Natural Resources Defense Council et al v. Norton et al

Filing 1395

ORDER REQUESTING SUPPLEMENTAL BRIEFING RE MOTION TO DISMISS SEVENTH CLAIM FOR RELIEF signed by District Judge Lawrence J. O'Neill on January 28, 2020. ECF NO. 1381(Munoz, I)

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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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NATURAL RESOURCES DEFENSE
COUNCIL, et al.,

Case No. 1:05-cv-01207 LJO-EPG

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vs.

ORDER REQUESTING
SUPPLEMENTAL BRIEFING RE
MOTION TO DISMISS SEVENTH
CLAIM FOR RELIEF.

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DAVID BERNHARDT, Acting Secretary,
U.S. Department of the Interior, et al.,

ECF NO. 1381

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Plaintiffs,

Defendants.

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SAN LUIS & DELTA MENDOTA WATER
AUTHORITY, et al.,

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Defendant-Intervenors.

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ANDERSON-COTTONWOOD IRRIGATION
DISTRICT, et al.,

Joined Parties.

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Before the Court for decision is Federal Defendants’ motion to dismiss as moot the seventh

18 claim for relief. ECF No. 1381. For the reasons set forth below, the Court orders supplemental briefing.
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The assigned magistrate judge succinctly summarized much of the relevant procedural history:
Plaintiff Natural Resources Defense Council (“NRDC”) [ ] subpoenaed
the deposition testimony of two employees of [non-party] National Marine
Fisheries Service (“NMFS”). NMFS is a component of the National
Oceanic and Atmospheric Administration (“NOAA”), which is an agency
of the U.S. Department of Commerce (“USDOC”). Plaintiffs are seeking
the deposition testimony in connection with their Sixth Claim for Relief,
asserted against Defendants Sacramento River Settlement (“SRS”)
Contractors and the U.S. Bureau of Reclamation (“BOR”) for the unlawful
take of endangered Sacramento River winter-run Chinook salmon and
threatened Central Valley spring-run Chinook salmon in violation of
Section 9 of the Endangered Species Act (“ESA”).
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Under the ESA, NMFS is the federal agency charged with overseeing the
protection of winter-run and spring-run Chinook salmon. NMFS wrote the
ESA-mandated Biological Opinion (“BiOp”) analyzing the effects of the
BOR’s Central Valley Project (“CVP”) operations on Chinook salmon and
establishing the reasonable and prudent alternatives (“RPA”) that the BOR
must perform to avoid jeopardizing the survival and recovery of Chinook
salmon. The BiOp also establishes the limit of “incidental take” authorized
under the ESA, and requires the BOR to update NMFS periodically on the
take caused by CVP operations.
NOAA’s Acting General Counsel [ ] refused to permit the two NMFS
employees to testify and [ ] moved to quash the subpoenas, claiming that
the employees cannot be compelled to obey a subpoena contrary to
USDOC’s “Touhy” regulations. NRDC [ ] filed a motion to compel
compliance with the subpoenas, arguing that USDOC’s decision to refuse
compliance is improper, and the testimony is permitted under the Federal
Rules of Civil Procedure.

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On March 12, 2018, Plaintiffs filed a Sixth Supplemental Complaint
adding a Seventh Claim for Injunctive Relief seeking an order requiring
USDOC and NOAA Acting General Counsel to allow Ms. Rea and Dr.
Danner to testify in compliance with NRDC’s subpoenas. (ECF No. 1187,
6th Supp. Compl.)

