CA Sportfishing Protection Alliance v. Allison ( 2022 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 CALIFORNIA SPORTFISHING Case No. 2:20-cv-02482 WBS AC 11 PROTECTION ALLIANCE, [consolidated with 2:21-cv-00038 WBS AC] 12 Plaintiff, ORDER RE: TERMS FOR 13 v. INSPECTION OF PROPERTY 14 KATHLEEN ALLISON, 15 Defendant. _______________________________________ 16 (Federal Water Pollution Control Act, 33 COUNTY OF AMADOR, a public agency of U.S.C. §§ 1251 to 1387) 17 the State of California, Final Pretrial Conf.: February 13, 2023 18 Plaintiff, Trial Setting Conf.: April 18, 2023 v. 19 KATHLEEN ALLISON, et al., 20 Defendants. 21 22 23 24 25 26 27 28 1 This matter is before the court for further proceedings regarding Plaintiffs’ motion to 2 compel defendant Kathleen Allison to accommodate Dry and Wet Facility Inspections of the 3 Mule Creek State Prison in Ione, California. ECF No. 22. On January 3, 2022, the motion was 4 granted insofar as the court ordered the inspections to take place, and the parties were directed to 5 submit a stipulation and/or proposed order regarding the terms of the inspections. ECF No. 29. 6 The parties subsequently submitted a stipulation and proposed order in draft form, as permitted 7 by the undersigned, which contained numerous areas of outstanding disagreement. ECF No. 32. 8 These areas of disagreement were discussed at a further motion hearing on February 2, 2022. 9 ECF No. 36. Because the parties were unable to agree on all terms for the inspections, having 10 considered the written submissions of all parties and the arguments at hearing, the undersigned 11 now orders as follows.: 12 I. Geographic Areas of the Property Subject to Inspection 13 The representatives of Plaintiffs may only enter the geographic areas designated in 14 Exhibit A. 15 II. Application and Number of Inspections Permitted 16 The terms and conditions of this Stipulation shall apply to all inspections of the Property 17 performed by the Plaintiffs in the above-entitled action. 18 Plaintiffs may collectively carry out a total of up to four (4) inspections of the Property 19 under this Stipulation: a “dry weather” and up to three “wet weather” inspections. Plaintiffs do 20 not waive their right to seek further inspections from Secretary Allison if necessary, and 21 Secretary Allison does not waive her right to oppose such requests. Plaintiffs will make a good 22 faith effort to collect necessary evidence in as few inspections as possible. 23 III. Dates, Start Time, and Time Limit for Inspections 24 A dry weather inspection will be carried out on March 9, 2022, and wet weather 25 inspections will be scheduled pursuant to the notice provisions of this Stipulation, as provided 26 below. Inspections will take between 5 and 8 hours to complete. An inspection will be 27 completed within one business day between the hours of 9:00 a.m. and 5:00 p.m. 28 To accommodate Plaintiffs’ request for an inspection during a Significant Rain Event, 1 Plaintiffs may propose an inspection date by providing written notice to Secretary Allison at least 2 ten (10) calendar days before the proposed inspection date. At least thirty-six (36) hours before 3 Plaintiffs’ proposed inspection date, the Parties will confer to determine whether the inspection 4 will go forward. As part of that conference, the Parties will discuss whether a Significant Rain 5 Event is likely to occur on the proposed date, any logistical issues, whether Warden Covello has 6 a basis to deny access in whole or part, and any other necessary issues. The Parties will make 7 their best efforts to complete the inspection(s) on the earliest mutually agreeable date. 8 Warden Covello, in the Warden’s sole discretion, will have the right to deny access if 9 circumstances would make an inspection unduly burdensome and pose significant interference 10 with operations at Mule Creek State Prison, if the inspection would create a safety, security, or 11 privacy risk, or if the Warden is unable to clear for entry any representative of Plaintiffs who 12 requested access. 13 IV. Route for Inspection 14 Given the large area subject to the inspections, and the related staffing, security, safety, 15 inmate location, and privacy issues, Plaintiffs will advise Secretary Allison at least seven (7) 16 days before the inspection of their route for the inspection. 17 The proposed route will be subject to the approval of the Warden at least three (3) 18 business days before Plaintiffs’ inspection, and this approval will not be unreasonably withheld. 19 The route may be altered during the inspection if approved by a designated representative of the 20 Warden, who shall be present for the inspection. The route will be within the area designated in 21 Exhibit A. All Parties understand that the proposed route is provided in order to expedite the 22 inspection, and so that the Parties can be prepared for it, not to limit the areas Plaintiffs may 23 inspect so long as it is within the area designated on Exhibit A. 24 V. Number of Persons Allowed 25 The inspections will be performed by no more than a total of four (4) individuals 26 representing both Plaintiffs (one attorney and one consultant representing each Plaintiff). 