United States District Court, D. Columbia.
[Copyrighted Material Omitted]
For STAND UP FOR CALIFORNIA!, RANDALL BRANNON, MADERA MINISTERIAL ASSOCIATION, SUSAN STJERNE, FIRST ASSEMBLY OF GOD - MADERA, DENNIS SYLVESTER, Plaintiffs: Harsh P. Parikh, Sean M. Sherlock, LEAD ATTORNEYS, PRO HAC VICE, SNELL & WILMER, Costa Mesa, CA; Heidi McNeil Staudenmaier, LEAD ATTORNEY, PRO HAC VICE, SNELL & WILMER, LLP, Phoenix, AZ; Benjamin S. Sharp , PERKINS COIE, LLP, Washington, DC.
For PICAYUNE RANCHERIA OF THE CHUKCHANSI INDIANS, a federally recognized Indian Tribe; 12cv2071, Plaintiff: James Eamonn Sherry, LEAD ATTORNEY, AKIN GUMP STRAUSS HAUER & FELD, LLP, Washington, DC; Merrill C. Godfrey, LEAD ATTORNEY, AKIN, GUMP, STRAUSS, HAUER & FELD, Washington, DC.
For U.S. DEPARTMENT OF THE INTERIOR, KENNETH SALAZAR, in his official capacity as Secretary of the U.S. Department of Interior, BUREAU OF INDIAN AFFAIRS, KEVIN K. WASHBURN, in his official capacity as Assistant Secretary of Bureau of Indian Affairs, Defendants: Gina L. Allery, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Environmental and Natural Resources Division, Washington, DC; Joseph N. Watson, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, ENRD, Washington, DC; Peter Kryn Dykema, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Washington, DC.
For UNITED STATES OF AMERICA, 12cv2071, Defendant: Gina L. Allery, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Environmental and Natural Resources Division, Washington, DC; Joseph N. Watson, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, ENRD, Washington, DC.
For NORTH FORK RANCHERIA OF MONO INDIANS, Intervenor Defendant: Christopher E. Babbitt, LEAD ATTORNEY, WILMER HALE, LLP, Washington, DC; Edward C. DuMont, LEAD ATTORNEY, WILMER CUTLER PICKERING HALE & DORR LLP, Washington, DC; Seth P. Waxman, LEAD ATTORNEY, WILMER CUTLER PICKERING HALE & DORR, Washington, DC; John Michael Schultz, ATER WYNNE LLP, Portland, OR.
BERYL A. HOWELL, United States District Judge.
The plaintiffs, Stand Up For California!, Randall Brannon, Madera Ministerial Association, Susan Stjerne, First Assembly of God-Madera and Dennis Sylvester (collectively, the " plaintiffs" ), have moved for an order compelling the United States Department of the Interior (" DOI" ), Sally Jewell, in her official capacity as Secretary of the United States Department of the Interior (the " Secretary" ), Bureau of Indian Affairs (" BIA" ), and Kevin Washburn, in his official capacity as Assistant Secretary of Indian Affairs, (collectively, the " federal defendants" ), to produce a privilege index and to supplement the administrative record (" AR" ) with certain documents, which purportedly are adverse to the federal defendants' decisions subject to challenge in this lawsuit. Pls.' Mot. Supp. AR and Compel Production of Privilege Index (" Pls.' Mot." ), ECF No. 85. For the reasons set forth below, the plaintiffs' motion is granted in part and denied in part.
A. Factual and Procedural Background
As summarized in the Court's prior Memorandum Opinion denying the plaintiffs' request for a preliminary injunction, the plaintiffs originally filed this lawsuit to challenge " two separate but related decisions of the Secretary of the United States Department of the Interior ('the Secretary') regarding a 305.49-acre parcel of land located in Madera County, California ('the Madera Site')." See Stand Up for California! v. U.S. Dep't of Interior, 919 F.Supp.2d 51, 54 (D.D.C. 2013) (citing Compl. ¶ ¶ 1, 31, ECF No. 1). Specifically, the plaintiffs challenge as arbitrary and capricious, in violation of the Administrative Procedures Act, 5 U.S.C. § 706, the federal defendants' first decision, in September 2011, pursuant to the Indian Gaming Regulatory Act (" IGRA" ), 25 U.S.C. § 2719(b)(1)(A), to allow the defendant-intervenor North Fork Rancheria of Mono Indians (the " North Fork Tribe" ) to build a resort casino on the Madera Site, and the federal defendants' second decision, in November 2012, to accept the Madera Site into trust for the benefit of the North Fork Tribe. Id. at 54-55.
