2 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 3 Mar 22, 2022
4 SEAN F. MCAVOY, CLERK
EASTERN DISTRICT OF WASHINGTON 6
7 DEWAYNE JUHNKE, an individual, and JOHN DRUMMOND, an NO: 4:20-CV-05241-RMP 8 individual, ORDER DENYING PLAINTIFFS’ 9 Plaintiffs, MOTION FOR RECONSIDERATION
10 v.
12 Defendant.
13 14 BEFORE THE COURT is a Motion for Reconsideration by Plaintiffs 15 DeWayne Juhnke and John Drummond, ECF No. 52. The Court has reviewed 16 Plaintiffs’ Motion, ECF No. 52, and declaration, ECF No. 53; Defendant City of 17 West Richland’s (the “City’s”) response in opposition, ECF No. 54; Plaintiffs’ reply, 18 ECF No. 55, and declaration, ECF No. 56; the remaining record; the relevant law; 19 and is fully informed. 20 / / / 21 / / / 2 The Court presumes familiarity with the background and procedural history of 3 this case, as recited in the summary judgment order (the “January 26, 2022 Order”). 4 See ECF No. 50. The January 26, 2022 Order directed entry of judgment for
5 Defendant on all of Plaintiffs’ claims, which consisted of federal and Washington 6 State unconstitutional taking and inverse condemnation claims. ECF No. 50 at 23. 7 In reaching that resolution, the Court found that there was no binding or persuasive
8 authority to support the Plaintiffs’ assertion that the offers of public dedication 9 contained in the land patents conveying the lots presently owned by Plaintiffs were 10 revoked prior to the City’s acceptance of them. Id. 11 Plaintiffs filed the instant Motion for Reconsideration on February 24, 2022.
12 ECF No. 52. Plaintiffs maintain that the Court “mistakenly concluded that the 13 reserved right-of-ways (‘ROWs’) found in the various federal land patents (the 14 ‘Patents’) granted by the United States of America to the prior owners of the
15 Plaintiffs’ properties were not extinguished by the Termination of Small Tract 16 Classification on November 18, 2021.” ECF No. 55 at 3. Plaintiffs argue that the 17 Court also erred in finding that deference was not warranted for Instruction 18 Memorandum 91-196 and “other BLM authority supported by law, describing the
19 reserved ROWs as common law dedications which ostensibly require an act of 20 acceptance by the public to be realized.” Id. Lastly, Plaintiffs maintain that “newly 21 discovered evidence” shows that the City “is presently occupying and damaging” 1 Plaintiffs’ properties and warrants reconsideration because that evidence allegedly 2 contradicts “the Courts [sic] acknowledgement of the pipeline, telephone, electrical, 3 and cable facilities located within the alleged reserved ROW area along the northern 4 boundary of Lot 123.” Id. at 10 (citing ECF No. 50 at 22). Plaintiffs maintain that a
5 new declaration from Plaintiff Mr. Juhnke supports reconsideration. Id. In the 6 declaration, Mr. Juhnke avers that the City is “actively trespassing and constructing 7 utilities on my Lot 123.” ECF No. 53 at 4.
8 Defendant argues that Plaintiffs themselves acknowledge that, under 9 Skidmore, the BLM statements at issue would, “at best, have constituted persuasive, 10 not binding, authority.” ECF No. 54 at 2 (citing ECF No. 52 at 4; Skidmore v. Swift 11 & Co., 323 U.S. 134, 140 (1944); Saavedra-Figueroa v. Holder, 625 F.3d 621, 627
12 (9th Cir. 2010)). Defendant maintains that the Plaintiffs’ argument is fatal to 13 Plaintiffs’ request for relief under Fed. R. Civ. P. 60(b)(1) “because ‘the existence 14 of persuasive authority reaching a contrary result does not establish clear error
15 as necessary to justify reconsideration.’” ECF No. 54 at 3–4 (quoting Reno v. 16 Western Cab Company, No. 2:18-cv-840-APG-NJK, 2020 WL 2462900, at *4 (D. 17 Nev., May 1, 2020) and citing Smith v. Clark County School Dist., 727 F.3d 950, 18 955 (9th Cir. 2013), and district court orders from around the Ninth Circuit). With
19 respect to Plaintiffs’ claim of new evidence, Defendant argues that Plaintiffs do not 20 offer evidence or argument demonstrating that Mr. Juhnke’s declaration satisfies the 21 requirements for “newly discovered evidence.” Id. at 6 (citing Dixon v. Wallowa 1 Cnty., 336 F.3d 1013, 1022 (9th Cir. 2003) (articulating elements for reconsideration 2 based on newly discovered evidence)). Defendant argues, in addition, that at 3 summary judgment both parties already presented the Court with evidence regarding 4 the presence of certain utility infrastructure within the right-of-way for Lot 123. Id.
