Stand Up for Cal. v. U.S. Dep't of Interior

• Decision Date: 30 May 2018
• Docket Number: Case No. 1:17–cv–00058 (TNM)
• Citation: 315 F.Supp.3d 289
• Parties: STAND UP FOR CALIFORNIA!, Patty Johnson, Joe Teixeira, and Lynn Wheat, Plaintiffs, v. UNITED STATES DEPARTMENT OF INTERIOR; Ryan Zinke, in his official capacity as Secretary of the Interior; Bureau of Indian Affairs; and John Tahsuda III, in his official capacity as Acting Assistant Secretary–Indian Affairs, Defendants, and Wilton Rancheria, California, Intervenor–Defendant.
• Court: U.S. District Court — District of Columbia

315 F.Supp.3d 289

STAND UP FOR CALIFORNIA!, Patty Johnson, Joe Teixeira, and Lynn Wheat, Plaintiffs,

v. UNITED STATES DEPARTMENT OF INTERIOR; Ryan Zinke, in his official capacity as Secretary of the Interior; Bureau of Indian Affairs; and John Tahsuda III, in his official capacity as Acting Assistant Secretary–Indian Affairs, Defendants,andWilton Rancheria, California, Intervenor–Defendant.

Case No. 1:17–cv–00058 (TNM)

United States District Court, District of Columbia.

Signed May 30, 2018

Jennifer A. MacLean, Benjamin S. Sharp, Perkins Coie LLP, Washington, DC, Eric D. Miller, Pro Hac Vice, Julie Wilson-McNerney, Pro Hac Vice, Perkins Coie, LLP, Seattle, WA, for Plaintiffs

Steven E. Miskinis, Cody L.C. McBride, U.S. Department of Justice, Washington, DC, for Defendants

MEMORANDUM OPINION

TREVOR N. MCFADDEN, United States District Judge

Plaintiffs Stand Up for California!, Patty Johnson, Joe Teixeira, and Lynn Wheat challenge the adequacy of the administrative record for judicial review of the Department of Interior's decision to approve acquiring land in trust for the Wilton Rancheria tribe and seek discovery in the form of a privilege log from the Department. Specifically, the Plaintiffs dispute excluding a variety of documents from the administrative record, claim that some attachments to emails otherwise included in the administrative record are missing, and seek to unredact header information (e.g. , authors, recipients, transmission time, subject) of emails in the record. The Plaintiffs also argue that the Department improperly "predetermined the outcome" of the Wilton Rancheria's application and that this, coupled with other indicia of bad faith—a rushed review process, culminating in a decision issued on the eve of the change in Presidential Administrations; pressure from the Senate Minority Leader; and the Department's representation to another judge of this District that the timing of any decision was uncertain yet issuing a decision days later—warrants the production of a privilege log.

The Court finds that none of the three narrow "unusual circumstances" apply here to require supplementing the administrative record, see Dist. Hosp. Partners, L.P. v. Burwell , 786 F.3d 46, 55 (D.C. Cir. 2015), but that the combination of facts marshalled by the Plaintiffs present a prima facie case of bad faith to warrant production of a privilege log. See Air Transp. Ass'n of Am., Inc. v. Nat'l Mediation Bd. , 663 F.3d 476, 487–88 (D.C. Cir. 2011). Accordingly, the Plaintiffs' motion to supplement the administrative record will denied and their motion for discovery will be granted.

I. BACKGROUND

The Wilton Rancheria (the "Tribe") is a federally recognized Indian Tribe that has been landless since 1958. Am. Compl. ¶¶ 14, 28. In 2013, the Tribe applied to the Bureau of Indian Affairs ("BIA") to acquire land in trust on its behalf for a casino and proposed a 282–acre plot near Galt, California. Id. ¶ 31; see also 25 U.S.C. § 5108 (authorizing the Secretary of the Interior to acquire land in trust for Indian tribes or individuals). The BIA vetted the proposal, including holding a public scoping meeting on the Environmental Impact Statement ("EIS") in December 2013, issuing an EIS Scoping Report in February 2014, and publishing a Notice of Availability of the Draft EIS in December 2015. Am. Compl. ¶¶ 32–34. All of these procedures, completed over a two-year period, were conducted on the proposed Galt site. Id.

Following the 2016 Presidential election, the Department completed procedures to take land into trust for the Tribe, but for an entirely different parcel of land in Elk Grove, California. See id. ¶ 38. In mid–November 2016, the BIA issued a Notice of (Gaming) Land Application for the Elk Grove land and in mid–December 2016, published a Notice of Availability for the Final EIS that identified a 36–acre parcel in Elk Grove. Id. The Plaintiffs, residents of Elk Grove and a non-profit organization supporting their efforts, allege that this was the first time over the years-long process that BIA identified this site. Id.¹ The Plaintiffs quickly and repeatedly—on December 29, 2016 and January 6, 2017—requested that the Department delay the acquisition of the Elk Grove site, but the Department refused to accede to the request. See Fed. Defs. Answer to Pls.' Am. Compl. ("Fed. Defs. Answer") ¶ 40.