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On March 13, 2018, Defendants USDOC, Wilbur Ross (in his official
capacity as Secretary of the U.S. Department of Commerce), and Kristin
L. Gustafson (in her official capacity as Acting General Counsel of
NOAA) were served with process in this case. (ECF No. 1189.)
On March 26, 2018, Wilbur Ross and Kristen L. Gustafson filed an
answer to the Sixth Supplemental Complaint and the newly-added Seventh
claim. (ECF No. 1195.)
On April 6, 2018, USDOC filed a statement regarding the deposition
subpoenas. (ECF No. 1199.) The statement provided a detailed
explanation for NOAA’s decision to refuse to permit the deposition
testimony of Ms. Rea and Dr. Danner. (See id.) Specifically, USDOC
asserted that NOAA reasonably concluded that: 1) topics of the proposed
depositions fell within the ambit of unretained expert or opinion testimony
or sought factual information that was publicly available; and 2) Plaintiffs
seek testimony from NMFS on the same subject matter that is currently
under consideration in the on-going consultation on long-term operations
of the CVP. (Id. 7-11)

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ECF No. 1204 at 1-2, 7-8.
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The Court previously summarized the seventh claim as follows:
Filed on March 12, 2018 as part of the Sixth Amended Complaint at the
behest of the magistrate judge, the Seventh Claim is for “Injunctive
Relief” and seeks a “direct order compelling authorization of testimony.”
ECF No. 1187 at 67. It relies on the waiver of sovereign immunity
contained in the APA, 5 U.S.C. § 702, and alleges that pursuant to various
cases, including Exxon Shipping Co. v. Dep’t of Interior, 34 F.3d 774 (9th
Cir. 1994), “a party seeking to compel an agency to authorize its employee
to comply with a subpoena may seek a direct order and prospective
injunctive relief requiring the responsible agency or agency official to
allow the employee to testify.” ECF No. 1187 at ¶ 209. The Seventh
Claim incorporates by reference, id. at ¶ 206, factual allegations located at
paragraphs 166 through 175. As explained therein, pursuant to DOC
“housekeeping” regulations, 15 C.F.R. § 15.14(b), DOC officials refused
to permit Plaintiffs to take the noticed depositions of Maria Rea, in her
official capacity as Assistant Regional Administrator at the NMFS
California Central Valley Area Office, and Dr. Eric Danner, in his official
capacity as fisheries ecologist at the NMFS Southwest Fisheries Science
Center. Plaintiffs sought their testimony in Sacramento, California on
topics pertaining Plaintiffs’ Sixth Claim for Relief brought under the
[ESA] against [BOR] and the [SRS Contractors], which alleges “the
Bureau’s excessive releases, and the SRS Contractors’ diversions, of water
during the temperature management season in 2014 and 2015 caused
massive take of winter-run and spring-run Chinook.” Although the factual
allegations relevant to the Seventh Claim mention that DOC refused to
permit the depositions pursuant to internal regulations, nowhere does
Seventh Claim seek to challenge the DOC’s internal decision as
“arbitrary” or “capricious” under the APA. Rather, the claim seeks relief
based upon the allegation that the refusal “is contrary to federal law and
the federal rules of civil procedure.”

17 ECF No. 1244 at 2-3.
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Plaintiffs filings confirm that they did not intend to bring the seventh claim “under the APA.”

19 ECF No. 1203 at 1-2. Specifically, Plaintiffs intended to allege only “that Section 702 of the APA
20 waives the Department’s sovereign immunity against [Plaintiffs’] claim for prospective injunctive
21 relief.” Id. at 2. In particular, Plaintiffs argued that “whereas Section 702 waives sovereign immunity for
22 all non-monetary claims against federal agencies, the APA’s other procedures and requirements do not
23 apply to such non-APA claims for injunctive relief.” Id. (citing Navajo Nation v. Dep’t of the Interior,
24 876 F.3d 1144, 1168, 1171-72 (9th Cir. 2017)).
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On April 20, 2018, the assigned magistrate judge issued an order denying DOC’s motion to
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quash and granting Plaintiffs’ motion to compel. ECF Nos. 1204 (“April 20, 2018 Order”).
On May 18, 2018, the Court issued an order indicating formally its intent to treat the April 20,

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2018 Order as findings and recommendations (“F&Rs”), because adopting the F&Rs would either

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dispose of entirely or moot in part or in full the seventh claim for relief. ECF No. 1239. The Court did

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not determine definitively whether its decision on the F&Rs would result in disposition or mootness.

