California v. Bureau of Land Mgmt.

STATE OF CALIFORNIA, et al., Plaintiffs, v. BUREAU OF LAND MANAGEMENT, et al., Defendants.

SIERRA CLUB, et al., Plaintiffs, v. RYAN ZINKE, et al., Defendants.

Case No.18-cv-00521-HSG

Case No.18-cv-00524-HSG

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

April 2, 2019

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTIONS TO COMPLETE AND/OR SUPPLEMENT THE ADMINISTRATIVE RECORD

Re: Dkt. No. 86

Re: Dkt. No. 85

On January 24, 2018, the State of California, by and through its Attorney General Xavier Becarra ("California Plaintiff"), filed suit against Defendants the U.S. Bureau of Land Management ("BLM"); Joseph Balash, in his official capacity as the Assistant Secretary for Land and Minerals Management of the U.S. Department of the Interior; and Ryan Zinke, in his official capacity as Secretary of the Interior ("the Secretary"), asserting claims for declaratory and injunctive relief under the Administrative Procedure Act ("APA"), the Federal Land Policy and Management Act, the Mineral Leasing Act, the Indian Mineral Leasing Act, and the National Environmental Policy Act. Case No. 4:18-cv-00521-HSG, Dkt. No. 1. The same day, a coalition of eight "citizen groups" ("Citizen Group Plaintiffs" or "Citizen Groups") asserted substantively similar claims against the Secretary, BLM, and the U.S. Department of the Interior. Case No. 4:18-cv-00524-HSG, Dkt. No. 1. On April 3, 2018, Citizen Group Plaintiffs amended their complaint to add a claim under the Endangered Species Act. Case No. 4:18-cv-00524-HSG, Dkt. No. 55 at 32. The Court subsequently granted intervention to the State of Wyoming, the Independent Petroleum Association of America and Western Energy Alliance, and the American Petroleum Institute. See Dkt. Nos. 70, 77.¹

Now pending before the Court are Plaintiffs'² motions to complete or supplement the administrative record, briefing for which is complete. See Case No. 4:18-cv-00521-HSG, Dkt. Nos. 86 ("Mot."), 92 ("Opp."), 93 ("Reply"); Case No. 4:18-cv-00524-HSG, Dkt. Nos. 85, 90, 91. After carefully considering the parties' arguments, the Court GRANTS IN PART and DENIES IN PART Plaintiffs' motions.

I. BACKGROUND

In March 2015, BLM issued the final version of a regulation concerning hydraulic fracturing on public and tribal lands. See Oil and Gas; Hydraulic Fracturing on Federal and Indian Lands, 80 Fed. Reg. 16,128 (March 26, 2015) ("the 2015 Rule"). Immediately after the 2015 Rule's publication, a combination of states, industry groups, and the Ute Indian Tribe sought judicial review of the 2015 Rule under the APA. See Wyoming v. U.S. Dep't of the Interior, 136 F. Supp. 3d 1317, 1326-27 (D. Wyo. 2015) vacated and remanded sub nom. Wyoming v. Sierra Club, Nos. 15-8126, 15-8134, 2016 WL 3853806 (10th Cir. July 13, 2016). In that case, the district court issued a nationwide preliminary injunction preventing BLM from enforcing the 2015 Rule. Id. at 1354. BLM appealed that decision to the Tenth Circuit.

On March 9, 2017, while the case was still pending, the Tenth Circuit issued an order that stated: "Given the recent change of Administration and the related personnel changes in the Department of Justice and the Department of Interior, the [Tenth Circuit was] concerned that the briefing filed by the Federal Appellants in these cases may no longer reflect the position of theFederal Appellants." Order 2-3, Wyoming v. Zinke, Nos. 16-8068, 16-8069 (10th Cir. Mar. 9, 2017), Doc. No. 01019776687. The circuit court in turn directed BLM "to confirm whether their position on the issues presented remain[ed] the same, or [had] changed." Id. at 3. Six days later, BLM informed the court that the 2015 Rule did not reflect the new Administration's "policies and priorities" and that the agency intended to rescind the 2015 Rule. See Federal Appellants' Motion to Continue Argument and Hold Case in Abeyance Pending Administrative Action 2-3, Wyoming v. Zinke, Nos. 16-8068, 16-8069 (10th Cir. Mar. 15, 2017), Doc. No. 01019780139. By December 2017, BLM completed the 2015 Rule's rescission. See Oil and Gas; Hydraulic Fracturing on Federal and Indian Lands; Rescission of a 2015 Rule, 82 Fed. Reg. 61,924 (Dec. 29, 2017) ("the 2017 Rule"). The 2017 Rule explained that BLM rescinded the 2015 rule, in part, to "eliminate[] the need for further litigation about BLM's statutory authority." Id. at 61925. The present suits in which Plaintiffs challenge BLM's rescission of the 2015 Rule followed.

