Indigenous Environmental Network et al v. United States Department of State et al

Filing 179

ORDER; Plaintiffs Motion to Complete the Administrative Records and Lift the Confidentiality Designation for Certain Files (Doc. 125) is GRANTED to the extent as follows. Plaintiffs must provide to Federal Defendants a reasonable list of search term s, not to exceed fifty, to further narrow the scope of inquiry by April 25, 2018. Federal Defendants must produce the complete administrative records and/or privilege log for the eight prioritized custodians using the search terms provided and the timeframe of May 2012 to November 2015 by May 11, 2018. Federal Defendants must produce the complete administrative records and/or privilege log for the remaining custodians using the search terms provided and the timeframe of May 2012 to November 2015 by June 10, 2018. Signed by Judge Brian Morris on 4/16/2018. Associated Cases: 4:17-cv-00029-BMM, 4:17-cv-00031-BMM (TLO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION

INDIGENOUS ENVIRONMENTAL
NETWORK and NORTH COAST
RIVER ALLIANCE,

CV-17-29-GF-BMM
CV-17-31-GF-BMM

and
NORTHERN PLAINS RESOURCE
COUNCIL, et al.,
ORDER

Plaintiffs,
vs.
UNITED STATES DEPARTMENT
OF STATE, et al.,
Defendants
and
TRANSCANADA KEYSTONE
PIPELINE and TRANSCANADA
CORPORATION,
Defendant-Intervenors.

Northern Plains Resource Council (“Northern Plains”) filed a Motion to
Complete the Administrative Records and Lift the Confidentiality Designation for
Certain Files. (Doc. 125.) Northern Plains argues that the administrative records
suffer from two deficiencies: (1) Defendants United States Department of State,
Thomas A. Shannon, Jr., in his official capacity, United States Fish and Wildlife
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Service, James W. Kurth, in his official capacity, and Ryan Keith Zinke, in his
official capacity (collectively “Federal Defendants”) wrongly have omitted an
unknown number of emails and other internal communication considered by the
agencies while reviewing the Keystone XL Pipeline; and (2) if Federal Defendants
could show that these internal communications are exempt from disclosure under
the deliberative process privilege, Federal Defendants must justify that claim and
provide a privilege log. (Doc. 125 at 2.) Northern Plains further argues that
meaningful judicial review cannot occur under the Administrative Procedure Act
(“APA”) without adequate administrative records. Id. Plaintiff Indigenous
Environmental Network filed a motion in joinder of Northern Plains’ motion
(collectively “Plaintiffs”). (Doc. 133.) Federal Defendants and TransCanada
Corporation (“TransCanada”) oppose the motion. (Docs. 131, 132.)
BACKGROUND
Federal Defendants filed their administrative records with the Court on
December 8, 2017. (Doc. 131 at 9.) Northern Plains had sent Federal Defendants a
letter containing objections to the preliminary administrative records on November
30, 2017. (Doc. 125 at 3.) The State Department record includes over 4.5 million
documents either submitted by the public during relevant comment periods or
prepared by State Department officials. Id. These documents contain the evidence

