Save the Colo. v. Spellmon

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SAVE THE COLORADO, THE ENVIRONMENTAL GROUP, WILDEARTH GUARDIANS, LIVING RIVERS, WATERKEEPER ALLIANCE, INC., and SIERRA CLUB, Petitioners, v. LT. GEN.SCOTT A. SPELLMON, in his official capacity as the Chief of the U.S. Army Corps of Engineers, DEBRA HAALAND, in her official capacity as Secretary of the Interior, and MARTHA WILLIAMS, in her official capacity as Director of the U.S. Fish and Wildlife Service,^[1] Respondents, and CITY AND COUNTY OF DENVER, ACTING BY AND THROUGH ITS BOARD OF WATER COMMISSIONERS, Respondent-Intervenor.

Civil Action No. 18-cv-03258-CMA

United States District Court, D. Colorado

March 7, 2023

ORDER GRANTING PETITIONER'S MOTION TO COMPEL PRIVILEGE LOG

CHRISTINE M. ARGUELLO, SENIOR STATES DISTRICT JUDGE

This matter is before the Court on Petitioners' Motion to Compel Privilege Log (Doc. # 118). For the following reasons the Court grants the Motion.

I. BACKGROUND

This is an appeal of two final administrative decisions regarding the proposed expansion of a reservoir in Colorado. (Doc. # 45-1, ¶¶ 1-2, 7.) The Denver Board of Water Commissioners (“Denver Water”) seeks to enlarge a reservoir which collects water for the City of Denver and surrounding counties. (Id. at ¶ 67.) Implementation of the project required, amongst other things, that the municipality apply for a discharge permit from the U.S. Army Corps of Engineers (the “Corps”). (Id. at ¶ 66.) In 2017, the Corps granted the requested discharge permit. (Id. at ¶ 107; Doc. # 83-1 at 8-50.)^[2]As part of their review, the Corps sought biological opinions from the U.S. Fish and Wildlife Service (the “Service”) -an agency within the Department of the Interior-to ensure its decision complied with the Endangered Species Act (“ESA”). (Doc. # 45-1, ¶¶ 99-101.) Eventually, the Service determined it did not have jurisdiction over green lineage cutthroat trout. (Doc. # 45-1 at ¶¶ 122-25; Doc. # 115 at 129-38.)

A collection of environmental groups (the “Petitioners”) sued to block the reservoir expansion project. (Doc. # 45-1 at ¶¶ 12-31.) Petitioners allege that Federal Respondents-the heads of three Federal Agencies who played roles in the approval process-violated federal law by greenlighting the reservoir expansion. Specifically, Petitioners allege the Corps' approval of the discharge permit violated the Clean Water Act, the National Environmental Policy Act, and the Administrative Procedure Act (“APA”). (Doc. # 45-1 at ¶¶ 131-51.) Further, Petitioners challenge the Service's 2020 jurisdictional determination regarding the green lineage cutthroat trout under the ESA and the APA (Id. at ¶¶ 7 n.2, 152-68.) Denver Water intervened as a Respondent. (Doc. # 15.)

The Corps and Service lodged their Administrative Records (“AR”) in June 2019 and October 2020 (Docs. ## 26, 56). Pursuant to local rule D.C.COLO.LCivR 5.1(a) and the Court's Order (Doc. # 81), the Corps and Service filed their ARs electronically in December 2022 (Docs. ## 83-103, 105-17, 119-24). The December 2022 AR filings were accompanied by certifications to the completeness of the ARs by agency officers. See generally (Docs. ## 83-1; 115-15.) One such certification, that of Eric Laux-Chief of the Regulatory Branch for the Corps, Omaha District-states that “[p]rivileged, confidential, and non-record information has been redacted or otherwise withheld.” (Doc. # 81-1 at 5.)

On January 27, 2023, Petitioners filed the instant Motion to Compel Privilege Log. (Doc. # 118.) Federal Respondents timely responded (Doc. # 125), and Petitioners followed with their reply (Doc. # 126).

II. DISCUSSION

Under the APA, a reviewing court may set aside an agency's decision if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” Integrity Advance, LLC v. Consumer Fin. Prot. Bureau, 48 F.4th 1161, 1169 (10th Cir. 2022) (quoting 5 U.S.C. § 706(2)).

Agency action is arbitrary and capricious if an agency “has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, [or] is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.”

High Country Conservation Advocs. v. U.S. Forest Serv., 951 F.3d 1217, 1222 (10th Cir. 2020) (quoting Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).

