On January 19, 2011 the court heard argument on a request to seal documents, filed by plaintiff Sierra Pacific Industries (SPI), and on The Sacramento Bee's motion to intervene and opposition to the request to seal. Janlynn Fleener and Annie Amaral appeared for SPI; Richard Linkert appeared for W.M. Beaty and Associates, Inc.; Todd Pickles, Kelli Taylor, and Richard Elias appeared for the United States Department of Agriculture (USDA); and Karl Olson appeared for The Sacramento Bee (Bee).
Plaintiffs are currently engaged in litigation in multiple cases in state and federal court related to the Moonlight forest fire that burned approximately 65,000 acres in 2007. The sole issue in this case is a narrow one: whether defendant USDA violated the Administrative Procedures Act, 5 U.S.C. § 701, et seq. ("APA"), when it made the decision to not allow agency employees to be deposed or testify in the state action. The USDA has internal regulations ("Touhy regulations") governing the decision whether to make agency employees available to participate in state proceedings. See United States ex rel Touhy v. Ragen, 340 U.S. 462 (1952).
On May 9, 2011, plaintiffs filed suit in this court claiming the USDA's decisions made pursuant to its Touhy regulations violate the APA. (ECF 1.) On November 18, 2011, plaintiffs filed an amended complaint. (ECF 20.) The USDA filed the administrative record on November 4, 2011 (ECF 18), and on November 23, 2011, plaintiffs challenged the record as incomplete. (ECF 24.) In that motion, plaintiffs sought to supplement the record with, inter alia, deposition transcripts of Forest Service employees taken in the course of litigation of the separate suit identified as United States v. America v. Sierra Pacific Industries, et al., Civ. No. 09-2445 KJM EFB.
On December 22, 2011, the court denied the portion of plaintiffs' motion seeking to add the deposition transcripts to the administrative record, noting that "[c]onsideration of the depositions' content is not required by the Touhy regulations and therefore is not material to determining whether the agency acted in accordance with its obligations under the APA." ECF No. 31 at 5.
On January 4, 2012, plaintiffs filed a motion for summary judgment and a request to file under seal Exhibits E, G, J, L, N, P and R to the Declaration of Elizabeth Stallard. Plaintiffs noted that these exhibits, which are portions of deposition transcripts, are designated "confidential" under the Stipulated Protective Order entered in Civ. No. S-09-2445 KJM EFB. ECF No. 35 at 3.
On January 9, 2012, the Bee filed a request to intervene and an opposition to the request to seal documents. ECF No. 37. Both USDA and SPI have filed responses to the Bee's opposition. ECF Nos. 40, 41.
II. Motion To Intervene "Nonparties seeking access to a judicial record in a civil case may do so by seeking permissive intervention under Rule 24(b)(2)." San Jose Mercury News, Inc. v. U.S. District Court - Northern District, 187 F.3d 1096, 1100 (9th Cir. 1999). Rule 24(b) provides, in pertinent part:
Upon timely application anyone may be permitted to intervene in an action: ... (2) when an applicant's claim or defense and the main action have a question of law or fact in common. ... In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
In the Ninth Circuit, a court will allow intervention upon a showing that (1) the movant has an independent ground for jurisdiction; (2) the motion is timely; and (3) the movant's claim or defense and the main action have a question of law and fact in common. See Donnelly v. Glickman, 159 F.3d 405, 412 (9th Cir. 1998).
No party has challenged any of the above prerequisites with respect to the Bee's motion. The court finds this is a matter of public concern and controversy, and that the Bee has satisfied the Rule 24(b) requirements for permissive intervention. As noted at hearing, the Bee's motion to intervene is GRANTED,for the limited purpose of challenging plaintiffs' request to seal.
A. Common Law Right of ...