Leigh v. Raby
| Decision Date | 30 March 2023 |
| Docket Number | 3:22-cv-00034-MMD-CLB |
| Parties | LAURA LEIGH, et al., Plaintiffs, v. JON RABY, NEVADA STATE DIRECTOR OF THE BUREAU OF LAND MANAGEMENT, et al., Defendants. |
| Court | U.S. District Court — District of Nevada |
This action arises from a U.S. Bureau of Land Management (“BLM”) gather of wild horses in eastern Nevada. Plaintiffs[1] argue that BLM violated the Wild Free-Roaming Horses and Burros Act, 16 U.S.C. § 1331 et seq., and the National Environmental Policy Act of 1969, 42 U.S.C. § 4321, et seq., through the Administrative Procedure Act, 5 U.S.C. § 701, et seq. (“APA”). (ECF No. 31.) Plaintiffs further argue that BLM infringed their First Amendment right to observe the gather by unlawfully obstructing their access. (Id. at 2526.) The Court previously denied Plaintiffs' motion for a temporary restraining order and preliminary injunction. (ECF No. 24.) Before the Court is Plaintiffs' motion to complete and supplement the Administrative Record (“AR”) and for leave of Court to conduct limited discovery.[2] (ECF No. 48 (“Motion”).) As further explained below, the Court will grant in part, and deny in part, the Motion.
The Court incorporates by reference the background included in its order denying Plaintiffs' motion for a temporary restraining order and preliminary injunction. (ECF No. 24 at 2-7.) Following that order, Plaintiffs filed the operative first amended complaint. (ECF No. 31 (“FAC”).) The Court also incorporates by reference Plaintiffs' summary description of their claims in their FAC. (ECF No. 48 at 2-3.) The parties participated in case management proceedings before United States Magistrate Judge Carla L. Baldwin. (ECF No. 41.) In pertinent part, she stated, “that discovery in this case will be limited to the Administrative Record.” (Id. at 1 (hearing minutes).) She later granted a stipulation suspending the merits briefing schedule until the Court resolves the Motion. (ECF No. 46.) Meanwhile, Defendants filed the first version of the AR in December 2022. (ECF No. 44.) III. DISCUSSION
As noted, Plaintiffs seek to compel completion and expansion of the version of the AR Defendants filed, and also seek discovery on some of their claims. (ECF No. 48.) The Court accordingly divides its discussion to correspond to Plaintiffs' requests, after first discussing the legal principles that apply to its analysis.
The Motion primarily requires the Court to consider the proper scope and contents of the AR. “The ‘whole' administrative record . . . consists of all documents and materials directly or indirectly considered by agency decision-makers and includes evidence contrary to the agency's position.” Thompson v. U.S. Dep't of Lab., 885 F.2d 551, 555 (9th Cir. 1989) (emphasis and citation omitted). The general rule is that “that courts reviewing an agency decision are limited to the administrative record.” Lands Council v. Powell, 395 F.3d 1019, 1029 (9th Cir. 2005) (citation omitted). But the United States Court of Appeals for the Ninth Circuit recognizes four exceptions to this general rule. See id. at 1030. These exceptions “are narrowly construed and applied” to foreclose improper de novo review of agency decisions. Id. Parties may not use extra-record evidence “as a new rationalization either for sustaining or attacking [an] [a]gency's decision.” Ass'n of Pac. Fisheries v. E.P.A., 615 F.2d 794, 811-12 (9th Cir. 1980). Thus, rather than expand the scope of evidentiary review, “these limited exceptions operate to identify and plug holes in the administrative record.” Lands Council, 395 F.3d at 1030. And parties seeking to expand the scope of review bear a “heavy burden to show that the additional materials sought are necessary to adequately review” an agency's decision. Fence Creek Cattle Co. v. U.S. Forest Serv., 602 F.3d 1125, 1131 (9th Cir. 2010).
Plaintiffs first ask the Court to require Defendants to complete the AR with deliberative materials-and produce a corresponding privilege log-along with some documents Plaintiffs allege Defendants considered, specifically the Gold Rock Mine Project FEIS and documents that discuss a hearing on the use of motorized vehicles such as helicopters in wild horse and burro gathers. (ECF No. 48 at 4-8.) Defendants counter that deliberative documents are not properly part of the AR, the Court should not require a privilege log because the AR comes with a presumption of completeness, and the specific documents that Plaintiffs would like added to the AR were not before BLM at the time of the challenged decision. (ECF No. 49 at 5-14.) The Court agrees with Plaintiffs as to the deliberative documents and privilege log, but Defendants as to the specific documents.
