Knox et al v. United States Department of Interior et al

Filing 85

MEMORANDUM DECISION AND ORDER denying 78 Motion for Protective Order; granting in part and denying in part 80 Motion for Order Compelling Attendance at Deposition; granting 82 Motion for Extension of Time to Complete Discovery. The discovery on standing and statute of limitation issues shall be completed within 45 days from the date of this decision. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
WENDY KNOX and RICHARD DOTSON,
Plaintiffs,

Case No. 4:09-CV-162-BLW

v.

MEMORANDUM DECISION
AND ORDER

UNITED STATES DEPARTMENT OF THE
INTERIOR, KENNETH LEE SALAZAR,
Secretary of the Interior,
Defendants.
INTRODUCTION
The Court has before it three discovery motions. The motions are fully briefed and
at issue. The Court will resolve each below.
ANALYSIS
Plaintiffs’ Motion for Protective Order
Plaintiffs seek an order protecting them from answering the Government’s
discovery requests. In an earlier decision, the Court granted plaintiffs’ motion to compel
discovery limited to the issues of standing and the statute of limitations. See
Memorandum Decision (Dkt. No. 77). Plaintiffs argue that the discovery permitted by the
Court was a one-way street, allowing only plaintiffs to take discovery and not requiring
them to answer the Government’s discovery requests on these two subjects. The Court

Memorandum Decision & Order – page 1

disagrees. The Court intended to allow both parties to conduct this limited discovery.
Accordingly, plaintiffs’ motion for protective order will be denied.
Plaintiffs’ Motion to Compel
Plaintiffs seek to compel three persons to attend depositions: Lionel Boyer,
Marvin Osborne, and Nathan Small, the Chairman and Executive Director of the
Shoshone Bannock Tribes Gaming Commission and Chairman of the Fort Hall Business
Council, respectively. The Tribes have sovereign immunity from suit, and this extends to
protect them from complying with subpoenas. See United States v James, 980 F.3d 1314
(9th Cir. 1992). This Court has already denied plaintiffs’ attempt to add the Tribes as
defendants, holding that the Tribes were protected by sovereign immunity. See
Memorandum Decision (Dkt. No. 46). However, Tribal members in their individual
capacity have no sovereign immunity. See Santa Clara Pueblo v. Martinez, 436 U.S. 49,
59 (1978).
These legal restraints would typically limit plaintiffs to deposing Small, Osborne,
and Boyer only about factual matters concerning these three men in their individual
capacity. The three could, however, legitimately refuse to answer questions asking about,
say, Tribal practices or policies. Because the plaintiffs’ intent is to ask questions about
Tribal practices and policies, the Court would typically deny plaintiffs’ motion to compel
their attendance at those depositions.
However, in this case, the Tribes asked, and were granted, the right to file an
amicus brief accompanied by Declarations of Small and Osborne that discussed the
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Tribes’ gaming operations. See Declarations (Dkt. Nos. 53 & 65) and Brief (Dkt. No. 73).
In addition, Small and Boyer filed Declarations on the same subject in support of a
motion to reconsider. See Declarations (Dkt. Nos. 51-4 & 51-5). While the filing of
these documents did not waive the Tribes’ sovereign immunity generally, it did waive the
right of Small, Boyer, and Osborne to resist a deposition limited to the topics covered in
their Declarations. James, 980 F.2d at 1320 (finding limited waiver where non-party
Tribe produced documents because it “cannot selectively provide documents and then
hide behind a claim of sovereign immunity when [a party] requests different documents”).
For all of these reasons, the Court will grant in part the plaintiffs’ motion, and
compel the attendance of Small, Boyer, and Osborne at depositions to answer questions
limited to matters relevant to the contents of the Declarations they filed in this case. The
motion will be denied in all other respects.
Motion for Extension of Time to Complete Discovery
There being no opposition to this motion, the Court will grant it, and give the
parties 45 days from the date of this decision to complete discovery on the standing and
statute of limitations issues.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motion for protective
order (docket no. 78) is DENIED.

Memorandum Decision & Order – page 3

IT IS FURTHER ORDERED, that the motion for order compelling attendance at
deposition (docket no. 80) is GRANTED IN PART AND DENIED IN PART. It is
granted to the extent it seeks to compel the attendance of Small, Boyer, and Osborne at
depositions to answer questions limited to the contents of the Declarations they filed in
this case. The motion will be denied in all other respects.
IT IS FURTHER ORDERED, that the motion for extension (docket no. 82) is
GRANTED, and that the discovery on standing and statute of limitation issues be
completed within 45 days from the date of this decision.

DATED: February 13, 2012

Honorable B. Lynn Winmill
Chief U. S. District Judge

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