27 Secretary Allison shall be represented by no more than a total of eight (8) individuals at each 28 inspection. 1 VI. Equipment and Materials Allowed 2 Plaintiffs will only be permitted to bring the equipment necessary for the inspection onto 3 the Property, including but not limited to: 1) up to three (3) cameras capable of taking pictures 4 and recording video; 2) up to two ice chests containing only ice (and other equipment listed 5 herein); 3) latex gloves; 4) plastic bags; 5) one notebook and two pens per person; 6) one plastic 6 trowel; 7) a thermometer; 8) a supply of sampling containers and labels; and 9) up to three (3) 7 flashlights. 8 All equipment and materials (with the exception of privileged information) will be 9 subject to inspection by CDCR staff prior to, during, and after completion of the inspection. Any 10 such inspections shall not “count against” Plaintiffs’ allotted eight hours for completing each of 11 the inspections. Plaintiffs will ensure that all materials and equipment are kept secure and in 12 their possession at all times. All equipment and materials must be taken from the Property by 13 Plaintiffs when the inspection ends. 14 If Plaintiffs determine that any additional equipment is necessary for an inspection of the 15 Property, Plaintiffs shall identify that equipment in a written notice provided to Secretary Allison 16 at least 10 calendar days before the inspection, and Secretary Allison shall approve or deny 17 Plaintiffs’ ability to bring any such equipment to the inspection at least 36 hours before the 18 inspection. 19 Plaintiffs will not be allowed to bring any type of telephone or other contraband onto the 20 Property. Plaintiffs may leave their phones in their locked vehicles during the inspections. 21 VII. Actions Permitted by Plaintiffs 22 Except as otherwise provided herein, Plaintiffs are only permitted to inspect outdoor 23 areas. Plaintiffs may only enter a building if directed by CDCR staff, as needed to comply with 24 safety and security requirements. Plaintiffs must be escorted by CDCR staff and representatives 25 at all times. Plaintiffs may not interact with inmates or any other staff in any way unless 26 authorized by designated CDCR staff. 27 Except as otherwise provided below, Plaintiffs may only perform the following actions in 28 the outdoor areas designated in Exhibit A: 1 a. Visual Inspections 2 Plaintiffs’ representatives may visually inspect above ground areas, below ground areas 3 from above ground, and accessible equipment, in any areas designated in Exhibit A (located at 4 ECF No. 32 at 17). They may not personally physically manipulate any item they encounter, 5 including, but not limited to, equipment, supplies, infrastructure, covers, and landscaping. 6 Should such manipulation be necessary for inspection of subsurface areas, Defendant will 7 perform the manipulation in a timely manner. 8 b. Sampling of Water 9 Plaintiffs may perform non-destructive sampling of water (the act of removing water for 10 sampling shall not, in itself, be deemed destructive) in any areas to which they are allowed 11 access (areas designated in Exhibit A). As provided in the previous paragraph, plaintiffs may 12 request that any manholes or other subsurface areas, such as electrical vaults and slide gates, they 13 identify within the area designated in Exhibit A (ECF No. 32 at 17) be unlocked and removed by 14 CDCR staff to allow for the collection of water samples and photo documentation. The request 15 will be allowed so long as it does not create a security or safety risk. 16 Secretary Allison’s representatives will be provided with split samples by Plaintiffs’ 17 representatives. So that Secretary Allison’s representatives can be sufficiently prepared to 18 receive, handle, and process the split samples, at least ten (10) calendar days before each 19 inspection, Plaintiffs will provide Secretary Allison with the estimated number of samples they 20 anticipate collecting and the analytes they anticipate testing the samples for. 21 Secretary Allison may test all split samples for the anticipated analytes provided by 22 Plaintiffs. Any time required by the Secretary to receive, handle, or process the split samples 23 (beyond the time required for Plaintiffs’ representatives to do the same) shall not “count against” 24 Plaintiffs’ allotted eight (8) hours to conduct each inspection. 25 c. Sampling of Soil or Sediment 26 Plaintiffs may collect samples of soil, debris or sediment with a plastic trowel in any 27 areas to which they are allowed access (areas designated in Exhibit A). In collecting the 28 sample(s), Plaintiffs must immediately repair any damage to the satisfaction of the Warden. 