The opinion of the court was delivered by: David E. Peebles U.S. Magistrate Judge
The plaintiffs in this action, comprised of the State of New York as well as its Governor and Attorney General (collectively, the "State"), and the Counties of Madison and Oneida ("Counties"), have commenced this action challenging a determination by the United States Secretary of the Interior to take in excess of thirteen thousand acres of land into trust for the benefit of the Oneida Indian Nation of New York (the "OIN" or "Nation"), thereby removing the disputed land from the taxing and regulatory jurisdiction of both the State and the Counties as well as other municipalities within whose boundaries the land is situated. Plaintiffs challenge both the Secretary's decision, as unauthorized and unsupported, as well as the process by which that administrative determination was reached.
The plaintiffs have elicited the court's assistance on a number of fronts in connection with their challenge to the Secretary's determination.
The issues now presented include disputes over the documents withheld from the administrative record upon which the court will base its administrative review, a request for limited discovery in order to probe the fairness of the process leading up to the determination and the issue of OIN tribal recognition, and a determination of whether the Department of the Interior ("DOI") has fulfilled its obligation to comply with several requests by the plaintiffs pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, for documents associated with the process.
Asserting that the DOI has complied with its obligations to produce the full administrative record required for purposes of the court's review and all of the documents requested under FOIA, and that the documents withheld from both productions are protected on the basis of various recognized grounds including the deliberative process privilege, attorney-client privilege, work product doctrine, and confidential business information ("CBI") privilege, and that the plaintiffs have failed to make the required showing necessary to overcome those privileges or to subject the agency to discovery, defendants oppose plaintiffs' motions.
For the reasons set forth below, I find that the court lacks jurisdiction to resolve plaintiffs' FOIA claims since such a determination would constitute a decision on the merits. With respect to plaintiffs' motion to compel production of documents for inclusion in the administrative record, I find that the deliberative process privilege no longer protects relevant documents from disclosure and that the Secretary is now obliged to provide plaintiffs with all documents withheld on the basis of that privilege and not subject to any other recognized privilege. Finally, I conclude that plaintiffs have sufficiently made the preliminary strong showing necessary to warrant leave to conduct limited discovery, although not to the extent sought by the plaintiffs.
On January 11, 2005 the United States Supreme Court issued a decision in City of Sherrill v. Oneida Indian Nation of New York, 544 U.S. 197, 125 S.Ct. 1478 (2005). At issue in that case, which involved a relatively small parcel of property located within the City of Sherrill, was the fundamental question of whether, through open market transactions, the OIN can recover parcels originally located within the boundaries of the reservation occupied by the Nation but long ago conveyed away and subject principally to non-Indian ownership for some two centuries, and thereby revive its sovereignty over the lands and deprive the City of Sherrill and other municipalities of the sovereignty which they have long exercised over the properties. Acknowledging the practical concerns associated with reversion of autonomy over such properties to the OIN and its members, the Court concluded that the appropriate mechanism for accomplishing that end would be acquisition by the DOI of the land in question in trust for the Oneida tribal community, pursuant to 25 U.S.C. § 465, in which case it would become exempt from state and local taxation. Sherrill, 544 U.S. at 219-21, 125 S.Ct. 1478.
On the heels of the Supreme Court's decision in Sherrill, on April 4, 2005 OIN representative Ray Halbritter requested that the DOI accept into trust for the benefit of the Nation three parcels of land, totaling approximately 17,300 acres located within Madison and Oneida. Situated within those three parcels, inter alia, is the Turning Stone Casino, a Class III gaming facility located in Verona, New York, and operated by the OIN under the Indian Gaming Regulatory Act ("IGRA"), 25 U.S.C. § 2701, et seq., as well as several SavOn convenience stores and other business enterprises. The DOI notified the State and Counties on September 20, 2005 that the request would be considered, and elicited comments as to each of the three parcels specified.
As part of the process of evaluating the land into trust application, the DOI arranged for preparation of an Environmental Impact Statement ("EIS"), and retained Malcolm Pirnie, Inc. ("Malcolm Pirnie") as an engineering consultant to assist in drafting the EIS. A final EIS was issued on February 22, 2008 in which, after reviewing various alternatives, the agency identified one which provided for the taking of 13,086 acres of land into trust as the "preferred alternative".
