Pit River Tribe v. Bureau of Land Management

Opinion

1 2 3 4 5 6 7 10 11 PIT RIVER TRIBE; NATIVE No. 2:19-cv-02483 JAM AC COALITION FOR MEDICINE LAKE 12 HIGHLANDS DEFENSE; MOUNT SHASTA BIOREGIONAL ECOLOGY 13 CENTER; and QUALITY ORDER ENVIRONMENT, 14 Plaintiffs, 15 v. 16 BUREAU OF LAND MANAGEMENT; THEINTERIOR; CALPINE 18 CORPORATION; and CPN TELEPHONE FLAT, INC., 19 Defendants. 20

21 22 This case is before the court on cross-motions regarding discovery: defendant Bureau of 23 Land Management and Department of Interior’s motion for a protective order (ECF No. 85) is 24 joined by defendants CPN Telephone Flat, Inc. and Calpine (“Calpine defendants”); the Calpine 25 defendants separately move for a protective order (ECF No. 86); and plaintiffs bring a motion to 26 compel (ECF No. 89). These discovery motions were referred to the magistrate judge pursuant to 27 E.D. Cal. R. 302(c)(1), and were taken under submission. ECF No. 92. The parties filed a 28 comprehensive joint statement addressing all motions. ECF No. 93. 1 I. Relevant Background 2 The parties submitted a stipulated summary of this case in their joint statement, ECF No. 3 29 at 2-3, which the court accepts and incorporates verbatim here for ease of reference. 4 This case is the third in a series of lawsuits through which Plaintiffs have challenged 5 Federal Defendants’ alleged failure to comply with their legal duties under the Geothermal Steam 6 Act (“GSA”). 30 U.S.C. §§ 1001-1027. The first two lawsuits challenged two agency decisions 7 in 1998 to continue or extend 28 geothermal leases in the Medicine Lake Highlands, a forested 8 volcanic landscape in northeastern California that Plaintiffs assert is of deep spiritual and cultural 9 significance to the Pit River Tribe and which are managed under the administrative jurisdiction of 10 the U.S. Forest Service and the Bureau of Land Management. See Pit River Tribe v. U.S. Forest 11 Serv. (“Pit River I”), 469 F.3d 768 (9th Cir. 2006) (holding that two GSA leases were unlawfully 12 extended in violation of the National Environmental Policy Act and National Historic 13 Preservation Act); Pit River Tribe v. Bureau of Land Mgmt. (“Pit River II”), 939 F.3d 962 (9th 14 Cir. 2019) (holding that 26 leases were unlawfully continued under the GSA). In both cases, 15 Plaintiffs challenged the legality of agency decisions for which Federal Defendants produced and 16 lodged an administrative decision record. 17 The present case was originally filed on April 15, 2019 in the Northern District. After 18 transfer to this Court in November 2019, see ECF No. 49, an Amended Complaint was filed in 19 May 2020. Plaintiffs contend that they do not challenge an agency action; they allege that 20 Federal Defendants are in ongoing violation of the GSA and its regulations by failing to terminate 21 lease CACA 12372 in the Medicine Lake Highlands (“the Lease”) – the only remaining lease, to 22 Plaintiffs’ knowledge, that has not been the subject of the prior Pit River suits – and the Glass 23 Mountain Geothermal Unit to which it is committed. Specifically, Plaintiffs allege that 24 lessee/unit operator Calpine Defendants have failed for many years to comply with the GSA’s 25 “diligent exploration” requirements and that Federal Defendants have failed to act on a mandatory 26 legal obligation under the GSA and its implementing regulations to terminate the Lease and the 27 Unit for noncompliance. See First Amended Complaint, ECF No. 63, at ¶¶ 55-83. Federal 28 Defendants and Calpine Defendants deny Plaintiffs’ description of their claims. Defendants also 1 deny Plaintiffs’ factual allegations of noncompliance as well as Plaintiffs’ characterization of the 2 applicable regulatory duties and how they must be carried out. Federal Defendants’ Answer, ECF 3 No. 83, at ¶¶ 55-83; Calpine Defendants’ Answer, ECF No. 83, at ¶¶ 55-83. 