above, an interlocutory appeal cannot materially advance this litigation: even if the Ninth Circuit were to grant Defendant the relief it seeks, such a ruling could not possibly come into effect before trial has concluded and the remaining liability and remedy issues resolved. Therefore, because granting certification for appeal would not materially ...

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