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Colorado Wild Horse and Burro Coalition, Inc. v. Kempthorne

August 4, 2008

COLORADO WILD HORSE AND BURRO COALITION, INC., ET AL., PLAINTIFFS,
v.
DIRK KEMPTHORNE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

Plaintiffs in this suit challenge the decision of the Bureau of Land Management ("BLM"), an agency of the U.S. Department of the Interior ("DOI"), to remove all wild horses from the West Douglas Herd Area located southwest of Rangely, Colorado. BLM*fn1 has filed the Administrative Record ("AR") and Plaintiffs move to compel the addition of other documents as well as the release of certain documents for which the BLM claims the deliberative process privilege.

I. BACKGROUND

As initially filed, the AR contained approximately 216 documents which date from the early 1970s through 2007, constituting more than 1500 pages. See Admin. R. [Dkt. # 60], Ex. 3, Decl. of Sarah E. Wisely ("Wisely Decl.") ¶ 4. In response to Plaintiffs' challenge to the adequacy of the AR, BLM agreed to file additional documents, although it did not concede that they were a necessary part of the record. See Fed. Defs.' Opp'n to Pls.' Mot. to Supp. Admin. R. ("Defs.' Opp'n") at 2. BLM withheld 39 documents as subject to the deliberative process privilege. Id. at 9. Ms. Wisely has filed a declaration that states that "[a]ll of these documents are pre-decisional and contain opinions and/or recommendations regarding policy matters." See Wisely Decl. ¶ 6.*fn2

Plaintiffs continue to object to the absence of:

1. Public comments submitted to BLM concerning the roundups and removal of wild horses in 1998, 2000, and 2001. Pls.' Reply in Supp. of Mot. to Supp. Admin. R. ("Pls.' Reply") at 2. BLM says to produce these records "would be unnecessarily burdensome." Defs.' Opp'n at 7.

2. Documentation to evidence or explain the rationale for BLM's decision to increase the number of livestock permittee animal unit months ("AUMs") originally in the 2005 Environmental Assessment ("EA") from the livestock AUMs proposed in the 2004 EA for the same West Douglas herd management alternatives. Pls.' Reply at 3. Plaintiffs argue that the deliberative process privilege cannot protect documents, or portions thereof, that contain what became BLM's final decision, as well as the factual basis for the changes. Id. at 4. Specifically, they address documents listed on the Deliberative Process Privilege Log as DP14, DP16 and DP18. See Wisely Decl. ¶¶ DP 14, DP16 & DP18.

3. Documents addressing BLM's decision to include in the 2005 EA only two of the eight alternatives for managing wild horses in the West Douglas Herd Area that it originally considered in the 2004 EA. Pls.' Reply at 4.

4. Document No. 29 on the Deliberative Process Privilege Log because it "summarizes decisions made during a conference call," Wisely Decl. ¶ DP 29, and which Plaintiffs describe as a "document[] used in dealings with the public." Pls.' Reply at 5.

5. Document No. 36 on the Deliberative Process Privilege Log because it "purports to summarize the views expressed by the Colorado State Director on addressing protests to the 2005 EA," id. (citing Wisely Decl. ¶ DP36), and thus is "'more likely to contain instructions to staff explaining the reasons for a decision already made,'" id. (quoting Coastal States Gas Corp. v. DOE, 617 F.2d 854, 868 (D.C. Cir. 1980)).

II. APPLICABLE LAW

Plaintiffs file their claims in this action under the Administrative Procedure Act ("APA") which grants district courts jurisdiction to review whether an agency's action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A) (2008). In applying this standard of review, "the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court." Camp v. Pitts, 411 U.S. 138, 142 (1973); IMS, P.C. v. Alvarez, 129 F.3d 618, 623 (D.C. Cir. 1997) ("It is a widely accepted principle of administrative law that the courts base their review of an agency's actions on the materials that were before the agency at the time its decision was made."). "Although an agency may not unilaterally determine what constitutes the administrative record, the agency enjoys a presumption that it properly designated the administrative record absent clear evidence to the contrary." Fund for Animals v. Williams, 245 F. Supp. 2d 49, 55 (D.D.C. 2003) (citing Bar MK Ranches v. Yuetter, 994 F.2d 735, 739 (D.C. Cir. 1993)). Therefore, "supplementation of the administrative record is the exception, not the rule." Pac. Shores Subdiv., Cal. Water Dist. v. U.S. Army Corps of Eng'rs, 448 F. Supp. 2d 1, 4 (D.D.C. 2006) (citing Motor & Equip. Mfrs. Ass'n, Inc. v. EPA, 627 F.2d 1095, 1105 (D.C. Cir. 1979)); Funds for Animals, 245 F. Supp. 2d at 197) ("Courts grant motions to supplement the administrative record only in exceptional cases.").

Although "review [of an agency action] is to be based on the full administrative record that was before the [agency] at the time [it] made [its] decision," Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971), courts are reluctant to force agencies to expose their decisionmaking processes, see NLRB v. Sears Roebuck & Co., 421 U.S. 132, 151-52 (1975). Courts will therefore permit agencies to invoke the deliberative process privilege in order to protect information that exposes their decisionmaking processes, and thus ultimately, to "prevent injury to the quality of agency decisions." Petroleum Info. Corp. v. U.S. Dep't of the Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992).

To withhold a document under the deliberative process privilege, an agency must demonstrate that the document at issue is both pre-decisional and deliberative. Animal Legal Defense Fund v. Dep't of the Air Force, 44 F. Supp. 2d 295, 299 (D.D.C. 1999). "A document is predecisional if it was 'prepared in order to assist an agency decisionmaker in arriving at his decision,' rather than to support a decision already made. Material is deliberative if it 'reflects the give-and-take of the consultative process.'" Petroleum Info. Corp., 976 F.2d at 1434 (citation omitted); see also Coastal States, 617 F.2d at 866. However, "[w]hatever its genesis, [a] document may lose its status because it memorializes or evidences the policy the agency ultimately adopts on an issue or because ...


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