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Wilbur Slockish v. United States Federal Highway Administration

United States District Court, D. Oregon, Portland Division

October 10, 2018

HEREDITARY CHIEF WILBUR SLOCKISH, et al., Plaintiffs,
v.
UNITED STATES FEDERAL HIGHWAY ADMINISTRATION, et al., Defendants.

          OPINION AND ORDER

          YOULEE YIM YOU UNITED STATES MAGISTRATE JUDGE

         Before the court is plaintiffs' Motion for Discovery on their Thirteenth Claim, in which they allege that the Federal Highway Administration (“FHWA”), Bureau of Land Management (“BLM”), and Advisory Council on Historic Preservation (collectively the “federal defendants”) have interfered with their free exercise of religion in violation of the First Amendment of the United States Constitution. ECF #319.[1] For the reasons discussed below, plaintiffs' motion is DENIED.[2]

         LEGAL STANDARD

         FRCP 26(b)(1) provides that “[p]arties 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.” FRCP 26(b)(2)(C), however, requires the court to “limit the frequency or extent of discovery otherwise allowed” if it determines that (1) the discovery is unduly cumulative or duplicative or can be obtained more easily from another source, (2) the party seeking the discovery has had ample opportunity to obtain the information by discovery in the action, or (3) the proposed discovery is outside the scope permitted by Rule 26(b)(1).

         DISCUSSION

         Plaintiffs seek discovery related to (1) federal defendants' justification for constructing a 3:1 slope; (2) federal defendants' hostility towards plaintiffs' religious practices; (3) and the necessity of the project and whether there were other alternatives that would have allowed the highway widening without destroying the sacred site. Plaintiffs additionally seek to depose BLM archeologist Frances Philipek.

         I. Justification for 3:1 Slope

         Plaintiffs argue that they are “entitled to additional discovery to probe the Government's justification” for constructing a 3:1 slope rather than a steeper 1.5:1 slope or retaining wall. Pl. Mot. Disc. 9, ECF #319. Plaintiffs also argue that they are “entitled to additional discovery to probe the Government's justification for choosing to build on the north side of the highway rather than building to the south.” Id. at 10.

         The court “must limit the frequency or extent of discovery” if it determines that “the discovery sought is unreasonably cumulative or duplicative.” FRCP 26(b)(2)(C). The administrative record in this case is voluminous, consisting of thousands of pages. Evidence of the agency's justification for how and where it expanded the highway would necessarily be cumulative and duplicative of the administrative record, given that the justification for the agencies' decisions is precisely the content of such records. In addition to the extensive administrative record in this case, defendants also responded to interrogatories and produced additional documents, and plaintiffs conducted depositions of agency staff. Order, ECF #277; Graham Dep. 5, ECF # 292-27.

         Moreover, plaintiffs have had ample opportunity to obtain the information by discovery in this action. FRCP 26(b)(2)(C). Federal defendants provided the administrative record to plaintiffs years ago, in 2010, and supplemented it in 2011. Admin. Records ECF #85; Suppl. Admin. Records, ECF #90. To the extent plaintiffs believe that justification for the project was not fully explained in the administrative record, they have had many years to address any ambiguities or deficiencies.

         The court further notes that in 2011, plaintiffs sought discovery under the Free Exercise claim, and the court held that such discovery was unnecessary because discovery under the Native American Graves Protection and Repatriation Act (“NAGPRA”) would involve the same information. See Findings & Recommendation 29-30, ECF #154, adopted by Order, ECF #171. Plaintiffs contend that, at that time, they were seeking discovery about the religious significance of the sacred site; however, plaintiffs argue they are now seeking discovery about whether federal defendants' actions were neutral and generally applicable. Pl. Reply 2-3, ECF #323. The fact that plaintiffs sought discovery on some aspects of the Free Exercise claim in 2011 calls into question why plaintiffs waited seven years to seek discovery on this aspect of the Free Exercise claim, and serves as further evidence that plaintiffs had ample opportunity to obtain such information.

         In their reply, plaintiffs contend that federal defendants chose to use a 3:1 slope in order to protect wetlands, and that such “privileging of secular resources over similarly situated religious resources is precisely the sort of non-neutrality that the Free Exercise Clause prohibits.” Pl. Reply 17, ECF # 323 (citing Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n, 138 S.Ct. 1719, 1731-73 (2018); Church of Lukumi Babalu Aye, Inc. v. Hialeah (“Lukumi”), 508 U.S. 520, 535-38, 542-47 (1993). However, neither case cited by plaintiffs deals with privileging secular resources over similarly situated religious resources. Rather, both cases dealt with situations in which certain behaviors were permissible if done for secular reasons, but not if done for religious reasons. Masterpiece, 138 S.Ct. at 1730-31 (Colorado Civil Rights Commission allowed bakers to refuse to make cakes due to secular “conscience-based objections” but not religious based objections); Lukumi, 508 U.S. 520, 545 (city ordinance allowed the slaughter of animals for commercial purposes but not for religious purposes). Plaintiffs also cite a Third Circuit case; however, that case also centered on a behavior that was permissible if done for a secular reason, but not if done for a religious reason. Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359, 360 (3rd Cir. 1999) (police department offered a medical exemption which allowed officers to wear beards but did not allow a religious exemption).

         The Supreme Court has explained that the “[f]actors relevant to the assessment of governmental neutrality include ‘the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decisionmaking body.'” Masterpiece, 138 S.Ct. at 1731 (quoting Lukumi, 508 U.S. at 540). Much, if not all, of the evidence pertaining to those factors would necessarily be contained within the administrative record. Plaintiffs also have available to them the responses to interrogatories and depositions of agency staff. Accordingly, further discovery ...


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