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The Court then found that the F&Rs applied the appropriate standard and reached the appropriate

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resolution. Pertinent to the pending motion, the Court reviewed the relevant authorities, which it quotes

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here at length for the sake of expedience:

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The F&Rs properly apply Exxon, which plainly held that “district courts
should apply the federal rules of discovery when deciding on discovery
requests made against government agencies, whether or not the United
States is a party to the underlying action.” 34 F.3d at 780. Exxon
concerned a collateral complaint brought by Exxon against five federal
agencies and their employees seeking to compel discovery requested as
part of its defense in the underlying damages action arising out of the
Exxon Valdez oil spill. 34 F.3d at 775. The agencies instructed eight
federal employees not to submit to deposition and restricted the testimony
of two others. Id. Exxon contended that these decisions violated the
Federal Housekeeping Statute, 5 U.S.C. § 301, and the APA, 5 U.S.C. §
706(2)(A). Id. The district court found that § 301 authorized the agencies
actions and that the actions were not arbitrary and capricious under the
APA. Id.

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The Ninth Circuit reversed, beginning its analysis with an explanation of
why United States ex. rel. Touhy v. Ragen, 340 U.S. 462 (1951), did not
support the district court’s conclusion. The Ninth Circuit explained that in
Touhy, the Supreme Court held “that an FBI agent could not be held in
contempt for refusing to obey a subpoena duces tecum when the Attorney
General, acting pursuant to valid federal regulations governing the release
of official documents, had ordered him to refuse to comply.” Exxon, 34
F.3d at 776 (citing Touhy, 340 U.S. at 469). Touhy specifically left open
the question of whether an agency head had the power to withhold
evidence from a court without a specific claim of privilege. Touhy, 340
U.S. at 467; see also In re Recalcitrant Witness Richard Boeh v. Daryl
Gates, 25 F.3d 761, 764 & n.4 (9th Cir. 1994) (noting that Touhy did not
decide the legality of agency heads’ executive privilege claim).

