Save the Colo. v. U.S. Dep't of the Interior

517 F.Supp.3d 890

SAVE THE COLORADO, et al., Plaintiffs,

v.UNITED STATES DEPARTMENT OF THE INTERIOR, et al., Defendants.

No. CV-19-08285-PCT-MTL

United States District Court, D. Arizona.

Signed February 4, 2021

James N. Saul, Pro Hac Vice, Thomas C. Buchele, Pro Hac Vice, Earthrise Law Center, Portland, OR, for Plaintiffs.

Roland Lee Leininger, US Dept. of Justice, Denver, CO, for Defendants.

ORDER

Michael T. Liburdi, United States District Judge

Before the Court is Plaintiffs Save the Colorado, Living Rivers, and Center for Biological Diversity's (collectively, "Save the Colorado") Motion to Compel Completion of the Administrative Record (the "Motion") (Doc. 48). The Court now resolves this Motion as follows.¹

I. BACKGROUND

This case involves a challenge to Defendant United States Department of the Interior's (the "Department") December 2016 Record of Decision (the "Decision") for the Glen Canyon Dam Long-Term Experimental Management Plan (the "Long-Term Plan"). (Doc. 1 ¶ 4.) The Long-Term Plan "is a 20-year plan for hourly, daily, and monthly releases from Glen Canyon Dam, consistent with the Grand Canyon Protection Act of 1992." (Doc. 52 at 7.) The Decision and its underlying Final Environmental Impact Statement ("FEIS"), which contains the Long-Term Plan, "includes a discussion of the specific details regarding the operation of the Glen Canyon Dam including release patterns in as small as hourly increments, non-flow actions, and experimental actions that may dictate future dam operations." (Doc. 1 ¶¶ 4, 85–86.)

In this lawsuit, Save the Colorado contends that the Decision and the FEIS "significantly undervalued projections of climate change impacts which forecast real detrimental effects to the Colorado River's supported ecosystems and its many domestic and industrial water users." (Id. ¶ 4.) Save the Colorado also alleges that the Department's failure to consider or explain certain information in the Decision, such as climate change impacts and a reasonable range of alternatives, was arbitrary and capricious in violation of both the Administrative Procedure Act ("APA") and the National Environmental Policy Act. (See, e.g. , id. ¶¶ 4, 22, 28, 31, 145.)

The Department filed the administrative record in this case in June 2020.² (Doc. 41.) The administrative record consists of almost 7,000 individual documents and over 145,000 pages. (Doc. 41-2; Doc. 41-3; Doc. 52 at 6.) Save the Colorado then filed the present Motion, arguing that, although the administrative record "is voluminous, it is not complete." (Doc. 48 at 8.) Save the Colorado points to categories of documents that the Department omitted from the administrative record and asks the Court to order the Department to add these categories of documents and produce a privilege log for any documents withheld based on privilege. (Id. )

The Department maintains that the administrative record is complete. It contends that Save the Colorado has failed to overcome the presumption of regularity afforded to administrative agencies. (Doc. 52 at 9–10.) The Department also argues that it is not required to provide a privilege log because deliberative documents are "outside the scope of the administrative record" and are not materials the Department relied on when formulating its Decision. (Id. at 10, 18.) The Department also notes that Save the Colorado is "already in possession of approximately 39,000" deliberative documents based on a Freedom of Information Act ("FOIA") request that released "approximately 46,000 documents" in total. (Id. at 6–7, 15.) The Department contends that this FOIA response "includes the almost 7,000 documents in the administrative record." ( Id. at 7 n.1.) The Department argues that, even though its FOIA response provided Save the Colorado with the very documents it wishes the Department to supplement the administrative record with, Save the Colorado still does not identify "specific documents for inclusion or specific arguments regarding why such specific documents should be included in the administrative record." (Id. at 10.) Save the Colorado also fails to articulate, the Department argues, how the "broad categories" of documents in the FOIA production, that Save the Colorado now wishes to supplement the administrative record with, were directly or indirectly before the decision-maker. (Id. at 15.)