1 So that Secretary Allison’s representatives can be sufficiently prepared to receive, handle, 2 and process the split samples, at least ten (10) calendar days before each inspection, Plaintiffs will 3 provide Secretary Allison with the estimated number of samples they anticipate collecting and the 4 analytes they anticipate testing the samples for. 5 Secretary Allison may test all split samples for the anticipated analytes provided by 6 Plaintiffs. Any time required by the Secretary to receive, handle, or process the split samples 7 (beyond the time required for Plaintiffs’ representatives to do the same) shall not “count against” 8 Plaintiffs’ allotted eight (8) hours to conduct each inspection. 9 d. Photographs and Video 10 Plaintiffs may take photographs and video recording to the extent the Warden or the 11 Warden’s representative pre-determines that safety, security, and privacy will not be 12 compromised. See e.g., 15 CCR § 3261.7(g). The Warden shall be responsible for making such 13 determinations within five (5) days of receiving Plaintiffs’ proposed inspection route under 14 Section IV herein, except with respect to emergent changes in prison conditions. 15 Plaintiffs may alternatively request that the Warden cause CDCR staff to take 16 photographs and/or record video for them. 17 Plaintiffs are prohibited from taking any photographs or video that include any CDCR 18 staff, representatives, or agents. They are further prohibited from taking any photographs or 19 video of any inmates or security devices. CDCR staff will assist Plaintiffs’ representatives with 20 identifying inmates and security devices. 21 VIII. Inspection of Industrial Areas 22 Any inspection of areas subject to the State Water Board’s Order 2014-0051-DWQ, 23 General Permit for Storm Water Discharges Associated with Industrial Activities (“Industrial 24 General Permit”) and No Exposure Certification, and not otherwise relevant to CSPA’s claims, 25 may only be carried out by the County. 26 This inspection must be conducted on the same date as the inspection of other areas of the 27 Property but will not “count against” CSPA’s time allowed for the inspection. This part of the 28 inspection will be carried out during the inspection of other areas of the Property, and will be 1 limited to a one attorney and one consultant for the County, except to the extent that the County 2 wishes to take samples, in which case CSPA’s consultant shall accompany them for purposes of 3 taking any samples. 4 The representatives of the County may enter indoor areas of the Property covered by the 5 Industrial General Permit and No Exposure Certification. No photographs or samples may be 6 taken by the County’s representatives indoors. See e.g., 15 CCR § 3261.7(g). 7 The inspection of the areas subject to the Industrial General Permit and No Exposure 8 Certification will otherwise be carried out in the same way as the other portions of the Property. 9 IX. Privileged and Confidential Information 10 Plaintiffs agree they are not seeking, and will not collect, any privileged or confidential 11 information. This includes information protected from discovery by the attorney-client privilege, 12 deliberative process privilege, legislative privilege, state secrets privilege, government and law 13 enforcement privilege, work product doctrine, right to privacy, and processes not generally 14 available to the public. If Plaintiffs become aware they have collected any privileged or 15 confidential information, they will immediately delete and/or destroy all copies of that 16 information and will immediately notify Secretary Allison of the issue (unless she notified 17 Plaintiffs of the issue). 18 X. Use of Information Collected 19 Plaintiffs agree that all information (including, but not limited to data, photographs, and 20 video) obtained during any inspection of the Property will be used solely in connection with the 21 pending actions and will not be disclosed or distributed to any person other than Plaintiffs’ 22 management, their counsel, and their consultants (who are not authorized to further disclose or 23 distribute the information and will be instructed accordingly), and if necessary, the Court. 24 Before any such information is provided to the Court by Plaintiffs, it will be submitted to 25 the Warden who, in the Warden’s sole discretion, will determine within seven (7) business days 26 whether any of it constitutes a safety, security, or privacy risk. If the Warden timely determines 27 and notifies Plaintiffs that any such information is deemed a safety, security, or privacy risk, then 28 the parties shall promptly meet and confer to determine whether to submit a stipulated request 1 for filing under seal pursuant to E.D. Cal. R. (“Local Rule”) 141. If the parties do not agree that 2 filing under seal is appropriate, any Party may bring a motion as further specified below. 3 Information identified by the Warden as constituting a safety, security, or privacy risk, and that is 4 the subject of a stipulation or motion for sealing, shall not be filed on the public docket prior to 5 the court’s ruling on the request. 