Update by ERIC SHULTZ
As previously reported, the Vallecitos-area Jarita Mesa and Alamosa grazing associations have sued the Forest Service over grazing permit reductions. But the 18 percent cut in grazing isn’t the only issue. These micro-scale ranchers contend that when she was El Rito District Ranger, Diana Trujillo made the cut in retaliation for complaints they had made about her to their elected officials. That makes what she did a violation of the Constitution: the ranchers’ complaints were protected free speech and an attempt—in the words of the First Amendment—“to petition the Government for a redress of grievances.”
Last fall, Trujillo’s defense team of U.S. Attorneys filed a “motion to dismiss” the First Amendment charge. As we reported in January, the ranchers survived that challenge with a mixed decision from Federal Judge James O. Browning. The judge blocked the plaintiffs’ attempt to recover damages for the economic losses stemming from Trujillo’s decision, but he found the First Amendment charges worthy of going to trial. Most significantly, Judge Browning allowed the constitutional charge to be tried apart from administrative issues involved in Trujillo’s decision to cut grazing.
This is crucially important because judicial review of an administrative decision is usually restricted to using the given agency’s official documentary record as the only admissible evidence. But if government officials are prejudiced against a group of citizens—grazing permittees calling for the District Ranger’s transfer, in this case—it is highly unlikely they would discuss a plan for retaliation in the official record. Being bound by the rules of administrative review would make the constitutional issue impossible to prove. By ruling that the First Amendment charge can stand apart from the administrative issues, Judge Browning gave the plaintiffs “robust discovery” meaning they can now subpoena witnesses and documents outside of the official record.
And on the basis of that January opinion, the plaintiffs tried to move forward. They informed the defense of their intention to take depositions from Trujillo, her supervisor at the time, and perhaps the current Carson National Forest Supervisor, too. In response to this request, the defense has fired back with the legal equivalent of a wall of flack.
The defense team’s first response was to file a motion for Judge Browning to reconsider his January decision. And the purpose of this motion is explicit. They implore the judge to reconsider giving the plaintiffs “robust discovery.” Something like the assumption that a person who doesn’t speak English will understand me if I repeat myself only LOUDER, the defense essentially repeats its earlier argument that the matter, including any First Amendment charge, should be handled under the Administrative Procedures Act (APA). In other words, evidence should be confined to the official record with no power to subpoena other documents or testimony. This is precisely what Judge Browning rejected in January, hence the motion to reconsider.
But as the plaintiffs point out in their response, a motion to reconsider can be granted only given certain extraordinary conditions, such as “the need to correct manifest error of fact or law or prevent manifest injustice.” Perhaps understanding that mere unhappiness does not meet the judicial threshold for reconsideration, the defense suggests a kind of half-measure: if the court insists on allowing the plaintiffs discovery beyond the official record, then such additional discovery should only be allowed on an “as needed” basis once review of the record has been completed. But as the court accepted in January, the nature of this litigation requires kinds of evidence—such as those that establish what have been the normal agency procedures over time—that an official record restricted to a single incident simply cannot provide.
To make an analogy, if we want to know whether a given year was wetter or dryer than the other years in that decade, we would need precipitation records from the whole decade. No matter how carefully we analyzed the data from the year in question, those data alone cannot tell us the 10-year trend. The plaintiffs can only prove that Trujillo’s decision was abnormal if they have evidence to show what has been the norm, and because an official record restricted to one single agency decision cannot give a basis for knowing whether it was normal or aberrant, such a record cannot possibly be adequate to answer the question posed. So when the defense asks that discovery be allowed only if the records turn out to be inadequate, this can only be a delaying tactic.
Not relying solely on the motion to reconsider, the defense also filed an entirely new motion to dismiss the First Amendment charge. Since it is only under this charge that the plaintiffs have been granted robust discovery, getting rid of the charge would make discovery a non-issue. This time, the defense argues that the plaintiffs cannot pursue their First Amendment charge in court because they did not pursue it first in their administrative appeal of Trujillo’s decision. In other words, they went to court before exhausting the avenues for relief that the Forest Service offers. In their response, the plaintiffs show clearly how they did exhaust the administrative appeals process, and if they did not expressly charge a constitutional violation in that venue (which does not disqualify their charging that in court), it is relevant that such a charge would have been futile since the administrative appeals process makes no provision for calling witnesses or subpoenaing documents; in short, it allows no discovery beyond the official record.
The zealous and vigorous defense that government lawyers are mounting for former District Ranger Trujillo does not fail to impress. While these latest motions are surmountable due to their faulty arguments and lack of relevance, they do pose obstacles that take time, effort, and expense to overcome and that in itself serves a purpose. The government’s approach seems to be that it does not matter who is right or wrong, but which is the last side standing. And the Justice Department has practically unlimited resources and time on its side. So far, the plaintiffs’ lawyers have stood their ground. Judge Browning’s decisions on the two latest motions are expected in the coming weeks, and we will continue our exclusive coverage in La Jicarita.