Denison v. Oregon
Denison v. Oregon
Opinion of the Court
OPINION AND ORDER
Plaintiff, Marcia K, Denison, filed this action on May 21, 2002, against the State of Oregon, the Oregon Department of Forestry (“ODF”), Oregon’s Governor, John Kitzha-ber, and State Forester, James E. Brown (“Brown”). Plaintiff alleges violations of the Endangered Species Act (“ESA”), 16 USC §§ 1531-44. She also alleges violations of the Oregon Unfair Trade Practices Act and Antitrust laws, as well as four state policy statements concerning water quality protection and pollution control, minimum stream flows, forest practices act, and wildlife. The thrust of her case is that defendants have effected unlawful takings of threatened birds and fish by a variety of means including modifying and poisoning their habitat and harassing them, and have unlawfully engaged in property exchanges in an effort to bypass their obligations under federal and state law.
On July 29, 2002, plaintiff filed a Motion to Compel Discovery (docket # 15) of a number of documents and tapes which defendants refused to produce or agreed to produce only on conditions unacceptable to plaintiff. At a scheduling conference on August 12, 2002, this court resolved most of the discovery dispute between the parties. As a result, the only remaining issue is whether defendants must produce documents, referred to as “call response circle maps,” describing the specific locations of threatened northern spotted owls, as well as maps of the locations of marbled murrelet nests detected by visual and climbing surveys.
Plaintiff contends that in order to track the decrease in nest sites and population of the listed species due to the timber sales and logging operations allowed by defendants, she needs the maps to show how many call response circles there were, how many there still are, and which ones have moved. Although relevant, defendants object to disclosing documents describing the locations of listed species pursuant to the qualified privilege for “official information.”
Pursuant to FRCP 26(b)(1), “[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party.” One privilege under federal common law is a qualified privilege for “official information.” Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033 (9th Cir.), cert denied, 502 U.S. 957, 112 S.Ct. 417, 116 L.Ed.2d 437 (1991). This privilege “is based upon the state’s interest in protecting against public disclosure of sensitive information.” Price v. County of San Diego, 165 F.R.D. 614, 620 (S.D.Ca. 1996). In examining this privilege, courts “balance the plaintiffs interest in disclosure against the government’s interest in keeping the information secret.” Id. at 620-21. This weighing of interests “is moderately tipped in favor of disclosure” due to liberal discovery rules, the importance of vindicating federal civil rights, and the availability of protective orders. Id. at 621, citing Kelly v. City of San Jose, 114 F.R.D. 653, 663 (N.D.Cal. 1987).
To assert the “official information” privilege, defendants have submitted the Amended Affidavit of James E. Brown (“Brown Aff’) who has reviewed the requested materials. He states that pursuant to ORS 192.501(13),
Plaintiff responds that she has previously obtained “call response circle maps” of the northern spotted owl from the United States Fish and Wildlife Agency, that Weyerhauser Survey Reports show the pinpoint locations of nest sites, and that nest sites and population numbers are fairly available from auction catalogs.
The requested information would provide a roadmap to the homes of protected species which, if in the hands of the general public, would pose a substantial risk of potential harm to the public interest. However, this potential harm does not outweigh plaintiffs interest in disclosure. She requires the information to establish her claim(s) which seek to promote conservation of the threatened species. In that regard, plaintiff and the ODF have the same interest, except that plaintiff contends that defendants are not
Therefore, this court declines to shield production of the requested documents pursuant to the “official information” privilege if plaintiff signs a protective order similar to the Agreement for Release of Biological Information.
ORDER
For the reasons set forth above, plaintiffs Motion to Compel Discovery (docket # 15) is GRANTED and defendants shall produce documents referred to as “call response circle maps,” describing the specific locations of threatened northern spotted owls, as well as maps of the locations of marbled murrelet nests, within 10 days after plaintiff signs a protective order limiting the disclosure of such documents to this court and to her lawyer and experts.
. ORS 192.501(13) exempts from disclosure under the Oregon Public Records Law “[i]nformation developed pursuant to ORS 496.004, 496.172 and 498.026 or ORS 496.192 and 564.100, regarding the habitat, location or population of any threatened species or endangered species.”
. It is not clear how she obtained the survey reports and what auction catalogs are.
Reference
- Full Case Name
- Marcia K. DENISON v. State of OREGON John Kitzhaber, Governor Oregon Department of Forestry and James E. Brown, State Forester
- Cited By
- 1 case
- Status
- Published