Louisiana Crawfish Producers Association - West et al v. Mallard Basin Inc et al

Filing 196

ORDER: The plaintiffs' 179 Motion for Discovery is granted. The plaintiffs are permitted to perform a Rule 34 site inspection in accordance with the terms and details set forth in their draft Rule 34 Request attached to the Motion. [rec . doc. 179-2]. Within 7 days, the parties shall agree on a mutually convenient date for the inspection. The inspection shall be performed no later than 1/31/2016. The plaintiffs may serve a Rule 34 Request/Notice on the defendants incorporating the agreed upon inspection date. Signed by Magistrate Judge Patrick J Hanna on 12/4/2015. (crt,Alexander, E)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LOUISIANA CRAWFISH PRODUCERS *CIVIL NO. 6:10-1085 c/w 6:11-0461
ASSOCIATION - WEST, ET AL.
VERSUS

*JUDGE DRELL

MALLARD BASIN, INC., ET AL.

*MAGISTRATE JUDGE HANNA
ORDER

Before the Court is the Motion for Discovery filed by the Louisiana Crawfish
Producers Association - West, the Atchafalaya Basinkeepers and the Louisiana
Environmental Action Network (collectively, "the plaintiffs"). [rec. doc. 179]. Mallard
Basin, Inc., Whiskey Bay Island, LLC, and Atchafalaya Investments, LLC,
(collectively, "the private defendants") and the U.S. Army Corps Engineers, Thomas P.
Bostick and Robert L. Van Antwerp (collectively, "the federal defendants") have filed
Objections [rec. docs. 191 and 193], to which the plaintiffs have filed a Reply [rec. doc.
195]. The Motion was originally set to be heard on December 22, 2015. [rec. doc. 181].
However, the Court thereafter advised the parties that the Motion would be determined
without oral argument. [rec. doc. 190].
The plaintiffs seek an order allowing them to enter the private defendants' land to
obtain discovery pursuant to Fed.R.Civ.P. 34. More specifically, they seek
authorization for a site visit for the purpose of inspection, measuring, surveying,

photographing and examining Fisher Lake (a.k.a. Fisher Bottom) and Bayou Cane. The
plaintiffs assert that the primary purpose of the intended site visit is to obtain
information discoverable and relevant to their NEPA claim, challenging the adequacy
of the U.S. Army Corps of Engineers' analysis of the alternatives or impacts associated
with the permits at issue in this case. The plaintiffs contemplate a group of
approximately ten persons, consisting of four attorneys or legal representatives, two
members of the plaintiff organizations, a surveyor, one or two assistants and a
hydrologist. The experts will bring surveying and hydrologic equipment and the
plaintiffs will bring a camera. They allege that the inspection will take no longer than
one day, and will not harm, alter or adversely affect the environmental integrity of the
inspected areas. A draft Rule 34 Request is attached to the Motion. [rec. doc. 179-2].
On October 8, 2015, the plaintiffs emailed counsel for the private defendants
asking if they would agree to allow entry on to their land to obtain discovery. Attached
to that email was a draft proposed Rule 34 Request, setting forth the details of the
proposed site visit. The email explained that they were seeking agreement pursuant to
the December 10, 2014 Order by the district court, and given that the defendants had
previously objected, they wished to obtain the defendants’ response to the proposal
before bringing the issue by Motion to this Court. The plaintiffs additionally expressly
requested if there were any conditions under which the defendants would agree to the
visit. The plaintiffs further advised that if the defendants agreed, or the Court ordered