When reviewing an agency's action, courts examine “the whole record or those parts of it cited by the party.” 5 U.S.C. § 706. Typically, in an APA case, “the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” Bar MK Ranches v. Yuetter, 994 F.2d 735, 739 (10th Cir. 1993) (quoting Camp v. Pitts, 411 U.S. 138, 142 (1973)).

The complete or “whole record” for APA review "consists of all the documents and materials that were “before the agency at the time the decision was made,” James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1095 (D.C. Cir. 1996) (quotation marks omitted), which includes “all documents and materials directly or indirectly considered by the agency.” Bar MK Ranches, 994 F.2d at 739. When determining what materials may have been “indirectly considered” the Court should not take too narrow a view- which would frustrate judicial review, but also should not allow inclusion of any relevant document in the agency's filing cabinet. Wildearth Guardians v. U.S. Forest Serv., 713 F.Supp.2d 1243, 1255-56 (D. Colo. 2010). Rather, “[t]he proper touchstone remains the decision makers' actual consideration” which should include “materials that may have influenced the agency's decision, including any evidence that was counter to the agency's position . . . [as well as] work and recommendations of subordinates.” Id. at 1256 (citing Amfac Resorts LLC v. U.S. Dep't of Interior, 143 F.Supp.2d 7, 12 (D.D.C. 2001)). The agency's “designation of the Administrative Record, like any established administrative procedure, is entitled to a presumption of administrative regularity.” Bar MK Ranches, 994 F.2d at 740. A court can order an agency to add the documents to complete the true administrative record if a movant “show[s] by clear evidence that the record fails to include documents or materials considered by Respondents in reaching the challenged decision.” Ctr. for Native Ecosystems v. Salazar, 711 F.Supp.2d 1267, 1275 (D. Colo. 2010).

Petitioners do not point to any specific documents or categories of documents they believe to have been withheld or wrongfully excluded from the AR. Rather, they argue the presumption of regularity does not apply to motions-like the instant one-to compel a privilege log, because such a motion does not contemplate expansion of the AR itself, “it simply allows the Court to have some oversight of the agency's assertions of privilege, the same role it would assume with respect to any other litigant.” (Doc. # 118 at 8 (quoting New York v. ICE, 438 F.Supp.3d 216, 218 (S.D.N.Y. 2020))). Alternatively, they assert that the presumption has been rebutted in this instance by Federal Respondents' express concession that they withheld privileged documents. (Id. at 8-9.) Further, Petitioners contend that controlling precedent requires the production of a privilege log where agencies have asserted privilege. (Id. at 9-14.) Finally, Petitioners point to several policy considerations, including maintaining effectiveness of judicial review over agency action, ensuring separation of powers, and avoiding “all manner of mischief” which may ensue should agencies be permitted to “decide unilaterally what documents it submits to the reviewing court.” (Id. at 14-20 (citing In re United States, 138 S.Ct. 371, 372 (2017) (Breyer, J., dissenting); Regents of the Univ. of Cali. v. U.S. Dep't of Homeland Sec., No. 17-cv-05211, 2018 WL 1210551, at *6 (N.D. Cal. Mar. 8, 2018))).

Federal Respondents oppose Petitioners' Motion. They assert that Petitioners have not demonstrated that the existing AR is inadequate for effective judicial review. (Doc. # 125 at 9-11.) Additionally, Federal Respondents argue that because Petitioners have not pointed to a single document they believe should be in the AR but is not, they have failed to put forth “clear evidence” that the AR is incomplete. (Id. at 11-13.) Therefore, Respondents argue, the instant Motion amounts to “speculation” and a “fishing expedition.” (Id. at 11, 13, 16.) Rather than “conceding” to withholding documents, Respondents contend that because privileged documents are “legally irrelevant,” Mr. Laux's certification language merely describes the boundaries of the AR. (Id. at 11-12.) However, Federal Respondents never clearly state that they are not withholding privileged documents. Respondents assert that the United States Court of Appeals for the Tenth Circuit has rejected a categorical rule that predecisional deliberative documents must be included in an AR or logged. (Id. at 13-14.) They further contend that a ruling from this Court in Petitioners' favor would misconstrue the law and result in “a blanket rule holding that ‘privilege logs' are required in every APA case.” (Id. at 9, 14-18.)

A. CASE LAW ON PRIVILEGE LOGS IN APA CASES

The Court disagrees with both parties' arguments regarding the state of binding authority on privilege logs in APA cases. Citing to the decree that a district court “may not compel the Government to disclose any document that the Government believes is privileged without first providing the Government with the opportunity to argue the issue,” In re United States, 138 S.Ct. 443, 445 (2017) Petitioners argue that the Supreme Court of the United...