II. LEGAL STANDARD

The APA requires a court to "review the whole record or those parts of it cited by a party." 5 U.S.C. § 706 ; see also Animal Def. Council v. Hodel , 840 F.2d 1432, 1436 (9th Cir. 1988) ("[J]udicial review of agency action is limited to review of the administrative record."). The whole administrative record "consists of all documents and materials directly or indirectly considered by the agency decision-makers and includes evidence contrary to the agency's position." Thompson v. U.S. Dep't of Labor , 885 F.2d 551, 555 (9th Cir. 1989) (citation omitted). An agency is entitled to a presumption that it properly designated the administrative record.³ In re United States , 875 F.3d 1200, 1206 (9th Cir. 2017), vacated on other grounds , ––– U.S. ––––, 138 S. Ct. 443, 199 L.Ed.2d 351 (2017). Agencies may also exclude documents reflecting internal deliberations and those that probe the "mental processes of administrative decisionmakers." Citizens to Pres. Overton Park, Inc. v. Volpe , 401 U.S. 402, 420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971).

To overcome this presumption, a party seeking supplementation of the administrative record "must show by clear evidence that the record fails to include documents or materials considered by the [agency] in reaching the challenged decision" and that the record as presented cannot allow "substantial" and "meaningful judicial review." Ctr. for Native Ecosystems v. Salazar , 711 F. Supp. 2d 1267, 1272, 1275 (D. Colo. 2010) ; see also In re Delta Smelt Consol. Cases , No. 1:09-CV-1053 OWW DLB, 2010 WL 2520946, at *2 (E.D. Cal. June 21, 2010) (holding that a party seeking supplementation "must present clear evidence that the administrative record is so inadequate that it will frustrate judicial review"). There are four narrow reasons that justify expanding the administrative record: (1) supplementation is necessary to determine whether the agency has considered all factors and explained its decision; (2) the agency relied on documents not in the record; (3) supplementation is needed to explain technical terms or complex subjects; or (4) plaintiffs have shown bad faith on the part of the agency. Fence Creek Cattle Co. v. U.S. Forest Serv. , 602 F.3d 1125, 1131 (9th Cir. 2010) (citing Lands Council v. Powell , 395 F.3d 1019, 1030 (9th Cir. 2005) ). When moving for a court order that an agency supplement the administrative record with specific documents, a party must identify the documents and reasonable, non-speculative grounds for its belief that the documents were considered by the decision-makers involved in the determination. Pinnacle Armor, Inc. v. United States , 923 F. Supp. 2d 1226, 1239 (E.D. Cal. 2013). The party seeking supplementation has a "heavy burden" of demonstrating that the excluded materials are necessary to adequately review the agency decision. Fence Creek Cattle Co. , 602 F.3d at 1131.

III. DISCUSSION

A. Presumption of Regularity

Save the Colorado argues that the agency relied on certain categories of documents that were not included in the administrative record and supplementation is therefore necessary to determine the Department's actions. (Doc. 48 at 10–17.) In particular, Save the Colorado argues that (1) thousands of deliberative documents were omitted from the administrative record, (2) documents that were referenced or cited in two foundational studies were not included in the administrative record, and (3) the language used to certify the administrative record was insufficient. The Court will address each argument in turn.

1. Deliberative Documents

A document is considered deliberative if "it reflects the give-and-take of the consultative process." Judicial Watch, Inc. v. FDA , 449 F.3d 141, 151 (D.C. Cir. 2006). Examples of deliberative documents in the APA context include "recommendations, draft documents, proposals, suggestions, and other subjective documents that reflect the personal opinion of the writer rather than the policy of the agency." Sierra Club, Inc. v. U.S. Fish & Wildlife Serv. , 925 F.3d 1000, 1015 (9th Cir. 2019) (citation omitted). Courts rationalize that because probing an agency's deliberative process can be harmful, agencies may, in certain APA contexts, "withhold documents to prevent injury to the quality of agency decisions by ensuring that the frank discussion of legal or policy matters in writing, within the agency, is not inhibited by public disclosure." Id. at 1011 (citation omitted).

The Ninth Circuit has not squarely resolved whether deliberative documents must be part of the administrative record. (Doc. 48 at 19; Doc. 52 at 11.) Indeed, the only Ninth Circuit decision to address this issue admitted that the court has "not previously addressed whether assertedly deliberative documents must be logged and examined or whether the government may exclude them from the administrative record altogether." In re United States , 875 F.3d 1200, 1210 (9th Cir. 2017), vacated on other grounds , ––– U.S. ––––, 138 S. Ct. 443, 199 L.Ed.2d 351 (2017). The two-judge majority in In re United States did not answer whether the government may exclude deliberative documents from the administrative record, but held that the district court's decision to require a privilege log and evaluate claims of privilege before including deliberative documents "in the record was not clearly erroneous as a matter of law." Id.

District courts in this circuit are split on whether the government may withhold deliberative documents from the administrative record. Some courts reason that because deliberative documents are limited to the agency's stated reasons and probe the mental processes...