Download - DOCUMENTING THE NEPA DECISION-MAKING PROCESS From Project File to the Administrative Record
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
recommendationstechie-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 factorsFund 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!!