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The Ninth Circuit answered that open question in Exxon, at least with
sufficient clarity to bind lower courts within this Circuit under the
circumstances presented here. The Ninth Circuit reasoned that § 301 “does
not, by its own force, authorize federal agency heads to withhold evidence
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sought under a valid federal court subpoena.” 34 F.3d at 777. This
conclusion was based upon an extensive evaluation of § 301’s legislative
history, id. at 777-78, as well as reference to prominent commentators on
the issue, id. at 778 n.6 (quoting one commentator who reasoned that
“[t]he proposition for which Touhy is often cited—that a government
agency may withhold documents or testimony at its discretion—simply is
not good law and hasn’t been since 1958”).
The Ninth Circuit next rejected the government’s argument that principles
of sovereign immunity granted to agency heads the authority to determine
whether agency employees may testify. The Ninth Circuit concluded that
all of the cases cited for that proposition involved the power of a state
court to subpoena federal officials, which does implicate sovereign
immunity. The Ninth Circuit refused to extend that logic to federal courts:
Moreover, under the government’s argument, sovereign immunity
would authorize the executive branch to make conclusive
determinations on whether federal employees may comply with a
valid federal court subpoena. Such a broad definition would raise
serious separation of powers questions. As the Supreme Court has
said, “judicial control over the evidence in a case cannot be
abdicated to the caprice of executive officers.” United States v.
Reynolds, 345 U.S. 1, 9-10 (1953).
Id. at 778. In addition, the Ninth Circuit concluded that “[t]he
government’s argument would also violate the fundamental principle that
the public has a right to every man’s evidence.” Id. at 779 (internal
quotation and alteration omitted).
Finally, the Ninth Circuit acknowledged the government’s “serious
and legitimate concern that its employee resources not be commandeered
into service by private litigants to the detriment of the smooth functioning
of government operations,” but concluded “that district courts can, and
will, balance the government’s concerns under the general rules of
discovery.” Id at 779. The Ninth Circuit expanded upon this reasoning by
pointing to the numerous protections within the federal rules for litigants
and nonparties:
The Federal Rules of Civil Procedure explicitly provide for
limitations on discovery in cases such as this. Rule 26(c) and Rule
45(c)(3) give ample discretion to district courts to quash or modify
subpoenas causing “undue burden.” The Federal Rules also afford
nonparties special protection against the time and expense of
complying with subpoenas. See Fed. R. Civ. P. 45(c)(3)(A)(ii). In
addition, the Rules can prevent private parties from exploiting
government employees as tax-supported pools of experts. See Fed.
R. Civ. P. 45(c)(3)(B)(ii), (iii) (a court may in its discretion
disallow the taking of a non-retained expert’s testimony unless the
proponent makes a showing of “substantial need” that “cannot be
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otherwise met without undue hardship” and payment of reasonable
compensation) (emphasis added). The Rules also recognize and
protect privileged information. See Fed. R. Civ. P. 45(c)(3)(A)(iii).
In ruling on discovery requests, Rule 26(b)(2) instructs district
courts to consider a number of factors relevant to the government’s
expressed interests. For example, a court may use Rule 26(b) to
limit discovery of agency documents or testimony of agency
officials if the desired discovery is relatively unimportant when
compared to the government interests in conserving scarce
government resources. See, e.g., Moore v. Armour Pharmaceutical
Co., 927 F.2d 1194, 1198 (11th Cir.1991) (considering the
“cumulative impact” of repeated requests for the testimony of
Center for Disease Control researchers working on a cure for the
AIDS virus in upholding a decision to quash a subpoena under
Rule 45).

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Id. at 779- 80 (footnote omitted). In sum, the Ninth Circuit issued a broad
holding:
Section 301 does not create an independent privilege to withhold
government information or shield federal employees from valid
subpoenas. Rather, district courts should apply the federal rules of
discovery when deciding on discovery requests made against
government agencies, whether or not the United States is a party to
the underlying action. Under the balancing test authorized by the
rules, courts can ensure that the unique interests of the government
are adequately considered.

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Id. at 780 (emphasis added).
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Joined/Intervenor Defendants first attempt to distinguish Exxon on the
ground that “the holding in Exxon was decided under a claim that was not
brought under the [APA], and the court declined to reach the APA claim
that the ‘agencies’ actions were arbitrary and capricious under § 706(2)(A)
until after further district court review, and, if necessary, fact-finding.”
ECF No. 1240 at 2 (quoting Exxon, 34 F.3d at 780). It is true that
immediately after the broad holding quoted above regarding the
housekeeping statute, the Ninth Circuit declined to reach Exxon’s APA
claim as follows:

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Because of our disposition, we decline to reach Exxon’s claim that
the agencies’ actions were arbitrary and capricious under §
706(2)(A) until after further district court review, and, if necessary,
fact-finding. Thus, we remand for the court to exercise its
discretion on Exxon’s discovery requests.

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The implication of this language is not entirely clear, but a related
discussion in footnote 11 sheds some light on what the Ninth Circuit was
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getting at:
The APA also authorizes judicial review of agency action that is
“arbitrary, capricious, an abuse of discretion, or otherwise
unlawful.” 5 U.S.C. § 706(2)(A) (1982). Because § 301 provides
authority for agency heads to issue rules of procedure in dealing
with requests for information and testimony, an agency head will
still be making the decisions on whether to comply with such
requests in the first instance. Thus, review under § 706(2)(A) will
be available. However, we acknowledge that collateral APA
proceedings can be costly, time-consuming, inconvenient to
litigants, and may “effectively eviscerate [ ]” any right to the
requested testimony. In re Recalcitrant Witness Boeh, 25 F.3d at
770 n. 4 (Norris, J., dissenting) (if the plaintiff had a right to obtain
the witness’ testimony, “he had a right to obtain it when he needed
it, which in this case was immediately, when the trial was still
going on”). Therefore, the need for district court review in such
instances is all the more compelling.

