Opinion
CASE NO. 2:12-CV-01748-TLN-CMK
04-30-2013
NO CASINO IN PLYMOUTH and CITIZENS EQUAL RIGHTS ALLIANCE Plaintiffs, v. SALLY JEWELL, in her official capacity as Secretary of the U.S. Department of the Interior, et al., Defendants.
KENNETH R. WILLIAMS, State Bar No. 73170 Attorney at Law Attorney for Plaintiffs IGNACIA S. MORENO JUDITH RABINOWITZ Attorneys for Federal Defendants
KENNETH R. WILLIAMS, State Bar No. 73170
Attorney at Law
Attorney for Plaintiffs
IGNACIA S. MORENO JUDITH RABINOWITZ Attorneys for Federal Defendants
STIPULATION AND PROTECTIVE
ORDER REGARDING SPECIFIED
DOCUMENTS TO BE INCLUDED IN
THE ADMINISTRATIVE RECORD
The Parties, Plaintiffs NO CASINO IN PLYMOUTH and CITIZENS EQUAL RIGHTS ALLIANCE, ("Plaintiffs"), and Federal Defendants, SALLY JEWELL, Secretary of the U.S. Department of the Interior, KEVIN WASHBURN, Assistant Secretary-Indian Affairs, U.S. Department of Interior, DONALD E. LAVERDURE, Acting Assistant Secretary - Indian Affairs, United States Department of the Interior, AMY DUTSCHKE, Pacific Regional Director, Bureau of Indian Affairs, JOHN RYDZIK, Chief, Division of Environmental, and Cultural Resources, Bureau of Indian Affairs, Pacific Regional Office, PAULA HART, Chairwoman of the Office of Indian Gaming, TRACIE STEVENS, Chairwoman of the National Indian Gaming Commission, THE NATIONAL INDIAN GAMING COMMISSION and THE UNITED STATES DEPARTMENT OF INTERIOR ("Defendants"), by and through their undersigned counsel, stipulate as follows:
Sally Jewell, Secretary of the United States Department of Interior, was substituted for Kenneth Salazar under Federal Rule of Civil Procedure 25(d).
Defendants contend that Kevin K. Washburn was substituted for Donald E. Laverdure, under Federal Rule of Civil Procedure 25(d). Plaintiffs contend that Donald E. Laverdure and Kevin K. Washburn were named and served as separate Defendants. This stipulation is without prejudice to the position of either the Defendants or the Plaintiffs regarding the party status of Donald E. Laverdure.
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1. Defendants are prepared to lodge the Administrative Record, which will include, un-redacted, five documents (listed in Paragraph 3) that the Defendants contend are otherwise confidential, privileged or drafts. Logistically, Defendants need to know, a few days in advance of lodging the certified Administrative Record in this and related case, whether to redact the abovementioned Administrative Record documents. Accordingly, the Parties stipulate that the date of April 26, 2013, for lodging the certified Administrative Record, is extended until the third working day after the Court's action on the protective order proposed herein;
2. This Stipulation and Protective Order, entered pursuant to Local Rule 141.1 and Federal Rule of Evidence 502, shall govern the scope of Defendants' release of the five documents listed in Paragraph 3 for inclusion in the Administrative Record being lodged in this case and the use of those documents by any non-federal party in any other federal or state court or administrative proceeding beyond this lawsuit.
3. The documents governed by this Stipulation and Protective Order include: (1) the January 16, 2009 opinion authored by former Solicitor David Bernhardt, which Defendants contend was a draft opinion; (2) the July 10, 2009 letter from then Acting National Indian Gaming Commission (NIGC) General Counsel Penny Coleman to Solicitor Hilary Tompkins; (3) a legal opinion prepared by the NIGC, which Defendants contend was a draft opinion, that was enclosed with such letter; (4) the July 26, 2011 legal memorandum authored by Solicitor Tompkins; and (5) the May 23, 2012 briefing memorandum from Bryan Newland, Senior Policy Advisor to then Acting Assistant Secretary -Indian Affairs, Donald E. Laverdure.
4. Unless otherwise authorized, the above-referenced documents may not be used by any Party in any court or administrative proceeding, whether federal or state, for any purpose other than for litigating the Plaintiffs' lawsuit or the claims set forth in the related lawsuits. The release of these documents does not establish a precedent for the release of confidential, privileged or draft documents generally by the Defendants.
5. The Defendants' inclusion of these documents in the Administrative Record shall not be deemed a waiver of any privileges attaching to any subject matter beyond the documents themselves.
6. The Plaintiffs contest the Defendants' characterization of any of the documents identified in paragraph (3) as privileged, confidential or draft documents.
7. This Stipulation and Protective Order is important to the Defendants, among other reasons, because of the attorney-client relationship between the Solicitor and the Secretary of the United States Department of the Interior, the privileged nature of the legal counsel provided by the former to the latter, the importance of protecting the Department of the Interior's ability to freely and candidly deliberate under the deliberative process privilege, and because of the dictate of Fed. R. Evid. 502(e) that an "agreement on the effect of disclosure in a federal proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order."
8. The Protective Order confirming this Stipulation shall remain in full force after resolution of the case.
Respectfully submitted,
______________________
KENNETH R. WILLIAMS
Attorney at Law
980 9th Street, 16th Floor
Sacramento, CA 95814
Telephone: (916) 543-2918
Fax: (916) 446-7104
IGNACIA S. MORENO
Assistant Attorney General
Environment & Natural Resources Division
United States Department of Justice
______________________
JUDITH RABINOWITZ
Indian Resources Section
Environment and Natural Resources
Division
United States Department of Justice
301 Howard Street, Suite 1050
San Francisco, CA 94105
Telephone: (415) 744-6486
Facsimile: (415) 744-6476
Email: judith.rabinowitz2@usdoj.gov
IT IS SO ORDERED.
______________________
Troy L. Nunley
United States District Judge