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and information considered directly, or indirectly, by Under Secretary Shannon in
issuing the 2017 Presidential Permit for the Keystone XL Pipeline.
The Fish and Wildlife Service (“FWS”) record consists of 166 documents
considered directly, or indirectly, by FWS in concurring in 2013 with the “not
likely to adversely affect” determinations, the 2013 Biological Opinion, and
FWS’s subsequent concurrences for reinitiated consultation on later-listed species.
Id. at 10.
The Court conducted a hearing on February 21, 2018. (Doc. 160.) The Court
ordered Federal Defendants to produce documents or a prepare a privilege log for
documents dated from January 26, 2017, the date of TransCanada’s most recent
application for Keystone XL Pipeline, to March 23, 2017, the date the State
Department issued the Presidential Permit. The Court additionally ordered the
parties to meet and confer in an effort to narrow their differences regarding the
remainder of the documents and to file a status report by April 6, 2018. (Doc. 177).
Federal Defendants filed supplements to the administrative records on
March 21, 2018. The supplements included an additional forty documents as well
as a privilege log. As a result of the meet and confer, the parties have agreed to
narrow the date range for document production to May 2012 to November 2015.
The parties also have identified eighteen custodians who are most likely to possess
documents relating to the Keystone XL Pipeline. Plaintiffs now request production
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of documents from eight of the custodians by May 10, 2018, and for production of
documents from the remaining ten custodians by June 10, 2018.
LEGAL STANDARD
When reviewing final agency action under the APA, a court must determine
whether the agency has considered the relevant factors and articulated a rational
connection between the facts found and the choice made. Baltimore Gas & Elec.
Co. v. Nat. Res. Def. Council, 462 U.S. 87, 105 (1983). The APA provides that the
reviewing court must examine the agency’s “whole record.” Thompson v. U.S.
Dep’t of Labor, 885 F.2d 551, 555 (9th Cir. 1989). The whole record includes “all
documents and material directly or indirectly considered by agency decisionmakers and . . . evidence contrary to the agency’s position.” Id.
The government’s designation of an administrative record will be entitled to
a presumption of completeness. Oceana, Inc. v. Pritzker, 2017 WL 2670733 at *2
(N.D. Cal. 2017). A plaintiff may rebut this presumption with clear evidence to the
contrary. Id. A plaintiff provides clear evidence to the contrary if the plaintiff can
identify the “allegedly omitted material with sufficient specificity” and provide
“reasonable, non-speculative grounds for the belief that the alleged documents
were considered by the agency and not included in the record.” Id. The plaintiff
also can show that the agency “applied the wrong standard in compiling the
record.” Id. The plaintiff does not need to show bad faith or improper motive.
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DISCUSSION
I.

Presumption of Completeness

The parties dispute whether the administrative records consist of all
documents and material directly or indirectly considered by the agency in making
its decision. Plaintiffs argue that the Court should determine that the presumption
of completeness has been rebutted for the following reasons. Plaintiffs contend that
the administrative records provided by the Government in this case fail to include
the State Department’s Biological Assessment or FWS’s biological opinion.
Plaintiffs further contend that the administrative records provided by the
Government contain “very few emails and other intra-agency or inter-agency
communications.”
Plaintiffs point to the fact that review of the Keystone XL Pipeline involved
over fifteen federal agencies, and, as a result, likely included numerous comments
of these types. (Doc. 125 at 9.) Plaintiffs also point to a missing 2013 comment
letter from the U.S. Environmental Protection Agency that criticized the
sufficiency of the State Department’s Draft Supplemental Environmental Impact
Statement. Id. Federal Defendants produced roughly forty additional documents
after conducting the review ordered by the Court of the post-January 26, 2017
documents. (Doc. 177 at 4.)

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Plaintiffs contend that judicial review under the APA should be based on the
whole record that includes internal and external communications regarding the
agency’s decision-making process. Internal and external communications
constitute “drafts, internal reviews and critiques, inter-agency reviews, dissent
from agency scientists, and e-mail exchanges or other correspondence between and
among the agencies and/or others involved.” People of the State of Cal. ex rel.
Lockyer v. U.S. Dep’t of Agric., 2006 WL 708914 at *4 (N.D. Cal. 2006).
Federal Defendants contend that Plaintiffs have failed to overcome the
presumption of regularity attached to the administrative records. (Doc. 131 at 14.)
Federal Defendants contend that Plaintiffs wrongly misapply the term “indirectly
before the decision maker” to include all deliberative materials properly excluded
from the records. Id. at 15. Federal Defendants further contend that Plaintiffs can
point only to broad, sweeping categories of documents missing from the
administrative records.
The Court recognizes that a split of authority exists regarding whether
internal communications and drafts should be part of the administrative record.
The District of Columbia Circuit Court has determined that such agency
deliberations are not part of the record. See San Luis Obispo Mothers for Peace v.
Nuclear Regulatory Commission, 789 F.2d 26, 44-45 (D.C. Cir. 1986). The Ninth
Circuit has not addressed this direct issue. District courts within the Ninth Circuit
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have determined that privileged materials do not comprise part of the
administrative record. See Carlsson v. U.S. Citizenship & Immigration Servs., 2015
WL 1467174 at *7 n. 5 (C.D. Cal. 2015); California v. U.S. Dep’t of Labor, 2014
WL 1665290 at *13 (E.D. Cal. 2014).
District courts in the Northern District of California have determined,
however, that internal agency communications and drafts comprise part of the
administrative records as these types of communications will inform the agency’s
final decision. This determination prevents Federal Defendants from asserting that
these types of material should be excluded from the universe of materials “directly
or indirectly considered by agency decision-makers.” Institute for Fisheries
Resources v. Burwell, 2017 WL 89003 at *1 (N.D. Cal. 2017); see also Lockyer,
2006 WL 708914 at *3; Center for Food Safety v. Vilsack, 2017 WL 1709318 at *4
(N.D. Cal. 2017).
Internal agency communications and drafts are part of the universe of
material “directly or indirectly considered by agency decision-makers.” Plaintiffs,
in this particular case, have rebutted the presumption of completeness with clear
evidence. Plaintiffs have rebutted this presumption by pointing to specific
documents missing from the administrative records. Federal Defendants have
failed, additionally, to provide the whole record. This failure is evidenced by
Federal Defendants supplementation to the administrative records after the Court
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ordered Federal Defendants to produce any remaining documents or a prepare a
privilege log for any withheld documents from January 26, 2017 to March 23,
2017.
II.

