From Project File to the Administrative Record

1. From Project File to the Administrative Record Documenting the NEPA Decision-Making Process

2. NEPA Project File

3. NEPA Project File Timeline

4. NEPA Project File A Project File should be initiated for: RMPs RMP Amendments EISs EAs CXs DNAs

5. NEPA Project File Q: So why is it important? A: A current and complete Project File: Provides a centralized and accessible location for project information Serves as the basis for the Administrative Record should the NEPA analysis or final decision be challenged in court

6. Provides expectations and standards to the team • Decides what and when to add to the File • Creates a centralized electronic and physical file location for team members to access • Regularly checks the File to ensure documents and materials are current • Reminds ID Team members and others to regularly contribute to the File Who maintains the Project File?: Project lead or Records coordinator

7. *Remember* The Project File should tell the “story” of the BLM’s final decision. So What Should be Included in theNEPA Project File?

8. Project File Contents - Documents • Draft Versions • Not all Draft Versions are necessary for the Project File or Admin Record • Keep: • Drafts with significant changes • Drafts with comments that may lead to changes • Toss • Drafts with only grammatical changes • Drafts with only formatting changes • Personal drafts you didn’t share with anyone

9. Project File Contents - Documents • Internal Review Comments • Internal comments can come in many forms • Email • Track Changes/Comments on Draft Versions • Comment Forms • Phone Calls • Make sure these are recorded, especially if they make noteworthy changes to the document • Final Versions • Documents that are released to the public should be highlighted and saved separately

10. Project File Contents - Documents • Supporting Materials/References • Documents that support the decisions made and analysis done through the NEPA process • All references need to be recorded • It is not absolutely necessary to keep all references in the project file but all should be readily accessible for the administrative record should litigation occur • Anything that is electronic can be saved in the appropriate section of the admin file • Websites • Should be saved or printed out as material may change • Should include the site was accessed • Professional Papers • Save electronic version and source • Maps and GIS data • Should be saved at the time it was used to preserve the data as it was • Internal Memoranda and Policy • Should be saved or readily available for the administrative record • Handbooks

11. Project File Contents - Communications Internal External • Emails • Emails between coworkers show steps in the decision making process • Meeting notes • Show deliberation and decision making of the ID Team • Notices • Federal Register notices, meeting notices, Letters to the public • Public comments & Responses to the Public • This communication highlights discussion with the public and the decisions made as a result

12. NEPA Project File – Meeting Notes • Interdisciplinary team meeting notes should be added to the Project File • Meetings with other parties should also be carefully recorded • Notes for the file should include: • Meeting date • Attendee names and titles • List of subjects covered • Proposals, agreements, team recommendations techie-buzz.com

13. E-mail and Electronic Information • Including e-mail correspondence provides critical evidence that a decision was: • considered, discussed, and (perhaps) changed, before being finalized. • Include e-mails and web sites only if they are: • relevant, substantive, and document the decision-making process.

14. EXERCISE - Emails: To Keep or Delete? Examine the examples provided and determine whether to keep the email for the Project File or delete it? Delete OR Save I think we could put in a couple of trick emails where they don’t need to be in the file but shouldn’t be deleted either?? [MW: YES! Emails about another project that sound important]

15. Organizing Your Email Lotus Notes makes saving emails easy (So does Outlook)

16. Electronic Project File • The project file should be kept electronically whenever possible. • This allows for easy access and better organization. • Can be stored on internal shared drive or external SharePoint • External drives allow those without office access to upload to the project file

17. Creating an Electronic File Organization of the electronic file can follow a similar format no matter what the method • ___ EIS • External Scoping/Public Notice and Involvement • Notice of Intent • Scoping Letters/Issue Identification • Communication Plan • Internal Scoping/Organization • ID Team Meeting Notes • Legal Review/Laws and Policy • Contract Information • Draft EIS • Final Document • Draft Versions • Notice of Availability • Briefing Materials • Comments/Reviews • . . . . .

18. Project File Organization • Different project files should attempt to follow a similar organizational structure • See examples provided for each type of NEPA document

19. From Project File to Administrative Record

20. Administrative Procedures Act (APA) And the Administrative record

21. Outline: - Why - What - Who - When - Where - How

22. Sovereign Immunity The King can do no wrong

23. Waivers of Sovereign Immunity Administrative Procedures Act Federal Tort Claims Act Tucker Act

24. Administrative Procedures Act "A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702

25. Relevant Statutes that Provide Basis for APA Suits FLPMA Mineral Leasing Act NEPA Wild Horse & Burro Act ESA Wilderness Act

26. The Administrative Procedures Act The reviewing court shall — (2) hold unlawful and set aside agency action, findings, and conclusions found to be- (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right … ; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law; (E) unsupported by substantial evidence ... ; or (F) unwarranted by the facts 5 U.S.C. § 706

27. Importance of the Administrative Record

28. Importance of Administrative Records • An agency must "examine the relevant data and articulate a rational connection between the facts found and the decision made." • N.M. ex rel. Richardson v. BLM, 565 F.3d 683, 713 (10th Cir. 2009)

29. Facts Rational Connection Decision

30. “This would be a great place for some power lines.”