On April 26, 2013, the federal defendants lodged the original AR containing records pertinent to the " November 26, 2012, decision to accept a 305.49-acre tract of land into trust for the North Fork
Rancheria of Mono Indians in Madera County, California, pursuant to the Indian Reorganization Act, 25 U.S.C. § 465. . . [and the] September 1, 2011, determination pursuant to the Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq." AR Certification of Nancy Pierskalla, Acting Dir., DOI's Office of Indian Gaming, ¶ 2, ECF No. 51-1. Following review of this AR, the plaintiffs filed a motion to compel the federal defendants to produce a privilege log and to supplement the AR. See generally Pls.' Mot. While agreeing to supplement the record with certain documents identified by the plaintiffs, the federal defendants declined to add some of the same documents at issue in the pending motion. Defs.' Opp'n to Pls.' Mot. Compel Prod. Of Privilege Index and Supp. AR (" Defs.' Opp'n" ) at 1-2, ECF No. 69. The federal defendants also agreed to " produce a privilege log for documents contained in the administrative record," but contended that " [f]or documents outside of the administrative record  no privilege log is necessary." Id. at 2; see also Pls.' Mot. (Decl. of Sean M. Sherlock (" Sherlock Decl." ), ¶ 5), ECF No. 85-1 (acknowledging that federal defendants produced list of redacted documents included in the AR).
While the plaintiffs' motion to compel was pending, the Court granted the federal defendants' motion to stay the case and remand to the agency for the limited purpose of allowing the federal defendants to comply with the notice requirements of the Clean Air Act. See Mem. and Order, ECF No. 77. Since the partial remand was anticipated to result in supplementation of the AR, the Court denied, without prejudice, the plaintiffs' motion to compel supplementation of the AR and production of a privilege index. Minute Order (December 16, 2013).
When the stay ended, the federal defendants, on May 5, 2014, lodged a supplemental AR. Notice of Filing Supp. AR, ECF No. 83. As detailed in the Certification of Administrative Record, the federal defendants supplemented the original AR with documents " inadvertently omitted" that were requested by the plaintiffs, as well as other documents located by DOI's Solicitor's Office. AR Certification of Paula Hart, Dir., DOI's Office of Indian Gaming (" Hart Certification" ), ¶ ¶ 3-4, ECF No. 83-1. In addition, the original AR was supplemented " with documents, communications, and other materials relating to the partial remand consistent with the Court's memorandum and order, dated December 16, 2013." Id. ¶ 6.
Shortly thereafter, the plaintiffs filed their Second Amended Complaint, which added a new claim challenging, as arbitrary and capricious, the federal defendants' third decision, in October 2013, to take no action to disapprove, within the statutory allowed period, the Class III Gaming Compact between the North Fork Tribe and the State of California, thereby allowing this compact to become effective upon the agency's publication of the compact in the Federal Register. Second Am. Compl., ¶ ¶ 98-104 (Fifth Claim for Relief), ECF No. 84 (challenging Secretary's decision " to allow the 45-day window to expire after which the compact was considered approved and thereafter publish notice of the approval in the Federal Register" ). Despite the stay having been lifted, no notice has been docketed of additional supplementation of the AR with any documents pertinent to the plaintiffs' new claim in the Second Amended Complaint.
The plaintiffs contend that, even as supplemented, the AR does not contain " documents plaintiffs have identified as relevant to plaintiffs' claims under the Indian Reorganization Act (" IRA" ), the Indian Gaming Regulatory Act (" IGRA" ), and the National Environmental Policy Act
(" NEPA" )." Pls.' Mem. Supp. Mot. Compel Prod. Of Privilege Index and Supp. AR (" Pls.' Mem." ) at 4, ECF No. 85. The plaintiffs further complain that the " federal defendants have also refused to provide a privilege log or index identifying any documents that were withheld from the administrative record." Id. Consequently, the plaintiffs now renew their motion to compel further supplementation of the AR and production of a privilege index by the federal defendants. The specific documents that the plaintiffs seek to add to the AR are described below.
B. Documents at Issue
The plaintiffs have identified two sets of documents that they believe should be included in the AR but that the federal defendants decline to add (the " Disputed Documents" ). The first set of documents were obtained by the plaintiffs from the BIA, pursuant to a Freedom of Information Act (" FOIA" ) request, Sherlock Decl. ¶ 12(1), and consists of three pieces of correspondence, each of which is over twenty years old, between the BIA and Ron Goode, who identifies himself in the earliest document as " Tribe Chairman, correspondant [sic]" (collectively, " Goode Documents" ). Sherlock Decl., Ex. F at 1, ECF No. 85-7. These three documents are:
1. A one-page letter, dated September 7, 1983, from Ron Goode to the BIA's Office of Federal Acknowledgement (" OFA" ), captioned " Letter of Intent" and indicating that on behalf of " a representation of the North Fork Band of the Mono Indian Tribe," he is " taking the first step toward forming the North Fork Mono Band of Indians, to become Federally Recognized." Sherlock Decl., Ex. F.
2. A 36-page document, received on May 15, 1990 by BIA, captioned " Petition for Federal Acknowledgement from the North Fork Mono Tribe For Status Clarification: Reinstatement of Federal Acknowledgment, Prepared for Submission to: the Secretary of the United States Department of Interior." Sherlock Decl., Ex. G, at 2, ECF No. 85-8. This document lists 72 " ...