United States District Court, District of Columbia
STAND UP FOR CALIFORNIA!, PATTY JOHNSON, JOE TEIXEIRA, and LYNN WHEAT, Plaintiffs,
UNITED STATES DEPARTMENT OF INTERIOR; RYAN ZINKE, in his official capacity as Secretary of the Interior; BUREAU OF INDIAN AFFAIRS; and JOHN TAHSUDA III, in his official capacity as Acting Assistant Secretary-Indian Affairs, Defendants, and WILTON RANCHERIA, CALIFORNIA Intervenor-Defendant.
N. MCFADDEN UNITED STATES DISTRICT JUDGE.
Stand Up for California!, Patty Johnson, Joe Teixeira, and
Lynn Wheat challenge the adequacy of the administrative
record for judicial review of the Department of
Interior's decision to approve acquiring land in trust
for the Wilton Rancheria tribe and seek discovery in the form
of a privilege log from the Department. Specifically, the
Plaintiffs dispute excluding a variety of documents from the
administrative record, claim that some attachments to emails
otherwise included in the administrative record are missing,
and seek to unredact header information (e.g.,
authors, recipients, transmission time, subject) of emails in
the record. The Plaintiffs also argue that the Department
improperly “predetermined the outcome” of the
Wilton Rancheria's application and that this, coupled
with other indicia of bad faith-a rushed review process,
culminating in a decision issued on the eve of the change in
Presidential Administrations; pressure from the Senate
Minority Leader; and the Department's representation to
another judge of this District that the timing of any
decision was uncertain yet issuing a decision days
later-warrants the production of a privilege log.
Court finds that none of the three narrow “unusual
circumstances” apply here to require supplementing the
administrative record, see Dist. Hosp. Partners, L.P. v.
Burwell, 786 F.3d 46, 55 (D.C. Cir. 2015), but that the
combination of facts marshalled by the Plaintiffs present a
prima facie case of bad faith to warrant production
of a privilege log. See Air Transp. Ass'n of Am.,
Inc. v. Nat'l Mediation Bd., 663 F.3d 476, 487-88
(D.C. Cir. 2011). Accordingly, the Plaintiffs' motion to
supplement the administrative record will denied and their
motion for discovery will be granted.
Wilton Rancheria (the “Tribe”) is a federally
recognized Indian Tribe that has been landless since 1958.
Am. Compl. ¶¶ 14, 28. In 2013, the Tribe applied to
the Bureau of Indian Affairs (“BIA”) to acquire
land in trust on its behalf for a casino and proposed a
282-acre plot near Galt, California. Id. ¶ 31;
see also 25 U.S.C. § 5108 (authorizing the
Secretary of the Interior to acquire land in trust for Indian
tribes or individuals). The BIA vetted the proposal,
including holding a public scoping meeting on the
Environmental Impact Statement (“EIS”) in
December 2013, issuing an EIS Scoping Report in February
2014, and publishing a Notice of Availability of the Draft
EIS in December 2015. Am. Compl. ¶¶ 32-34. All of
these procedures, completed over a two-year period, were
conducted on the proposed Galt site. Id.
the 2016 Presidential election, the Department completed
procedures to take land into trust for the Tribe, but for an
entirely different parcel of land in Elk Grove, California.
See Id. ¶ 38. In mid-November 2016, the BIA
issued a Notice of (Gaming) Land Application for the Elk
Grove land and in mid-December 2016, published a Notice of
Availability for the Final EIS that identified a 36-acre
parcel in Elk Grove. Id. The Plaintiffs, residents
of Elk Grove and a non-profit organization supporting their
efforts, allege that this was the first time over the
years-long process that BIA identified this site.
Id. The Plaintiffs quickly and repeatedly-on
December 29, 2016 and January 6, 2017-requested that the
Department delay the acquisition of the Elk Grove site, but
the Department refused to accede to the request. See
Fed. Defs. Answer to Pls.' Am. Compl. (“Fed. Defs.