4 Defendants moved to dismiss Plaintiffs’ claims on various grounds. On January 12, 2021, 5 this Court entered an order resolving these motions (“Order”). The Court denied Defendants’ 6 motions to dismiss Plaintiffs’ claims, concluding (among other things) that the First Amended 7 Complaint adequately states a claim for relief under section 706(1) of the Administrative 8 Procedure Act (“APA”), 5 U.S.C. § 706(1). ECF No. 79 at 11-14. The Court granted Calpine’s 9 motion to dismiss the first prayer for relief in the First Amended Complaint, which sought a 10 declaration that Calpine is not in compliance with legal requirements, on the grounds that “[t]he 11 APA provides no right of action against a non-federal party.” ECF No. 79, at 15-16. The Court 12 denied Calpine’s motion to dismiss the fifth prayer for relief, holding that Plaintiffs’ fifth prayer 13 does not assert any affirmative legal claim against the Calpine Defendants. Id. at 15-16. 14 II. Legal Standards 15 A. Legal Standard on Motion to Compel 16 Under Rule 37(a), a party may move for an order compelling disclosure or discovery if “a 17 party fails to produce documents . . . as requested under Fed. R. Civ. P. 34.” Fed. R. Civ. P. 18 37(a)(3)(B)(iv). The party seeking to compel discovery has the initial burden to establish that its 19 request is proper under Rule 26(b)(1). If the request is proper, “[t]he party opposing discovery 20 has the burden of showing that the discovery should be prohibited, and the burden of clarifying, 21 explaining or supporting its objections.” Bryant v. Ochoa, No. 07CV200 JM (PCL), 2009 WL 22 1390794, at *1 (S.D. Cal. May 14, 2009). The party resisting discovery is “required to carry a 23 heavy burden of showing” why discovery should be denied. Blankenship v. Hearst Corp., 519 24 F.2d 418, 429 (9th Cir. 1975). 25 B. Legal Standard on Motion for a Protective Order 26 Under the Federal Rules of Civil Procedure, motions for protective orders are governed by 27 Rule 26(c). District courts have broad discretion to determine whether a protective order is 28 appropriate and, if so, what degree of protection is warranted. Seattle Times Co. v. Rhinehart, 1 467 U.S. 20, 36 (1984); see also Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 2 1206, 1211-12 (9th Cir. 2002). The party seeking to limit discovery has the burden of proving 3 “good cause,” which is determined using a two-part test. In re Roman Catholic Archbishop of 4 Portland in Oregon, 661 F.3d 417, 424 (9th Cir. 2011). First, the party must show “‘that specific 5 prejudice or harm will result’ if the protective order is not granted.” Id. (quoting Foltz v. State 6 Farm Mut. Auto. Ins. Co. , 331 F.3d 1122, 1130 (9th Cir. 2003)). “Broad allegations of harm, 7 unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test.” 8 Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992) (citation and internal 9 quotation marks omitted). “Second, if the court concludes that such harm will result from 10 disclosure of the discovery documents, then it must proceed to balance ‘the public and private 11 interests to decide whether...a protective order is necessary.’” In re Roman Catholic Archbishop, 12 661 F.3d at 424 (quoting Phillips, 307 F.3d at 1211). 13 III. Analysis 14 The motions here turn on a single core issue: whether the special discovery exemption for 15 “an action for review of an administrative record” in Fed. R. Civ. P. 26(a)(1)(B)(i) applies to an 16 APA § 706(1) case challenging “agency action unlawfully withheld or unreasonably delayed.” 5 17 U.S.C. 706(1). 18 Separately, the Calpine defendants claim that, although they are properly joined as parties 19 to the lawsuit, they are shielded from discovery because plaintiffs do not seek relief directly 20 against them. 21 A. Agency Inaction Cases Are Not Categorically Exempt from APA Discovery Limits 22 Rule 26 of the Federal Rules of Civil Procedure provides for mandatory initial disclosures 23 and early discovery planning conferences in most civil cases. One specified exception to these 24 requirements is for “action[s] for review on an administrative record.” Fed. R. Civ. P. 25 26(a)(1)(B)(i). Although plaintiffs seek relief under the Administrative Procedure Act, they 26 argue that the Rule 26(a)(1)(B)(i) exemption does not apply because they challenge agency 27 inaction under §706(1), rather than a final agency action supported by a defined administrative 28 record. Accordingly, plaintiffs move to compel the initial disclosures generally required by Rule 1 26(a)(1). Defendants contend that while the administrative record may be supplemented if 2 inadequate in a §706(1) case, Rule 26(a)(1)(B)(i) applies and discovery must begin with the 3 administrative record. Defendants ask the court to adopt a schedule by which the administrative 4 record in this case should be produced, and supplementations requested. 