Privilege Log

Plaintiffs argue that the deliberative process privilege remains a qualified
one. FTC v. Warner Commc’ns Inc., 742 F.2d 1156, 1161 (9th Cir. 1984). To
invoke this privilege, the agency must “make a specific showing establishing the
application of the privilege for each document that it contends that it may
withhold.” Lockyer, 2006 WL 708914 at *4. Plaintiffs argue that Federal
Defendants attempt to skirt these requirements by providing no privilege log of the
materials that they withhold from the administrative record.
Federal Defendants argue that deliberative materials fall outside the scope of
the administrative record and that no privilege log should be required. Federal
Defendants point to decisions in district courts in the Fourth Circuit and Seventh
Circuit. See Great Am. Ins. Co. v. United States, 2013 WL 4506929 at *8 (N.D. Ill.
2013); Outdoor Amusement Bus. Ass’n v. Dep’t of Homeland Sec., 2017 WL
3189446 at *21-22 (D. Md. 2017); Tafas v. Dudas, 530 F. Supp. 2d 786, 801 (E.D.
Va. 2008). Federal Defendants further argue that the Ninth Circuit has not decided
expressly this issue and no presumption exists that a privilege log will be needed.
(Doc. 131 at 25.)
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Federal Defendants do not provide any Ninth Circuit authority that stands
for their proposition. Plaintiffs would be unable to challenge a withholding without
a privilege log. The Court recognizes the burden this approach places on Federal
Defendants. Federal Defendants must provide a privilege log if they seek to
withhold a document based on the deliberative process privilege.
CONCLUSION
Federal Defendants must complete the administrative records or provide a
privilege log. The Court realizes the burden this places on Federal Defendants as a
result of the voluminous nature of the documents that Plaintiffs seek. To alleviate
some of this burden, Plaintiffs must provide a reasonable list of search terms to
narrow the scope of inquiry by Federal Defendants.
The Court possesses broad discretion to manage its own docket, which
includes the inherent power “to control the disposition of the causes on its docket
with economy of time and effort for itself, for counsel, and for litigants.” Landis v.
N. Am. Co., 299 U.S. 248, 254-55 (1936). This inherent power includes in this case
the extra steps by the parties.

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ORDER
Accordingly, IT IS HEREBY ORDERED:
1. Plaintiffs’ Motion to Complete the Administrative Records and Lift the
Confidentiality Designation for Certain Files (Doc. 125) is GRANTED to
the extent as follows.
2. Plaintiffs must provide to Federal Defendants a reasonable list of search
terms, not to exceed fifty, to further narrow the scope of inquiry by April 25,
2018.
3. Federal Defendants must produce the complete administrative records and/or
privilege log for the eight prioritized custodians using the search terms
provided and the timeframe of May 2012 to November 2015 by May 11,
2018.
4. Federal Defendants must produce the complete administrative records and/or
privilege log for the remaining custodians using the search terms provided
and the timeframe of May 2012 to November 2015 by June 10, 2018.
DATED this 16th day of April, 2018.

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