Opinion
CIVIL ACTION No. 00-2136-CM
March 28, 2002
MEMORANDUM AND ORDER
Plaintiff filed suit against defendant United States General Services Agency, through its administrator David J. Barram (GSA or defendant), challenging GSA's proposed transfer of the Sunflower Army Ammunition Plant (Sunflower). Specifically, plaintiff alleges the proposed transfer and the defendant's agency actions in preparation for the transfer violate the National Historic Preservation Act (NHPA), 16 U.S.C. § 470 et seq. , the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., and the Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq.
On motion by defendant David J. Barram to stay all proceedings pending completion of the § 106 consultation process under the NHPA, the court entered an order staying the litigation of this matter until completion of the § 106 consultation necessitated by NHPA. In addition, the court ordered defendant to file a status report with this court, indicating the status of its § 106 NHPA review and an estimate of its completion date. Finally, the court ordered defendant to file notice with the court of the completion of the § 106 process on the day of its completion, and indicated that upon such notice the stay shall be lifted.
Pending before the court is plaintiff's Motion for Reconsideration of Order Granting Motion to Stay Proceedings (Doc. 29). As set forth below, plaintiff's motion is denied.
Motion for Reconsideration
Pursuant to District of Kansas Local Rule 7.3, a party may file a motion asking a judge to reconsider an order made by that judge. Specifically, D. Kan. Rule 7.3(b) provides that motions seeking reconsideration of non-dispositive orders "shall be based on (1) an intervening change in controlling law, (2) the availability of new evidence, or (3) the need to correct clear error or prevent manifest injustice." Whether to grant or deny a motion for reconsideration is committed to the court's discretion. GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1386 (10th Cir. 1997); Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir. 1997).
In support of its motion for reconsideration, plaintiff asserts that it "would like to make clear its contention that the law does not require that the final NEPA decisions, represented by GSA's [environmental assessment] and [finding of no significant impact], be combined with a NHPA Section 106 review under 36 C.F.R. § 800.8(c)." (Pl.'s Mot. at 3). Plaintiff further asserts that "final and lawful NEPA decisionmaking may take place regardless of whether the NHPA Section 106 review process is combined with, or independent of, the NEPA review process." (Id.)
Plaintiff's asserted reasons for reconsideration do not meet the criteria for reconsideration of a non-dispositive order as set forth in Rule 7.3(b). Moreover, plaintiff raised these assertions in response to defendant's original motion and the court considered these arguments in arriving at its original decision to enter a stay. Therefore, the court finds the relief of reconsideration requested by plaintiff is not appropriate here. See Federated Mut. Ins. Co. v. Botkin Grain Co., 856 F. Supp. 607, 609 (D.Kan. 1994) (noting in Rule 59(e) context that reconsideration is not proper forum to raise arguments or evidence that should have been raised in the first instance or to rehash arguments previously considered and rejected by the court).
Request Regarding Status Reports
Plaintiff additionally requests that where the court's order regarding status reports from defendant requires "GSA to report on how and not just whether its Section 106 process is being carried out, then TOTO respectfully requests the Court to consider amending or modifying its Order to allow TOTO (and other consulting parties) to also comment upon the status of GSA's Section 106 NHPA review process, and to provide the Court with a concurrent report identifying observable defaults in that process, if any, while it is ongoing." (Pl.'s Mot. at 5).
In its order to stay, the court ordered defendant to file a status report with this court, "indicating the status of its § 106 NHPA review and an estimate of its completion date on the 30th day following the filing of this order." (Ct.'s Order (Doc. 28) at 10) (emphasis added). Moreover, the court ordered continuing reports following the first 30 days, noting the "defendant shall thereafter report to the court at the end of each subsequent 30 day time period such status and completion estimate." ( Id.) The court has not requested reports on how defendant is carrying out the § 106 NHPA review process. Instead, the court requested reports regarding the status of the process, recognizing that upon completion of the process, the stay imposed would be lifted. The court has not intended to create any judicial oversight of the § 106 NHPA review process. Accordingly, the court finds it unnecessary to accept contemporaneous reports from plaintiff or other consulting persons commenting upon the sufficiency of the process. Plaintiff's request is denied.
Order
IT IS THEREFORE ORDERED that plaintiff's Motion for Reconsideration of Order Granting Motion to Stay Proceedings (Doc. 29) is denied.
IT IS SO ORDERED.