Slawson Exploration Company, Inc. v. Germann et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Slawson Exploration Company, Inc. )
)
Plaintiff, )
) ORDER DENYING MOTION FOR
vs. ) LEAVE TO FILE UNDER SEAL
)
Sonya Germann in her official capacity as )
State Director for the Bureau of Land )
Management Montana/Dakotas State Office,) Case No. 1:23-cv-141
Loren Wickstrom in his official capacity as )
Field Manager for the Bureau of Land )
Management North Dakota Field Office, )
United States Bureau of Land Management, )
United States Department of the Interior, )
)
Defendants. )
______________________________________________________________________________
Before the Court is a motion for leave to file the administrative record in this matter under
seal filed on February 23, 2024, by Slawson Exploration Company, Inc. (“Slawson”). See Doc. No.
15. Slawson filed this action for review of agency action on July 28, 2023. See Doc. No. 1.
Slawson seeks review of the Bureau of Land Management’s (“BLM”) determination that natural gas
flared from a Slawson well between September 2014 and December 2016 was avoidably lost and
thus is royalty bearing. Slawson seeks permission to file the 600+ pages of the administrative record
of the BLM proceedings under seal and with only a heavily redacted version available to the public.
Slawson represents the motion is unopposed. For the reasons set forth below, the motion is denied.
It is well-established that there is a common-law presumption of public access to judicial
records. Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978). “The presumption is based
on the need for the federal courts to have a measure of accountability and for the public to have
confidence in the administration of justice.” United States v. Gray, 59 F.4th 329, 333 (8th Cir.
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2023). This right of access is not absolute, but requires a weighing of competing interests. The
decision to file a document under seal is a matter left to the sound discretion of the trial court. See
Webster Groves Sch. Dist. v. Pulitzer Publ’g Co., 898 F.2d 1371, 1376 (8th Cir. 1990). A party
seeking to seal a judicial record must demonstrate a compelling interest which overrides the qualified
First Amendment right of public access enjoyed by the public and press. United States v. McDougal,
103 F.3d 651, 658 (8th Cir. 1996). A court deciding to seal a document must explain why sealing
was necessary and why less restrictive alternatives were not appropriate. See In re Search Warrant
for Secretarial Area Outside Office of Gunn, 855 F.2d 569, 574 (8th Cir. 1988); In re Sealed
Documents, Standing Order (D.N.D. Sept. 30, 2011).
Generally, a qualified right of access attaches to dispositive documents and materials filed
in conjunction with dispositive motions. Romero v. Drummond Co., 480 F.3d 1234, 1245 (11th Cir.
2007); Baxter Int’l, Inc. v. Abbott Labs., 297 F.3d 544, 546 (7th Cir. 2002) (“[D]ispositive
documents in any litigation enter the public record notwithstanding any earlier agreement. How else
are observers to know what the suit is about or assess the judges’ disposition of it?”); Webster
Groves, 898 F.2d at 1376 (“Where the common-law right of access is implicated, the court must
consider the degree to which sealing a judicial record would interfere with the interests served by
the common-law right of access and balance that interference against the salutary interests served
by maintaining confidentiality of the information sought to be sealed.”).
The Eighth Circuit has stated that “only the most compelling reasons can justify
non-disclosure of judicial records.” In re Neal, 461 F.3d 1048, 1053 (8th Cir. 2006) (internal
quotation marks omitted). “[E]ven where a party can show a compelling reason why certain
documents or portions thereof should be sealed, the seal itself must be narrowly tailored to serve that
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reason.” Shane Group, Inc. v. Blue Cross Blue Shield of Mich., 825 F.3d 299, 305 (6th Cir. 2016)
(citing Press-Enter. Co. v. Super. Ct. of Cal., 464 U.S. 501, 509-11 (1984)). Therefore, the party
seeking sealing must ‘analyze in detail, document by document, the propriety of secrecy, providing
reasons and legal citations.” Baxter, 297 F.3d at 548.
The Court first notes that the eight document groups Slawson seeks to file under seal (Doc.
Nos. 15-1 through 15-8) do not correspond with the nine groupings of Bates numbers listed in
Slawson’s brief. See Doc. No. 16, pp. 5-6. The result is the Court has been left to sift through over
six hundred pages of exhibits in order to decide what, if anything, needs to be sealed. This burden
belongs to the moving party, not the Court. See Crossley v. Georgia-Pac. Corp., 355 F.3d 1112,
1114 (8th Cir. 2004) (judges are not like pigs, hunting for truffles buried in the record). In addition,
this case is an appeal from the decision of an executive branch administrative agency. Slawson does
not address or explain if the documents it seeks to seal were sealed at the administrative level by the
BLM. Silence speaks volumes. Slawson does not contend the documents it seeks to seal are not
judicial records.
Slawson contends the administrative record contains commercially sensitive and confidential
business records which should be sealed. The only compelling reason Slawson cites for doing so
is that making its business records public would adversely affect Slawson. Slawson offers little
explanation as to how it would be adversely affected. Generally, the desire to maintain
confidentiality is not enough to overcome the “long-standing presumption of public access to
litigation in the courts.” CAA Sports LLC. v. Dogra, No. 4:18-cv-01887, 2018 WL 6696622, at *1
(E.D. Mo. Dec. 20, 2018). Sealing may be appropriate when necessary to “shield victim identities,
protect trade secrets, secure matters of national security, honor the rules of sovereign nations, and
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conceal personal identifying information such as social security numbers or dates of birth.” Id.;
Howard v. Newrez, LLC, No. 4:21-CV-522, 2021 WL 2002998, at *2 (E.D. Mo. May 19, 2021).
As the Seventh Circuit Court of Appeals has held, commercially sensitive information which
underpins a judicial decision must be open to public inspection. Baxter, 297 F.3d at 545; FA ND
Chev, LLC v. Kupper, No. 1:20-CV-00138, 2023 WL 4459605, at *4 (D.N.D. July 11, 2023)
(refusing to seal commercially sensitive documents). The Seventh Circuit further noted that
appellate records are presumptively public. Id. In this case the Court finds Slawson’s vague
references to pricing information, cost information, business negotiations, financial information and
similar information are insufficient. Slawson contends a few of the documents amount to trade
secrets but fails to explain how the documents meet that definition. Bald assertions of confidentiality
or trade secret status fail. Id.
It appears much of what Slawson seeks to keep secret relates the economics of flaring versus
capturing natural gas, a question which goes to the heart of this appeal. This question will likely
need to be addressed in the Court’s final ruling. The Court has no intention of issuing a final ruling
which is not open to the public. Public access is the norm. Federal courts are public forums. A
federal court reviewing the administrative findings of a federal agency related to mineral interests
held in trust for Indian allottees ought not proceed in secret. The public has a right to know what this
case is about.
The Court finds Slawson has not met its burden of demonstrating a compelling reason which
overcomes the presumption of public access to judicial records. For the reasons set forth above, the
motion for leave to file under seal (Doc. No. 15) is DENIED.
IT IS SO ORDERED.
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Dated this 29th day of February, 2024.
/s/ Daniel L. Hovland
Daniel L. Hovland, District Judge
United States District Court
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