5 The statutory language of § 706(1) states that “the court shall review the whole record or 6 those parts of it cited by a party . . .” when reviewing cases under that section. 5 U.S.C. § 706(1). 7 The “whole record” language references the Administrative Record. See Fla. Power & Light Co. 8 v. Lorion, 470 U.S. 729, 743-44 (1985). Accordingly, the language of the APA itself establishes 9 that inaction cases are actions that are, in the language of Rule 26(a)(1)(B)(i), “for review on an 10 administrative record.” 11 Where judicial review is based on an administrative record, reviewing courts are not 12 forbidden to ever consider extraneous material. The Ninth Circuit has provided exceptions to the 13 general rule limiting reviewing courts to the administrative record, such as “(1) if admission is 14 necessary to determine whether the agency has considered all relevant factors and has explained 15 its decision, (2) if the agency has relied on documents not in the record, (3) when supplementing 16 the record is necessary to explain technical terms or complex subject matter, or (4) when 17 plaintiffs make a showing of agency bad faith.” Lands Council v. Powell, 395 F.3d 1019, 1030 18 (9th Cir. 2005) (internal quotations omitted). 19 Plaintiffs here rely on cases in which the Ninth Circuit has recognized that §706(1) 20 “failure to act” cases often require reviewing courts to broadly consider documents outside the 21 administrative record. “[G]enerally judicial review of agency action is based on a set 22 administrative record. However, ‘when a court considers a claim that an agency has failed to act 23 in violation of a legal obligation, review is not limited to the record as it existed at any single 24 point in time, because there is no final agency action to demarcate the limits of the record.’” San 25 Francisco BayKeeper v. Whitman, 297 F.3d 877, 886 (9th Cir. 2002) (quoting Friends of the 26 Clearwater v. Dombeck, 222 F.3d 552, 560 (9th Cir. 2000)). “The reason for this rule is that 27 when a court is asked to review agency inaction before the agency has made a final decision, 28 there is often no official statement of the agency’s justification for its actions or inactions.” Id. 1 Plaintiffs contend, in essence, that the reasoning of BayKeeper and Clearwater is inconsistent 2 with application of Rule 26(a)(1)(B)(i). 3 Defendants argue BayKeeper and Clearwater are inapplicable to the issue of initial 4 disclosures, as they stand only for the proposition that, in cases like this one that “do not present a 5 definitive decision date there may not be a closure date for the administrative record,” the record 6 may be supplemented with recently-created documents. ECF No. 93 at 17-18. Defendants 7 correctly point out that neither BayKeeper nor Clearwater dealt directly with compelling 8 discovery or with initial disclosures, but instead addressed the question whether courts could 9 properly rely on documents supplemental to the administrative record in making dispositive 10 determinations. Id.; see San Francisco BayKeeper, 297 F.3d at 886; Friends of the Clearwater, 11 222 F.3d at 560. 