                                UNITED STATES DISTRICT COURT
                                FOR THE DISTRICT OF COLUMBIA

STAND UP FOR CALIFORNIA!, et al.

                          Plaintiffs,

                          v.
                                                                   Civil Action No. 12-2039 (BAH)
UNITED STATES
DEPARTMENT OF INTERIOR, et al.                                     Judge Beryl A. Howell

                          Defendants,

NORTH FORK RANCHERIA
OF MONO INDIANS,

                          Defendant-Intervenor.


                                        MEMORANDUM OPINION

        The plaintiffs, Stand Up For California!, Randall Brannon, Madera Ministerial

Association, Susan Stjerne, First Assembly of God-Madera and Dennis Sylvester (collectively,

the “plaintiffs”), have moved for an order compelling the United States Department of the

Interior (“DOI”), Sally Jewell1, in her official capacity as Secretary of the United States

Department of the Interior (the “Secretary”), Bureau of Indian Affairs (“BIA”), and Kevin

Washburn, in his official capacity as Assistant Secretary of Indian Affairs, (collectively, the

“federal defendants”), to produce a privilege index and to supplement the administrative record

(“AR”) with certain documents, which purportedly are adverse to the federal defendants’

decisions subject to challenge in this lawsuit. Pls.’ Mot. Supp. AR and Compel Production of




1
 Sally Jewell has succeeded Kenneth Salazar as DOI’s Secretary and, consequently, is automatically substituted in
place of Mr. Salazar as a party to this action. See FED. R. CIV. P. 25(d).


                                                        1
Privilege Index (“Pls.’ Mot.”), ECF No. 85.2 For the reasons set forth below, the plaintiffs’

motion is granted in part and denied in part.

I.       BACKGROUND

         A.       Factual and Procedural Background

         As summarized in the Court’s prior Memorandum Opinion denying the plaintiffs’ request

for a preliminary injunction, the plaintiffs originally filed this lawsuit to challenge “two separate

but related decisions of the Secretary of the United States Department of the Interior (‘the

Secretary’) regarding a 305.49-acre parcel of land located in Madera County, California (‘the

Madera Site’).” See Stand Up for California! v. U.S. Dep’t of Interior, 919 F. Supp. 2d 51, 54

(D.D.C. 2013) (citing Compl. ¶¶ 1, 31, ECF No. 1). Specifically, the plaintiffs challenge as

arbitrary and capricious, in violation of the Administrative Procedures Act, 5 U.S.C. § 706, the

federal defendants’ first decision, in September 2011, pursuant to the Indian Gaming Regulatory

Act (“IGRA”), 25 U.S.C. § 2719(b)(1)(A), to allow the defendant-intervenor North Fork

Rancheria of Mono Indians (the “North Fork Tribe”) to build a resort casino on the Madera Site,

and the federal defendants’ second decision, in November 2012, to accept the Madera Site into

trust for the benefit of the North Fork Tribe. Id. at 54-55.

         On April 26, 2013, the federal defendants lodged the original AR containing records

pertinent to the “November 26, 2012, decision to accept a 305.49-acre tract of land into trust for

the North Fork Rancheria of Mono Indians in Madera County, California, pursuant to the Indian

Reorganization Act, 25 U.S.C. § 465. . . [and the] September 1, 2011, determination pursuant to

the Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq.” AR Certification of Nancy

Pierskalla, Acting Dir., DOI’s Office of Indian Gaming, ¶ 2, ECF No. 51-1. Following review of

2
 The plaintiffs have requested oral argument on the pending motion, Pls.’ Mot. at 2, but given the sufficiency of the
parties’ written submissions, this request is denied. See U.S. Dist. Ct. Rules, D.D.C., Local Rule 7(f) (allowance of
oral hearing is “within the discretion of the court”).


                                                          2
this AR, the plaintiffs filed a motion to compel the federal defendants to produce a privilege log

and to supplement the AR. See generally Pls.’ Mot. While agreeing to supplement the record

with certain documents identified by the plaintiffs, the federal defendants declined to add some

of the same documents at issue in the pending motion. Defs.’ Opp’n to Pls.’ Mot. Compel Prod.

Of Privilege Index and Supp. AR (“Defs.’ Opp’n”) at 1- 2, ECF No. 69. The federal defendants

also agreed to “produce a privilege log for documents contained in the administrative record,”

but contended that “[f]or documents outside of the administrative record [] no privilege log is

necessary.” Id. at 2; see also Pls.’ Mot. (Decl. of Sean M. Sherlock (“Sherlock Decl.”), ¶ 5),

ECF No. 85-1 (acknowledging that federal defendants produced list of redacted documents

included in the AR).

       While the plaintiffs’ motion to compel was pending, the Court granted the federal

defendants’ motion to stay the case and remand to the agency for the limited purpose of allowing

the federal defendants to comply with the notice requirements of the Clean Air Act. See Mem.

and Order, ECF No. 77. Since the partial remand was anticipated to result in supplementation of

the AR, the Court denied, without prejudice, the plaintiffs’ motion to compel supplementation of

the AR and production of a privilege index. Minute Order (December 16, 2013).

       When the stay ended, the federal defendants, on May 5, 2014, lodged a supplemental AR. 

