United States District Court, E.D. Washington
UNITED STATES OF AMERICA, ex rel., RANDOLPH PETERSON, individually and as relator; TRI-CITY RAILROAD COMPANY, LLC, a Washington limited liability company, Plaintiffs,
PORT OF BENTON COUNTY, et al., Defendants.
ORDER DENYING PLAINTIFFS' MOTION FOR
O. Rice Chief United States District Judge.
THE COURT is Plaintiffs Randolph Peterson and Tri-City
Railroad Company, LLC's Motion for Reconsideration (ECF
No. 206). Defendant the Port of Benton filed a Response (ECF
No. 216) and Plaintiffs filed a Reply (ECF No. 219). The
Court - having reviewed the record, the Motion, Response and
Reply - is fully informed. For the reasons discussed below,
the Court denies Plaintiffs' Motion for Reconsideration
(ECF No. 206).
is appropriate if the district court (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.” Sch. Dist.
No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.
1993); United Nat. Ins. Co. v. Spectrum Worldwide,
Inc., 555 F.3d 772, 780 (9th Cir. 2009). “There
may also be other, highly unusual, circumstances warranting
reconsideration.” School Dist. No. 1J, 5 F.3d
request the Court reconsider its Order granting summary
judgment to Defendants on Plaintiffs' regulatory takings
claim. Plaintiffs argue:
The Court appears to have premised the dismissal of
Plaintiffs' regulatory taking claim upon the notion that
Plaintiffs had abandoned this claim. (ECF 198, pg. 6-7).
However, the record reflects that Plaintiffs did not, and
have not, abandoned the claim. The regulatory taking claim
stems from the fact that the City of Richland (the
“City”), through its agent Robert Wimbish, and in
conjunction with the Port of Benton (the “Port”),
designed a plan to eliminate Tri-City Railroad Company, LLC
(“TCRY”) as an operating railroad, thus, taking
all economic viability of TCRY's lease. By doing so, the
City has eliminated TCRY's ability to interchange with
the Union Pacific Railroad (“UP”), which has
caused TCRY significant damages in the amount of the fees it
would be entitled as an operating railroad. Those damages
have been detailed in the expert report by Erick C. West.
(ECF No. 160-32; 160-33).
TCRY's regulatory taking claim was briefed in its
Response to Defendants Motion for Partial Summary Judgment
(ECF 172, pg. 16-19), and again, specifically addressed at
the October 7, 2019 hearing on Defendants Motion. (See
Exhibit A to Declaration of Nicholas D.
Kovarik in Support of Plaintiffs' Motion for
Reconsideration, pg. 28, line 7, through pg. 30, line 18).
The record reflects that TCRY has not abandoned its
regulatory taking claim, and thus, Plaintiffs respectfully
request that the Court reconsider its order granting
Defendants the City of Richland and Peter Rogalsky's
Motion for Partial Summary Judgment.
ECF No. 207 at 2-3. The relevant portion of the Order states:
At the hearing, counsel for TCRY clarified that their claims
subject to the City of Richland's Motion (ECF No. 156)
are limited to the City of Richland's installation of the
switch for the auxiliary track built in 2015 and the
installation of a sign. By failing to address the Motion (ECF
No. 156) concerning the interchange operations at Richland
Junction (regulatory taking and oppressive precondemnation
activity), TCRY has abandoned these claims.
ECF No. 198 at 6-7.
cited to portion of Plaintiffs' Response to the
underlying motion for summary judgment, Plaintiffs argued:
Here, the City took all economic viability of TCRY's
lease by its conduct as it has lost its ability to access its
own leased land. The City worked with the Port to develop and
carry out a plan to eliminate TCRY as an operating railroad
and deprive TCRY of all economic viability. The City's
actions stem from TCRY's unwillingness to relinquish its
rights in the Richland Junction in order for the City to
build a parkway over the junction.
First, on or about January 12, 2011, the City terminated
TCRY's direct access to the Horn Rapids Spur where
TCRY's customers reside. (ECF No. 88, Ex. 15). This
prevented TCRY from accessing its customers directly. As a
result, the only way TCRY could service its customers was as
an agent of UP. Id. However, once TCRY began
servicing customers as an agent of UP, the City hired
Fletcher and Sippel, ...