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Indigenous Environmental Network v. United States Department of State

United States District Court, D. Montana, Great Falls Division

April 16, 2018

INDIGENOUS ENVIRONMENTAL NETWORK and NORTH COAST RIVER ALLIANCE, and NORTHERN PLAINS RESOURCE COUNCIL, et al., Plaintiffs,
v.
UNITED STATES DEPARTMENT OF STATE, et al., Defendants and TRANSCANADA KEYSTONE PIPELINE and TRANSCANADA CORPORATION, Defendant-Intervenors.

          ORDER

          Brian Morris United States District Court Judge.

         Northern 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, 132.)

         BACKGROUND

         Federal 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.

         The 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.

         The 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).

         Federal 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, 2018.

         LEGAL STANDARD

         When 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.

         The 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.

         DISCUSSION

         I. Presumption of Completeness

         The 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 communications.”

         Plaintiffs 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 ...


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