the discovery, they would formally request the discovery as outlined in their draft. [rec.
doc. 179-3].
When no response was forthcoming, on October 20, 2015, plaintiffs' counsel sent
a follow-up email requesting a response, attached to which was an "updated draft" of a
proposed Rule 34 Request (presumably the same draft attached to the instant Motion).
Defense counsel again apparently did not respond. Another email was sent by
plaintiffs' counsel on November 3, 2015, advising that if no response was forthcoming,
a motion seeking the proposed discovery would be filed. That same date, defense
counsel emailed that she would contact Dr. Schumacher and advise of the response the
next day. On November 4, 2015, without providing any specific objections to the
proposed request which had been emailed to her, or any alternative conditions under
which the discovery could proceed, defense counsel responded that she had "discussed
the scope of [the] proposed site visit with Dr. Schumacher and we can not agree to
same." [See rec. doc. 179-3, (email chain) and 179-2 (Rule 34 Notice)]. Accordingly,
pursuant to the district court's December 10, 2014 Order, the instant Motion was filed.
[See rec. doc. 175].
In opposition to the Motion, the federal and private defendants contend that the
plaintiffs’ request for entry onto their private property should not be permitted because
the plaintiffs have failed to comply with this Court's February 19, 2014 and August 25,
2014 Orders, allegedly requiring formal service of a Rule 34 Notice before bringing a

motion to compel. The federal defendants additionally argue that the requested
discovery is inappropriate because the evidence which may be produced by such visit
goes beyond the scope of review permitted in NEPA cases, and hence will not lead to
the discovery of admissible evidence. The private plaintiffs similarly argue that the
proposed visit amounts to a “crawfishing expedition” to search for new alleged
violations because they are unhappy with the Corps of Engineer’s ruling on the permits.
The private defendants further assert that the proposed inspection will not lead to
relevant evidence, since the Corps of Engineers’ ruling at issue in the lead action
citizen suit filed by the Louisiana Environmental Action Network has mooted
plaintiffs’ allegations against them. Finally, both the private and federal defendants
argue that the scope of the proposed site inspection is overbroad because the visit will
produce evidence regarding negative impacts to cypress trees and flora which will be
inadmissible with respect to their NEPA claim, and excessive and unreasonable,
because the visit will present logistical difficulties in transporting the proposed group to
the site and is not geographically limited to the permitted work area.
In the event the Court should order an inspection, however, the private
defendants request that the number of attendees be limited to two attorneys (Mr. Joy
and Ms. Jordan) and one "consultant" to visually examine and presumably photograph
the permitted work, and both the private and federal defendants request that the
inspection likewise be geographically limited to the "permitted work", defined by the

private defendants as "the water control structure, the levee near the water control
structure, and the pump and northern dredge ditch" and the federal defendants as "the
water control structure and the pump and northern dredged ditch."
Neither party disputes that Rule 34 allows entry upon land as a means of
discovery. Rule 34 generally governs procedures for inspection of property and
provides that a party may request “within the scope of Rule 26(b)” entry onto property
possessed or controlled by the responding party, so that the requesting party may
"inspect, measure, survey, photograph, test, or sample the property or any designated
object or operation on it." Rule 34(a)(2). The request must be reasonably specific. It
"must describe with reasonable particularity each item or category of items to be
inspected” and “specify a reasonable . . . manner for the inspection and for performing
the related acts.” Rule 34(b)(1)(A) and(B). As amended, Rule 34 requires the party to
whom the request is directed to respond in writing as follows: "[f]or each item or
category, the response must either state that inspection and related activities will be
permitted as requested or state with specificity the grounds for objecting to the request,
including the reasons."
Further, Rule 34 must be applied in connection with Rule 26(b). Federal courts
have long embraced a policy of broad and liberal discovery. Hickman v. Taylor, 329
U.S. 495, 507, 67 S.Ct. 385, 91 L.Ed. 451 (1947); Dollar v. Long Mfg. N.C., Inc. 561
F.2d 613, 616 (5th Cir. 1977); United States v. McWhirter, 376 F.2d 102, 106 (5th Cir.