Having struck out with the Department, the Plaintiffs turned to the judicial system and, on January 11, 2017, filed in this District a motion for an emergency temporary restraining order against acquiring title to the land. Am. Compl. ¶ 41. One of my colleagues heard arguments and denied the motion on January 13, 2017. Minute Entry, Jan. 13, 2017; see also TRO Hr'g Tr., Jan. 13, 2017, ECF No. 25. During the hearing, the District Judge asked the Department about the anticipated timing of the decision, and the Department replied that there was "still some uncertainty left" to the timing of the process, and that one of the factors affecting the timing would be addressing the public comments received. Id. 37:9–25. The Department represented that the earliest date the land could be taken into trust was January 17, 2017, the same date as the close of the final public comment period. Id.

On that day, the Plaintiffs applied to the Department for a formal stay of proceedings under 5 U.S.C. § 705. Fed. Defs. Answer ¶ 43. The Department did not deny the request until February 10, 2017, but by then, the Department had issued a Record of Decision approving the Tribe's trust application. Id. ¶ 46; Am. Compl. ¶¶ 53–55. The Record of Decision was issued on January 19, 2017, the last day of the Obama Administration and a little over two months after the BIA first allegedly identified the Elk Grove land. See Am. Compl. ¶¶ 38, 45. After exhausting their administrative appeal, the Plaintiffs returned to this Court to challenge the authority of the individuals who signed the January 19, 2017 Record of Decision and a February 10, 2017 decision to acquire title in trust for the Tribe. Id. ¶¶ 70, 82. I denied the Plaintiffs' partial motion for summary judgment and granted the Department's and the Tribe's partial motions for summary judgment, finding that the authority of the Assistant Secretary–Indian Affairs was properly delegated and that the Department acted consistent with applicable regulations and the Federal Vacancies Reform Act. Mem. Op., Feb. 28, 2018, ECF No. 53. The agency proceeded to compile the administrative record for the remaining counts, leading to current dispute.

II. LEGAL STANDARDS

A. Supplementing the Administrative Record

Judicial review under the Administrative Procedure Act requires courts to "review the whole record or those parts of it cited by a party." 5 U.S.C. § 706. The "whole record" includes the "full administrative record that was before the Secretary at the time he made his decision." Citizens to Pres. Overton Park, Inc. v. Volpe , 401 U.S. 402, 420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). This includes all information that the agency considered either directly or indirectly. Marcum v. Salazar , 751 F.Supp.2d 74, 78 (D.D.C. 2010). It does not, however, include deliberative intra-agency documents, which are ordinarily privileged. Amfac Resorts, L.L.C. v. U.S. Dep't of Interior , 143 F.Supp.2d 7, 13 (D.D.C. 2001).

Courts start with a presumption that the agency properly compiled the administrative record. Id. at 12. Thus, parties generally are not permitted to supplement the record except in certain "unusual circumstances." Dist. Hosp. Partners , 786 F.3d 46, 55 (internal quotation marks omitted). These unusual circumstances are "(1) the agency deliberately or negligently excluded documents that may have been adverse to its decision; (2) the district court needed to supplement the record with background information in order to determine whether the agency considered all of the relevant factors; or (3) the agency failed to explain administrative action so as to frustrate judicial review." Id. A plaintiff must provide "concrete evidence" and "identify reasonable, non-speculative grounds for its belief that the documents were considered by the agency and not included in the record." Marcum , 751 F.Supp.2d at 78.

B. Extra–Record Discovery

Discovery is generally unavailable in cases involving judicial review under the APA. Air Transp. Ass'n of Am., Inc. , 663 F.3d at 487 (D.C. Cir. 2011). Limited discovery may be granted when a "party makes a significant showing—variously described as a strong, substantial, or prima facie showing—that it will find material in the agency's possession of bad faith or an incomplete record." Id. at 487.

Strong evidence of "unalterably closed minds" justifies discovery into the agency's decision-making process. Id. at 488.

III. ANALYSIS

The Plaintiffs dispute the Department's decision to exclude a litany of documents from the administrative record, challenge the Department's redactions and decision to withhold other documents, and claim that because there is evidence of improper agency behavior, the Court should order the production of a privilege log so that Plaintiffs may object to any potentially improper assertion of privilege. Mot. to Complete and/or Supplement the Administrative R. and for Leave to Conduct Disc. ("Mot. to Supplement") 1–2, ECF No. 57. Each is detailed below.

A. Beyond the Documents Conceded by the Department, the Plaintiffs Have Not Made the Required Showing to Supplement the Administrative Record

The Plaintiffs seek to supplement the administrative record with various documents: (i) the Draft Environmental Impact Statement ("DEIS"); (ii) various technical documents referenced in the DEIS; (iii) a Departmental guidance document about trust acquisitions; (iv) internal emails about the role of the Principal Deputy Assistant Secretary–Indian Affairs, Lawrence Roberts, that were mentioned during this Court's motions hearing on January 9, 2018; (v) a March 6, 2017 memorandum from the Sacramento...