Notice of Filing Supp. AR, ECF No. 83. As detailed in the Certification of Administrative

Record, the federal defendants supplemented the original AR with documents “inadvertently

omitted” that were requested by the plaintiffs, as well as other documents located by DOI’s

Solicitor’s Office. AR Certification of Paula Hart, Dir., DOI’s Office of Indian Gaming (“Hart

Certification”), ¶¶ 3-4, ECF No. 83-1. In addition, the original AR was supplemented “with




                                                 3
documents, communications, and other materials relating to the partial remand consistent with

the Court’s memorandum and order, dated December 16, 2013.” Id. ¶ 6.

       Shortly thereafter, the plaintiffs filed their Second Amended Complaint, which added a

new claim challenging, as arbitrary and capricious, the federal defendants’ third decision, in

October 2013, to take no action to disapprove, within the statutory allowed period, the Class III

Gaming Compact between the North Fork Tribe and the State of California, thereby allowing

this compact to become effective upon the agency’s publication of the compact in the Federal

Register. Second Am. Compl., ¶¶ 98-104 (Fifth Claim for Relief), ECF No. 84 (challenging

Secretary’s decision “to allow the 45-day window to expire after which the compact was

considered approved and thereafter publish notice of the approval in the Federal Register”).

Despite the stay having been lifted, no notice has been docketed of additional supplementation of

the AR with any documents pertinent to the plaintiffs’ new claim in the Second Amended

Complaint.

       The plaintiffs contend that, even as supplemented, the AR does not contain “documents

plaintiffs have identified as relevant to plaintiffs’ claims under the Indian Reorganization Act

(“IRA”), the Indian Gaming Regulatory Act (“IGRA”), and the National Environmental Policy

Act (“NEPA”).” Pls.’ Mem. Supp. Mot. Compel Prod. Of Privilege Index and Supp. AR (“Pls.’

Mem.”) at 4, ECF No. 85. The plaintiffs further complain that the “federal defendants have also

refused to provide a privilege log or index identifying any documents that were withheld from

the administrative record.” Id. Consequently, the plaintiffs now renew their motion to compel

further supplementation of the AR and production of a privilege index by the federal defendants.

The specific documents that the plaintiffs seek to add to the AR are described below.




                                                 4
         B.       Documents at Issue

         The plaintiffs have identified two sets of documents that they believe should be included

in the AR but that the federal defendants decline to add (the “Disputed Documents”).3 The first

set of documents were obtained by the plaintiffs from the BIA, pursuant to a Freedom of

Information Act (“FOIA”) request, Sherlock Decl. ¶ 12(1), and consists of three pieces of

correspondence, each of which is over twenty years old, between the BIA and Ron Goode, who

identifies himself in the earliest document as “Tribe Chairman, correspondant [sic]”

(collectively, “Goode Documents”). Sherlock Decl., Ex. F at 1, ECF No. 85-7. These three

documents are:

    1. A one-page letter, dated September 7, 1983, from Ron Goode to the BIA’s Office of

         Federal Acknowledgement (“OFA”), captioned “Letter of Intent” and indicating that on

         behalf of “a representation of the North Fork Band of the Mono Indian Tribe,” he is

         “taking the first step toward forming the North Fork Mono Band of Indians, to become

         Federally Recognized.” Sherlock Decl., Ex. F.

    2. A 36-page document, received on May 15, 1990 by BIA,4 captioned “Petition for Federal

         Acknowledgement from the North Fork Mono Tribe For Status Clarification:

         Reinstatement of Federal Acknowledgment, Prepared for Submission to: the Secretary of

         the United States Department of Interior.” Sherlock Decl., Ex. G, at 2, ECF No. 85-8.

         This document lists 72 “folders” with a description of the contents of each “folder.” Id.

3
  The plaintiffs also seek supplementation of the AR with the North Fork Community Development Council
(“CDC”) master plan for the development of the Old Mill Site, Pls.’ Mot. at 2, and the federal defendants agree that
this document “will be added to the record.” Defs.’ Opp’n at 2 n. 1. Thus, the plaintiffs’ motion is granted, in part,
as conceded with respect to the CDC master plan. The plaintiffs further request that “the Court set a date by which
time the federal defendants must add this document, and any other documents the Court determines should be added,
to the record.” Pls.’ Reply Mem. Supp. Mot. Suppl. AR and Compel Prod. of Privilege Index (“Pls.’ Reply”), at 1 n.
1, ECF No. 92. Rather than set a specific date, the Court will direct the parties to confer and jointly propose a
schedule for supplementation of the AR as promptly as feasible.
4
  The plaintiffs describe this document as “received by [sic] on May 15, 1990 by the OFA,” Sherlock Decl. ¶ 12(b),
but no receipt date can be discerned on the document itself.


                                                          5
      3. A ten-page letter, dated October 28, 1991, from the BIA’s Director of Tribal Services to

         Ron Goode, describing the results of an “initial review for obvious deficiencies and

         significant omissions of the North Fork Mono petition for Federal acknowledgement as

         an Indian tribe.” Sherlock Decl., Ex. H at 1, ECF No. 85-9. The letter states that the

         “review indicates that there are obvious deficiencies and significant omissions in the

         North Fork Mono petition . . . [which] leaves many questions unanswered regarding

         whether the North Fork Mono group meets the Acknowledgement criteria.” Id. at 2.

         The second set of documents consists of three letters, dated July 16, 2013, August 9,

2013, and November 20, 2013 (collectively, “2013 Letters”), from California Secretary of State

Debra Bowen to Paula Hart, Director of DOI’s Office of Indian Gaming. Pls.’ Mot., Attach. 12

(Decl. of Cheryl Schmit (“Schmit Decl.”), Exs. J, K, L, ECF No. 85-12. Each of these letters

addresses the status of the Tribal-State Gaming Compacts entered into by the State of California

with the North Fork Rancheria of Mono Indians and the Wiyot Tribe.

