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United States v. Port of Benton County

United States District Court, E.D. Washington

November 20, 2019

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.


          Thomas O. Rice Chief United States District Judge.

         BEFORE 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).


         “Reconsideration 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 at 1263.


         Plaintiffs 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.

         In the 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, ...

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