South Fork Band Council of Western Shoshone of Nevada, et al vs U.S Department of Interior, et al

Filing 113

ORDER re 112 Joint Stipulation of Confidentiality. See Order for details. Signed by Magistrate Judge Robert A. McQuaid, Jr. on 7/14/2009. (Copies have been distributed pursuant to the NEF - HJ)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA SOUTH FORK BAND COUNCIL OF WESTERN SHOSHONE OF NEVADA; TIMBISHA SHOSHONE TRIBE; WESTERN SHOSHONE DEFENSE PROJECT; and GREAT BASIN RESOURCE WATCH, Plaintiffs, v. UNITED STATED DEPARTMENT OF THE INTERIOR; UNITED STATES BUREAU OF LAND MANAGEMENT; GERALD M. SMITH, District Manager, Battle Mountain District Office, Defendants. Plaintiffs South Fork Band Council of Western Shoshone of Nevada, Te-Moak Tribe of Western Shoshone Indians of Nevada, Timbisha Shoshone Tribe, Western Shoshone Defense Project, and Great Basin Resource Watch ("Plaintiffs"), Defendants United States Department of the Interior ("DOI"), United States Bureau of Land Management, Gerald D. Smith, District Manager, Battle Mountain Field Office ("Defendants"), and Defendant-Intervenor Barrick Cortez, Inc. ("Defendant-Intervenor) have agreed to the following: In order to prepare their cases, the parties will need to access information in the administrative record compiled by DOI regarding its decision approving an expansion to the Cortez Joint Venture. Defendants assert that the documents listed in Exhibit A may contain
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3:08-cv-0616-LRH (RAM) Case No. CV-N-08-00616-HDM-RAM JOINT STIPULATION OF CONFIDENTIALITY AND [PROPOSED] ORDER

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information regarding historic or archaeological resources subject to protection from disclosure pursuant to the National Historic Preservation Act, 16 U.S.C. § 470w-3, Archaeological Resources Protection Act, 16 U.S.C. § 470hh(a), or 43 C.F.R. § 7.18. The parties are interested in preventing harm to such resources and impediments to the use of such sites by religious practitioners. This Joint Stipulation applies to documents (in whatever form) listed in Exhibit A. However, the terms and conditions of this Joint Stipulation shall not apply to any of the

documents listed in Exhibit A which are shown to have been obtained through legitimate means other than the Defendants' production of the administrative record in this case. To address these concerns the parties agree to the following: 1. The parties shall have access to the documents contained in Exhibit A (hereinafter

"Protected Documents"). 2. The parties shall not use the Protected Documents or their contents for any purpose

other than this litigation, including any appeals or subsequent remands. No person having access to the Protected Documents solely by virtue of the Defendants' production of the administrative record in this case shall make public disclosure of them or their content without further order of this Court. 3. If a party receives a request, made pursuant to any federal or state law, from any

person not subject to this Joint Stipulation for access to, or copies of, any documents provided to the party pursuant to this Joint Stipulation, the party shall not provide such access or copies but shall refer such request to DOI for consideration under applicable federal law. 4. The Protected Documents may be disclosed to the Court and to the parties in this

litigation as attachments to briefs filed in these Court proceedings and may be utilized in depositions or for other permissible discovery in this case or in any related administrative proceedings. This Joint Stipulation is not intended to prohibit introduction of these Protected Documents at a court hearing, trial or other proceeding in this case as allowed under the Federal Rules of Evidence. When filed as attachments to briefs with the Court, the Protected Documents shall be filed under seal unless otherwise ordered by the Court.
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5.

The Protected Documents may be disclosed only to the parties to this litigation, or

their affiliates, the attorneys of record for the parties, persons in the employ of such attorneys and expert witnesses retained by the parties having a need for the information in the performance of their duties. Except for the Court and its employees, and the employees of DOI, all individuals having access to the Protected Documents and all individuals to whom these Protected Documents or the information therein are disclosed shall be required to sign a copy of the Acknowledgment of Joint Stipulation form attached hereto as Exhibit B indicating that they have read and agree to abide by the terms of this Joint Stipulation. Each counsel of record will send to the attorney of record for Defendants a list of all such attorneys or members of the firm so designated. Signed acknowledgment forms shall be retained by counsel for Defendants and be available upon request to attorneys of record and the Court. 6. All individuals subject to this Joint Stipulation who have access Protected

Documents solely as a result of the Defendants' production of the administrative record in this case shall return or certify the destruction of any and all such Protected Documents, copies or reproductions, in whole or in part, thereof, including but not limited to any transcriptions or handdrawn copies of any maps in their possession to counsel for Defendants within thirty days of the termination of this litigation, including all applicable appeals or remands. The obligation to return or destroy shall occur prior to the termination of this litigation when an individual or entity is no longer a party or when an attorney or expert is no longer retained to work on this case, whichever comes earlier. Individuals returning documents under any circumstance shall certify in writing that the documents, copies and reproductions, in whole or in part, have been returned or have been destroyed. 7. This Joint Stipulation does not constitute a ruling on the question of whether any

particular record is admissible and does not constitute any ruling on any potential objection to the admissibility of any record, other than objections based on the National Historic Preservation Act, 16 U.S.C. § 470w-3, Archaeological Resources Protection Act, 16 U.S.C. § 470hh(a), or 43 C.F.R. § 7.18.
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8.

Pursuant to the Court's Order of March 12, 2009, Defendants are permitted to file

the administrative record on flash drive subject to objection by any party and reconsideration upon objection by any party as well as by the Clerk's Office staff. The administrative record was filed on June 1, 2009. The Protected Documents were included on a separate cd-rom disc designated as containing confidential documents and filed under seal. 9. This Joint Stipulation shall survive the termination of this case and is binding for

all time without further order of the Court.

