La Posta Band of Diegueno Mission Indians of the La Posta Reservation v. Trump

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LA POSTA BAND OF DIEGUEÑO Case No.: 3:20-cv-01552-AJB-MSB MISSION INDIANS OF THE LA 12 POSTA RESERVATION, ON BEHALF ORDER: 13 OF ITSELF AND ON BEHALF OF ITS MEMBERS AS PARENS PATRIAE, (1) GRANTING PLAINTIFFS’AND 14 Plaintiffs, DEFENDANTS’ MOTIONS TO SEAL, 15 v. (Doc. Nos. 65, 70); AND 16 DONALD J. TRUMP, PRESIDENT OF (2) DENYING PLAINTIFFS’ EX THE UNITED STATES, IN HIS 17 PARTE MOTION FOR OFFICIAL CAPACITY, et al., RECONSIDERATION, (Doc. No. 64) 18 Defendants.

19 20 21 22 Presently before the Court are: (1) the La Posta Band of the Diegueño Mission 23 Indians’ (“La Posta” or “the Tribe”) motion to seal, (Doc. No. 65); (2) Defendants’ motion 24 to seal, (Doc. No. 70); and (3) La Posta’s ex parte motion for reconsideration of the Court’s 25 December 16, 2020 order denying La Posta’ second motion for temporary restraining order 26 (“TRO”), (Doc. No. 64). Defendants opposed La Posta’s ex parte motion for 27 reconsideration. (Doc. No. 69.) For the reasons set forth below, the Court GRANTS both 28 La Posta’s and Defendants’ motions to seal, (Doc. Nos. 65, 70), and DENIES La Posta’s 1 ex parte motion. 2 I. LA POSTA AND DEFENDANTS’ MOTIONS TO SEAL 3 La Posta seeks leave to file under seal the Second Declaration of Simon Gertler in 4 support of the ex parte motion for reconsideration. (Doc. No. 65.) Defendants seek leave 5 to file under seal the Fourth Declaration of Paul Enriquez in support of Defendants’ 6 opposition to Plaintiffs’ ex parte motion for reconsideration. (Doc. No. 70.) 7 All documents filed with the Court are presumptively public. See San Jose Mercury 8 News, Inc. v. U.S. Dist. Court, 187 F.3d 1096, 1103 (9th Cir. 1999) (“It is well-established 9 that the fruits of pretrial discovery are, in the absence of a court order to the contrary, 10 presumptively public.”). “Historically, courts have recognized a ‘general right to inspect 11 and copy public records and documents, including judicial records and documents.’” 12 Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon 13 v. Warner Commc’ns, Inc., 435 U.S. 589, 597 & n.7 (1978)). When a motion to seal is 14 filed, two standards generally govern whether to seal the documents—the “good cause” 15 standard for non-dispositive motions, and the “compelling reasons” standard for 16 dispositive motions. See Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 677; Kamakana, 17 447 F.3d at 1180. The reason for the two different standards is that “[n]ondispositive 18 motions are often unrelated, or only tangentially related, to the underlying cause of action, 19 and, as a result, the public’s interest in accessing dispositive materials does not apply with 20 equal force to non-dispositive materials.” Pintos, 605 F.3d at 678 (quotations omitted). 21 The Ninth Circuit has clarified that the “compelling reasons” standard applies 22 whenever the motion at issue “is more than tangentially related to the merits of a case.” 23 Center for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1101 (9th Cir. 2016). In some 24 instances, the proposed filing of documents under seal in connection with motions for 25 preliminary injunction—though such motions are not dispositive—may be governed by the 26 “compelling reasons” test. Id. at 1097–1101 (quoting Leucadia, Inc. v. Applied Extrusion 27 Techs., Inc., 998 F.2d 157, 161 (3d Cir. 1993)). In keeping with this principle, requests to 28 seal documents relating to motions for a preliminary injunction have been found by the 1 Ninth Circuit to “more than tangentially relate[] to the merits” because success on the 2 motion for a preliminary injunction could resolve a portion of the claims in the underlying 3 complaint. See Center for Auto Safety, LLC, 809 F.3d at 1102. Here, La Posta’s motion for 4 reconsideration of the Court’s order denying its motion for TRO is certainly “more than 5 tangentially related to the merits of the case” because La Posta’s Amended Complaint 6 ultimately seeks injunctive relief that is not substantially different than the relief requested 7 in this instant motion. As such, the “compelling reasons” standard governs the proposed 8 sealing of the records. 