Judge rules federal employees will be deposed in endangered salmon litigation

By Elizabeth Alt | May 5, 2018

The U.S. District Court for the Eastern District of California granted the National Resource Defense Counsel ‘s motion to compel two federal employees to be deposed in a lawsuit claiming the Sacramento River Settlement contractors have threatened the Chinook river salmon.

SACRAMENTO – The U.S. District Court for the Eastern District of California granted the National Resource Defense Counsel ‘s motion to compel two federal employees to be deposed in a lawsuit claiming the Sacramento River Settlement contractors have threatened the Chinook river salmon.

“(The U.S. Department of Commerce) has not met its burden of showing that these proposed limitations would protect information that is pre-decisional … the limitations proposed by USDOC are overboard.”

The order written by Magistrate Judge Erica P. Grosjean granted “NRDC’s motion to compel and orders the depositions to proceed.” The NRDC requested for two employees of the National Marine Fisheries Service to testify in connection with their sixth claim against the Sacramento River Settlement Contractors and the U.S. Bureau of Reclamation “for the unlawful take of endangered Sacramento River winter-run Chinook salmon and threatened Central Valley spring-run Chinook salmon in violation of Section 9 of the Endangered Species Act (“ESA”).

The fisheries service is responsible for overseeing the safety and protection of winter-run and spring-run Chinook salmon under the Endangered Species Act and fall under the National Oceanic and Atmospheric Administration, which is an agency of the U.S. Department of Commerce. The two employees, NRDC states, have “personal knowledge of and expertise relating to the events underlying NRDC’s take claims," the needs of the Chinook salmon and how projects such as the Central Valley Project and Sacramento River Settlement operate. NRDC further states these employees’ expertise cannot be found elsewhere.

USDOC filed a motion to quash in response to NRDC’s motion to compel after general counsel for the NOAA refused to allow the employees to testify under regulations of the United States Department of Commerce that state employees “cannot be compelled to obey a subpoena contrary to USDOC," stating that the regulation “prohibits a department employee from testifying as an expert or opinion witness for any party other than the United States in legal proceedings in which the United States is a party.

In February the court ordered NRDC to amend its subpoena request. The Commerce department did not object and both parties “agreed on certain minimum limitations on the scope of the depositions if they were to proceed.” In March the NRDC filed its sixth claim, adding an order for the NOAA and/or USDOC to allow the employees to testify per the subpoenas.

The court overruled UDOC’s proposal “that the testimony should be limited to factual information,” as well as UDOC’s objections to questions that would cover dates before August 2016. The court also overruled the USDOC’s request for NRDC to submit questions for interrogatories instead of a deposition. “Deposition testimony is superior to interrogatories in the ability to ask follow-up questions and clarifications.”

Grosjean stated, “the court agrees with NRDC that (the employees) testimony on these issues is not available elsewhere. No other sources have NMFS’s experience, expertise, resources, or statutory mandate when it comes to monitoring, evaluating, and analyzing water operations’ effects on endangered winter-run and spring-run Chinook salmon, and no other sources have (their) personal experience and expertise on these topics.”

United States District Court Eastern District of California case number 1:05-cv-01207-LJO-EPG

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