United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
YIM YOU UNITED STATES MAGISTRATE JUDGE
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. For the reasons discussed below,
plaintiffs' motion is DENIED.
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).
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
Justification for 3:1 Slope
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.
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.
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
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.
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).
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