II.      LEGAL STANDARD

         Under the APA, “the court shall review the whole record or those parts of it cited by a

party.” 5 U.S.C. § 706. “The record consists of the order involved, any findings or reports on

which that order is based, and ‘the pleadings, evidence, and other parts of the proceedings before

the agency.’” Am. Wildlands v. Kempthorne, 530 F.3d 991, 1002 (D.C. Cir. 2008) (quoting FED.

R. APP. P. 16(a)). As the Supreme Court explained, “[t]he task of the reviewing court is to apply

the appropriate APA standard of review, 5 U.S.C. § 706, to the agency decision based on the

record the agency presents to the reviewing court.” Florida Power & Light Co. v. Lorion, 470

U.S. 729, 743-744 (1985). Otherwise, the reviewing court would consider de novo material not

included in the agency record and “reach its own conclusions based on such an inquiry.” Id. at




                                                  6
744. Such a de novo inquiry is inconsistent with applying the arbitrary and capricious standard,

where “the focal point for judicial review should be the administrative record already in

existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S.

138, 142 (1973).

       Hence, “[i]t is a widely accepted principle of administrative law that the courts base their

review of an agency’s actions on the materials that were before the agency at the time its

decision was made.” IMS, P.C. v. Alvarez, 129 F.3d 618, 623 (D.C. Cir. 1997); see also Hill

Dermaceuticals, Inc. v. FDA, 709 F.3d 44, 47 (D.C. Cir. 2013) (“[I]t is black-letter

administrative law that in an APA case, a reviewing court ‘should have before it neither more

nor less information than did the agency when it made its decision.’” (quoting Walter O. Boswell

Mem’l Hosp. v. Heckler, 749 F.2d 788, 792 (D.C. Cir. 1984)); Deukmejian v. Nuclear

Regulatory Comm’n, 751 F.2d 1287, 1325 (D.C. Cir. 1984) (en banc) (“Were courts cavalierly to

supplement the record, they would be tempted to second-guess agency decisions in the belief that

they were better informed than the administrators empowered by Congress and appointed by the

President.”), vacated en banc in part on other grounds,760 F.2d 1320 (D.C. Cir. 1985). When

“the record before the agency does not support the agency action, [] the agency has not

considered all relevant factors, or [] the reviewing court simply cannot evaluate the challenged

agency action on the basis of the record before it, the proper course, except in rare

circumstances, is to remand to the agency for additional investigation or explanation.” Florida

Power & Light Co., 470 U.S. at 744.

       Supplementation of the administrative record is only appropriate in exceptional or

“unusual” circumstances. City of Dania Beach v. FAA, 628 F.3d 581, 590 (D.C. Cir. 2010)

(“[W]e do not allow parties to supplement the record ‘unless they can demonstrate unusual




                                                 7
circumstances justifying a departure from this general rule.’” (quoting Tex. Rural Legal Aid v.

Legal Servs. Corp., 940 F.2d 685, 698 (D.C. Cir. 1991))); Am. Wildlands, 530 F.3d at 1002; see

also Cape Hatteras Access Pres. Alliance v. U.S. Dep’t of Interior, 667 F. Supp. 2d 111, 112

(D.D.C. 2009) (“A court that orders an administrative agency to supplement the record of its

decision is a rare bird.”).

        The D.C. Circuit has recognized three narrow instances in which supplementation of an

administrative record may be appropriate before reaching the merits of an APA challenge to

agency action: “(1) if the agency ‘deliberately or negligently excluded documents that may have

been adverse to its decision,’ (2) if background information was needed ‘to determine whether

the agency considered all the relevant factors,’ or (3) if the ‘agency failed to explain

administrative action so as to frustrate judicial review.’” City of Dania Beach, 628 F.3d at 590

(quoting Am. Wildlands, 530 F.3d at 1002); see James Madison Ltd. by Hecht v. Ludwig, 82 F.3d

1085, 1095 (D.C. Cir. 1996).

        Underlying these exceptions, however, is the “strong presumption” that an agency has

properly compiled the entire record of materials that it considered, either directly or indirectly, in

making its decision. See Maritel, Inc. v. Collins, 422 F. Supp. 2d 188, 196 (D.D.C. 2006)

(“Although an agency may not unilaterally determine what constitutes the administrative record,

the agency enjoys a presumption that it properly designated the administrative record absent

clear evidence to the contrary.”). To overcome that presumption, a plaintiff “must put forth

concrete evidence that the documents it seeks to add to the record were actually before the

decisionmakers.” Nat’l Mining Ass’n v. Jackson, 856 F. Supp. 2d 150, 156 (D.D.C. 2012)

(internal quotation and citations omitted); see also Silver State Land, LLC v. Beaudreau, 2014

U.S. Dist. LEXIS 100959, at *7-14 (D.D.C. July 24, 2014).




                                                  8
III.   DISCUSSION

       The plaintiffs contend that the Disputed Documents should be added to the AR because

they “were known by the federal defendants at the time they made the challenged decisions,” and

are both relevant and adverse to the challenged decisions. Pls.’ Mem. at 4. The federal

defendants and the North Fork Tribe vigorously dispute each of these characterizations of the

Disputed Documents. For the reasons discussed below, the plaintiffs’ arguments regarding the

Goode Documents are simply not persuasive. In addition, the plaintiffs have failed to make the

requisite showing for entitlement to a privilege index for documents outside the AR. The

plaintiffs’ motion is granted, however, with respect to the remaining documents they seek to add

to the AR.

