DOCUMENTING THE NEPA DECISION-MAKING

PROCESS

From Project File to the Administrative Record

NEPA Project File

NEPA Project File Timeline

Action requiring NEPA analysis

• Begin compiling Project File

Analysis (EA, EIS, RMP, etc.)

• Continue to add to File throughout analysis

NEPA Project File

A Project File should be

initiated for:

RMPsRMP AmendmentsEISsEAsCXsDNAs

NEPA Project File

Q: So why is it important?

A: A current and complete Project File:Provides a centralized and accessible location

for project informationServes as the basis for the Administrative

Record should the NEPA analysis or final decision be challenged in court

Who maintains the Project File?:

Project lead or Records coordinator

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

So What Should be Included in the

NEPA Project File?

*Remember*

The Project File should tell the “story” of the BLM’s final decision.

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

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

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

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

Project File Contents - Communications

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

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.

EXERCISE - Emails: To Keep or Delete?

Examine the examples provided and determine whether to keep the email for the Project File or delete it?

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]

SaveDeleteOR

Organizing Your Email

Lotus Notes makes saving emails easy

Create folders similar to

those in the organization of the project

file

Drag and drop

received emails into the folders

Send and File function

allows you to save emails

you send into folders

Archiving emails

creates the same folders

in your archive

(So does Outlook)

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

Creating an Electronic File

___ EISExternal Scoping/Public Notice and Involvement

Notice of IntentScoping Letters/Issue IdentificationCommunication Plan

Internal Scoping/Organization

ID Team Meeting NotesLegal Review/Laws and PolicyContract Information

Draft EISFinal DocumentDraft VersionsNotice of AvailabilityBriefing MaterialsComments/Reviews

. . . . .

Organization of the electronic file can follow a similar format no matter what the method

Project File Organization

Different project files should attempt to follow a similar organizational structure See examples provided for each type of NEPA

document

From Project File to Administrative Record

Agency decision challenged

District/Field Office sends Project File to State Litigation Coordinator

SOL reviews submitted File: May request additional information for the File

Upon SOL and DOJ’s approval, File is returned to Litigation Coordinator

Litigation Coordinator works with contractor to convert File to a searchable electronic and Bates-stamped version

The Administrative Record is ready for court review

AND THE ADMINISTRATIVE RECORD

Administrative Procedures Act (APA)

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

Sovereign Immunity

The King can do no wrong

Waivers of Sovereign Immunity

Administrative Procedures ActFederal Tort Claims ActTucker Act

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

Relevant Statutes that Provide Basis for APA Suits

FLPMAMineral Leasing ActNEPAWild Horse & Burro ActESAWilderness Act

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

Importance of the Administrative Record

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)

Facts Rational Connection Decision

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

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)

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)

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)

Importance of the Administrative Record

Courts consider whether the agency:

Acted within the scope of its legal authority

Explained its decisionRelied 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)

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

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).

What to Include?

Materials supporting or opposing the challenged decision

Technical data, survey results, studiesMaterials showing how agency

addressed oppositionMinutes of meetingsMemoranda for recordFinal decision document

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 materialsPersonal notes

Be careful what you write in Email!

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.

Project Lead is key playerKnows 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.

Who?

When?

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

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.

How?

Sample Organization Chart

Sample Index Headers

Bates Range

Folder Title

Date of Doc.

Title of Doc.

PDF Title

Author/Origin-ator

Doc. Type

Privilege Status

0001 - 0002

General Information/ Manuals

03/10/1987 BLM NEPA Handbook

Sign.manual.pdf

BLM Policy manual

0481- 0516

General Info/Emails/M. Williams

02/21/2006 Michael Williams emails

m.williams.emails.pdf

Michael Williams

emails A/C Priv portions redacted

Privileged Documents

• Record index must identify privileged documents and materials.

• Show documents are being withheld and why.

• Keep track of withheld privileged documents.

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.

FOIA v. Administrative Records

• Chilling effect on deliberative process is real.

• Retain deliberative process documents.

• Consider releasing documents that could technically be withheld if they help the agency.

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 gelogist is 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.”

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.

Things to Remember

Watch what you write in e-mails!!