As is necessary for this litigation, the Federal Defendants lodged an administrative record for the 2017 Rule. Dkt. Nos. 83-84. The Federal Defendants later lodged an amended record. See Dkt. Nos. 95-96. Plaintiffs seek to compel BLM to include nine additional documents in the administrative record, all of which are documents BLM released in response to Freedom of Information Act ("FOIA") requests for agency staff's communications "related to the 2015 Rule and the litigation over it." See Mot. at 5.

II. LEGAL STANDARD

Judicial review of an agency decision is limited to "the administrative record already in existence, not some new record made initially in the reviewing court." Camp v. Pitts, 411 U.S. 138, 142 (1973). The administrative record is "not necessarily those documents that the agency has compiled and submitted as 'the' administrative record." Thompson v. U.S. Dept. of Labor, 885 F.2d 551, 555 (9th Cir. 1989) (internal citation omitted). Instead, it must be "the whole record," which "includes everything that was before the agency pertaining to the merits of its decision." Portland Audubon Soc'y v. Endangered Species Comm., 984 F.2d 1534, 1548 (9th Cir. 1993) (internal citation omitted). The "whole record" thus encompasses "all documents and materials directly or indirectly considered by agency decision-makers and includes evidencecontrary to the agency's position." Thompson, 885 F.3d at 555 (internal citation omitted).

The administrative record before the agency, however, does not include "every scrap of paper that could or might have been created." Bay.org v. Zinke, No. 1:17-cv-01176 LJO-EPG, 2018 WL 3965367, at *3 (E.D. Cal. Aug. 16, 2018) (quoting TOMAC v. Norton, 193 F. Supp. 2d 182, 195 (D.D.C. 2002)). Also, an agency's designation and certification of the administrative record as complete is entitled to a "presumption of administrative regularity." McCrary v. Gutierrez, 495 F. Supp. 2d 1038, 1041 (N.D. Cal. 2007) (citing Bar MK Ranches v. Yuetter, 994 F.2d 735, 740 (10th Cir. 1993)). In turn, courts presume administrative records are complete, but plaintiffs can rebut this presumption with "clear evidence to the contrary." In re United States, 875 F.3d 1200, 1206 (9th Cir. 2017) (citing Bar MK Ranches, 994 F.2d at 740), vacated on other grounds, 138 S. Ct. 443 (2017)).

III. DISCUSSION

Plaintiffs move the Court to compel Federal Defendants to include nine documents in the administrative record. See Dkt. No. 86-1 ("Freeman Decl.") (identifying and attaching the nine documents). Plaintiffs contend that these documents fall into three categories that merit inclusion: (1) "Documents reflecting Secretary Zinke's and his political appointees' direct involvement in the March 2017 decision to reverse course in the Tenth Circuit and proceed with repealing the 2015 Rule (Documents 4 and 6)"; (2) "Documents relating to meetings and communications in early 2017 between Secretary Zinke's political appointees and oil and gas industry trade associations and other lobbyists who sought to eliminate the 2015 Rule (Documents 3, 5, 7, 8, and 9)"; and (3) "Congressional testimony explaining the need for the 2015 Rule, which was reviewed by agency staff later involved with the 2017 Repeal (Documents 1 and 2)." See Mot. at 7.

Federal Defendants respond that the Court should not compel inclusion of these documents, because (1) Documents 4, 7, and 9 are merely calendar entries; (2) Document 8 contains no substance; (3) Documents 3, 5, and 6 only relate to litigation; and (4) Documents 1 and 2 predate the 2017 rulemaking by over 18 months. Opp. at 6-8.

//

A. Calendar Entries are Not Part of the Administrative Record.

Documents 4, 7, and 9 are calendar entries that reflect (1) a March 15, 2017 meeting involving Secretary Zinke and Department of Interior employees "re: Fracking Rule"; (2) a March 10, 2017 meeting involving Department of Interior and BLM employees regarding "UTE Tribe Litigation Regarding Fracking Rule"; and (3) a February 27, 2017 meeting involving Department of Interior employees and the American Petroleum Institute. Freeman Decl. Ex. B, Docs. 4, 7, 9. The entries otherwise include no substance, and the Federal Defendants accordingly contest their inclusion in the administrative record, as they "contain no information or analysis that the agency could have considered." Opp. at 6-7.

Plaintiffs contend that these calendar entries are necessary "for the administrative record to present an accurate and complete account of the Federal Defendants' decisionmaking process." Mot. at 11. And to this end, Plaintiffs rely on five non-binding cases for the principle that "[c]ourts have recognized that references to meetings are properly included in the administrative record as evidence of verbal input that agency decisionmakers received in the course of reaching a decision." See, e.g., Reply at 3-4.

Beyond the fact that these cases are not binding on this Court, the Court disagrees with Plaintiffs' characterization of their holdings. First, in California ex rel. Lockyer v. United States Department of Agriculture, the court ordered an agency to complete the administrative record with broad swaths of material "relating to the decision-making process," such as "correspondence[s] between and among the parties involved, e-mail messages, agency meeting notices, draft analyses, assessments of alternatives and discussions of the impacts of scientific uncertainties on the selection of each alternative." Nos. C05-03508 EDL, C05-04038 EDL, 2006 WL 708914, at *3...