       A.      Goode Documents

       The plaintiffs contend that supplementation of the AR with the Goode Documents is

appropriate since this set of documents (1) was obtained from the BIA and, consequently, known

to the federal defendants, and (2) is both relevant and adverse to the second challenged decision

to take land into trust for the North Fork Tribe. The federal defendants and North Fork Tribe

deny that the Goode Documents were known to, let alone considered by, the decision-makers

within the federal defendants at the time of the second challenged decision and further contend

that this set of documents is not relevant or adverse such that no supplementation of the AR is

warranted.

       As to the threshold question, the plaintiffs argue that the Goode Documents were “known

to the agency at the time of the decision” because they were “either submitted to the BIA or

created by the BIA, and they were located in BIA files.” Pls.’ Mem. at 7. The federal

defendants and the North Fork Tribe counter that just because decades-old documents may rest




                                                9
in agency files does not make their inclusion in the AR appropriate, even if the documents are

relevant, when they were neither presented to nor considered by the actual decision-makers

involved in the challenged determination. Defs.’ Opp’n at 13 (“The mere possession or

production of a document does not…obligate an agency to include it in the administrative record,

even if it is, unlike these documents, relevant.”); Def.-Int.’s Opp’n to Pls.’ Mot. Supp. AR

(“Def.-Int.’s Opp’n”) at 4 (“It is not—and could not be—the law that for APA purposes an

agency is deemed to have ‘considered,’ even ‘indirectly,’ every document that any agency

employee has ever created, reviewed, or placed in a file.”). The federal defendants and the Tribe

are clearly correct. An agency’s possession of certain records, as confirmed by their disclosure

in response to a FOIA request, is not sufficient to show that the same records were considered by

the agency in connection with a decision subject to an APA challenge and, consequently, mere

possession triggers no requirement to include such records in the administrative record. See Sara

Lee Corp. v. Am. Bakers Ass’n, 252 F.R.D. 31, 34 (D.D.C. 2008) (denying plaintiff’s motion to

supplement administrative record with records obtained in response to FOIA request since

“plaintiff must do more than imply that the documents at issue were in the [agency]’s possession

. . . . Rather, plaintiff must prove that the documents were before the actual decisionmakers

involved in the determination”) (internal citations omitted); Pac. Shores Subdiv. Cal. Water Dist.

v. U.S. Army Corps of Eng’rs, 448 F. Supp. 2d 1, 6 (D.D.C. 2006) (denying plaintiff’s motion to

supplement administrative record with records obtained in response to FOIA request since “there

is no evidence that the [agency’s] decisionmaker(s) were actually aware of the fourteen

documents Plaintiffs seek to include”).

       To bolster their argument that the Goode Documents were known to the federal

defendants, the plaintiffs cite overlapping information in both this set of disputed documents and




                                                10
the AR regarding the historical background and ancestry of the North Fork Tribe. Based upon

the similarity of contents, the plaintiffs draw the conclusion that the Goode Documents “cannot

be distinguished from the documents used by the federal defendants and the applicant Tribe to

show that the Tribe was under federal jurisdiction in 1934.” Id. at 9-10. Similarity of contents

with information in the AR, however, is simply not the test of whether an excluded document

should be included in an AR. Rather, the test for whether a document, regardless of its precise

contents, should be included in the administrative record is straight-forward: the administrative

record includes all materials that were “‘before the agency at the time the decision was made.’”

James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1095 (D.C. Cir. 1996) (quoting

Environmental Defense Fund, Inc. v. Costle, 657 F.2d 275, 284 (D.C. Cir. 1981); see also Am.

Wildlands, 530 F.3d at 1002 (“Ordinarily, review is to be based on the full administrative record

that was before the Secretary at the time he made his decision.” (internal quotations omitted)).

For example, in IMS, P.C. v. Alvarez, 129 F.3d at 623-624, the D.C. Circuit rejected as having

“no legal support” the plaintiff’s proposition that the record could be supplemented with

documents not before the agency at the time of the challenged decision because the documents

“merely elaborated on details already included in the record.” Thus, absent any demonstration

by the plaintiffs that the Goode Documents were before the decision-makers of the second

challenged decision, or any allegation that such decision-makers were aware of but in bad faith

purposely remained ignorant of the Goode Documents, the plaintiffs’ argument regarding

overlapping information in the Goode Documents and the AR is unavailing.

       Finally, in reply, the plaintiffs argue that the Goode Documents were, in fact, before the

federal defendants since the plaintiffs informed the federal defendants about the Goode

Documents on May 16, 2013, as part of the plaintiffs’ initial motion to compel, which was filed




                                                11
before the partial remand of this case and supplementation of the AR. Pls.’ Reply Mem. Supp.

Mot. Supp. AR and Compel Production of Privilege Index (“Pls.’ Reply”) at 5-6, ECF No. 92.

This argument is spurious, since the plaintiffs essentially concede that the Goode Documents

were not brought to the attention of the federal defendants at the critical time, in 2012, when the

second challenged decision to take land into trust for the North Fork Tribe was made.

Accordingly, since no evidence has been presented that the decades-old Goode Documents were

before the agency decision-makers at the time of the second challenged decision, the federal

defendants did not err by excluding the Goode Documents from the compilation of documents

for the AR pertaining to that decision.

