Litigation & BLM

1. Litigation & BLM Preparing Ourselves For Litigation Linda Garrison State Litigation Coordinator Arizona State Office, Resources Division January, 2008

2. Define the Bureau’s Role in Litigation • Provide an overview of: • Judicial Litigation • Administrative Litigation • U.S. and State Court Systems • Litigation Process and Time Frames • The Administrative Record • Declarations • Case Protocols • Tracking Litigation Costs • Two Rules to Live By in Litigation OBJECTIVES

3. Because litigation happens! • We will be challenged when an adversely affected party thinks we didn’t “get it right”. • Every BLM action must have a firm legal basis, be supported by federal laws and regulations, and follow applicable Judicial and Administrative decisions. Why Do We Need to Know This Stuff?

4. BLM’s Role • LITIGATION IS UNAVOIDABLE • No matter how hard we try, how much analysis or consultation we do, we can still end up in litigation.

5. Solicitor’s Role • Office of the Solicitor (SOL) is part of the Department of the Interior (DOI). • SOL is our “in-house” attorneys who represent and advise their DOI “clients”. • Within SOL, individual attorneys are assigned different “clients” (BLM, BOR, NPS, etc., and/or specific programs within those bureaus). • SOL’s designated attorneys are our lead counsel for all legal matters.

6. Judicial Litigation • Civil Court • Criminal Court • Administrative Litigation • Office of Hearings and Appeals Types of Litigation

7. BLM’s Role in Both Types: • TIME IS VERY LIMITED • Offices need to commit the necessary people to provide requested information. • Non-commitment of resources can, and often does, lead to costly losses for the Agency. • Priorities of key staff may need to be rearranged and additional help may be needed for document preparation, copying, and other tasks – the first 60 days after a lawsuit or Administrative appeal is served is labor intensive.

8. Litigation is Mostly About Process • In litigation, we will be asked: • What was the Agency: • Required to do? • Authorized to do? • Prohibited from doing? • What did BLM actually do? • What is the difference? • Is all this documented in the Administrative Record?

9. Judicial Litigation • U.S. District Court • U.S. Court of Appeals • U.S. Court of Federal Claims • U.S. Supreme Court

10. U.S. District Courts • There are 94 U.S. Judicial Districts organized into 12 regional circuits, each of which has a U.S. Court of Appeals. • The Court of Appeals for the Federal Circuit has nationwide jurisdiction to hear appeals in specialized cases, such as cases decided by the Court of Federal Claims.

11. U.S. Court of Appeals 9th Circuit, San Francisco

12. U.S. Court of Federal Claims • The Court of Federal Claims is authorized to hear primarily money claims. • The Court has jurisdiction over the State Court system, if the claim originates from a federal issue. • Claims arising from environmental and natural resource issues have grown to about 10% of the Court’s docket in recent years.

13. State of Arizona Court System

14. U. S. Supreme Court Highest tribunal in the Nation for all cases and controversies arising under the Constitution or the laws of the United States.

15. The Administrative Procedures Act in Judicial Litigation • The Administrative Procedures Act (APA) governs the Judicial review of challenged agency actions. • The APA isn’t the only statute that may apply; at the onset of a case, determine with SOL whether other statutes apply. • Under the APA, the court reviews an Agency’s action to determine if it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” 5 U.S.C. § 706(2)(A).

16. Basic Purposes of the Administrative Procedure Act • Fundamental principles of the APA: • To require agencies to keep the public informed of its organizational procedures and rules. • To allow for public participation in the decision-making process. • To prescribe uniform standards for administrative agency decision-making, including the conduct of formal rule making; and administrative hearings required by statute to be made on the record (e.g., grazing hearings and mining contests).

17. Agency Action • Agency Action is “final” if: • The action marks the consummation of the agency’s decision-making process, (not tentative or interlocutory) and • The action is one by which rights or obligations have been determined or from which legal consequences will flow. see Bennett v. Spear

18. Examples of Agency Actions • Approval of Right-of-Way • Approval of Oil and Gas Application for Permit to Drill (APD) • Land Exchange • Rulemaking • Permits

19. Challenges • Challenges to BLM and other federal agency decisions: • Often arise under federal statutes such as the Federal Land Policy and Management Act (FLPMA) and the National Environmental Policy Act (NEPA). • Some statutes do not include a private right of action, so citizens must bring suit pursuant to the Administrative Procedure Act (APA).

