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Pacific Merchant Shipping Association v. Goldstene

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


August 27, 2009

PACIFIC MERCHANT SHIPPING ASSOCIATION ("PMSA"), A CALIFORNIA MUTUAL BENEFIT CORPORATION, PLAINTIFF,
v.
JAMES GOLDSTENE, IN HIS OFFICIAL CAPACITY AS EXECUTIVE OFFICER OF THE CALIFORNIA AIR RESOURCES BOARD, DEFENDANT, NATURAL RESOURCES DEFENSE COUNCIL, INC., COALITION FOR CLEAN AIR, INC., AND SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT, DEFENDANTS-INTERVENORS.

The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

MEMORANDUM AND ORDER

On May 22, 2009, Plaintiff Pacific Merchant Shipping Association moved for summary judgment in this matter, alleging that new regulations adopted by the California Air Resources Board and scheduled to take effect on July 1, 2009 were preempted by the Federal Submerged Lands Act, 43 U.S.C. section 1301, et seq. By Memorandum and Order filed June 30, 2009, the Court denied Plaintiff's Motion.

Plaintiff now moves for an order modifying the Court's June 30, 2009 Order for purposes of including language certifying the Court's decision as immediately appealable under 28 U.S.C section 1292(b). Under that section, an interlocutory order denying summary judgment may properly be subject to appeal if the district court certifies, in writing, the appeal as involving "a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate determination of the litigation." 28 U.S.C section 1292(b).

Certifying an issue for interlocutory appeal is within the court's discretion. Swint v. Chambers County Comm'n, 514 U.S. 35, 47 (1995). Having considered the moving papers submitted on behalf of Plaintiff in this regard, along with the opposition thereto, the Court believes there is good cause for finding that its June 30, 2009 Order meets the qualifications for interlocutory appeal under 28 U.S.C section 1292(b).

Plaintiff's Motion for Modification of the Court's June 30, 2009 Order (Docket No. 50) is consequently GRANTED.*fn1 An Amended Memorandum and Order including the language of Section 1292(b) will be filed concurrently herewith.

IT IS SO ORDERED.


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