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Dated: July 13, 2009,

Respectfully submitted, GREGORY A. BROWER United States Attorney GREG ADDINGTON Assistant United States Attorney Nevada Bar #6875 100 West Liberty St., Suite 600 Reno, NV 89501 [phone] [phone] ­ facsimile JOHN C. CRUDEN Acting Assistant Attorney General

/s/ Sara E. Costello__________ SARA E. COSTELLO Trial Attorney Kansas Bar #20898 TY BAIR Idaho Bar #7973 United States Department of Justice Environment & Natural Resources Division Natural Resources Section P.O. Box 663 Washington D.C. 20044-0663 [phone] ­ phone [phone] ­ facsimile Attorneys for Defendants

/s/ Roger Flynn_______________ HENRY EGGHART, Nevada Bar No. 3401 630 East Plumb Lane Reno, NV 89502 [phone] [phone] ­ facsimile ROGER FLYNN JEFFREY C. PARSONS WESTERN ACTION MINING PROJECT P.O. Box 349 440 Main Street, #2 Lyons, CO 80540 [phone] [phone] ­ facsimile Attorneys for Plaintiffs /s/ Michael L. Larsen___________ JIM B. BUTLER, Nevada Bar No. 8389 MICHAEL R. McCARTHY, Nevada Bar No. 9345 FRANCIS M. WIKSTROM, Utah Bar No. 3462 -5-

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MICHAEL L. LARSEN, Utah Bar No. 4069 PARSONS BEHLE & LATIMER 333 Holcomb Ave. Reno, NV 89501 [phone] [phone] ­ facsimile 201 South Main Street, Suite 1800 Salt Lake City, UT 84111 [phone] [phone] ­ facsimile Attorneys for Defendant-Intervenors 14th The Court hereby APPROVED this Joint Stipulation and it is SO ORDERED, this ____ July day of _______________, 2009.

LARRY R. HICKS UNITED STATES MAGISTRATE JUDGE United States district Court Judge United States District Court, District of Nevada

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1- UNITED STATES DISTRICT COURT DISTRICT OF NEVADA ) ) ) ) ) Plaintiffs, ) ) v. ) ) UNITED STATES DEPARTMENT OF THE INTERIOR; ) UNITED STATES BUREAU OF LAND ) MANAGEMENT; GERALD M. SMITH, District Manager,) ) Battle Mountain District Office ) Defendants. ) ) SOUTH FORK BAND COUNCIL OF WESTERN SHOSHONE OF NEVADA; TIMBISHA SHOSHONE TRIBE; WESTERN SHOSHONE DEFENSE PROJECT; and GREAT BASIN RESOURCE WATCH

CV-N-08-00616-HDM-RAM EXHIBIT A

Defendants assert that following documents, identified by the administrative record bates-stamp number range, may contain information regarding historic or archaeological resources subject to protection from disclosure pursuant to the National Historic Preservation Act, 16 U.S.C. § 470w-3, Archaeological Resources Protection Act, 16 U.S.C. § 470hh(a), or 43 C.F.R. § 7.18: 3-39, 49-87, 88-98, 120-127, 323-382, 394-404, 1107-1152, 1451-1469, 1470-1480, 1481-1489, 1864-2724, 2756-2805, 3457-3461, 3600-3693, 4744-4794, 5610-5675, 5676-5743, 6174-6294, 6531-6913, 7177-7188, 7189-7197, 9144-9163, 9403-9597, 11040-11200, 11810-11825, 17571-17784, 18298-18317, 31548-31792, 36481-36481, 38928-39141, 42236-42403,

47292-47329, 47330-47354, 51004-51016, 55463-55736.

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA SOUTH FORK BAND COUNCIL OF WESTERN SHOSHONE OF NEVADA; TIMBISHA SHOSHONE TRIBE; WESTERN SHOSHONE DEFENSE PROJECT; and GREAT BASIN RESOURCE WATCH, Plaintiffs, v. UNITED STATES DEPARTMENT OF THE INTERIOR; UNITED STATES BUREAU OF LAND MANAGEMENT; GERALD M. SMITH, District Manager, Battle Mountain District Office, Defendants. I, ___________________________, hereby acknowledge that I have read and understand the Joint Stipulation entered in this action on ________________, 2009. I hereby agree to be bound by the terms of the Order. Specifically, 1. I agree that I will use the Protected Documents disclosed to me solely by virtue of Case No. CV-N-0800616-HDM-RAM ACKNOWLEDGMENT OF JOINT STIPULATION

the Defendants' production of the administrative record in this case or copies of the Protected Documents subject to the Joint Stipulation only for purposes of this litigation including any appeals and not for any other purpose; 2. I agree that any Protected Documents disclosed to me solely by virtue of the

Defendants' production of the administrative record in this case, as well as all copies thereof, which are in my possession will be destroyed or returned to counsel for Defendants within 30 days after the termination of my work on this case or the termination of this litigation, including any appeals, whichever comes earlier; 3. I agree that I will disclose Protected Documents only to the Court, the parties to

this case and their attorneys of record, persons in the employ of such attorneys, and any experts or consultants hired for this case by the parties or their attorneys and who (with the exception of the
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Court and its employees and the employees of the Department of the Interior) have signed an Acknowledgment Form like this one; 4. 5. I agree that I will abide by all terms of the Joint Stipulation; and I hereby confirm that my duties under the Joint Stipulation shall survive the

termination of this case and are binding upon me for all time. Dated: __________________________

(Signature)

(Printed Name)

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