9 “In general, ‘compelling reasons’ sufficient to . . . justify sealing court records exist 10 when such ‘court files might . . . become a vehicle for improper purposes,’ such as the use 11 of records to gratify private spite, promote public scandal, circulate libelous statements, or 12 release trade secrets.” Kamakana, 447 F.3d at 1179 (quoting Nixon, 435 U.S. at 598). “The 13 mere fact that the production of records may lead to a litigant’s embarrassment, 14 incrimination, or exposure to further litigation will not, without more, compel the court to 15 seal its records.” Id. “The ‘compelling reasons’ standard is invoked even if the dispositive 16 motion, or its attachments, were previously filed under seal or protective order.” Id. at 17 1178–79. 18 Here, the declaration of Simon Gertler offers communications from Customs and 19 Border Patrol (“CBP”) which identify the locations of, and describe, tribal archaeological 20 and cultural sites. The communications include photographs, descriptions, and maps of the 21 sites at issue. Similarly, the declaration of Paul Enriquez contains similar information about 22 the location of tribal sites. After review of the declarations and accompanying exhibits, the 23 Court finds that two compelling reasons exist to justify the sealing of these two 24 declarations. 25 First, the locations of tribal cultural sites are kept confidential by Kumeyaay tribes 26 and revealed only to qualified recipients. (See Second Parada Decl. ¶ 7.) The 27 confidentiality of the location of these sites is necessary to protect them from physical and 28 spiritual vandalism and looting. If the confidential information in these declarations is 1 publicly disclosed, it could be exploited, causing harm to the Tribe. 2 Second, the sealing of the declarations is appropriate because both California and 3 federal public records law exempt the particular records from disclosure. Indeed, California 4 public records law exempts from disclosure “[r]ecords of Native American graves, 5 cemeteries, and sacred places and records of Native American places, features, and objects 6 . . . maintained by, or in the possession of, the Native American Heritage Commission, 7 another state agency, or a local agency.” Cal. Gov’t Code § 6254. Similarly, the federal 8 Archaeological Resources Protection Act prevents from public disclosure information 9 concerning the “nature and location” of archaeological resources. 16 U.S.C. § 470hh. Thus, 10 the sealing of the records is appropriate to protect the integrity of La Posta’s cultural and 11 sacred sites. Accordingly, the Court finds that compelling reasons justify sealing the 12 declarations as “court files might . . . become a vehicle for improper purposes.” The Court 13 thus GRANTS La Posta and Defendants’ motions to seal. (Doc. Nos. 65, 70.) 14 II. LA POSTA’S EX PARTE MOTION FOR RECONSIDERATION 15 The Tribe argues “[t]wo new, critical pieces of evidence require that this Court 16 reconsider its determination regarding the irreparable harm facing the Tribe in the absence 17 of an injunction.” (Doc. No. 64 at 2.) District courts have the inherent authority to entertain 18 motions for reconsideration. See Amarel v. Connell, 102 F.3d 1494, 1515 (9th Cir. 1996); 19 Balla v. Idaho State Bd. of Corr., 869 F.2d 461, 465 (9th Cir. 1989). Absent highly unusual 20 circumstances, “[r]econsideration is appropriate if the district court (1) is presented with 21 newly discovered evidence, (2) committed clear error or the initial decision was manifestly 22 unjust, or (3) if there is an intervening change in controlling law.” Sch. Dist. No. 1J, 23 Multnomah Cnty. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993); In re: Incretin 24 Mimetics Prods. Liab. Litig., Case No. 13-md-2452 AJB (MDD), 2014 WL 12539702, at 25 *1 (S.D. Cal. Dec. 9, 2014). However, a motion for reconsideration is an “extraordinary 26 remedy, to be used sparingly in the interests of finality and conservation of judicial 27 resources.” Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003). Such a motion may not 28 be used to raise arguments or present evidence for the first time when they could reasonably 1 have been raised earlier in the litigation. See Sch. Dist. No. 1J, Multnomah Cnty., 5 F.3d at 2 1263. It does not give parties a “second bite at the apple.” See id.; see also Weeks v. Bayer, 3 246 F.3d 1231, 1236–37 (9th Cir. 2001). 4 A. Bone Fragments 5 First, La Posta argues new evidence justifies reconsideration because “Defendants 6 now acknowledge that the bone fragments uncovered in the Project Area on November 16, 7 2020 are in fact human remains, which they have allowed the Kumeyaay to repatriate.” 8 (Doc. No. 64 at 2.) La Posta argues this admission by Defendants provides a basis to 9 overturn the Court’s conclusion that factual disputes exist regarding whether the fragments 10 were of human or animal origin. In response, Defendants explain the factual disputes 11 surrounding these bone fragments still persist because it is impossible to determine 12 “whether the fragments are human or animal absent laboratory testing, which would likely 13 destroy the fragments given their small size.” (See Doc. No. 69 at 3; see also Third 14 Declaration of Paul Enriquez, ¶¶ 68, 73–76).) However, because of the inability to confirm 15 the origin of the fragments, Defendants “agreed to treat the bone fragments as if they were 16 human, notwithstanding the factual dispute” out of respect for the Tribe. (Doc. No. 69 at 3 17 (emphasis added).) 18 The Court concludes that this acknowledgment by Defendants cannot be grounds to 19 reconsider the Court’s previous order.1 This treatment of the bone fragments “as if they 20 were human” out of respect for the Tribe was evidence already considered by the Court in 21 its order denying La Posta’s second motion for TRO. (Doc. No. 69 at 3.) Indeed, 22 Defendants’ opposition to La Posta’s second motion for TRO stated, “[d]espite the 23 uncertainty about the origin of the bone fragments, CBP has agreed to treat the feature as 24 25 26 1 The Court additionally notes that Defendants have complied with the Tribes’ request to repatriate the bone fragments by transferring custody to a designated Tribal representative. (See Fourth Enriquez Decl. 27 ¶¶ 14–17.) The form acknowledging the transfer states, “[o]ut of respect for the Kumeyaay Tribes, CBP has agreed to treat the indeterminate calcined bone as human and Feature 3 as a cremation site.” (See 28 Fourth Enriquez Decl., Ex. 3 at ¶ 4 (emphasis added).) 1 a cremation site out of respect for the Kumeyaay Tribes and is working with the Tribes to 2 develop an appropriate protection plan for the area.” (See Doc. No. 48 at 12.) Accordingly, 3 this point does not present new evidence or a new consideration that would justify altering 4 the Court’s prior order. See Sch. Dist. No. 1J, Multnomah Cnty., 5 F.3d at 1263. 5 Lastly, the classification of Dr. Madeline Hinkes as a San Diego County Medical 6 Examiner does not change this analysis. In its previous order, the Court did not engage in 7 the exercise of determining which expert was more credible or reliable. Instead, the Court 8 simply noted the factual disputes involving the bone fragments, and concluded that the 9 factual disputes, coupled with the mitigation procedures, foreclosed a finding of irreparable 10 harm for the extraordinary relief of a TRO. (Doc. No. 60 at 13.) 