        Moreover, the plaintiffs have failed to show that the Goode Documents are either relevant

or adverse. To provide context for their contention that the Goode Documents are relevant and

adverse to the federal defendants’ second challenged decision, the plaintiffs explain the

undisputed legal framework limiting “the Secretary’s authority to take land into trust on behalf of

Indian tribes . . . to ‘those tribes that were under the federal jurisdiction of the United States

when the IRA was enacted in 1934.’” Pls.’ Mem. at 6 (citing Carcieri v. Salazar, 555 U.S. 379,

395 (2009) and City of Sault Ste. Marie, Mich. v. Andrus, 532 F. Supp. 157, 161 (D.D.C. 1980));

Defs.’ Opp’n at 5; Def.-Int.’s Opp’n at 7. According to the plaintiffs, the propriety of the federal

defendants’ second challenged decision in 2012 to take land-into-trust for the North Fork Tribe

turns on the “solitary question” of the “Tribe’s status in 1934, not its current status as a federally

recognized Indian Tribe.” Pls.’ Mem. at 7. The plaintiffs reason that the Goode Documents

show the existence of “another Indian group,” with a similar name, “similar history,” and

“common ancestors with” the North Fork Tribe, Pls.’ Mem. at 12, and that this information

somehow “undermine[s]” or “contradict[s] the evidence in the [AR] supporting the claim that the




                                                  12
applicant Tribe was necessarily the North Fork Band of landless Indians and was the group that

voted in the 1935 election.” Id. This reasoning is flawed.

        As the federal defendants indicate, the Goode Documents amount to “an incomplete and

unsuccessful petition for federal acknowledgement filed with the Secretary in 1983 by a group of

individuals led by Ron Goode . . . .” Defs.’ Opp’n at 8. The Goode group of unknown numbers

and unidentified members, other than Ron Goode, never attained separate federal recognition as

a tribe and, thus, stands in stark contrast to the North Fork Tribe, which had its tribal status

restored by the stipulated judgment in Tillie Hardwick v. United States, Civil No. C-79-1710-

SW, at 3 (N.D. Cal. Aug. 2, 1983). Notably, nothing in the Goode Documents appears to

challenge the tribal status of the North Fork Tribe. Thus, to the extent that the Goode group

sought tribal status independent of the North Fork Tribe, the Goode documents are entirely

irrelevant to any evaluation of the Tribe’s status. As the federal defendants point out, even if the

Goode group were recognized, it would not alter or affect the rights of the North Fork Tribe,

making the Goode Documents “doubly irrelevant.” Def.-Int.’s Opp’n at 7.

        In any event, the exact relationship, if any, between the North Fork Tribe and Ron

Goode or his group is unclear since the record about them is sparse. This group may have no

relationship to the North Fork Tribe, currently be part of the North Fork Tribe or, if not, merely

descendants of early tribal members. The plaintiffs invite elaborate speculation about this

amorphous group and its relationship, if any, to the North Fork Tribe, stating the Goode

Documents “could, for example, demonstrate that the North Fork Band and not the applicant

Tribe was the beneficiary of the 1916 purchase and was under federal jurisdiction in 1934,” Pls.’

Mem. at 12, or “[a]ternatively, . . . that no particular tribal identity existed at the Rancheria in

1934,” id. at 13, or “between 1916 and 1935,” id. at 14. Rather than speculate, the Court




                                                  13
concludes that the existence of Ron Goode and his group, which at some point over twenty years

ago intended to seek, without following through, independent tribal status, has little to no bearing

on the bases for recognition of the North Fork Tribe.5

         In sum, the Goode Documents were not before the federal defendants when they made

the second challenged decision, nor are they relevant or adverse. Accordingly, this set of

documents need not be added to the AR.

         B.       2013 Letters

         The Court turns next to consideration of the second set of documents, the 2013 Letters,

which the plaintiffs contend should be added to the AR. According to the plaintiffs, the 2013

Letters are relevant and adverse because they “show that the Secretary had a duty to disapprove

the compact and breached that duty by publishing the approval in the Federal Register.” Pls.’

Mem. at 2. The plaintiffs’ reasoning is that, under the IGRA, DOI may approve or disapprove

any Tribal-State compact entered into between an Indian Tribe and a State within 45 days of

receipt, and the compact becomes effective when the Secretary publishes the approval in the

Federal Register. 25 U.S.C. §§ 2710(d)(8)(A) and (D). Inaction during this 45-day period is

deemed to be approval. 25 U.S.C. §§ 2710(d)(8)(C). Disapproval of such a compact is warranted


5
  In a last gasp effort to show the Goode Documents are relevant to show the lack of a “specific tribal identity at the
Rancheria,” the plaintiffs contend that the federal defendants are taking an inconsistent position regarding the North
Fork Tribe, which has federally recognized tribal status, and the Mishewal Wappo Indians, which does not have
such status, even though the Mishewal Wappo Indians living on the Alexander Valley Rancheria participated, in
1935, in a Section 18 election under the IRA, 25 U.S.C. §479. Pls.’ Mem. at 14 (“Despite the North Fork Tribe’s
current federal recognition and the Mishewal Wappo Tribe’s lack thereof, the DOI’s position in the Alexander
Valley case is inconsistent with the federal defendants’ position in this case regarding what Section 18 election
[under the Indian Reorganization Act (“IRA”), 25 U.S.C. §479] shows.”). To the contrary, with respect to both
tribes, the federal defendants have taken the consistent position that federal jurisdiction in 1934 may be established
by proof of an IRA election by the Indians residing at a rancheria, but not to any larger group of Indians, who simply
identify themselves by the same name as Indians voting on a rancheria. See Defs.’ Opp’n at 10 (“[M]embership in
the Mishewal Wappo group is not equivalent to membership in the Alexander Valley Rancheria.”); Def.-Int.’s
Opp’n at 10 (“DOI’s only point was that such an election was proof that the Alexander Valley Rancheria was under
federal jurisdiction in 1934, rather than a larger group consisting of the ‘Mishawal Wappo tribe.’”) (internal
quotations omitted). Moreover, unlike the North Fork Tribe, whose tribal status was restored after termination, the
status of the Mishewal Wappo Indians living on the Alexander Valley Rancheria was not. Def.-Int.’s Opp’n at 9.