20. Agency Action Requirement • What is arbitrary and capricious? “The requirement that an agency action not be arbitrary and capricious includes the requirement that the agency adequately explain its result …Attorneys may not supply reasoned basis for the agency’s decision that the agency itself has not given.” See American Lung Assn. v. EPA, 134 F.2d 388, 392 (D.C. Cir. 1998).

21. BLM’s most common form of litigation • Contests/hearings • Appeals to IBLA • SOL represents BLM in all IBLA cases except Locke appeals – mining claim recordation Administrative Litigation

22. Administrative Appeal Structure Secretary DOI Office of Hearings and Appeals (OHA) Director Departmental Hearings Division Interior Board of Land Appeals Interior Board of Indian Appeals Salt Lake Hearings Division Probate Hearings Division

23. Success in Litigation • It’s important to: • Keep abreast of new laws going into effect; follow regulations, guidance, and instructions. • Ask questions before taking any action to ensure you are proceeding correctly; apprise management of issues. • Write decisions in “plain language” – remember many people are not used to dealing with the government and its regulations. • Support all decisions with complete and accurate documentation.

24. Why an Administrative Record? • When a BLM decision is challenged, an Administrative Record is required for Administrative or Judicial Litigation purposes. • There is no trial to determine the facts; all facts are in the Administrative Record.

25. Why is the Administrative Record Important? • The Administrative Record clearly shows the Court why the agency decision is not arbitrary, capricious, abuse of discretion, or otherwise not in accordance with law. • If the agency fails to compile the whole Administrative Record, it may significantly impact its ability to defend the decision and the Court’s ability to review a challenged agency decision.

26. What is an Administrative Record? • The Administrative Record is the Bureau’stestimony of the facts. • It is the paper trail that documents the office’s decision-making process and the basis for the decision. • A well-kept decision file is the Administrative Record.

27. What Should the Administrative Record Tell the Court? • Pursuant to Fund for Animals v. Babbitt, 903 F. Supp. 96 105 (D.D.C. 1995), the Court considers whether the agency: • Acted within the scope of its legal authority; • Explained its decision; • Relied on facts that have some basis in the record; and • Considered the relevant factors.

28. When is an Administrative Record used? • When a project or decision-making process is started. • Compile documents and materials as they are generated or received in the course of the decision-making process. • When there is a clear indication that litigation is possible. • When a lawsuit or protest is actually filed. • Even though the APA does not apply to IBLA proceedings, a solid record should be established. • If the matter is challenged in Federal court after the IBLA matter is decided, then the Administrative Record is ready.

29. Guidelines for creating the Administrative Record are established by Courts and Solicitor’s Office. Includes all documents and records available to the decision maker at the time the challenged decision was made – whether or not they support the final decision. Includes policy documents, reference books, and articles, and privileged and non-privileged documents and records. Administrative Record

30. Protected Information • Information determined to be privileged or protected is routinely segregated within BLM case files: • Privacy Act or Personally Identifiable Information (PII) • Proprietary/Confidential Business Information • Law Enforcement Information • National Security • Privileged Documents

31. Privileged Documents • Deliberative Process Privilege • Protects internal deliberations, opinions, and drafts. • Attorney-Client Privilege • Protects advice between BLM and our attorneys. • Attorney Work-Product Privilege • Protects information created by our attorneys in anticipation of litigation.

32. Confidential Materials • Confidential information that is relevant to the decision-making process is part of the Administrative Record. • Include this material in the Administrative Record; however, flag anything that should be protected for SOL review. • An index (“Privilege Log”) will identify the materials, state that they are being withheld and on what basis they are withheld.

33. What Should I Include? • A single copy of each document. • Documents that help substantiate the decision-making process. • Documentation of substantive meetings. • Memos to the File/ Record of Conversation Forms documenting relevant oral discussions.

34. What Should I Include? • Copies of any applicable Federal Register and local newspaper publications required in connection with the action or decision. • Pertinent policy such as Buerau Manuals, Instruction Memoranda, or guidance that were relied upon to make the decision.

35. What Should I Include? • A copy of the decision appealed from, proof of service of decision, and a copy of the notice of appeal and envelope in which it was received or other proof of service.