1967). That policy is reflected in Rule 26(b). As amended, effective December 1,
2015, Rule 26(b)(1) permits broad discovery of "any nonprivileged matter that is
relevant to any party's claim or defense and proportional to the needs of the case. . . ."
Rule 26(b)(1).1 The term “relevant” in Rule 26 is "construed broadly to encompass any
matter that bears on, or that reasonably could lead to other matter that could bear on,
any issue that is or may be in the case." Oppenheimer Fund, Inc. v. Sanders, 437 U.S.
340, 351, 98 S.Ct. 2380, 2389, 57 L.Ed.2d 253 (1978). Accordingly, "[i]nformation
within this scope of discovery need not be admissible in evidence to be discoverable."
Rule 26(b)(1).
Neither Rule 34 nor Rule 26, however, automatically authorize discovery and the
court retains discretion to determine that a discovery request is too broad and
oppressive. Marshall v. Westinghouse Elec. Corp., 576 F.2d 588, 592 (5th Cir. 1978).
A court must limit discovery otherwise allowed by the Federal Rules of Civil Procedure
when “the discovery sought is unreasonably cumulative or duplicative, or can be
obtained from some other source that is more convenient, less burdensome, or less
expensive.” Fed.R.Civ.P. 26(b)(2)(C)(i).
With respect to service of discovery requests, "unless the court orders otherwise",

1

The Amendments to Rule 26(b)(1) are designed to promote discovery tailored to meet the
reasonable needs of the case, "considering the importance of the issues at stake in the action, the amount
in controversy, the parties' relative access to relevant information, the parties' resources, the importance
of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit."

Rule 5 provides for various forms of service upon the attorney for represented parties
including by hand delivery, mail, "electronic means if the person consented in writing"
or "delivering it by any other means that the person consented to in writing."
On February 19, 2014, this Court deferred ruling on the plaintiffs' prior motion to
compel entry onto land to allow the plaintiffs to confect and serve an appropriate Rule
34 Notice, to which the defendants could lodge objections. [rec. doc. 148]. Because the
Court had not been made aware of service of such a notice or the lodging of objections
to any such notice, by ruling dated August 25, 2014, this Court denied the plaintiffs'
prior motion to compel entry onto land without prejudice, assuming that the issues
presented in the motion had been amicably resolved, or otherwise rendered moot. In
that same ruling with respect to the defendants' motion to limit review of the plaintiffs'
claims to the administrative record, the Court found that "[s]ince the duty imposed by
NEPA is to develop a comprehensive environmental analysis, extra-record evidence is
often necessary to compare with the administrative record and determine whether the
agency has 'adequately considered the environmental impact under NEPA of a
particular project.'” Sierra Club v. Peterson, 185 F.3d 349, 370 (5th Cir. 1999); Sabine
River Authority. v. U.S. Department of Interior, 951 F.2d 669, 678 (5th Cir. 1992);
Coliseum Square Association, et al. v. Jackson, et al., 465 F.3d 215, 247 (5th Cir. 2006).
[rec. doc. 165 at pg. 9].
In denying the defendants' appeal of the undersigned's ruling, the district court

agreed that "[d]iscovery is allowed in NEPA cases" but acknowledged that "what
discovery is actually appropriate remains somewhat vague." Given the "pattern . . . of
skipping around the edges of the discovery issue", the delays in obtaining discovery
and the obvious lack of professional courtesy and cooperation in discovery between the
parties, in order "to satisfy the several burdens on the taking of discovery in this case"
the district court implemented a specific procedure for discovery in this case. "Going
forward, all proposed specific discovery requests not agreed to by the Defendants shall
first be presented to the Magistrate Judge with a request and justification for the
allowance of the discovery. Defendants shall have ten (10) days to file objections and
their justification for not allowing discovery. The Magistrate Judge shall rule in due
course." [rec. doc. 175].
With respect to the defendants' argument regarding service of a formal Rule 34
request, as correctly noted by the plaintiffs in their reply, the defendants miss the import
of the district court's ruling. Judge Drell sought to speed the discovery process and
minimize the need for judicial intervention by implementing a procedure whereby
discovery issues could be amicably resolved. Under this procedure, the Court
contemplated that a party would present their proposed discovery request to the
opposing parties for agreement or objection prior to serving a formal discovery request.
In the absence of such agreement, the party requesting discovery was to bring the
proposal and the objections before the Court to obtain an order allowing the discovery.

