Chinook Indian Nation et al v. Zinke et al

Filing 96

ORDER re 89 Stipulation for in camera review of excerpts of administrative record; these internal discussions should not be added to the record; signed by Judge Ronald B. Leighton. (DN)

HONORABLE RONALD B. LEIGHTON

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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CHINOOK INDIAN NATION, et al.,
Plaintiffs,
v.
RYAN K. ZINKE, in his capacity as
Secretary of the U.S. Department of
Interior, et al.,

CASE NO. C17-5668-RBL
ORDER ON STIPULATION
REGARDING SUPPLEMENTING
THE ADMINISTRATIVE RECORD

Defendant.

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On May 21, 2019, the parties in this case entered into a stipulation that the Court would
review three documents in camera to determine whether they should be added to the
administrative record or withheld due to privilege. See Stipulation, Dkt. # 89. As a refresher, this
case concerns the Plaintiffs’ challenge to a Final Rule by the Office of Federal
Acknowledgement (OFA) that bars unsuccessful petitioners for federal acknowledgement of
tribal status from re-petitioning.
Plaintiffs seek to supplement the administrative record with the following documents.
The first document (attachment to AR0007983) contains edits by the Department of the Interior
Office of the Solicitor to draft OFA talking points regarding how a tribe petitioning for
acknowledgement can get additional time to respond to OFA’s technical assistance review of
ORDER ON STIPULATION REGARDING
SUPPLEMENTING THE ADMINISTRATIVE
RECORD - 1

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their petition. The second document (attachment to AR0007948) is a memorandum prepared by

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an OFA staff anthropologist containing her comments and edits to the OFA’s Final Rule. The

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third document (attachment to AR0009030) is a memorandum between OFA officers regarding

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the preliminary discussion draft of the Final Rule. Yup!

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The “deliberative process privilege” protects “documents reflecting advisory opinions,

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recommendations and deliberations comprising part of a process by which governmental

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decisions and policies are formulated.” Dep't of Interior v. Klamath Water Users Protective

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Ass’n, 532 U.S. 1, 8 (2001). It “rests on the obvious realization that officials will not

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communicate candidly among themselves if each remark is a potential item of discovery and

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front page news, and its object is to enhance ‘the quality of agency decisions’ . . . by protecting

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open and frank discussion among those who make them within the Government.” Id. at 8-9

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(quoting N. L. R. B. v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975)). “Information is

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protected by the deliberative process privilege if it predates the governmental decision and is

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‘deliberative’ in nature,” with the key inquiry being “whether disclosure of the information

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would expose the decision-making process in such a way as to discourage candid discussion

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within the agency.” Thomas v. Cate, 715 F. Supp. 2d 1012, 1019 (E.D. Cal. 2010) (citing F.T.C.

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v. Warner Commc'ns Inc., 742 F.2d 1156, 1161 (9th Cir. 1984) and Carter v. U.S. Dep't of

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Commerce, 307 F.3d 1084, 1090 (9th Cir. 2002)).

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These documents meet the requirements for the deliberative process privilege. The first

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document includes crossed-out sections of text and line-edits that clearly reflect the OFA’s

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deliberative process. The second document expresses the candid and often critical comments of

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an OFA staff expert. If such information were included in the administrative record it would

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discourage lively debate within the agency during the rulemaking process. The third document

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ORDER ON STIPULATION REGARDING
SUPPLEMENTING THE ADMINISTRATIVE
RECORD - 2

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again contains hand-written notes critiquing the draft rule and suggesting changes. These internal

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discussions should not be added to the record.

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IT IS SO ORDERED.

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Dated this 11th day of October, 2019.

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A

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Ronald B. Leighton
United States District Judge

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ORDER ON STIPULATION REGARDING
SUPPLEMENTING THE ADMINISTRATIVE
RECORD - 3