United States District Court, N.D. Oklahoma
OPINION AND ORDER
TERENCE C. KERN UNITED STATES DISTRICT JUDGE.
the Court is the Motion to Alter and Amend Court's
Opinion and Order and Vacate Judgment filed by Plaintiff,
Persimmon Ridge, LLC (“Persimmon”). Docs. 44, 45.
Defendants Ryan Zinke, in his official capacity as Secretary
of the United States Department of Interior the United States
Bureau of Indian Affairs (“DOI”), and Weldon
Louder, in his official capacity as Director of the United
States Bureau of Indian Affairs (“BIA”), oppose
the motion. Doc. 48.
Opinion and Order of September 18, 2018, the Court granted
Defendants' motion to Dismiss Plaintiff's Amended
Complaint pursuant to Fed.R.Civ.P. 12(b)(6). Doc. 42. In so
doing, the Court rejected Plaintiff's argument that it
was entitled to equitable tolling of the six- year statute of
limitations set forth in 28 U.S.C. § 2401(a).
Id. at 10. The Court also denied Plaintiff's
Second Motion to Amend Complaint, finding the proposed
amended complaint would be futile, because Plaintiff had
failed to exhaust its administrative remedies with respect to
the claim and the proposed amended complaint would therefore
be subject to dismissal. Id. at 12.
Motion to Alter and Amend, Persimmon contends that:
• the Court, in its Opinion and Order, erroneously
relied on Chance v. Zinke, 898 F.3d 1025 (10th Cir.
• the Amended Complaint's allegations of fraudulent
concealment were sufficient to invoke equitable tolling of
the statute of limitations at the pleading stage or class
• the Court erred in treating older permit approvals as
final agency actions; and
• the Court erred in refusing to apply class-action
tolling based on Donelson v. United States,
14-CV-316-JHP-TLW, Doc. 45.
Standard of Review
motion to reconsider may be granted on the following grounds:
“(1) an intervening change in the controlling law, (2)
new evidence previously unavailable, and (3) the need to
correct clear error or prevent manifest injustice.”
Servants of the Paraclete v. Does, 204 F.3d 1005,
1012 (10th Cir. 2000) (citing Brumark Corp. v. Samson
Resources Corp., 57 F.3d 941, 948 (10th Cir. 1995)). In
other words, when the court has “misapprehended the
facts, a party's position, or the controlling law,
” a motion to reconsider is appropriate. Id.
Reliance on Chance
United States v. Ward, 718 Fed.Appx. 757 (10th Cir.
2018) (per curium), and Bell v. Thompson,
545 U.S. 794, 801 (2005), Persimmon argues the Court erred in
relying on Chance because, at the time the Court
entered its order, no mandate had been issued in that case.
However, neither case supports this argument. In
Ward, the appellate court noted the case had been
held in abatement pending issuance of the mandate in a
related case. 718 Fed.Appx. at 757. In Bell, the
Supreme Court stated. that an appellate court has the power
to reconsider its opinion. 545 U.S. at 801. Neither case,
however, addressed the propriety of ...