12 Although the undersigned rejects the proposition that supplementation of the record in 13 “failure to act” cases is limited to documents created after the closure of the administrative 14 record, the court agrees with defendants that the rule of BayKeeper and Clearwater applies to 15 supplementation and consideration of extra-record evidence on the merits, and not to the 16 applicability of Rule 26(a). Although there is no binding authority on the question, the court is 17 persuaded by the reasoning of a factually analogous case from the Western District of 18 Washington. In Seattle Audubon Soc’y v. Norton, District Judge Robert Lasnik explained that 19 while BayKeeper and Clearwater were examples of supplementation, they “are not manifestations 20 of a precedential preference for unlimited discovery in unreasonable delay actions.” No. C05- 21 1835L, 2006 WL 1518895, at *3 (W.D. Wash. May 25, 2006). In Seattle Audubon, like the 22 instant case, the plaintiffs were requesting initial disclosures and discovery in a §706(1) action 23 where agency inaction was alleged. Id. As Judge Lasnik explained, denial of the motion to 24 compel initial disclosures and early discovery “does not preclude the possibility of the use of 25 [exceptions justifying supplementation of the record] in the instant action. Indeed, it seems clear 26 that in cases where plaintiff complains of a failure to act, there is a greater chance that some 27 extraneous piece of information might be necessary to shed light on the agency’s inaction - there 28 simply are more holes in the administrative record for the parties to identify and plug. . . . This 1 supplementation, however, is best pursued on a case-by-case basis, using the administrative 2 record as the presumptive limitation of scope.” Id. 3 Plaintiffs argue that Seattle Audubon was incorrectly decided, citing a footnote from a 4 case in this District which states that a court is not limited to the four Lands Council exceptions 5 for supplementation in a §706(1) case. See Firebaugh Canal Water Dist. v. United States, No. 6 1:88-CV-00634 OWW DL, 2010 WL 3702664, at *1, n.1 (E.D. Cal. Sept. 17, 2010). This 7 footnote does not undermine the soundness of Seattle Audubon’s conclusion with respect to 8 initial disclosures and early discovery; indeed, Firebaugh was a supplementation case in which 9 the administrative record had already been produced. The court agrees with Seattle Audubon and 10 defendants that the administrative record is the presumptive starting point for discovery in this 11 case. The Firebaugh footnote—like BayKeeper and Clearwater themselves—indicates that 12 supplementation of the administrative record may be more liberally authorized in a §706(1) 13 inaction case than in a case challenging an affirmative administrative decision, but that is not the 14 issue presently before this court. 15 The parties have not briefed a proposed schedule for production of the administrative 16 record and supplemental discovery as necessary. The court is confident that the parties will be 17 able to stipulate a mutually agreeable production schedule. The parties are therefore ordered to 18 do so and to file a copy of the stipulated schedule with the court. 19 B. All Defendants are Subject to Party Discovery 20 The Calpine defendants argue that they are not subject to discovery because, though they 21 are parties, no affirmative relief is sought against them. The court disagrees. In its January 12, 22 2021 Order, District Judge Mendez held nonfederal parties, such as Calpine, “may be named as 23 defendants in APA actions for the ‘sole purpose of making it possible to accord complete relief 24 between those who are already parties’ under the Federal Rules of Civil Procedure Rule 19, 25 joinder of indispensable parties.” ECF No. 79 at 15. The court clarified that “a plaintiff may not 26 seek any affirmative relief against a nonfederal defendant joined under Rule 19 in APA actions.” 27 Id. Calpine defendants argue that because plaintiffs cannot seek affirmative relief against them, 28 they are not required to participate in discovery. ECF No. 93 at 24. In the operative First 1 Amended Complaint, there are two prayers for relief including Calpine: (1) a declaration that 2 Calpine is not in compliance with the requirements of the Geothermal Steam Act, its 3 implementing regulations, the Lease, and the Unit Agreement and that such violations continue to 4 this day; and (5) an injunction of any further activity in reliance on the Lease or Unit Agreement. 