                                                          14
if it violates a provision of IGRA. 25 U.S.C. § 2710(d)(8)(B); see also Amador County v.

Salazar, 640 F.3d 373, 381 (D.C. Cir. 2011).

         In this case, DOI published approval of the State of California-North Fork Rancheria of

Mono Indians Gaming Compact in the Federal Register in October, 2013, see 78 Fed. Reg.

62649-01 (October 22, 2013), when the 2013 Letters show the compact was subject to a state

referendum. The plaintiffs correctly summarize the 2013 Letters as informing the federal

defendants that, under California law, “the statute approving the compact would not take effect

until January 1, 2014, if at all,” Pls.’ Mem. at 17 (quoting Schmit Decl. ¶ 5, Ex. J); that “if a

referendum petition qualifies for the ballot, the statute will not go into effect until the day

following the election, if at all,” id.; and that since a referendum had qualified for the November

2014 California General Election, “the ‘statutes implementing the compacts are stayed until the

voters act to adopt or reject the compacts in November 2014,’” Pls.’ Mem. at 18 (quoting

Schmit Decl. ¶ 7, Ex. L). In the plaintiffs’ view, due to the referendum, the compact “was not

yet entered into by the State of California, and the Secretary was aware of this fact,” making “the

Secretary’s publication of approval in the Federal Register [] in violation of IGRA.” Pls.’ Mem.

at 18.

         The federal defendants and North Fork Tribe claim that the 2013 Letters need not be

added to the AR because these letters are neither relevant nor adverse to, and were not before the

federal defendants at the time of, the challenged decisions in 2011 and 2012. Plainly, the 2013

Letters post-date the federal defendants’ 2011 and 2012 decisions, which were challenged in the

plaintiffs’ first two complaints and guided the compilation of the original and supplemental AR.

Defs.’ Opp’n at 1, 10; Def.-Int.’s Opp’n at 11. As the North Fork Tribe explains, “[t]he first

decision, made in September 2011, determined that North Fork would be permitted to conduct




                                                  15
gaming on the Madera land after its acquisition pursuant to IGRA’s two-part determination, and

the second decision, made in November 2012, determined that the United States would acquire

the Madera land to hold it in trust for the benefit of North Fork to conduct gaming activities.”

Def.-Int.’s Opp’n at 13. The 2013 Letters plainly “cannot be relevant” to these two challenged

decisions “when they [did] not exist at the time [the] decision [was] made.” Defs.’ Opp’n at 10.

       While the 2013 Letters are unrelated to the federal defendants’ first and second

challenged decisions in 2011 and 2012, respectively, they are relevant to the plaintiffs’ new

claim challenging the federal defendants’ third decision, in 2013, to take no action on the Tribal-

State compact and to publish that compact in the Federal Register. That new claim was asserted

for the first time in the Second Amended Complaint, which was filed on May 23, 2014, two

weeks after the lodging of the supplemental AR. The federal defendants correctly posit “[t]he

land-into-trust decision does not rise and fall with the new claim related to the Federal Register

notice of the Tribal-State gaming compact” since “the land may be in trust with or without a

Tribal-State gaming compact.” Defs.’ Opp’n at 11-12. At the same time, the federal defendants

and the North Fork Tribe concede that the 2013 Letters are relevant and were indisputably before

the federal defendants at the time of the third challenged decision regarding approval of the

Tribal-State compact and, thus, would appropriately be included in any AR compiled for

consideration of the plaintiffs’ most recent challenge to that aspect of the federal defendants’

actions. See Defs.’ Opp’n at 17 (acknowledging that the 2013 Letters “are relevant to the claim

added to Stand Up’s most recent complaint, but not the IGRA or land-into-trust decisions.”).

       Both the federal defendants and the North Fork Tribe contend that the plaintiffs’

challenge to the federal defendants’ third decision regarding the Tribal-State gaming compact

raises a separate, distinct challenge to agency action that requires a separate administrative




                                                 16
record, and they suggest adoption of a bifurcated briefing schedule that would allow resolution

of issues related to the challenged decisions in 2011 and 2012 to move forward separately from

consideration of the plaintiffs’ challenge to the third decision. See Defs.’ Opp’n at 12 (indicating

that new claim “should not delay summary judgment briefing on the land-into-trust decision

(which should begin as soon as possible after this motion is resolved), should be briefed

separately from the land-into-trust decision and should not be, post-hoc, incorporated into a prior

and independent decision to accept land-into-trust”); Def.-Int.’s Opp’n at 12 (“To avoid further

delays, the Stand Up Plaintiffs’ recently added challenge to this decision—set forth in paragraphs

98-104 of the Second Amended Complaint they filed on May 23, 2014—should be adjudicated

separately from their earlier challenge to the land-into-trust decision, with a separate

administrative record (yet to be certified) and on a separate briefing schedule.”).6

         The plaintiffs indicate that any necessary supplementation of the AR with documents

relevant to the federal defendants’ third challenged decision would be “far from voluminous,

consisting of maybe a few hundred pages, most of which consist of the compact itself,” citing the

fact that “[t]here is no record of decision . . . no public comment period [and] very few letters.”

