Northern California Record

Monday, November 18, 2019

Bureau of Land Management ordered to complete administrative record regarding suspension of Waste Prevention Rule


By Angela Underwood | Jul 17, 2018

General court 09

SAN FRANCISCO – The U.S. District Court for the Northern District of California recently sided with citizens groups who filed a motion to complete the administrative record regarding the decision by the Bureau of Land Management (BLM) to suspend Waste Prevention Rule protections for one year.

U.S. District Judge William Orrick, in his June 26 order, granted the motion by the Sierra Club and other plaintiffs (citizens groups) to complete the administrative record in their challenge against the BLM in suspending the Waste Prevention Rule protections for one year.

Orrick's order detailed how the citizens groups seek to conclude the administrative record by producing a privilege log for any excluded documents under the Administrative Procedure Act; however defendants' argued against adding any additional deliberative materials including a privilege log to the record.

“Citizens groups provide Freedom of Information Act (FOIA) documents as evidence that certain relevant deliberative documents were considered by BLM but not included in the record,” Orrick said.

In the case discussion portion of his ruling, Orrick notes that in 2017, President Donald Trump mandated a review of the Waste Prevention Rule by the secretary of the Interior Department. “Citizens groups challenged the suspension rule under the Administrative Procedure Act (APA), the Mineral Leasing Act, and the National Environmental Policy Act, and moved for a preliminary injunction,” Orrick said.

Orrick granted the motion for a preliminary injunction when they showed permanent harm and “the balance of equities and public interest strongly favored enjoining enforcement of the suspension rule.” 

Orrick notes that the federal defendants lodged an administrative record on April 5 and a corrected administrative record was lodged on May 7.

“The current record consists of 22,434 pages of documents, accompanied with a declaration that the record is complete,” Orrick said.  “Also on May 7, 2018, citizen groups collectively moved to complete the record. They continue to seek internal and external communications, interagency reviews, drafts of documents, meeting notes, and internal memoranda.”

Furthermore, “Citizen groups sent the federal defendants FOIA documents of internal agency emails and memorandums indicating examples of records that they insist are properly part of the administrative record,” Orrick said. “The Department of Justice guidance on compiling administrative records, promulgated in 1999, endorses producing materials that citizen groups seek.”

i is not just the Department of Justice’s guidance that guides the case, according to the judge. 

“This district has repeatedly required deliberative materials (such as internal comments, draft reports, emails, and meeting notes) to be added to the administrative record if they were considered in the agency’s decision,” Orrick said writes in the order.

 “The federal defendants are directed to file an amended administrative record and privilege log to conform to this order within 30 days,” Orrick said in the order.

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