5 ECF No. 63 at 19. The first prayer for relief was dismissed on Calpine defendants’ motion to 6 dismiss; the fifth was not because it did not seek affirmative relief against Calpine defendants. 7 ECF No. 79 at 16. 8 The Calpine defendants rely on Rutman Wine Co. v. E. & J. Gallo Winery, in which the 9 Ninth Circuit rejected a plaintiff’s argument that it should be allowed to conduct discovery on a 10 defendant that had been dismissed from the case prior to filing any amendment that might be 11 allowed by the court. 829 F.2d 729, 738 (9th Cir. 1987) (“The purpose of F. R. Civ. P. 12(b)(6) is 12 to enable defendants to challenge the legal sufficiency of complaints without subjecting 13 themselves to discovery.”) The obvious distinction between Rutman and this case is that the 14 Rutman defendant had been dismissed and was no longer a party to the case. The Calpine 15 defendants, in contrast, were not entirely successful in their motion to dismiss and remain parties. 16 Accordingly, the rules applicable to parties apply to them. 17 The Calpine defendants argue that “[p]laintiffs have cited no case in which discovery was 18 permitted against a non-federal defendant such as Calpine in an action brought against a federal 19 agency under section 706(1) of the APA” but neither have Calpine defendants cited any caselaw 20 in which discovery was precluded against an active defendant in a case because the defendant 21 remained a party technical grounds. ECF No. 93 at 25. As the parties resisting discovery, 22 Calpine defendants have the burden to show discovery must be precluded. They have not met 23 this burden. 24 As a secondary matter, Calpine defendants request that, in the event the court requires 25 them to participate in discovery, that discovery be limited to matters after “June 1, 2007: the date 26 BLM’s revised Geothermal Steam Act regulations went into effect. See Geothermal Resource 27 Leasing and Geothermal Resources Unit Agreements: Final Rule, 72 Fed. Reg. 24358-24446 28 (2007).” ECF No. 93 at 26. Defendants assert that because the “lease and unit diligence 1 || requirements only came into effect on June 1, 2007, any information or documents prior to this 2 || date cannot be relevant to Plaintiffs’ claims.” Id. Plaintiffs counter that “the 2007 revision to the 3 || geothermal leasing regulations did not change Federal Defendants’ substantive legal duty to 4 | cancel the Lease. Like the current regulations in 43 C.F.R. § 3207.15 (2019), the prior 5 || regulations contained detailed provisions implementing the GSA’s statutory ‘diligent exploration’ 6 || requirements. See 43 C.F.R. §§ 3210.13-14 (1998).” Id. at 15. Plaintiffs allege that defendants 7 || are guilty of “decades of noncompliance,” and they reasonably narrowed their discovery requests 8 | to January 1, 2003 through the present based on “the last known activity related to the Lease — 9 || Federal Defendants’ approval on November 26, 2002 of a power plant project that Calpine never 10 || acted upon.” Id. 11 The court agrees that based on plaintiffs’ failure to act allegations, information regarding 12 || long-term noncompliance is both relevant and proportional. The limitation of 2003 to present is 13 || reasonable. The court will not limit discovery to post-June 2007. 14 IV. Conclusion 15 The motion for a protective order (ECF No. 85) by Bureau of Land Management and 16 || Department of the Interior is GRANTED and plaintiffs motion to compel (ECF No. 89) is 17 || DENIED as to the issues of initial disclosures and early discovery. The parties are ORDERED to 18 | stipulate to a discovery schedule to produce the administrative record and any necessary 19 || supplements. The parties shall file the stipulation with the court within 15 days of this order. 20 The motion for a protective order (ECF No. 86) by CPN Telephone Flat, Inc., Calpine 21 || Corporation is DENIED as to their requests to be excluded from the discovery process and to 22 | limit discovery to post-June 2007. 24 | DATED: June 7, 2021 A /

UNITED STATES MAGISTRATE JUDGE

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