United States District Court, W.D. Washington, Tacoma
LIGHTHOUSE RESOURCES, INC. et al., Plaintiffs,
JAY INSLEE, Defendants, BNSF RAILWAY COMPANY Plaintiff-Intervenor WASHINGTON ENVIRONMENTAL COUNCIL, et al., Defendant-Intervenors.
ORDER ON DEFENDANT-INTERVENORS' MOTION FOR
J. BRYAN UNITED STATES DISTRICT JUDGE.
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.
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,
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.
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.
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.
WEC's Motion for Protective Order.
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.
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.
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.
FED. R. CIV. P. 26 STANDARD FOR PROTECTIVE RELIEF AND
FIRST AMENDMENT PRIVILEGE
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 ...