517 F.Supp.3d 890
D. Ariz.2021Background:
- Plaintiffs Save the Colorado, Living Rivers, and Center for Biological Diversity challenge the Department of the Interior’s December 2016 Record of Decision adopting a 20‑year Glen Canyon Dam Long‑Term Experimental Management Plan, alleging inadequate consideration of climate‑change impacts and alternatives under the APA and NEPA.
- The Department lodged an administrative record of about 7,000 documents (>145,000 pages) and certified it as true, correct, and complete; plaintiffs sought to compel supplementation contending the record omitted categories of documents.
- Save the Colorado asked the Court to add (a) thousands of deliberative/draft documents, (b) materials cited or referenced in two foundational Colorado River studies, and (c) an explanation of the record certification process; it also sought a privilege log for withheld documents.
- The Department argued the record is complete, invoked the presumption of regularity, maintained deliberative materials need not be part of the record, noted plaintiffs already received a large FOIA production, and resisted providing a privilege log for deliberative material.
- The Court denied the motion without prejudice: held deliberative documents are not required in the administrative record as a general matter; plaintiffs failed to identify specific non‑deliberative documents showing they were considered by decision‑makers; certification did not, on its face, rebut the presumption; no privilege log required now.
- The Court allowed plaintiffs leave to file a new, narrowly tailored motion to supplement with specific, non‑deliberative documents showing they were directly or indirectly considered, set a March 5, 2021 deadline for such motions, and requested an updated case schedule.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether deliberative (predecisional, draft, intra‑agency) documents must be included in the administrative record | Deliberative docs exist and were produced via FOIA; they should be part of the record or logged | Deliberative materials probe mental processes and are immaterial; agency may exclude them and FOIA production does not make them part of the record | Court: Deliberative documents need not be included; presumption of regularity stands and compelling them would impermissibly probe decisionmakers’ mental processes |
| Whether documents referenced or cited in two foundational Colorado River studies must be included | References in foundational studies mean those underlying materials were constructively considered and belong in the record | Mere citation/reference does not show the agency considered those underlying materials; inclusion would stretch indirect causation too far | Court: Plaintiffs failed to show these referenced documents were relied upon or constructively considered; no supplementation warranted |
| Whether the administrative‑record certification was inadequate to overcome the presumption of regularity | Certification lacks detail about process or standards used to compile the record and thus cannot be presumed complete | Certification need not use specific words; absent clear evidence the record is facially incomplete, presumption applies | Court: Certification here did not rebut the presumption; plaintiffs offered no clear evidence of facial incompleteness |
| Whether the Department must produce a privilege log identifying withheld deliberative documents | Plaintiffs seek a log for documents excluded on privilege grounds | Department: Deliberative materials are not part of the record and need not be logged; privilege log unnecessary absent claim of other privileges | Court: No privilege log required now as to deliberative materials; without prejudice to later showing of specific privileged, non‑deliberative documents |
Key Cases Cited
- Thompson v. U.S. Dep't of Labor, 885 F.2d 551 (9th Cir. 1989) (administrative record includes materials directly or indirectly considered)
- Animal Defense Council v. Hodel, 840 F.2d 1432 (9th Cir. 1988) (judicial review of agency action is limited to administrative record)
- Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (court reviews agency action based on the reasons the agency provided)
- Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) (courts should not probe mental processes of decisionmakers)
- Fence Creek Cattle Co. v. U.S. Forest Serv., 602 F.3d 1125 (9th Cir. 2010) (narrow grounds to expand the administrative record)
- In re United States, 875 F.3d 1200 (9th Cir. 2017) (discussed treatment of deliberative materials and privilege log issues)
- Oceana, Inc. v. Ross, 920 F.3d 855 (D.C. Cir. 2019) (deliberative documents generally not part of the administrative record absent bad faith)
- F.T.C. v. Warner Communications, Inc., 742 F.2d 1156 (9th Cir. 1984) (forced disclosure of predecisional deliberations can adversely affect government decisionmaking)