31. Importance of Administrative Records “So long as the BLM engaged in the proper procedural steps in making its decision, and so long as that decision draws its essence from substantial evidence in the administrative record, the wisdom of its actual decision is beyond the scope of the Court's review.”Wilderness Soc'y v. Wisely, 524 F. Supp. 2d 1285, 1294 (D. Colo. 2007)

32. Importance of Administrative Records “Courts give deference to the BLM's interpretation of the FLPMA” S. Utah Wilderness Alliance v. Norton, 301 F.3d 1217, 1225 (10th Cir. Utah 2002) “The Court would be inclined to defer to the expert agency, BLM, with regard to its reading of the [Wild Horse & Burro Act]” In Def. of Animals v. Salazar, 675 F. Supp. 2d 89, 98 (D.D.C. 2009) “BLM is entitled to deference on technical issues within its area of expertise.” S. Utah Wilderness Alliance v. Norton, 457 F. Supp. 2d 1253, 1260 (D. Utah 2006)

33. Importance of Administrative Records “The record is silent regarding the source of BLM's determination ... We cannot defer to a void.” N.M. ex rel. Richardson v. BLM, 565 F.3d 683, 715 (10th Cir. 2009)

34. Importance of the Administrative Record Courts consider whether the agency: Acted within the scope of its legal authority Explained its decision Relied on facts that have some basis in the record Considered the relevant factors • Fund for Animals v. Babbitt, 903 F. Supp. 105 (D.D.C. 1995)

35. Importance of Administrative Records Makes an impression on the Court Department of Justice (DoJ) and Court are your audience A good Administrative Record makes DoJ’s job easier

36. Administrative Record Rule • Courts review agency action based only on the information before the agency at the time of decision. S.W. Center for Biological Diversity v. U.S. Forest Service, 100 F.3d 1443, 1450 (9th Cir. 1996).

37. What to Include? Materials supporting or opposing the challenged decision Technical data, survey results, studies Materials showing how agency addressed opposition Minutes of meetings Memoranda for record Final decision document

38. What to Exclude? Materials not in existence at time of agency decision. “Working drafts,” but include drafts circulated for comment if changes reflect significant input into decision-making process Just cite to excessively large reference materials Personal notes

39. Be careful what you write in Email!

40. Who? An agency employee should be designated to be responsible for compiling the administrative record. That individual will be responsible for certifying the administrative record to the court.

41. Who? Project Lead is key player Knows his/her own thought process. Should do final scrub of record to ensure the thought process is adequately captured and organized. S/he may keep a record of where s/he searched for the documents and materials and who was consulted in the process of compiling the administrative record.

42. When? Optimally, agency will compile an administrative record as documents and materials are generated or received in the course of the decision-making process.

43. Where to Find Documents • Contact all staff, agency personnel in the state office, other field offices, the NOC, and DC; • Contact former employees; • Contact contractors; • Search relevant agency files; • Contact other agencies if they are not required to file their own admin record.

44. How?

45. Sample Organization Chart

46. Sample Index Headers

47. Privileged Documents • Record index must identify privileged documents and materials. • Show documents are being withheld and why. • Keep track of withheld privileged documents.

48. FOIA v. Administrative Records FOIA Administrative Records • Difficult to argue chilling effect when deliberation is complete. • Release deliberative process documents. • FOIA rules do not apply except for privileged documents. • Chilling effect on deliberative process is real. • Retain deliberative process documents. • Consider releasing documents that could technically be withheld if they help the agency.

49. Quiz Time! A. Email: “Although they’re all stupid, I’ve incorporated the substantial comments we received from the geologist into the attached draft. Let’s meet at at 2 to discuss it.” B. Email: “The gelogistis bad writer and he forgat to copee me on his emale. Can you pleeze re-send me his comments before I leave at 4 today to meet the Prairie Dog Friends Society?” C. Email: “The geologists screwed this EA up. Please remove their graphs -- they are based on 1945 data instead of the current figures. The geologists take this schist for granite and they just aren’t very gneiss.”

50. Yet Another Quiz!! A. Angry email from the Prairie Dog Friends Society asking the FFO for a seasonal restriction on oil and gas drilling when prairie dogs hibernate. B. Unintelligible, hand-drawn map provided by the Prairie Dog Society Leader to a PET showing where they want a prairie dog ACEC. C. Anonymous pamphlet protesting BLM’s treatment of prairie dogs left on every windshield in the FFO’s parking lot. D. A Wendy’s napkin with an amusing caricature of the Prairie Dog Society Leader drawn by a BLM geologist along with some notes on how the new solar-powered compressors might impact prairie dog habitat. E. Anti-prairie dog poster sent by the Petroleum Association to a BLM administrative assistant who posts it in the ladies room.