5 at 9. 7 Courts in this Circuit disfavor motions for reconsideration and deny them
8 “absent highly unusual circumstances, unless the district court is presented with 9 newly discovered evidence, committed clear error, or if there is an intervening 10 change in controlling law.” McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 11 1999) (per curiam); see also Fed. R. Civ. P. 59(e). “A motion for reconsideration
12 ‘may not be used to raise arguments or present evidence for the first time when 13 they could reasonably have been raised earlier in the litigation.’” Marlyn 14 Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir.
15 2009) (quoting Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 16 2000) (emphasis in original)). 18 In seeking reconsideration based on alleged clear error, Plaintiffs argue that
19 the reserved rights-of-way had to be accepted “by the public prior to the 20 Termination of the Small Tract Classification on November 18, 1981.” ECF No. 21 55 at 3. Plaintiffs maintain that the Court erred when it found that there was no 1 legal support for Plaintiffs’ argument that the Termination of Small Tract 2 Classification in 1981 vacated the reserved rights-of-way because the Court should 3 have relied on the Bureau of Land Management’s (“BLM”) Instruction 4 Memorandum 91-196 for that authority. See ECF No. 55 at 4–5.
5 The Court considered Plaintiffs’ arguments that deference to Instruction 6 Memorandum 91-196 was appropriate, albeit not mandatory, at summary judgment 7 and rejected Plaintiffs’ arguments. See ECF No. 50 at 11–12, 15–17. On
8 reconsideration, Plaintiffs’ arguments that the Memorandum is deserving of 9 deference are repetitive of those that the Court already addressed, and Plaintiffs do 10 not cite to any binding authority that the Court disregarded. Moreover, Defendants 11 are correct that caselaw does not support finding clear error based on declining to
12 follow persuasive authority, even had the Court found the BLM memorandum 13 persuasive. See In re BofI Holding Secs. Litig., No. 15-CV-2324, 2017 U.S. Dist. 14 LEXIS 114244, at *14 (S.D. Cal. July 21, 2017) (“. . . Plaintiff does not stand on
15 solid ground when it asserts that the magistrate judge committed legal error by 16 declining to follow non-binding precedent in this circuit.”). 17 Plaintiffs raise a new argument in their reply brief that the Court was wrong 18 to conclude that Plaintiffs were on notice “of the existence of the (then expired)
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2 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 3 Mar 22, 2022
4 SEAN F. MCAVOY, CLERK
EASTERN DISTRICT OF WASHINGTON 6
7 DEWAYNE JUHNKE, an individual, and JOHN DRUMMOND, an NO: 4:20-CV-05241-RMP 8 individual, ORDER DENYING PLAINTIFFS’ 9 Plaintiffs, MOTION FOR RECONSIDERATION
10 v.
12 Defendant.
13 14 BEFORE THE COURT is a Motion for Reconsideration by Plaintiffs 15 DeWayne Juhnke and John Drummond, ECF No. 52. The Court has reviewed 16 Plaintiffs’ Motion, ECF No. 52, and declaration, ECF No. 53; Defendant City of 17 West Richland’s (the “City’s”) response in opposition, ECF No. 54; Plaintiffs’ reply, 18 ECF No. 55, and declaration, ECF No. 56; the remaining record; the relevant law; 19 and is fully informed. 20 / / / 21 / / / 2 The Court presumes familiarity with the background and procedural history of 3 this case, as recited in the summary judgment order (the “January 26, 2022 Order”). 4 See ECF No. 50. The January 26, 2022 Order directed entry of judgment for
5 Defendant on all of Plaintiffs’ claims, which consisted of federal and Washington 6 State unconstitutional taking and inverse condemnation claims. ECF No. 50 at 23. 7 In reaching that resolution, the Court found that there was no binding or persuasive
8 authority to support the Plaintiffs’ assertion that the offers of public dedication 9 contained in the land patents conveying the lots presently owned by Plaintiffs were 10 revoked prior to the City’s acceptance of them. Id. 11 Plaintiffs filed the instant Motion for Reconsideration on February 24, 2022.
