BLF Land, LLC v. Frerich

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

BLF LAND, LLC and BLAINE LARSEN

FARMS, INC.,

Plaintiffs,

v. 2:23-CV-133-Z

NORTH PLAINS GROUNDWATER

CONSERVATION DISTRICT,

Defendant.

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant’s Motion for Protective Order (“Motion”) (ECF No. 45),

filed March 25, 2024. For the reasons discussed infra, itis GRANTED IN PART.

BACKGROUND

This case concerns a regulation dispute over Plaintiffs’ groundwater production for their

potato-growing business. Defendant North Plains Groundwater Conservation District (“District”)

is a groundwater conservation district that exists pursuant to Article XVI, Section 59 of the Texas

Constitution, and is subject to Chapter 36 of the Texas Water Code. The Water Code authorizes

the District, inter alia, to develop a comprehensive management plan for aquifers within its

jurisdiction and to adopt and enforce its rules. TEX. WATER CODE §§ 36.101, 36.102, 36.1071. The

board of directors is “responsible for the management of all the affairs of the district.” Jd. § 36.057;

see id. § 36.051 (affording governing authority to the board of directors). Relevant here are the

board’s rules establishing and governing Groundwater Production Units (“GPUs”).! :

| https://northplainsged.org/aquifer-management-rules/

Plaintiffs requested a variance from certain rules for alleged overproduction on certain

GPUs, which the District’s Board Order No. 023-001 denied on January 20, 2023. ECF Nos. 17 at

15-16; 39 at 3. Plaintiffs allege that the directors, in denying their variance request, “acted out of

animus” because of “an unwritten policy to deny all variance applications.” ECF No. 46 at 3.

Enter the District’s instant Motion. Plaintiffs served notices of deposition on the District’s

directors, ECF No. 45-1, but the District seeks a protective order under Federal Rule of Civil

Procedure 26(c) to “prevent [these] depositions . . . or, in the alternative . . . prevent[] inquiry on

the Directors’ mental processes, reasoning, and rationales related to the District’s rules, their

adoption, permitting decisions, and decision to deny [Plaintiffs] a variance,” ECF No. 45 at 7.

LEGAL STANDARD

Upon party motion and “for good cause,” federal courts may issue an order protecting

persons from “inquiry into certain matters, or limiting the scope of . . . discovery to certain

matters.” FED. R. CIv. P. 26(c)(1)(D); Landry v. Air Line Pilots Ass’n, 901 F.2d 404, 435 (Sth Cir.

1990). The Court has broad discretion to issue protective orders. Harris v. Amoco Prod. Co., 768

F.2d 669, 684 (5th Cir. 1985). That is because “[t]he trial court is in the best position to weigh

fairly the competing needs and interests of the parties affected by discovery.” Seattle Times Co. v.

Rhinehart, 467 U.S. 20, 36 (1984).

ANALYSIS

The District argues that the Morgan doctrine and legislative immunity shield its directors

from deposition entirely or, at a minimum, limit the scope of their depositions. ECF No. 45 at 3;

United States v. Morgan, 313 U.S. 409 (1941). The Court will address each argument in turn.

I. The Morgan doctrine does not cloak directors with testimonial privilege.

Morgan instructs that a party cannot obtain testimony from a high-ranking government

official without showing extraordinary circumstances. In re FDIC, 58 F.3d 1055, 1060 (Sth Cir.

1995) (citations omitted); Morgan, 313 U.S. at 421-22. While neither the United States Supreme

Court nor the Fifth Circuit have defined who is senior enough for testimonial privilege, courts have

found that heads of government or heads of a government department qualify. See, e.g., Morgan,

313 U.S. at 421-22 (federal cabinet secretaries); Maney v. Oregon, No. 6:20-cv-00570-SB, 2023

WL 3866761, at **4—5 (D. Or. June 7, 2023) (state governors); Jn re Paxton, 60 F.4th 252, 258

(Sth Cir. 2023) (state attorneys general).

This Court is unaware of any authority extending Morgan protection to county-level

officials. See ECF No. 45 at 4 (citing only Morgan to justify shielding the directors with testimonial

privilege). For that reason, and because no logic inherent to Morgan or its progeny suggests that

county-level officials deserve protections similar to those provided for apex officials, the Morgan

analysis ends here. The doctrine, accordingly, affords no protection to the directors.

II. Legislative immunity shields the directors’ rulemaking decisions, but not their

decision to deny Plaintiffs a variance request.

In the alternative, the District argues that its directors are cloaked with the testimonial

privilege inherent to legislative immunity. ECF No. 45 at 4-6. Because the District is “vested with

the full range of governmental powers” under the Texas Constitution, ECF No. 45 at 5, and because

the directors “were clearly engaged in a discretionary policymaking decision with generalized

application when determining what Rules to adopt,” id. at 6, the District argues that its directors

should enjoy the testimonial privilege offered to both federal and state legislators.