This is exactly what the plaintiffs have attempted to do. Thus, the defendants
objections based on lack of proper service is unfounded.
Furthermore, even if formal service could be considered a prerequisite to the
filing of the instant Motion for Discovery, the Court notes that unlike the situation
presented by the plaintiffs prior Motion to Compel, the defendants have already
electronically received a detailed discovery request. While such notice perhaps not
technically in conformity with the dictates of Rule 5, certainly provides more than
adequate notice of the plaintiffs’ intentions, which the Code of Professionalism would
suggest not be ignored by the defendants. Nevertheless, since the Court will allow the
proposed site inspection as requested in their draft Rule 34 notice, the plaintiffs will be
ordered to properly serve this Rule 34 Notice on the defendants, setting the site
inspection for a date on or before January 31, 2016.
The defendants' arguments against permitting the requested discovery are
unconvincing. This Court has repeatedly advised the parties that a site inspection was
appropriate in this case and would be ordered. Indeed, the Court cannot envision a
more appropriate form of discovery than that requested. They seek to obtain and
develop evidence to compare to that contained in the administrative record to
demonstrate inadequacies in the Corps' analysis and to determine whether the Corps
took a "hard look" at the environmental consequences of its permitting decision, the
duty imposed upon the Corps under NEPA, thereby showing that an uninformed or

unreasoned decision was made.2 Nevertheless, the defendants continue to resist the
plaintiffs' reasonable request for discovery on tenuous grounds, asserting essentially the
same arguments which were made, and implicitly rejected by this Court in connection
with their motion to limit review to the administrative record and for a protective order.
[See rec. doc. 165, pg. 4-11; 143 and 161].
If this Court's prior ruling was in any way ambiguous, the Court now expressly
holds that discovery regarding the environmental impact of the permitting decision,

2

By prior Ruling this Court explained the necessity of discovery in NEPA cases as

follows:
. . . NEPA is strictly procedural. The statute does not command the agency to favor an
environmentally preferable course of action, only that it make its decision to proceed with the action after
taking a “hard look at environmental consequences.” Robertson v. Methow Valley Citizens Council, 490
U.S. 332, 350 (1989) (quoting Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, (1976)). “Indeed, NEPA
does not prohibit the undertaking of federal projects patently destructive of the environment; it simply
mandates that the agency gather, study, and disseminate information concerning the projects'
environmental consequences.” Sabine River Authority. v. U.S. Department of Interior, 951 F.2d 669, 676
(5th Cir. 1992). “Other statutes may impose substantive environmental obligations on federal agencies,
but NEPA merely prohibits uninformed—rather than unwise—agency action.” Id. (quoting Robertson,
490 U.S. 351).
NEPA requires, among other things, the preparation of a comprehensive environmental impact
statement (EIS) whenever proposals for legislation or other major Federal actions significantly affect the
quality of the human environment. 42 U.S.C. §4332(2)(C); 40 C.F.R. §1502. This includes exploration
and objective evaluation of all reasonable alternatives to the proposed action. The Court’s evaluation of
the adequacy of an EIS includes: “(1)whether the agency in good faith objectively has taken a hard look
at the environmental consequences of a proposed action and alternatives; (2) whether the EIS provides
detail sufficient to allow those who did not participate in its preparation to understand and consider the
pertinent environmental influences involved; and (3) whether the EIS explanation of alternatives is
sufficient to permit a reasoned choice among different courses of action.” Mississippi River Basin
Alliance v. Westphal, 230 F.3d 170, 174-75(5th Cir. 2000).
Since the duty imposed by NEPA is to develop a comprehensive environmental analysis, extrarecord evidence is often necessary to compare with the administrative record and determine whether the
agency has “adequately considered the environmental impact under NEPA of a particular
project“adequately considered the environmental impact under NEPA of a particular project.” Sierra
Club v. Peterson, 185 F.3d 349, 370 (5th Cir. 1999); Sabine River Authority, 951 F.2d at 678. Coliseum
Square Association, et al. v. Jackson, et al., 465 F.3d 215, 247 (5th Cir. 2006).

