United States District Court, D. Montana, Great Falls Division
INDIGENOUS ENVIRONMENTAL NETWORK and NORTH COAST RIVER ALLIANCE, and NORTHERN PLAINS RESOURCE COUNCIL, et al., Plaintiffs,
UNITED STATES DEPARTMENT OF STATE, et al., Defendants and TRANSCANADA KEYSTONE PIPELINE and TRANSCANADA CORPORATION, Defendant-Intervenors.
Morris United States District Court Judge.
Plains Resource Council (“Northern Plains”) filed
a Motion to Complete the Administrative Records and Lift the
Confidentiality Designation for Certain Files. (Doc. 125.)
Northern Plains argues that the administrative records suffer
from two deficiencies: (1) Defendants United States
Department of State, Thomas A. Shannon, Jr., in his official
capacity, United States Fish and Wildlife Service, James W.
Kurth, in his official capacity, and Ryan Keith Zinke, in his
official capacity (collectively “Federal
Defendants”) wrongly have omitted an unknown number of
emails and other internal communication considered by the
agencies while reviewing the Keystone XL Pipeline; and (2) if
Federal Defendants could show that these internal
communications are exempt from disclosure under the
deliberative process privilege, Federal Defendants must
justify that claim and provide a privilege log. (Doc. 125 at
2.) Northern Plains further argues that meaningful judicial
review cannot occur under the Administrative Procedure Act
(“APA”) without adequate administrative records.
Id. Plaintiff Indigenous Environmental Network filed
a motion in joinder of Northern Plains' motion
(collectively “Plaintiffs”). (Doc. 133.) Federal
Defendants and TransCanada Corporation
(“TransCanada”) oppose the motion. (Docs. 131,
Defendants filed their administrative records with the Court
on December 8, 2017. (Doc. 131 at 9.) Northern Plains had
sent Federal Defendants a letter containing objections to the
preliminary administrative records on November 30, 2017.
(Doc. 125 at 3.) The State Department record includes over
4.5 million documents either submitted by the public during
relevant comment periods or prepared by State Department
officials. Id. These documents contain the evidence
and information considered directly, or indirectly, by Under
Secretary Shannon in issuing the 2017 Presidential Permit for
the Keystone XL Pipeline.
Fish and Wildlife Service (“FWS”) record consists
of 166 documents considered directly, or indirectly, by FWS
in concurring in 2013 with the “not likely to adversely
affect” determinations, the 2013 Biological Opinion,
and FWS's subsequent concurrences for reinitiated
consultation on later-listed species. Id. at 10.
Court conducted a hearing on February 21, 2018. (Doc. 160.)
The Court ordered Federal Defendants to produce documents or
a prepare a privilege log for documents dated from January
26, 2017, the date of TransCanada's most recent
application for Keystone XL Pipeline, to March 23, 2017, the
date the State Department issued the Presidential Permit. The
Court additionally ordered the parties to meet and confer in
an effort to narrow their differences regarding the remainder
of the documents and to file a status report by April 6,
2018. (Doc. 177).
Defendants filed supplements to the administrative records on
March 21, 2018. The supplements included an additional forty
documents as well as a privilege log. As a result of the meet
and confer, the parties have agreed to narrow the date range
for document production to May 2012 to November 2015. The
parties also have identified eighteen custodians who are most
likely to possess documents relating to the Keystone XL
Pipeline. Plaintiffs now request production of documents from
eight of the custodians by May 10, 2018, and for production
of documents from the remaining ten custodians by June 10,
reviewing final agency action under the APA, a court must
determine whether the agency has considered the relevant
factors and articulated a rational connection between the
facts found and the choice made. Baltimore Gas &
Elec. Co. v. Nat. Res. Def. Council, 462 U.S. 87, 105
(1983). The APA provides that the reviewing court must
examine the agency's “whole record.”
Thompson v. U.S. Dep't of Labor, 885 F.2d 551,
555 (9th Cir. 1989). The whole record includes “all
documents and material directly or indirectly considered by
agency decision-makers and . . . evidence contrary to the
agency's position.” Id.
government's designation of an administrative record will
be entitled to a presumption of completeness. Oceana,
Inc. v. Pritzker, 2017 WL 2670733 at *2 (N.D. Cal.
2017). A plaintiff may rebut this presumption with clear
evidence to the contrary. Id. A plaintiff provides
clear evidence to the contrary if the plaintiff can identify
the “allegedly omitted material with sufficient
specificity” and provide “reasonable,
non-speculative grounds for the belief that the alleged
documents were considered by the agency and not included in
the record.” Id. The plaintiff also can show
that the agency “applied the wrong standard in
compiling the record.” Id. The plaintiff does
not need to show bad faith or improper motive.
Presumption of Completeness
parties dispute whether the administrative records consist of
all documents and material directly or indirectly considered
by the agency in making its decision. Plaintiffs argue that
the Court should determine that the presumption of
completeness has been rebutted for the following reasons.
Plaintiffs contend that the administrative records provided
by the Government in this case fail to include the State
Department's Biological Assessment or FWS's
biological opinion. Plaintiffs further contend that the
administrative records provided by the Government contain
“very few emails and other intra-agency or inter-agency
point to the fact that review of the Keystone XL Pipeline
involved over fifteen federal agencies, and, as a result,
likely included numerous comments of these types. (Doc. 125
at 9.) Plaintiffs also point to a missing 2013 comment letter
from the U.S. Environmental Protection Agency that criticized
the sufficiency of the State Department's Draft
Supplemental Environmental Impact Statement. Id.
Federal Defendants produced roughly forty ...