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Lighthouse Resources Inc. v. Inslee

United States District Court, W.D. Washington, Tacoma

July 30, 2018

LIGHTHOUSE RESOURCES, INC. et al., Plaintiffs,
v.
JAY INSLEE, Defendants, BNSF RAILWAY COMPANY Plaintiff-Intervenor WASHINGTON ENVIRONMENTAL COUNCIL, et al., Defendant-Intervenors.

          ORDER ON DEFENDANT-INTERVENORS' MOTION FOR PROTECTIVE ORDER

          ROBERT J. BRYAN UNITED STATES DISTRICT JUDGE.

         THIS MATTER comes before the Court on a Motion for Protective Order filed by Defendant-Intervenor Washington Environmental Council et al (“WEC”). Dkt. 123. The Court has reviewed the motion, the Response filed by Plaintiffs Lighthouse Resources, Inc. et al. (“Lighthouse”), WEC's Reply, and the remainder of the file herein.

         I. BACKGROUND

         A. Procedural History.

         This case arises out of Lighthouse's effort to develop a coal export terminal in Longview, Washington, which, Lighthouse alleges, has been thwarted by Defendants Jay Inslee, Governor to the State of Washington, Maia Bellon, Director of the Washington Department of Ecology, and Hillary Franz, Commissioner of Public Lands (collectively, “the State”). Dkt. 1 at ¶¶5, 16. After Lighthouse filed this action, BNSF Railway Company and WEC filed motions to intervene on behalf of Plaintiffs and Defendants, respectively, and the Court granted both motions. Dkts. 22, 24, 47, 48. WEC is a self-described “coalition of public-interest organizations opposed to the [coal] terminal due to its adverse impacts to human health and environment.” Dkt. 123 at 5. The Court also granted five sets of amici curiae leave to file briefs. Dkts. 60, 110.

         B. Complaint.

         The following facts alleged in the Complaint are assumed for purposes of this motion. Lighthouse is a coal energy supply chain company that manages coal mining, transfer by rail and ocean-going vessels, and sale to end users, both domestic and abroad. Dkt. 1 at ¶¶5, 16, 36. Lighthouse presently ships coal from the United States out of an export terminal in Canada, which has increased shipping costs and constrains Lighthouse's ability to fulfill contractual terms and meet increasing market demand. Id. at ¶¶48-50. Lighthouse has worked to identify, contract with, and/or develop a new coal export facility since 2009, and it has identified the Millennium Bulk Terminal (MBT) in Longview, Washington, as its preferred West Coast site. Id. at ¶¶52, 54.

         Starting in 2012, Lighthouse began the permitting process for the proposed coal export facility at MBT, which has involved approximately two dozen federal and state plans, permits, and approvals. Dkt. 1 at ¶70. Under the façade of official State policy, by means of administrative decisions (collectively, “State administrative decisions”), the State has effectively “blocked” development of the MBT Project. Id. at ¶¶63, 130, 155, 161, 163, 181. See also, Dkt. 1-1(§ 401 CWA certification), Dkt. 1-2 (DNR denial of sublease), Dkt. 1-3(Cowlitz County Shoreline Permit Application denied based on EIS). The State has coordinated with Oregon and California in blocking the MBT Project. Id. at ¶¶99-116. All three named defendants have publicly expressed personal opposition to exporting coal. Id. at ¶¶80-98.

         The Complaint alleges four claims, violations of: the dormant foreign commerce clause, Count I; the dormant interstate commerce clause, Count II; the Interstate Commerce Commission Termination Act (ICCTA), Count III; and the Ports and Waterways Safety Act (PWSA), Count IV. Dkt. 1 at ¶¶ 224-264. Lighthouse has raised all claims under 28 U.S.C. §1983 and seeks declaratory and injunctive relief, as well as costs and fees. Id. at pp. 51, 52.

         C. WEC's Motion for Protective Order.

         WEC seeks a protective order to preclude the need to respond to Request for Production No. 1, which seeks “[a]ll documents that relate to WEC strategies, campaigns, plans, or policies regarding the [MBT] Project including but not limited communications with the Governor's Office, the Washington Department of Ecology, the Washington State Department of Natural Resources, any other state or federal agency, or any other non-governmental organization regarding the [MBT] Project.” Dkt. 123-3 at 13 (emphasis added). See also, id. at 11 (Interrogatory No. 6: “Identify all WEC strategy documents, position or policy papers, lobbying efforts, letters, documents, communications, and/or other attempts to lobby, influence, or persuade”). WEC and Lighthouse both construe the discovery request as encompassing both external documents, e.g., documents exchanged and communications between WEC and the State, and internal documents, e.g., documents exchanged and communications among the various WEC organizations. WEC has agreed to produce external documents, but seeks protection from producing internal documents. Id. at 6, 8.

         WEC objects to the discovery request as irrelevant, privileged under the First Amendment, and unduly burdensome. Dkt. 123. In support of its motion, WEC has submitted the declaration of Cesia Kearns, a former Co-Director of the Power Past Coal Campaign (PPCC), a coalition of non-profit organizations that has lobbied against the MBT Project. Dkt. 123-1 at ¶4. According to Kearns, the campaign formed in approximately 2010 and continues to operate. Id. at ¶5. The campaign has involved approximately one-hundred non-profit organizations, Kearns states, and at its peak may have involved as many as thirty-three (33) full time employees. Id. Kearns maintains that there have been “countless emails exchanged both internally and externally among various campaign staff[, ]” and that turning over internal WEC strategy documents “would have a deeply chilling effect on [the campaign's] ability to function” and would “inhibit [] our ability to work together” by “reduc[ing] the willingness of some members to participate” with member organizations. Id. at ¶¶8, 9. Also submitted by WEC is the declaration of an IT Manager for one of the five intervenor-defendant organizations. An initial search for “potentially relevant” emails yielded approximately180, 000 results. Dkt. 126-1.

         Lighthouse defends its discovery request by pointing to correspondence among State employees showing coordination with campaigners. An email from the Department of Ecology's Director of Communications to Governor Inslee's Chief of Staff and Director of Policy asks to “talk for a moment offline” about an appearance by Director Bellon (Ecology) at a non-coal event hosted by Millennium. Dkt. 125-1 at 2. Lighthouse also relies on correspondence between the PPCC and the State. For example, WEC emailed the Department of Ecology a Memorandum “for our 2pm call, ” and another PPCC member emailed the Department of Natural Resources “some additional thoughts on the sublease” in a memorandum form, “[p]er our conversation last week[.]” Id. at 4, 6. In a speech outline for a speech by Director Bellon at a WEC gala, reference is made to WEC as her “left flank” and as an organization that is “unbelievably coordinated with [the] Governor's Office and Ecology.” Id. at 26-34.

         II. FED. R. CIV. P. 26 STANDARD FOR PROTECTIVE RELIEF AND FIRST AMENDMENT PRIVILEGE

         Parties may “obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case[, ]” in light of “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.” Fed.R.Civ.P. 26(b)(1). Parties may seek relief from discovery requests in the form of a protective order after satisfying meet and confer requirements. “The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed.R.Civ.P. 26(c). The party seeking protection bears the burden to show what specific prejudice or harm will behalf the party absent protective ...


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