6 If any Party wishes to file documents with the court under seal, or wishes specific 7 documents to be filed by the opposing Party under seal, they must comply with the Local Rules 8 of this court and make a motion before the same judge who will decide the matter related to that 9 request to seal. The designation of any document as confidential does not automatically entitle 10 the Parties to file such a document with the court under seal. Parties are advised that any request 11 to seal documents in this district is governed by Local Rule 141. In brief, Local Rule 141 12 provides that documents may only be sealed by a written order of the court after a specific 13 request to seal has been made. Local Rule 141(a). However, a mere request to seal is not 14 enough under the local rules. In particular, Local Rule 141(b) requires that “[t]he ‘Request to 15 Seal Documents’ shall set forth the statutory or other authority for sealing, the requested 16 duration, the identity, by name or category, of persons to be permitted access to the document, 17 and all relevant information.” Local Rule 141(b) (emphasis added). 18 A request to seal material must normally meet the high threshold of showing that 19 “compelling reasons” support secrecy; however, where the material is, at most, “tangentially 20 related” to the merits of a case, the request to seal may be granted on a showing of “good cause.” 21 Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1096-1102 (9th Cir.), cert. denied, 22 137 S. Ct. 38 (2016); Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178-80 (9th 23 Cir. 2006). 24 XI. Damage Caused by Plaintiffs 25 Unless otherwise stated herein, Plaintiffs will repair at their sole expense all damage they 26 cause to the satisfaction of the Warden within five (5) calendar days or the earliest feasible time. 27 XII. Indemnification and Hold Harmless 28 Plaintiffs and Plaintiffs’ representatives, attorneys, agents, and consultants who 1 participate in the inspection (“Indemnifying Parties”) will defend, indemnify and hold harmless 2 CDCR, Secretary Allison, the Warden, their employees, agents, and representatives 3 (“Indemnified Parties”) from and against any and all claims, causes of action, suits, demands, 4 losses, judgments, damages, fines, penalties, liabilities, costs and expenses, including attorneys’ 5 and consultants’ fees and costs (“Claims”) incurred by the Indemnified Parties (“Plaintiffs’ 6 Indemnity”) regarding the Indemnifying Parties’ negligence or willful misconduct. 7 The Plaintiffs’ Indemnity shall survive the termination of this Stipulation and the 8 resolution of the above-captioned actions. 9 XIII. Compliance with all Safety, Security, and Privacy Requirements 10 Plaintiffs will comply at all times with all applicable safety, security, and privacy 11 requirements. This includes the timely completion of CDCR Form 181, attached hereto as 12 Exhibit B, and passing a security screening carried out by CDCR staff. Plaintiffs will be solely 13 responsible for ensuring they are fully aware and fully comply with all requirements. 14 XIV. Compliance with COVID-19 Specific Protocols 15 Plaintiffs’ and Defendants’ representatives will comply with all COVID-19 related 16 advisories and requirements at all times. This includes federal, state, and local advisories and 17 requirements, and advisories and requirements of CDCR and Mule Creek State Prison specific to 18 the Property. The Parties understand that these advisories and requirements are subject to 19 change, and they should confirm the operable advisories and requirements before attempting to 20 schedule and carry out an inspection. If there are any additional COVID-19 related requirements 21 of CDCR and Mule Creek State Prison specific to the Property, they shall be shared with 22 Plaintiffs’ counsel seven (7) days ahead of any inspection 23 XV. Failure to Comply with this Order 24 If any representative of any Party violates the terms of this Order during an inspection in 25 a way that creates a safety, security, or privacy concern, the inspection may be terminated by the 26 Warden or his representatives, or Plaintiffs’ representatives. If the inspection is terminated, 27 Plaintiffs’ representatives will be required to immediately leave the Property. 28 //// 1 Any Party refusing to proceed with an inspection or terminating an inspection without 2 || good cause may be subject to sanctions as determined by the Court in later proceedings. 3 IT IS SO ORDERED 4 || DATED: February 8, 2022 ' ~ Ctlhter— Lane 5 ALLISON CLAIRE 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT A 1 2 Mule Creek State Prison Bie Legend Plaintfis’ FRCP 24 Inspection Request a Area 10 Inspect 3 eh @ Exclided from Inspection 4 ws Race age 5 4 Neca cai Be 7 a a 104, be, Phe HA ag) J i ° } Sey i 10 a aS. ee 1 □□ 1] ; ~ = es la re A aN p> BA ' ry □ 13 or a r "Me a ie NE eee 14 Ra NER □□□ rae Naas □□ efefose) □□ lacn NER gaia ee a's A Ne ee 15 16 17 18 19 20 21 22 23 24 25 26 27 28 in