A. Legislative immunity cloaks legislators with testimonial privilege when

performing legislative functions.

The doctrine of legislative immunity recognizes that individuals acting in a legislative

capacity are immune from liability. Bogan v. Scott-Harris, 523 U.S. 44, 46 (1998). Legislative

immunity derives largely from the Speech and Debate Clause of the United States Constitution.

That clause provides: “for any Speech or Debate in either House, [members of Congress] shall not

be questioned in any other place.” U.S. Const., art. I, § 6. Courts have reasoned that this kind of

immunity encourages the democratic process, Bogan, 523 U.S. at 52, serves the public, Tenney v.

Brandhove, 341 U.S. 367, 373-74 (1951), and serves separation-of-powers functions, Bogan, 523

USS. at 55 (stating that it is “not consonant with our scheme of government for a court to inquire

into the motives of legislators.”) (quoting Tenney, 341 U.S. at 377).

Legislative immunity shields legislators from both liability and subjection to testimony.

See Gravel v. United States, 408 U.S. 606, 615-16 (1972) (holding that senator could not be made

to answer questions about events that occurred in senate subcommittee meeting); Dombrowski v.

Eastland, 387 U.S. 82, 85 (1967) (noting that legislators “should be protected not only from the

consequences of litigation’s results but also from the burden of defending themselves”); Schlitz v.

Virginia, 854 F.2d 43, 46 (4th Cir. 1988) (holding that legislator could not be required to testify

about matters of legislative conduct), overruled on other grounds in Berkley v. Common Council

of City of Charleston, 63 F.3d 295, 303 (4th Cir. 1995); Miller v. Transamerican Press, Inc., 709

F.2d 524, 529 (9th Cir. 1983) (holding that former congressman could not be required to testify

about his legislative activities); see also Clear Lake City Water Auth. v. Salazar, 781 S.W.2d 347,

349-50 (Tex. App. — Houston [14th Dist.] 1989, orig. proceeding) (holding that members of water

authority could not be questioned about legislative activities).

B. The directors are “legislators” for purposes of testimonial privilege.

Courts have extended legislative immunity beyond federal and state legislators to other

individuals performing legitimate legislative functions. See, e.g., Supreme Court of Va. v.

Consumers Union of the United States, 446 U.S. 719, 734 (1980) (applying legislative immunity

doctrine to state supreme court and its chief justice for promulgating code of professional

responsibility); Clear Lake City Water Auth., 781 S.W.2d at 349-50 (applying legislative

immunity doctrine to local water authority). The directors fall under this umbrella.

1, The directors are legislators.

There is little question that the directors are legislators for purposes of testimonial

privilege. The District is a “conservation . . . district... which . . . shall be governmental agencies

and bodies politic and corporate with such powers of government and with the authority to exercise

such rights, privileges and functions . . . as may be conferred by law.” Tex. Const. art. XVI,

§ 59(b). And the Texas Water Code confers authority on the District to promulgate the disputed

rules of this case. TEX. WATER CODE §§ 36.101, 36.102, 36.1071. The board of directors is

specifically “responsible for the management of all the affairs of the district.” Jd. § 36.057. Because

“Tw]ater quality regulation is a legislative power,” Properties Operating y. City of Austin, 22

S.W.3d 868 (Tex. 2000), the directors who exercise that power are legislators for purposes of

testimonial privilege, Clear Lake City Water Auth., 781 S.W.2d at 350 (holding that “an immunity

attaches to [city water authority officials]” exercising legislative power under article XVI, Section

59 of the Texas Constitution).

Ze The District may assert testimonial privilege for the directors.

Plaintiffs, however, aver that no privilege applies because the District, and not the directors

themselves, raised it. ECF No. 46 at 6 (citing Fazzino v. Roe, No. 6:18-cv-00114-ADA-JCM, 2020

WL 13228700, at *3 (W.D. Tex. Nov. 16, 2020) (“The fact that Brien has not personally invoked

the privilege is sufficient to end the discussion.”)). This claim is dubious.

Roe, as an initial matter, is inapposite because the District’s directors, unlike Roe, were

originally parties to this case. See ECF No. 17 at 2-3 (asserting official capacity claims against the

directors); see also Roe, 2020 WL 13228700, at *3 (“Brien is not a party to this lawsuit but is

instead the subject of a deposition notice in this matter.”). And they remained so until the Court

dismissed them as parties under Federal Rule of Civil Procedure 12(b)(6). ECF No. 43 at 7. Yet

under Plaintiffs’ reasoning, the directors should have stayed in this lawsuit solely to raise the

testimonial privilege. The law requires no such procedural oddity.