Pls.’ Reply at 16. Consequently, according to the plaintiffs, “[p]roduction of documents relevant

to the Secretary’s decision to publish the approval will not ‘slow down’ the briefing in this case.”

Id. In other words, the parties’ dispute over whether the 2013 Letters should be added to the AR,

which was compiled for purposes of evaluating the federal defendants’ 2011 and 2012

challenged decisions, has devolved into a scheduling dispute over the briefing schedule for



6
  The plaintiffs do not dispute that the 2013 Letters are not relevant to the federal defendants’ 2011 and 2012
challenged decisions and, instead, make the strained argument that the partial remand of this case to complete the
federal defendants’ Clean Air Act compliance meant “there was no longer a final decision,” requiring inclusion in
the AR of the 2013 Letters since they “were clearly received before a new decision was made in the case and a
revised administrative record was certified by federal defendants.” Pls.’ Mem. at 18. Contrary to the picture painted
by the plaintiffs, the partial remand did not operate as a vacatur of the challenged decisions in 2011 and 2012.


                                                         17
resolution of all of the plaintiffs’ claims at the same time or on a bifurcated schedule. As the

plaintiffs note, the filing of the new claim in the Second Amended Complaint was not feasible

while the case was stayed and, thereafter, “[t]he only thing preventing [the] plaintiffs from

briefing this [new] claim is that federal defendants have not produced the administrative record

since the notice of approval was published, and apparently, they refuse to do so while this motion

[is] pending.” Id. at 17.

       Given the concession that the 2013 Letters are relevant to the plaintiffs’ claim, albeit a

claim recently filed in the Second Amended Complaint, the 2013 Letters should be added to the

AR. To the extent that the parties seek to avoid any unnecessary delay and conserve judicial and

the parties’ resources in this action, they are encouraged to confer and propose a prompt schedule

for further supplementation of the AR and a comprehensive briefing schedule for consideration

simultaneously of all the plaintiffs’ pending claims.

       C.      Privilege Index

       The plaintiffs complain that they “have yet to receive a log of documents that were

withheld from production of the [AR]” and, consequently, urge “this Court [to] require the

federal defendants to produce an index of all documents that are being withheld from the

agency’s decision file.” Pls.’ Mem. at 19-20. Although the plaintiffs concede that privileged

and deliberative process documents need “not be deemed part of the record,” they nonetheless

seek, over the objection of the federal defendants, a log identifying the reasons for the

withholding of any document from the AR. Id. at 20. The plaintiffs’ request for a privilege

index for documents not included in the AR is without legal basis.

       In this Circuit, requests for privilege logs of documents that may have been withheld

from an administrative record on grounds of privilege or deliberative process are routinely




                                                 18
denied. See, e.g., Am. Petroleum Tankers Parent, LLC v. United States, 952 F. Supp. 2d 252, 267

(D.D.C. 2013) (“the Defendants are entitled to rely on the deliberative process privilege, and are

not required to submit a log of privileged documents”); Nat’l Ass’n of Chain Drug Stores v. U.S.

Dep’t of Health and Human Serv., 631 F. Supp. 2d 23, 27 (D.D.C. 2009), rev’d on other

grounds, 670 F.3d 1238 (D.C. Cir. 2011) (“Defendants do not need to produce a privilege log

describing documents withheld from the administrative record.”); accord Blue Ocean Inst. v.

Gutierrez, 503 F. Supp. 2d 366, 372 n.4 (D.D.C. 2007) (characterizing as “unfair” plaintiff’s

criticism of agency “for not claiming a privilege and filing a privilege log as to documents that

[agency] claims should not be in the administrative record in the first place”).

       The reasons for denial of privilege log requests for withheld documents in APA cases are

two-fold. First, as the plaintiffs acknowledge, in APA cases, privileged and deliberative

documents reflecting internal agency deliberations are “immaterial as a matter of law—unless

there is a showing of bad faith or improper behavior,” since the “reasonableness of the agency’s

action is judged in accordance with its stated reasons.” In re: Subpoena Duces Tecum Served on

the Office of the Comptroller of the Currency, 156 F.3d 1279, 1279-80 (D.C. Cir. 1998). Thus,

privileged and deliberative process documents need not be compiled or disclosed by the agency

as part of the administrative record. See Am. Petroleum Tankers Parent, LLC, 952 F. Supp. 2d at

265 (“It is well established in this District that materials protected by the deliberative process

privilege are not part of the Administrative Record for purposes of review of agency action.”);

AMFAC Resorts, LLC v. United States Dep’t of the Interior, 143 F. Supp. 2d 7, 13 (D.D.C. 2001)

(“Deliberative intra-agency memoranda and other such records are ordinarily privileged, and

need not be included in the [administrative] record.”).




                                                 19
       “As a corollary to this principle, the agency need not provide a privilege log of the

documents withheld pursuant to the privilege.” Am. Petroleum Tankers Parent, LLC, 952 F.

Supp. 2d at 265; see also Dist. Hosp. Partners, L. P. v. Sebelius, 971 F. Supp. 2d 15, 32 (D.D.C.