Starting with the specific documents, Plaintiffs do not address in reply Defendants' argument that they did not consider these documents at the time they made the challenged decision. (Compare id. at 9 n.3, 10 n.4 with ECF No. 50.) The Court accordingly cannot- and does not-find that Defendants should supplement the AR with them because there is apparently no dispute that Defendants did not consider them. See Thompson, 885 F.2d at 555 (specifying that the AR “consists of all documents and materials directly or indirectly considered by agency decision-makers”). Plaintiffs' Motion is therefore denied to the extent it seeks inclusion in the AR of the Gold Rock Mine Project FEIS and documents that discuss a hearing on the use of motorized vehicles such as helicopters in wild horse and burro gathers.
However, the Court agrees with Plaintiffs that Defendants must supplement the AR with any documents withheld as deliberative, but not subject to the deliberative process privilege, and produce a privilege log documenting any withheld documents. As Plaintiffs argue, the Court found in an order on administrative record motions in Bartell Ranch LLC v. Ester M. McCullough, Case No. 3:21-cv-00080-MMD-CLB, ECF No. 155 at 4-6 (D. Nev. Dec. 27, 2021) that BLM had to complete the administrative record with any documents withheld as deliberative, and file a privilege log with the Court. The Court made several points in that decision that apply with equal force here. See id. First, some deliberative documents should logically be included in the AR because it consists of all documents directly or indirectly considered by the agency when it made its decision. See id. Second, judicial review is rendered ineffective if the agency can take the position that deliberative documents are simply not part of the administrative record. See id. Third, without a privilege log, neither the Court nor the plaintiff(s) can even tell what the agency has withheld and why. See id. For all these reasons-the reasons provided in the Bartell Ranch order-the Court agrees with Plaintiffs that Defendants must complete the AR within 60 days with any documents withheld as deliberative, and simultaneously produce a privilege log noting any documents withheld under the deliberative process privilege (or for any other reason) that BLM directly or indirectly considered in the review process culminating in the Pancake Complex Gather Plan Environmental Assessment (“EA”). See Ctr. for Env't Health v. Perdue, Case No. 18-CV-01763-RS, 2019 WL 3852493, at *3 (N.D. Cal. May 6, 2019) ().
One of Plaintiffs' main allegations in this case is that Defendants should have prepared a Herd Management Area Plan (“HMAP”) instead of the EA they prepared before proceeding with the gather. (ECF No. 31 at 22-24.) They argue it was arbitrary and capricious that Defendants did not prepare a HMAP (see id. at 23-24), but also have an APA failure to act claim arguing that Defendants must have prepared a HMAP before proceeding with the gather (see id. at 22-23). As to the Motion, Plaintiffs argue that Defendants must expand the AR with documents regarding Defendants' decision not to prepare a HMAP before conducting the gather because they have a failure to act APA claim. (ECF No. 48 at 8-10.) Plaintiffs further argue Defendants must expand the AR with documents, photos, and videos regarding restrictions on public viewing of the gather because they have a First Amendment claim, and Defendants did not include many documents pertinent to this claim in the AR. (Id. at 10-12.) In addition, Plaintiffs argue Defendants must expand the AR with post-decision documents, specifically documents relevant to evaluating the safety and efficacy of the gather, because Defendants included several post-decision documents in the AR. (Id. at 12-13.)
Defendants persuasively respond to Plaintiffs' arguments based on their claim that BLM had to prepare a HMAP before the gather-but did not-that they do not dispute the fact that they never prepared a HMAP before the gather. (ECF No. 49 at 16.) “Thus, the court needs only these basic facts and the law to issue its decision on whether BLM violated the WHBA by not issuing a HMAP before the 2022 Gather.” (Id.) The Court agrees with Defendants on this point. The Court does not need to order expansion of the AR to make a merits determination as to whether Defendants had to prepare a HMAP before conducting the gather-the Court must simply make a call on the law. Said otherwise Plaintiffs' arguments as to BLM's failure to prepare a HMAP do not carry Plaintiffs' “heavy burden to show that the additional materials sought are necessary to adequately review” Defendants' decision. See Fence Creek Cattle Co., 602 F.3d at 1131. Moreover, as Defendants also argue (ECF No. 49 at 15), it “makes little sense”...
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