Indeed, Roe’s authorities are silent on whether a governing body, run by the legislators

claiming privilege, lacks standing to assert the privilege on their behalf. They provide only that

legislator cannot assert or waive the privilege on behalf of another legislator.” Perez v. Perry,

No. SA-11-CV-360-OLG-JES, 2014 WL 106927, at *2 (W.D. Tex. Jan. 8, 2014) (citing A Helping

Hand, LLC vy. Baltimore Cnty., Md., 295 F. Supp. 2d 585, 590 (D. Md. 2003)).

The District — not another legislator — asserts the privilege here. That distinction is

significant because the directors are “responsible for the management of all the affairs of the

district.” TEX. WATER CODE §§ 36.057. Unlike one individual asserting the privilege on behalf of

another, Perez, 2014 WL 106927, at *2, the directors here assert the privilege by and through the

District, whose affairs they directly manage. Hence, to the extent the directors are subject to the

“personal” privilege requirement — the Fifth Circuit is silent here — their assertion through the

District should satisfy. Accord Cunningham v. Chapel Hill, ISD, 438 F. Supp. 2d 718, 723 (E.D.

Tex. 2006) (holding that school board may assert the privilege on behalf of its trustees, who were

not parties to the suit); see also Schlitz, 854 F.2d at 46 (holding that plaintiffs could not circumvent

legislative immunity by refusing to sue the individual legislators, the court reasoned: “(t]he

purpose of the doctrine is to prevent legislators from having to testify regarding matters of

legislative conduct, whether or not they are testifying to defend themselves.”).

C. The directors’ legislative functions are protected, but their

administrative functions are not.

The Fifth Circuit distinguishes between legitimate legislative functions, which are

protected, and administrative functions, which are not. Hughes y. Tarrant Cty. Texas, 948 F.2d

918, 921 (Sth Cir. 1991); Bryan v. City of Madison, 213 F.3d 267, 273 (Sth Cir. 2000). But its

guidance as to what qualifies as legislative versus administrative is “general” at best. Bryan, 213

F.3d at 273. It has selectively applied, without adopting, two related distinguishing tests. Jd.

The first test provides: “[i]f the underlying facts on which the decision is based are

‘legislative facts,’ such as ‘generalizations concerning a policy or state of affairs,’ then the decision

is legislative.” Id. (quoting Developments in the Law, 91 Harv. L. REV. 1427, 1510-11 (1978)).

The second provides: “[i]f the action involves establishment of a general policy, it is legislative; if

the action single[s] out specific individuals and affect[s] them differently from others, it is

administrative.” Bryan, 213 F.3d at 273. Putting these tests together, an action is “legislative”

when applicable to the general public and “‘administrative” when tailored to individuals.

The District asks this Court to “prevent the depositions of the District’s Directors, or, in

the alternative . . . prevent[] inquiry on the Directors’ mental processes, reasoning, and rationales

related to the District’s rules, their adoption, permitting decisions, and decision to deny [Plaintiffs]

a variance.” ECF No. 45 at 7. All functions except the variance denial were legislative because the

rules applied to the general public, not to Plaintiffs in particular. Bryan, 213 F.3d at 273.

The variance denial, however, was administrative. Plaintiffs requested a variance from

certain rules for alleged overproduction on certain GPUs, which the District’s Board Order No.

023-001 denied on January 20, 2023. ECF Nos. 17 at 15-16; 39 at 3. The denial didn’t alter or

change policy, create a new one, or apply new rules to additional parties. It simply enforced the

extant rules against Plaintiffs and only Plaintiffs. Once “this determination entered the realm of

enforcement,” Bryan, 213 F.3d at 273, the legislators’ functions became administrative. Indeed,

while the District requested protection for the denial, its briefing never argued that testimonial

privilege is so broad. ECF No. 45 at 6. The Fifth Circuit is clear that it isn’t. Hence, Plaintiffs may

depose the directors on the January 20, 2023 denial order.

CONCLUSION

For the reasons discussed supra, the District’s Motion is GRANTED IN PART.

Defendant’s directors are therefore SUBJECT to deposition, but Plaintiffs are RESTRICTED

from “inquiry on the Directors’ mental processes, reasoning, and rationales related to the District’s

rules, their adoption, [and] permitting decisions.” ECF No. 45 at 7. Plaintiffs are, however,

PERMITTED to inquire after the District’s January 20, 2023 “decision to deny [Plaintiffs] a

variance.” Jd. This Order further SUPERSEDES and ABROGATES the Court’s prior Order

(ECF No. 50) pausing all deposition of directors.

SO ORDERED. Lun

April (7, 2024. nee

MAYTHEW J. KACSMARYK

UNITED STATES DISTRICT JUDGE