Black Warrior Riverkeeper, Inc. v. Alabama Department of Transportation et al

Filing 108

ORDER as follows: (1) The Administrative Record must include documents relevant to Riverkeeper's failure-to-act claim; (2) Defendants must produce a privilege log when they compile the administrative record. A separate order will follow regarding the schedule for filing and objecting to the administrative record. Signed by Chief Judge William Keith Watkins on 5/30/2013. (jg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
BLACK WARRIOR RIVERKEEPER, )
INC.,
)
)
Plaintiff,
)
)
v.
)
)
ALABAMA DEPARTMENT OF
)
TRANSPORTATION, et al.,
)
)
Defendants.
)

CASE NO. 2:11-CV-267-WKW
[WO]

ORDER
Defendants are building a highway. In 1997, they studied the effects the project
would have on the local environment and released an environmental impact statement.
In 2012, Defendants reevaluated that statement, but they have never prepared a
supplemental environmental impact statement (an “SEIS”). Plaintiff Black Warrior
Riverkeeper, Inc., filed this lawsuit to challenge the 2012 reevaluation and force
Defendants to prepare an SEIS.
Because Riverkeeper proceeds under the Administrative Procedure Act, there
will be no traditional discovery; the parties agree that the court should base its
decision on an administrative record, which Defendants will compile. But the parties
disagree over the proper scope of that record. (Docs. # 99, 105, 106.) This order will
address those disputes.

I. DISCUSSION
The parties present two questions: (1) Must the administrative record include
documents relevant to Plaintiff’s failure-to-act claim? And (2) Must Defendants
prepare a privilege log? Each will be taken in turn.
I.

The administrative record must include documents relevant to Plaintiff’s
failure-to-act claim.
With regard to Riverkeeper’s challenge to the 2012 reevaluation, the parties are

in agreement: The court should base its decision on “the administrative record that
culminated in the publication of the March 2012 Re-evaluation.” (Doc. # 99, at 4.)
But Riverkeeper also claims Defendants failed to comply with their statutory
duty to prepare an SEIS. With respect to that claim, Riverkeeper argues the
administrative record should be broader. Indeed, there is authority to suggest the
administrative record on a failure-to-act claim cannot “be limited to the record as it
existed at any single point in time, because there is no final agency action to
demarcate the limits of the record.” Friends of the Clearwater v. Dombeck, 222 F.3d
552, 560 (9th Cir. 2000). Defendants do not dispute that statement of law; instead,
they argue only that this lawsuit never involved a failure-to-act claim in the first place.
But as Riverkeeper points out, the complaint does state a failure-to-act claim
under 5 U.S.C. § 706(1). Under the heading “Legal Background,” the complaint says,
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“The APA provides that the reviewing court shall ‘compel agency action unlawfully
withheld or unreasonably delayed.’ 5 U.S.C. § 706(1).” (Doc. # 82 ¶ 34.) The
complaint’s first claim for relief alleges, “Defendants’ failure to create an SEIS for the
entire Northern Beltline project violates NEPA . . . . This ongoing failure also
constitutes an unlawfully withheld and unreasonably delayed action.” (Doc. # 82
¶ 87.) And in its prayer for relief, Riverkeeper asks for “preliminary and permanent
injunctive relief . . . specifically to ensure that Defendants take no further actions
toward proceeding with the Northern Beltline until they have prepared an SEIS.”
(Doc. # 82.)
Defendants do not address those statements, nor do they attempt to explain why
those allegations do not amount to a properly pled failure-to-act claim. Instead, they
simply ignore them and assert, without elaboration, that Riverkeeper “never
specifically pled a claim under APA, 5 U.S.C. § 706(1).” The court disagrees;
Riverkeeper’s complaint plainly states a failure-to-act claim.
But the question remains: What is the proper scope of the administrative record
with respect to that claim? To that question, Defendants offer no answer. Because
Defendants refused to acknowledge Riverkeeper’s failure-to-act claim, they did not
address it at all. (See Doc. # 105, at 8 (dismissing Riverkeeper’s arguments as
“premature”).) Instead, Defendants left that question for another day.
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Without hearing from Defendants, the court is reluctant to decide just how far
the proper scope of the administrative record on the failure-to-act claim extends. But
at the very least, Defendants must compile a record that includes whatever documents
are relevant to that claim.
II.

Defendants must prepare a privilege log when they compile the
administrative record.
The parties agree that the administrative record should not include documents

protected by the deliberative-process privilege. But Defendants insist they have the
right to invoke that privilege when no one is looking. Riverkeeper disagrees and
proposes a more transparent approach that would require Defendants to prepare a
privilege log, thus facilitating an assessment of “the universe of documents being
withheld [and] the validity of Defendants’ justifications for withholding.” (Doc. # 99,
at 7.)
When Defendants compile the administrative record, the court trusts they will
not inappropriately invoke the deliberative-process privilege. But asking Riverkeeper
to share the faith would belie the adversarial nature of American-style litigation.
Whenever Defendants invoke privilege to exclude documents from the administrative
record, they bear the burden of proving that a privilege actually applies. See Sierra
Club v. Kempthorne, 488 F. Supp. 2d 1188, 1191 (S.D. Ala. 2007) (recognizing the
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burden is on the invoking agency to establish the deliberative-process privilege). A
privilege log is the surest way of holding Defendants to that burden.1
To be clear, Defendants are not obligated to include in the record any
documents protected by the deliberative-process privilege. But when Defendants
invoke that privilege to exclude documents that would otherwise be included, they
will not be unaccountable. Defendants must produce a log of any documents they
exclude from the record on the basis of privilege.
III. CONCLUSION
Accordingly, it is ORDERED as follows:
(1)

The Administrative Record must include documents relevant to
Riverkeeper’s failure-to-act claim;

(2)

Defendants must produce a privilege log when they compile the
administrative record.

1

The use of privilege logs is a common practice in federal district courts, even those
deciding claims under the Administrative Procedure Act. See, e.g.,California Native Plant
Society v. E.P.A., 251 F.R.D. 408, 414 (N.D. Cal. 2008) (ordering agencies to “supplement their
privilege logs with more detailed information as to how the documents fit into the deliberative
process”); New York v. Salazar, 701 F. Supp. 2d 224, 230 (N.D.N.Y. 2010) (noting that
defendants produced an administrative record and “a separate privilege log identifying
documents withheld from the record”); Spiller v. Walker, No. A-98-CA-255-SS, 2002 WL
1609722, at *3 (W.D. Tex. July 19, 2002) (noting that the plaintiffs had an opportunity to file
objections to the defendants’ privilege logs). But see Nat’l Ass’n of Chain Drug Stores v. Dept.
of Health & Human Servs., 631 F. Supp. 2d 23, 27 (D.D.C., 2009) (“As they are not part of the
administrative record to begin with, defendants’ pre-decisional, deliberative documents do not
need to be logged as withheld from the administrative record.”).
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A separate order will follow regarding the schedule for filing and objecting to
the administrative record.
DONE this 30th day of May, 2013.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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