[rec. doc. 165, at pg. 7-11].

including that necessary to prepare post-decisional expert reports beyond the reports
and testimony already contained in the record will be permitted. Such evidence is
clearly relevant to the plaintiffs’ NEPA claim as it may be used to compare with the
administrative record and aid this Court's determination as to whether the Corp
“adequately considered the environmental impact under NEPA" of their permitting
decision. See Sierra Club v. Peterson, 185 F.3d 349, 370 (5th Cir. 1999); Sabine River
Authority v. U.S. Dept. of Interior, 951 F.2d 669, 678 (5th Cir. 1992); Coliseum Square
Association, et al. v. Jackson, et al., 465 F.3d 215, 247 (5th Cir. 2006). That is not to
say that any or all of this extra-record evidence developed through this discovery will
be otherwise admissible for review. At this stage, however, admissibility is not at issue.
See Rule 26(b)(1). Rather, at this stage, the Court simply reviews the request for
relevance and proportionality. Id.
With respect to the former, the Court cannot say that the requested discovery will
not "encompass any matter that bears on, or that reasonably could lead to other matter
that could bear on, any issue that is or may be in the case." Oppenheimer Fund, Inc.,
437 U.S. at 351. With respect to the latter, the Court cannot conclude that the requested
discovery is disproportional to the needs of the case. To the contrary, the issues at
stake with respect to the plaintiffs' NEPA claim are extremely important not only to the
plaintiffs but to all citizens who visit and enjoy the Atchafalaya Basin area and the
discovery appears essential for the resolution of the plaintiffs' NEPA claim. While the

defendants have, or have had, access to the area sought to be inspected, the plaintiffs do
not enjoy that same access. Moreover, there has been no showing that the parties' (or
more specifically the defendants') resources are insufficient to accommodate the
plaintiffs' request or that the requested discovery will cause the defendants any expense,
much less any undue expense. There has been no showing by the private defendants,
who ultimately may bear the burden of any "logistical difficulties in transporting the
proposed group" cited by the federal defendants, that the burden of the plaintiffs'
requested discovery outweighs its likely benefit.
Finally, the Court finds no reason to limit the scope of the discovery as requested
by the defendants. Although the federal defendants cite "logistical difficulties in
transporting the proposed group" to the inspected area as justification for limiting the
number of persons who may attend the inspection, there has been no showing by the
private defendants that they would, in fact, be unable to accommodate the requested
group of nine to ten persons. Rather, the private defendants provide no argument or
any explanation whatsoever as to why the number of attendees should be limited.
Instead, arbitrarily and in a conclusory fashion, they state that only two attorneys, of
their choosing (Mr. Joy and Ms. Jordan), and one "consultant" should be permitted on
their land.
Likewise, this Court finds no reason to geographically limit the site inspection to
"permitted work", that is "the water control structure, the levee near the water control

structure, and the pump and northern dredge ditch." The relevant area of discovery
with respect to the plaintiffs' NEPA claim is the area affected by the permitted work,
and is not limited, as the defendants suggest to solely to the area where "permitted
work" was performed. There has been no showing that the affected area does not
include Fisher Lake (a.k.a. Fisher Bottom) and Bayou Cane, or related areas requested
to be inspected by the plaintiffs.
For these reasons, the plaintiffs' Motion for Discovery [rec. doc. 179] is granted.
The plaintiffs are permitted to perform a Rule 34 site inspection in accordance with the
terms and details set forth in their draft Rule 34 Request attached to the Motion. [rec.
doc. 179-2]. Within seven (7) days, the parties shall agree on a mutually convenient
date for the inspection. The inspection shall be performed no later than January 31,
2016. The plaintiffs may serve a Rule 34 Request/Notice on the defendants
incorporating the agreed upon inspection date.
THUS DONE AND SIGNED, in chambers, in Lafayette, Louisiana, on this 4th
day of December, 2015.
________________________________
PATRICK J. HANNA
UNITED STATES MAGISTRATE JUDGE