71 F. Supp. 3d 109
D.D.C.2014Background
- Plaintiffs filed this action challenging two DOI decisions under IGRA regarding a 305.49-acre Madera Site in California.
- The first challenged decision (Sept. 2011) allowed the North Fork Rancheria to conduct gaming on the Madera Site; the second (Nov. 2012) took the land into trust for North Fork.
- The Court lodged the original Administrative Record (AR) and later, after a partial remand for Clean Air Act compliance, supplemented the AR in 2014.
- Plaintiffs sought a privilege index and supplementation of the AR with documents adverse to DOI’s decisions.
- Plaintiffs added a new claim in the Second Amended Complaint (May 2014) challenging the 2013 decision to publish IGRA-approved compact in the Federal Register; this claim prompted consideration of additional AR materials.
- The Court granted in part and denied in part: add the CDC master plan and the 2013 Letters to the AR; exclude Goode Documents; deny privilege-index for non-AR documents.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Goode Documents should be added to the AR | Goode Documents were known to the agency and adverse | Documents were not before decisionmakers; not relevant | Goode Documents not added to AR |
| Whether 2013 Letters should be added to the AR | Letters show Secretary erred by publishing; relevant to third decision | Letters post-date the 2011–2012 decisions; not relevant to those challenges but relevant to the 2013 challenge | 2013 Letters added to AR for the third decision; not for the 2011–2012 decisions |
| Whether a privilege index for documents outside the AR should be compelled | Plaintiffs seek a log of withheld privileged documents | Deliberative materials are not part of AR and need not be logged; presumption of regularity applies | Privilege index denied; no extra-record log required |
| Whether the CDC master plan should be added to the AR | Granted as conceded; CDC master plan to be added |
Key Cases Cited
- Florida Power & Light Co. v. Lorion, 470 U.S. 729 (1985) (review is on the record before the agency; avoid de novo inquiry in APA cases)
- IMS, P.C. v. Alvarez, 129 F.3d 618 (D.C. Cir. 1997) (review should be based on materials before the agency; no extra-record supplementation absent exceptional circumstances)
- James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085 (D.C. Cir. 1996) (test for whether materials were before the agency at the time of decision)
- Am. Wildlands v. Kempthorne, 530 F.3d 991 (D.C. Cir. 2008) (cases permitting limited supplementation in exceptional circumstances)
- City of Dania Beach v. FAA, 628 F.3d 581 (D.C. Cir. 2010) (three narrow instances for AR supplementation)