12 ECF No. 52. Plaintiffs maintain that the Court “mistakenly concluded that the 13 reserved right-of-ways (‘ROWs’) found in the various federal land patents (the 14 ‘Patents’) granted by the United States of America to the prior owners of the
15 Plaintiffs’ properties were not extinguished by the Termination of Small Tract 16 Classification on November 18, 2021.” ECF No. 55 at 3. Plaintiffs argue that the 17 Court also erred in finding that deference was not warranted for Instruction 18 Memorandum 91-196 and “other BLM authority supported by law, describing the
19 reserved ROWs as common law dedications which ostensibly require an act of 20 acceptance by the public to be realized.” Id. Lastly, Plaintiffs maintain that “newly 21 discovered evidence” shows that the City “is presently occupying and damaging” 1 Plaintiffs’ properties and warrants reconsideration because that evidence allegedly 2 contradicts “the Courts [sic] acknowledgement of the pipeline, telephone, electrical, 3 and cable facilities located within the alleged reserved ROW area along the northern 4 boundary of Lot 123.” Id. at 10 (citing ECF No. 50 at 22). Plaintiffs maintain that a
5 new declaration from Plaintiff Mr. Juhnke supports reconsideration. Id. In the 6 declaration, Mr. Juhnke avers that the City is “actively trespassing and constructing 7 utilities on my Lot 123.” ECF No. 53 at 4.
8 Defendant argues that Plaintiffs themselves acknowledge that, under 9 Skidmore, the BLM statements at issue would, “at best, have constituted persuasive, 10 not binding, authority.” ECF No. 54 at 2 (citing ECF No. 52 at 4; Skidmore v. Swift 11 & Co., 323 U.S. 134, 140 (1944); Saavedra-Figueroa v. Holder, 625 F.3d 621, 627
12 (9th Cir. 2010)). Defendant maintains that the Plaintiffs’ argument is fatal to 13 Plaintiffs’ request for relief under Fed. R. Civ. P. 60(b)(1) “because ‘the existence 14 of persuasive authority reaching a contrary result does not establish clear error
15 as necessary to justify reconsideration.’” ECF No. 54 at 3–4 (quoting Reno v. 16 Western Cab Company, No. 2:18-cv-840-APG-NJK, 2020 WL 2462900, at *4 (D. 17 Nev., May 1, 2020) and citing Smith v. Clark County School Dist., 727 F.3d 950, 18 955 (9th Cir. 2013), and district court orders from around the Ninth Circuit). With
19 respect to Plaintiffs’ claim of new evidence, Defendant argues that Plaintiffs do not 20 offer evidence or argument demonstrating that Mr. Juhnke’s declaration satisfies the 21 requirements for “newly discovered evidence.” Id. at 6 (citing Dixon v. Wallowa 1 Cnty., 336 F.3d 1013, 1022 (9th Cir. 2003) (articulating elements for reconsideration 2 based on newly discovered evidence)). Defendant argues, in addition, that at 3 summary judgment both parties already presented the Court with evidence regarding 4 the presence of certain utility infrastructure within the right-of-way for Lot 123. Id.
5 at 9. 7 Courts in this Circuit disfavor motions for reconsideration and deny them
8 “absent highly unusual circumstances, unless the district court is presented with 9 newly discovered evidence, committed clear error, or if there is an intervening 10 change in controlling law.” McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 11 1999) (per curiam); see also Fed. R. Civ. P. 59(e). “A motion for reconsideration
12 ‘may not be used to raise arguments or present evidence for the first time when 13 they could reasonably have been raised earlier in the litigation.’” Marlyn 14 Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir.
15 2009) (quoting Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 16 2000) (emphasis in original)). 18 In seeking reconsideration based on alleged clear error, Plaintiffs argue that
19 the reserved rights-of-way had to be accepted “by the public prior to the 20 Termination of the Small Tract Classification on November 18, 1981.” ECF No. 21 55 at 3. Plaintiffs maintain that the Court erred when it found that there was no 1 legal support for Plaintiffs’ argument that the Termination of Small Tract 2 Classification in 1981 vacated the reserved rights-of-way because the Court should 3 have relied on the Bureau of Land Management’s (“BLM”) Instruction 4 Memorandum 91-196 for that authority. See ECF No. 55 at 4–5.