2013) (“[p]redecisional and deliberative documents ‘are not part of the administrative record to

begin with, ‘so they’ do not need to be logged as withheld from the administrative record’”

(quoting Oceana, Inc. v. Locke, 634 F. Supp. 2d 49, 52 (D.D.C. 2009), rev’d on other

grounds,670 F.3d 1238 (2011)); California v. United States Dep’t of Labor, No. 2:13-cv-02069-

KJM-DAD, 2014 U.S. Dist. LEXIS 57520, at *36-37 (E.D. Cal. Apr. 24, 2014) (“[B]ecause

internal agency deliberations are properly excluded from the administrative record, the agency

need not provide a privilege log.”). As one Court succinctly explained, “requiring the United

States to identify and describe on a privilege log all of the deliberative documents would invite

speculation into an agency’s predecisional process and potentially undermine the limited nature

of review available under the APA.” Great Am. Ins. Co. v. United States, No. 12 C 9718, 2013

U.S. Dist. LEXIS 119789, 22-26 (N.D. Ill. Aug. 23, 2013).

       Second, agencies are accorded a presumption of regularity in the compilation of the

administrative record in APA cases and this presumption may be overcome to warrant review of

extra-record material only when the plaintiff establishes bad faith on the part of the agency or

other exceptional circumstances, such as “where the administrative record itself is so deficient as

to preclude effective review.” Hill Dermaceuticals, Inc., 709 F.3d at 47 (citing Theodore

Roosevelt Conservation P’ship v. Salazar, 616 F.3d 497, 514 (D.C. Cir. 2010) (“The APA limits

judicial review to the administrative record except when there has been a strong showing of bad

faith or improper behavior or when the record is so bare that it prevents effective judicial

review.”) (internal quotations omitted)); Menkes v. United States Dep’t of Homeland Sec., 637




                                                 20
F.3d 319, 339 (D.C. Cir. 2011) (noting “the proper legal standard” for extra-record review in

agency cases “is only appropriate ‘when there has been a strong showing of bad faith or

improper behavior or when the record is so bare that it prevents effective judicial review’”

(quoting Baptist Mem. Hosp. - Golden Triangle v. Sebelius, 566 F.3d 226, 230 (D.C. Cir. 2009));

Zemeka v. Holder, 963 F. Supp. 2d 22, 25 (D.D.C. 2013) (“Under exceptional circumstances,

courts may permit a party to present ‘extra-record’ evidence — ‘evidence outside of or in

addition to the administrative record that was not necessarily considered by the agency.’”

(quoting Pac. Shores Subdivision, Cal. Water Dist. v. U.S. Army Corps of Eng’rs, 448 F. Supp.

2d 1, 5 (D.D.C. 2006))). In short, “reliance on extra-record evidence ‘is the exception, not the

rule.’” API v. SEC, 714 F.3d 1329, 1334 (D.C. Cir. 2013) (quoting Theodore Roosevelt

Conservation P’ship, 616 F.3d at 514).

       In sum, since privileged and deliberative materials are not part of the administrative

record as a matter of law, efforts in APA cases to obtain access to, or logs of, such materials are

properly analyzed under the standard applicable to disclosure of extra-record material.

Consequently, to obtain a log of privileged and deliberative materials excluded from the

administrative record, plaintiffs must overcome, with clear evidence, the presumption of

regularity in the agency proceedings by showing bad faith or other exceptional circumstances.

See Conservation Force v. Ashe, 979 F. Supp. 2d 90, 99 (D.D.C. 2013) (noting “well-established

presumption that an agency has properly designated the administrative record [and that] . . . clear

evidence to the contrary rebuts this presumption”) (internal quotations and citations omitted).

       Set against these principles, in this case, the plaintiffs have failed to carry their burden of

showing entitlement to a privilege index by overcoming the presumption that the documents in

the AR have been properly compiled. No bad faith or other gross procedural irregularity has




                                                 21
been alleged or established by the plaintiffs that would overcome that presumption and trigger

the need to review extra-record documents or make the production of a privilege log appropriate.

See Dist. Hosp. Partners, L. P., 971 F. Supp. 2d at 33 (finding that since “plaintiffs have not

rebutted the presumption of regularity for the administrative records in this case[,]. . . the

Secretary need not provide a privilege log, or produce any privileged materials for this Court’s in

camera review”).

        Accordingly, the plaintiffs’ request for a privilege index of any privileged or deliberative

process documents withheld from the AR is denied.

IV.     CONCLUSION

        For the foregoing reasons, the plaintiffs’ motion to compel supplementation of the AR is

granted in part and denied in part. Specifically, this motion is granted and the federal defendants

are directed to supplement the AR with the CDC master plan and the 2013 Letters. The motion is

denied with respect to the Goode Documents and the demand for a privilege index of records not

included in the AR. The parties are further directed to submit jointly a proposed scheduling

order to govern further proceedings in this case.7

        An Order consistent with this Memorandum Opinion will be contemporaneously filed.

        Date: October 15, 2014
                                                                                 Digitally signed by Hon. Beryl A. Howell
                                                                                 DN: cn=Hon. Beryl A. Howell, o=U.S.
                                                                                 District Court for the District of
                                                                                 Columbia, ou=United States District
                                                                                 Court Judge,
                                                                                 email=Howell_Chambers@dcd.uscourts
                                                                                 .gov, c=US
                                                                                 Date: 2014.10.15 18:20:01 -04'00'
                                                             __________________________
                                                             BERYL A. HOWELL
                                                             United States District Judge




7
  The Scheduling Order previously entered, on March 18, 2014, to govern proceedings following the lodging of a
revised AR did not become effective in the event, as occurred, that the plaintiffs filed a renewed motion to
supplement the record.


                                                       22