Answer”) ¶ 40.
struck out with the Department, the Plaintiffs turned to the
judicial system and, on January 11, 2017, filed in this
District a motion for an emergency temporary restraining
order against acquiring title to the land. Am. Compl. ¶
41. One of my colleagues heard arguments and denied the
motion on January 13, 2017. Minute Entry, Jan. 13, 2017;
see also TRO Hr'g Tr., Jan. 13, 2017, ECF No.
25. During the hearing, the District Judge asked the
Department about the anticipated timing of the decision, and
the Department replied that there was “still some
uncertainty left” to the timing of the process, and
that one of the factors affecting the timing would be
addressing the public comments received. Id.
37:9-25. The Department represented that the earliest date
the land could be taken into trust was January 17, 2017, the
same date as the close of the final public comment period.
day, the Plaintiffs applied to the Department for a formal
stay of proceedings under 5 U.S.C. § 705. Fed. Defs.
Answer ¶ 43. The Department did not deny the request
until February 10, 2017, but by then, the Department had
issued a Record of Decision approving the Tribe's trust
application. Id. ¶ 46; Am. Compl. ¶¶
53-55. The Record of Decision was issued on January 19, 2017,
the last day of the Obama Administration and a little over
two months after the BIA first allegedly identified the Elk
Grove land. See Am. Compl. ¶¶ 38, 45.
After exhausting their administrative appeal, the Plaintiffs
returned to this Court to challenge the authority of the
individuals who signed the January 19, 2017 Record of
Decision and a February 10, 2017 decision to acquire title in
trust for the Tribe. Id. ¶¶ 70, 82. I
denied the Plaintiffs' partial motion for summary
judgment and granted the Department's and the Tribe's
partial motions for summary judgment, finding that the
authority of the Assistant Secretary-Indian Affairs was
properly delegated and that the Department acted consistent
with applicable regulations and the Federal Vacancies Reform
Act. Mem. Op., Feb. 28, 2018, ECF No. 53. The agency
proceeded to compile the administrative record for the
remaining counts, leading to current dispute.
Supplementing the Administrative Record
review under the Administrative Procedure Act requires courts
to “review the whole record or those parts of it cited
by a party.” 5 U.S.C. § 706. The “whole
record” includes the “full administrative record
that was before the Secretary at the time he made his
decision.” Citizens to Pres. Overton Park, Inc. v.
Volpe, 401 U.S. 402, 420 (1971). This includes all
information that the agency considered either directly or
indirectly. Marcum v. Salazar, 751 F.Supp.2d 74, 78
(D.D.C. 2010). It does not, however, include deliberative
intra-agency documents, which are ordinarily privileged.
Amfac Resorts, L.L.C. v. U.S. Dep't of Interior,
143 F.Supp.2d 7, 13 (D.D.C. 2001).
start with a presumption that the agency properly compiled
the administrative record. Id. at 12. Thus, parties
generally are not permitted to supplement the record except
in certain “unusual circumstances.” Dist.
Hosp. Partners, 786 F.3d 46, 55 (internal quotation
marks omitted). These unusual circumstances are “(1)
the agency deliberately or negligently excluded documents
that may have been adverse to its decision; (2) the district
court needed to supplement the record with background
information in order to determine whether the agency
considered all of the relevant factors; or (3) the agency
failed to explain administrative action so as to frustrate
judicial review.” Id. A plaintiff must provide
“concrete evidence” and “identify
reasonable, non-speculative grounds for its belief that the
documents were considered by the agency and not included in
the record.” Marcum, 751 F.Supp.2d at 78.
is generally unavailable in cases involving judicial review
under the APA. Air Transp. Ass'n of Am., Inc.,
663 F.3d at 487 (D.C. Cir. 2011). Limited discovery may be
granted when a “party makes a significant
showing-variously described as a strong, substantial, or
prima facie showing-that it will find material in the
agency's possession of bad faith or an incomplete
record.” Id. at 487. Strong evidence of