11 B. Additional Inadvertent Discovery of Potential Tribal Site 12 As the second ground for reconsideration, La Posta states that Mr. Enriquez “notified 13 the Kumeyaay tribes by email on December 20, 2020 that four days earlier, ‘there was an 14 additional inadvertent discovery’ within the Project Area.” (See Doc. No. 54 at 3 (citing 15 Second Gertler Decl. ¶ 3).) This discovery was characterized by Mr. Enriquez as a “fire pit 16 or small roasting feature.” (Id.) La Posta explains “[w]hether, after further analysis, the site 17 turns out to be a cremation site containing human remains or simply a non-funerary cultural 18 site, such as for agave roasting (which is highly specious because food is not cooked near 19 cremations), it holds cultural and spiritual significance to the Tribe.” (Doc. No. 64 at 3.) In 20 opposition, Defendants assert “CBP applied to the recently-discovered fire feature the same 21 mitigation procedures and protocols that the Court credited in denying Plaintiffs’ second 22 TRO motion.” (Doc. No. 69 at 6.) Specifically, CBP states it “notified the Tribes of the 23 discovery that same day and explained the mitigation measures that would be implemented 24 to protect it from harm.” (Id.) The mitigation measures included extending “the size of the 25 buffer zone that had already been established to protect the other features to ensure 26 protection of the additional feature” and allowing tribal cultural monitors “to supervise the 27 placement of the temporary [concrete] barriers that were put in place to protect the feature.” 28 (Id.) 1 La Posta disputes the adequacy of these procedures, asserting that “there is no formal 2 plan that is being used to mitigate the impacts to the cremations or the circle features” and 3 that “CBP is not complying with its own draft protocol because it calls for a 100-meter 4 buffer around any human remains, but that is not occurring.” (Doc. No. 64 at 5.) The 5 Government responds that on December 2, 2020, CBP distributed a draft treatment plan to 6 the Tribes for comment and, after receiving written and oral feedback, CBP distributed a 7 revised treatment plan on December 17.” (Doc. No. 69 at 6–7.) The revised treatment plan 8 proposes “a surface investigation of the area in order to record, map, and photograph any 9 additional surface features; excavation of the features to determine if any artifacts or intact 10 cultural deposits are present and to radiocarbon date the materials; and investigation to 11 determine evidence of food preparation and processing as well as native plants and 12 animals.” (Id. at 8; see also Fourth Enriquez Decl. ¶ 21.) As to the buffer zones, Defendants 13 respond that in actuality, CBP has gone beyond the requirements of its Protocol Plan to 14 protect the fire features from harm because the Protocol Plan requires work to be stopped 15 within 100 feet of a cultural resource, but CBP established a 100 meter buffer zone around 16 the features instead. (Doc. No. 69 at 7.) 17 The Court first notes reconsideration is not warranted solely based on the discovery 18 of another fire feature site. As stated in this Court’s previous orders on La Posta’s TRO 19 motions, the mitigation measures implemented by Defendants undermine La Posta’s ability 20 to establish both irreparable and imminent harm necessary for a TRO. But recognizing that 21 the Court’s denial of the Tribe’s TRO motions is based on the mitigation procedures in 22 place, the Court directs the Government to continue all present mitigation efforts to ensure 23 no damage to potential tribal sites. Furthermore, the Government is ORDERED to 24 establish buffer zones of at least 100 meters around any human remains and suspected tribal 25 site, unless otherwise agreed to by the Tribe. Construction is to halt within these buffer 26 zones. 27 III. CONCLUSION 28 Based on the foregoing, La Posta and Defendants’ motions to seal are GRANTED. 1 ||(Doc. Nos. 65, 70.) Additionally, La Posta’s ex parte motion for reconsideration is 2 || DENIED. However, the Court directs the Government to continue all present mitigation 3 ||efforts to ensure no damage to potential tribal sites. Furthermore, the Government is 4 || ORDERED to establish buffer zones of at least 100 meters around any human remains 5 || and suspected tribal site, unless otherwise agreed to by the Tribe. Construction is to halt 6 || within these buffer zones. This order will remain in effect until the Court issues a ruling on 7 ||La Posta’s second motion for preliminary injunction. 8 9 IT IS SO ORDERED. 10 Dated: January 5, 2021 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28