Opinion
JEROME L. LEVINE (CA Bar No. 038613) ZEHAVA ZEVIT (CA Bar No. 230600) TIMOTHY Q. EVANS (CA Bar No. 231453) HOLLAND & KNIGHT LLP, Los Angeles, CA, Telephone: (213) 896-2400 Attorneys for Intervenor Defendant.
ROBERT G. DREHER, Acting Assistant Attorney General Environment & Natural Resources Division United States Department of Justice,
TYLER BAIR, Washington, DC, Telephone: (202) 307-3316.
JUDITH RABINOWITZ, San Francisco, CA, Telephone: (415) 744-6486 Attorneys for Federal Defendants.
REBECCA ROSS, U.S. Department of the Interior Office of the Solicitor Division of Indian Affairs Branch of Environment and Lands Washington, DC 20240.
STIPULATION AND ORDER RE: INTERVENOR DEFENDANT'S AGREEMENT TO BE BOUND BY THE PROTECTIVE ORDER GOVERNING SPECIFIED DOCUMENTS INCLUDED IN THE ADMINISTRATIVE RECORD
TROY L. NUNLEY, District Judge.
Intervenor Defendant, the Ione Band of Miwok Indians ("Ione Band" or "Tribe"), and Federal Defendants, S.M.R. JEWELL, Secretary of the U.S. Department of the Interior, KEVIN WASHBURN, 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, Director 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, by and through their undersigned counsel, stipulate as follows:
Though Plaintiffs have named Amy Dutschke as a defendant in this action, Federal Defendants do not concede that she is a proper defendant as she has been recused from personal and substantial involvement as a BIA employee in matters related to the Ione Band since March of 2001.
1. The Tribe's Motion for Permissive Intervention pursuant to Fed.R.Civ.P. 24(b) (ECF No. 35) was granted by the Court on September 12, 2013 (ECF No. 46). As set forth in the Updated Joint Status Report filed on July 11, 2013 (ECF No. 38), Intervenor Defendant must agree to the terms of the existing Protective Order (ECF No. 28) in advance of its receipt of the Administrative Record from the Federal Defendants.
2. The Stipulation and Protective Order entered pursuant to Local Rule 141.1 and Federal Rule of Evidence 502 (ECF No. 28) governs the scope of the Federal Defendants' inclusion of five specified documents in the Administrative Record (listed in Paragraph 3), 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 Federal 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 Federal 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 lawsuit. The release of these documents does not establish a precedent for the release of confidential, privileged or draft documents generally by the Federal Defendants.
5. Federal 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. Intervenor Defendant's agreement to be bound to the Stipulation and Protective Order is necessary, 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."
7. Both the Protective Order confirming the original Parties' Stipulation, and this subsequent order, shall remain in full force after resolution of the case.
IT IS SO ORDERED.