36. E-Mail • Print and file e-mails that: • propose or discuss substantive changes to a draft primary document, • document substantive supervisory instructions to staff relating to the decision-making process, and • substantiate the decision-making process. • Include copies of the entire message string for clarification. • Keep the e-mail professional – stick to official business.

37. Drafts and Working Documents • Drafts that help substantiate the decision-making process are included in the Administrative Record. • Do not include internal “working” drafts of documents that were superseded by a more complete, edited version of the same document. • But do include all draft documents circulated for comment that reflect significant input into the decision-making process. • Relevant notes distributed to others, or relied on by the decision maker, should be included.

38. Supplemental Records • The Judicial Administrative Record should exclude documents and materials that were not in existence at the time of the agency decision. • However, Administrative Litigation files may be supplemented with new information that was not available when the decision was issued.

39. File Management • The bottom line is a neat, logically organized record. • Documents are filed in inverse chronological order. • File incoming documents by date received. • The oldest documents are on the bottom, and most recent on top. (An exception: the Judicial Administrative Record is reversed!) • All documents should be fastened down.

40. File Management continued… • Bound documents should be placed in an accordion folder. • Fold large documents so they can be opened without removing from the file. Otherwise, they can be placed in an envelope secured within the file.

41. Incoming Documents • Stamp incoming documentswith the office name, date, and time received. • Stamp on the face of the first page of document. • Special documents can be stamped on the back (maps, aerial photos, etc).

42. Incoming Documents • Benefits of stamping: • Establishes time frames for appeal or other time sensitive filings. • Establishes priorities in the event of duplicate filings.

43. Outgoing Documents • Keep attachments together with the surnamed file copy of the outgoing document. • Identify the attachments in your correspondence.

44. Documents sent Certified Mail or Federal Express must state the tracking numbers in the correspondence. Either the Certified Mail “Green”card or the sender’s copy of the Fed Ex tracking form must be filed with the copy of the outgoing correspondence. Staple to the file copy of outgoing correspondence, or Staple to a letter-sized piece of paper attached to the correspondence. Confirmation of Receipt

45. ELEMENTS OF GOOD DOCUMENTATION • Every record in the file should contain: • Date. • A reference line (Re:), if applicable; make sure it is clearly stated. • Pagination (good for referencing a specific page or to keep things in order). • Contain the name of the signing official (printed, typed, or stamped)

46. Reasons For Good Documentation • Leads to reasoned decisions. • Maintains BLM’s credibility. • Ensures defensible decisions. • Ensures high quality of project implementation. • Required by law and regulations. • Ensures compliance with time frames for responding to appeals and lawsuits. • Time frames are short and firm.

47. Judicial Litigation Time Frames • Initial Case Call– Notification within 1st week after lawsuit is received. Include ASO, District and Field Offices, and the Solicitor’s Office (SOL). • Case Assessment Call– Assess within 2 weeks after lawsuit is received. Include ASO, District and Field Offices, SOL, and Department of Justice (DOJ). • Programmatic Answer and Chronology– Due to the SOL 30 days after lawsuit is received. Answer mustbe filed with the Court 60 days after lawsuit is served. • Administrative Record– Due to the SOL in time frame agreed upon by Parties after lawsuit is received. Record must be organized in chronological order and indexed. • Preliminary Injunction/Temporary Restraining Order– May speed up time frames and/or intensifies impact on BLM personnel. • Response to Briefs and Court Hearings– Requires additional input from BLM personnel. Example: Preparing a program review for the SOL.

48. Judicial Litigation Administrative Records Tips • Filed in Chronological Order • Begin with the most current dated document on the bottom ending with the oldest date on top. • Separate documents with numbered tabs. • Administrative Record Index • Prepared as instructed by the Court • Copy of index in each volume • Single side documents accepted only • Copies required – expect at least 5 sets, likely more

49. E X A M P L E Court only accepts one–sided documents

50. AdministrativeRecords Indexing Tips For Judicial Litigation • Do Not use MS Excel to index documents. • Do UseMS Word Table – usually 4 columns: • Index Heading – displays case name and number, and title (Administrative Record Index) • Volume Numbers – listed by number of binders • Document Number – first column, should correspond to tab number • Date of Document – second column • Description – third column shows each document in the file. Description should include originator, recipient, and usually 1-2 lines stating significance of the document. Plus in parenthesis the total number of pages to each tabbed document.