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Exxon, 34 F.3d at 780 n.11. The Court believes this language is best
interpreted as standing for the proposition that, while an APA collateral
action may be available, it is not the only way to obtain review of an
agency decision regarding a discovery dispute. As the Ninth Circuit
plainly articulated, “district courts should apply the federal rules of
discovery when deciding on discovery requests made against government
agencies, whether or not the United States is a party to the underlying
action.” Id. at 780. At bottom, Exxon stands for the proposition that the
fact that an APA claim might also be outstanding and worthy of resolution
at some point should not stand in the way of a court resolving a discovery
dispute in a timely manner pursuant to the Federal Rules of Civil
Procedure. What the Ninth Circuit did not discuss, and from what the
Court can tell has yet to discuss anywhere, is what the consequences of the
Rules-based discovery decision might be for any outstanding APA claim.
Might it not moot that claim? Perhaps, but perhaps not. There might be
other aspects to an APA challenge to an agency’s housekeeping
determination regarding disclosure of evidence that could survive a Rulesbased discovery decision. If a discovery ruling required only narrow
disclosures, for example, a plaintiff might still want to move forward with
a challenge under the APA asserting that the housekeeping determination
was arbitrary, capricious or contrary to law. All of this is to say that, while
the dual track suggested by Exxon is somewhat perplexing, it is not
nonsensical. In this Circuit, treating a discovery dispute like the one
presented here under the Federal Rules is not only lawful, it is required.
The magistrate judge properly concluded that the underlying discovery
dispute could and should be resolved pursuant to the Federal Rules.

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ECF No. 1244 at 3-7 (emphasis in original, footnotes omitted)
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Federal Defendants’ motion assumes without much discussion that this Court has already

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signaled its intent to find that the rules-based decision issued by the magistrate judge (and adopted by

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this Court) moots the seventh cause of action. This is not the case, as indicated by the Court’s own

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inquiries quoted above. The questions the Court raised previously represent only some of the relevant

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issues. To be more direct, one question that the Court did not raise is this: If the seventh claim for relief

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is a valid one over which this Court has subject matter jurisdiction, why would the rules-based decision,

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which gave Plaintiffs the relief they requested, not also constitute success on the merits of the APA

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claim? The parties do not address this issue in any detail. The Court is cognizant of the fact that Federal

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Defendants do argue that the Court lacks subject matter jurisdiction over the seventh claim for relief, a

10 contention raised seriously for the first time in Federal Defendants’ reply. See ECF No. 1390 at 17-18.
11 Ninth Circuit authority suggest that where the APA is relied upon only as a waiver of sovereign
12 immunity, a court must have independent subject matter jurisdiction over the underlying claim (e.g., a
13 claim premised on a constitutional amendment). See Navajo Nation, 876 F.3d at 1168-69. Although
14 Federal Defendants have previewed their position(s) on these subjects, the Court believes it will be
15 beneficial if they clarify and refine their arguments in a supplemental brief. Most critically, Plaintiffs
16 will then have an opportunity to respond directly to what may amount, at least in part, to a motion to
17 dismiss the seventh claim for lack of subject matter jurisdiction.
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Accordingly, and for the reasons set forth above, supplemental briefing is required. On or before

19 March 6, 2020, Federal Defendants shall file a supplement to their motion to dismiss no longer that ten
20 pages in length addressing the issues outlined above and any other justiciability issues. Plaintiffs may
21 file a response, also no longer than ten pages in length, on or before April 10, 2020.
22 IT IS SO ORDERED.
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Dated:

/s/ Lawrence J. O’Neill _____

January 28, 2020

UNITED STATES DISTRICT JUDGE
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