United States District Court, D. Arizona
DOUGLAS L. RAYES, UNITED STATES DISTRICT JUDGE
March 1, 2019, the Court issued an order granting Defendant
United States Army Corps of Engineers'
(“Corps”) motion to dismiss. (Doc. 33.) Plaintiff
Central Arizona Water Conservation District
(“District”) has filed a motion for
reconsideration of that order pursuant to Local Rule of Civil
Procedure 7.2. (Doc. 35.) For reasons stated below, the
motion is denied.
for reconsideration should be granted only in rare
circumstances. Defenders of Wildlife v. Browner, 909
F.Supp. 1342, 1351 (D. Ariz. 1995). Mere disagreement with a
previous order is an insufficient basis for reconsideration.
See Leong v. Hilton Hotels Corp., 689 F.Supp. 1572,
1573 (D. Haw. 1988). A motion for reconsideration ordinarily
will be denied “absent a showing of manifest error or a
showing of new facts or legal authority that could not have
been brought to its attention earlier with reasonable
diligence.” LRCiv 7.2(g). Further, the motion must
“point out with specificity the matters that the movant
believes were overlooked or misapprehended by the Court, any
new matters being brought to the Court's attention for
the first time and the reasons they were not presented
earlier, and any specific modifications being sought in the
Court's Order.” Id. Finally, “[n]o
motion for reconsideration . . . may repeat any oral or
written argument made by the movant in support of or in
opposition to the motion that resulted in the Order.”
Id. The court may deny a motion for reconsideration
if it fails to comply with these rules. Id.
District's argument for reconsideration is two-fold.
First, the District contends that the Court took an unduly
narrow view of the continuing harm caused by the Corps'
Alamo Dam Flushing Release (“Release”). (Doc. 35
at 1-3.) Next, the District challenges the Court's ruling
that this case does not meet the “capable of repetition
yet evading review” exception to the mootness doctrine.
(Id. at 1-2.)
District contends that the Court's view of the alleged
continuing harm- increased turbidity-was too narrow, and that
the Court should have considered other harms, such as
degradation of water quality, decrease in effectiveness of
recharge project operation and municipal water delivery, and
harm to Central Arizona Project's (“CAP”)
infrastructure. (Doc. 35 at 3-4.) The District also
contends that its “curtailment of pumping”
imposed significant financial burdens. (Id. at 4.)
These arguments merely repeat those made in the
District's opposition to the motion to dismiss. (See,
e.g., Doc. 30 at 4 (“increased turbidity levels
from sediments discharged from the river have an almost
immediate and adverse impact on CAP infrastructure, source
water quality, recharge project operation, and municipal
water deliveries and uses”); 7 (“interruption in
pumping . . . had significant consequences” for the
District).) “A motion for reconsideration is an
inappropriate vehicle to ask the Court to rethink what the
Court has already thought through-rightly or wrongly.”
Mix v. Asurion Ins. Servs. Inc., No.
CV-14-02357-PHX-GMS, 2017 WL 131566, at *1 (D. Ariz. Jan. 1,
2017). Local Rule 7.2(g)(1) makes clear that “[n]o
motion for reconsideration of an Order may repeat any oral or
written argument” and the “[f]ailure to comply
with this subsection may be grounds for denial of the
District also seeks reconsideration of the Court's ruling
that the Release did not meet the capable of repetition but
evading review exception to mootness. The repetition/evasion
exception applies where “(1) the challenged action is
in its duration too short to be fully litigated prior to
cessation or expiration, and (2) there is a reasonable
expectation that the same complaining party will be subject
to the same action again.” Fed. Elec. Comm'n v.
Wisc. Right to Life, Inc., 551 U.S. 449, 462 (2007). The
District asks for reconsideration as to the Court's
findings on both prongs.
respect to the first prong, the District challenges the
Court's finding that the District “made no effort
to stay the matter pending appeal.” (Doc. 35 at 5.) The
District does not contest the Court's finding that it
made no such an effort. Instead, the District argues that the
Court misstated the amount of time between the Court's
order denying its TRO and the start of the Release.
(Id.) The District is correct that the Court orally
denied the District's TRO on March 9, 2017, and the
Release commenced on March 12, 2017. The District, however,
offers no authority or explanation why, even with this
shorter time-frame, they could not seek a stay pending
appeal. The District also argues that the Court erred in
finding that the Release was “not inherently of a short
duration.” (Id. at 5-6.) In support, the
District relies on the same cases and arguments it raised in
opposition to the motion to dismiss. (Compare Doc.
30 at 14-15 with Doc. 35 at 5-6.)
respect to the second prong, the District argues that the
Court erred in finding that it was “unpersuaded that
something will occur again simply because it has occurred
before.” (Doc. 33 at 8.) In support, the District
argues that such a finding is contrary to Ninth Circuit law.
(Doc. 35 at 7 (citing cases).) Again, this is merely a
restatement of the District's argument in opposition to
the motion to dismiss. (Doc. 30 at 15.) The Court maintains,
as it did at in its prior order, the cited authority does not
compel the Court to find a sufficient likelihood of
repetition under the circumstances in this case. (Doc. 33 at
8-9). A party's “dissatisfaction or disagreement is
not a proper basis for reconsideration[.]”
Ellsworth v. Prison Health Servs. Inc., No.
11-CV-8070-PCT-MEA, 2013 WL 1149937, at *2 (D. Ariz. Mar. 20,
2013). Accordingly, IT IS ORDERED that the
District's motion for reconsideration (Doc. 35) is