5 The Court considered Plaintiffs’ arguments that deference to Instruction 6 Memorandum 91-196 was appropriate, albeit not mandatory, at summary judgment 7 and rejected Plaintiffs’ arguments. See ECF No. 50 at 11–12, 15–17. On
8 reconsideration, Plaintiffs’ arguments that the Memorandum is deserving of 9 deference are repetitive of those that the Court already addressed, and Plaintiffs do 10 not cite to any binding authority that the Court disregarded. Moreover, Defendants 11 are correct that caselaw does not support finding clear error based on declining to
12 follow persuasive authority, even had the Court found the BLM memorandum 13 persuasive. See In re BofI Holding Secs. Litig., No. 15-CV-2324, 2017 U.S. Dist. 14 LEXIS 114244, at *14 (S.D. Cal. July 21, 2017) (“. . . Plaintiff does not stand on
15 solid ground when it asserts that the magistrate judge committed legal error by 16 declining to follow non-binding precedent in this circuit.”). 17 Plaintiffs raise a new argument in their reply brief that the Court was wrong 18 to conclude that Plaintiffs were on notice “of the existence of the (then expired)
19 reserved” rights-of way because the City “never recorded any deed or other 20 documentation of the waterline existing on Lot 123 and other utilities on Lot 121 21 to put the Plaintiffs on notice of the same upon their individual purchases.” ECF 1 No. 55 at 9 (citing Revised Code of Washington § 84.36.210). Even assuming that 2 the state statute that Plaintiffs cite generally requires rights-of-way to be recorded, 3 Plaintiffs do not demonstrate that the state statute has any bearing on the federal 4 question that the Court was resolving: whether the Termination Notice
5 extinguished the rights-of-way contained in the federal land patents at issue. See 6 ECF No. 50 at 15. As the Court found: 7 The patents for Plaintiffs’ lots were executed in 1958 (Lot 121) and 1956 (Lot 123) and provided that the conveyance from the United 8 States to the original buyers was “subject to a right-of-way not exceeding 33 feet in width, for roadway and public utilities purposes” 9 along the boundaries of the lots. See ECF Nos. 12-3 at 2; 13-6 at 2. As the City merely accepted, through Ordinance 10-20, an offer of 10 dedication open since the patents were first issued to prior owners of the lots, the Plaintiffs do not show that the City invaded any property 11 interest that Plaintiffs have ever had in their properties.” See Carson Harbor Village Ltd. v. City of Carson, 37 F.3d 468, 476 (9th Cir. 1994), 12 overruled on other grounds by WMX Tech., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc) (“A landowner who purchased land after 13 an alleged taking cannot avail himself of the Just Compensation Clause because he has suffered no injury. The price paid for the property 14 presumably reflected the market value of the property minus the interests taken.”). 15 ECF No. 50 at 22. 16 Plaintiffs do not demonstrate how the Court erred in its findings 17 regarding the plain language of the land patents or the Court’s subsequent 18 determination that there is “no binding [nor] persuasive authority to support 19 that the offers of public dedication contained in the land patents conveying 20 ownership of Lots 121 and 124 were revoked prior to the City’s acceptance 21 1 of them.” Id. at 23. Accordingly, reconsideration is not warranted based on 2 clear error. 3 With respect to newly discovered evidence, Plaintiffs make no showing that 4 the information contained in Plaintiff Mr. Juhnke’s declaration, dated February 24,
5 2022, was somehow unavailable for presentation to the Court at summary 6 judgment. Rather, Plaintiff could have presented evidence that City infrastructure 7 is located along the boundary of Lot 123, and, as Defendant contends, the parties
8 did exactly that. ECF No. 54 at 9 (citing ECF Nos. 19 at 14; 25 at 6; 29 at 13, 14; 9 37 at 4). Mr. Juhnke testified during his deposition on April 23, 2021, that a City- 10 owned water line is located along the northern boundary of Lot 123. See ECF Nos. 11 19 at 14; 20-2 at 2, 31–32. The Court cannot decipher from Plaintiffs’ brief, or the
12 declarations that they submit from Mr. Juhnke, any other allegedly new evidence. 13 See ECF No. 53 at 2 (“There is currently a water pipeline owned by the City of 14 West Richland in the alleged right-of-way area on the northern portion of the
15 property.”). Mr. Juhnke’s declaration dated February 24, 2022, is not “newly 16 discovered evidence” that warrants reconsideration, because Mr. Juhnke’s 17 deposition testimony on April 23, 2021, already stated the same contention. 18 Accordingly, having found that Plaintiffs have not shown that either clear
19 error or newly discovered evidence supports reconsideration, the Court denies 20 Plaintiffs’ Motion for Reconsideration. 21 / / / 1 Accordingly, IT IS HEREBY ORDERED: 2 1. Plaintiffs’ Motion for Reconsideration, ECF No. 52, is DENIED. 3 2. The file in this case shall remain closed. 4 IT IS SO ORDERED. The District Court Clerk is directed to enter this
5 Order and provide copies to counsel. 6 DATED March 22, 2022.
7 s/ Rosanna Malouf Peterson Senior United States District Judge 9 10 11 12 13 14 15 16 17 18
19 20 21