Sacramento judge makes release of Moonlight fire documents risky

Published: Thursday, Jan. 26, 2012 - 12:00 am | Page 3B
Last Modified: Wednesday, Jul. 18, 2012 - 6:25 am

A Sacramento federal judge has avoided making public a set of documents sought by The Bee that were offered to support a critical motion in a bitter legal battle over how a 2007 wildfire started and who should pay for damages it caused.

U.S. District Judge Kimberly J. Mueller said the party offering the documents, timber giant Sierra Pacific Industries, is free to file them publicly within three days of Tuesday, the day she signed a 10-page order filed Wednesday.

Mueller noted a prior ruling that the documents are immaterial to the matter at issue in Sierra Pacific's lawsuit against the U.S. Department of Agriculture.

"In light of (the prior) ruling, SPI's attempt to file the documents at all appears to be improper," the judge stated.

She added ominously, "If SPI files the exhibits, and the court later determines that the filing was improper, the court then will issue an order directing SPI to show cause why it should not be sanctioned."

So, if the documents are filed publicly, attorneys at the Sacramento firm Downey Brand LLP who represent Sierra Pacific are looking down the barrel of possible monetary penalties.

The documents purportedly bear on Sierra Pacific's allegations that U.S. Forest Service personnel are guilty of fraud and misconduct in connection with the detection and investigation of the mammoth Moonlight fire that ravaged 65,000 acres of national forest and private property in Plumas and Lassen counties.

Sierra Pacific's attorneys did not oppose The Bee's opposition to a sealing order, explaining it was only because the government wants the material "made inaccessible to members of the public" that they asked for such an order.

The government's response to The Bee's opposition makes clear that is an accurate characterization of its position.

Mueller says that case law seems to be on The Bee's side with respect to judicial records generally. But, she says, the documents in question "have not yet been filed."

Under the court's rules, she says, documents submitted with a request to seal are lodged with the judge but not made part of the record until a ruling on the request. If the request is denied, they are returned to the submitting party.

As part of Wednesday's order, Mueller denied Sierra Pacific's sealing request and will return the documents to the company's lawyers, thus relieving her of making them public.

The court's rules notwithstanding, the documents have been filed and are part of the court's docket, according to Sierra Pacific's papers. Mueller's order does not address that circumstance.

The seven exhibits at issue – excerpts from sworn deposition testimony given in a U.S. lawsuit against Sierra Pacific and others that seeks damages caused by the Moonlight fire – are among papers attached to a declaration of Downey Brand attorney Elizabeth Stallard in support of Sierra Pacific's motion for summary judgment in its suit against the government.

According to the Stallard declaration, which was filed Jan. 4, copies of the seven exhibits are "attached hereto, and filed under seal herewith."

Additionally, the request to seal documents, also filed Jan. 4 and signed by Downey Brand attorney Janlynn Fleener, advises the judge that the seven exhibits have been served "on all other parties in this matter."

Court papers are not to be served until they are filed.

© Copyright The Sacramento Bee. All rights reserved.

Read more articles by Denny Walsh

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