In addition to Malcolm Pirnie, the DOI retained the Louis Berger Group, Inc. ("Berger Group") as a subcontractor to assist in its analysis of the OIN request. The Berger Group's assigned task apparently was to review and analyze economic information received from the OIN regarding their various enterprises.
In order to gain information regarding the pending land into trust administrative consideration, plaintiffs served a series of FOIA requests on the DOI, beginning on October 30, 2006. Those requests sought information regarding 1) documents pertaining to the land into trust application, including documents submitted by the OIN in support of that application; 2) evidence of communications between the law firm of Holland and Hart LLP, retained by the OIN to lobby on its behalf, and the DOI concerning the application; and 3) reconsideration of the Secretary's approval of a Nation-State Compact governing gaming in New York State. Despite payment by the State in April of 2007 of $9,540, estimated by the agency to be the cost associated with producing the documents requested under FOIA, and various assurances of an earlier compliance date, it was not until January 2, 2009 that the DOI produced documents in response to those FOIA requests.
Defendants' FOIA production was made in electronic format on ten DVDs. Of those disks, nine contained documents retrieved by the DOI from its contractor or subcontractor in connection with the land into trust decision. The tenth contains documents obtained directly from the DOI and scanned into a database that included a search engine provided to plaintiffs, thus allowing for searches of specific names or terms within the database. The DOI's production was accompanied by a privilege log generally describing the documents withheld under a recognized FOIA exemptions.*fn2 Defendants supplemented the FOIA response by producing additional documents on December 31, 2009.
On May 20, 2008 the DOI issued a Record of Decision ("ROD") regarding the OIN land into trust request. In that ROD, which is cosigned by P. Lynn Scarlett, Deputy Secretary of the DOI, and James E. Cason, Associate Deputy Secretary of the agency, the agency decided that 13,003.89 acres owned by the OIN and situated in Oneida and Madison Counties would be taken in trust for the Nation. The ROD, which is seventy-three pages in length, outlines the process leading up to its issuance and addresses various potential impacts of the contemplated land into trust action upon the State and local municipalities, including upon tax revenues. The ROD also outlines several alternative scenarios considered, the most ambitious of which would have provided for a phased acquisition of 35,000 acres to be placed in trust for the Nation.
Plaintiffs commenced this action on June 19, 2008. Dkt. No. 1. In their second amended complaint, the operative pleading currently before the court, plaintiffs assert a variety of claims including several under the Administrative Procedures Act ("APA"), 5 U.S.C. § 701, et seq., arguing both that the ROD is arbitrary, capricious, and contrary to law and that the process through which it was issued was infected by bias, bad faith, and improper motives.*fn3 Dkt. No. 94. Since commencement of the action the OIN has been granted permission to intervene. Dkt. No. 48.
On March 2, 2009 the DOI produced the administrative record in this action. That record, comprised of over 85,000 pages, overlaps in many respects with the documents provided in response to plaintiffs' FOIA requests, although the two productions are by no means duplicative. Accompanying the administrative record production was a separate privilege log identifying documents withheld from the record. The defendants have since made separate additional productions under FOIA and in supplement of the administrative record in this matter.
Pursuant to Rule 16 of the Federal Rules of Civil Procedure, on November 6, 2008 a pretrial conference was held in this and several related actions by the Hon. Gustave J. DiBianco, the then-assigned magistrate judge in the case. On the day of that conference the parties jointly submitted a civil case management plan addressing various matters including production of the administrative record and compliance with plaintiffs' pending FOIA requests. On that date Chief Magistrate Judge DiBianco endorsed the proposed civil case management plan with the following language: "[t]he deadlines and proposals in this Civil Case Management Plan are SO ORDERED." Dkt. No. 50. The resulting case management order required that the DOI produce all non-privileged and non-exempt documents responsive to the plaintiff's several FOIA requests as well as a privilege log no later than December 31, 2008 and the administrative record, together with privilege and privacy logs, on or before March 1, 2009.
Currently before the court are two separate motions filed by the plaintiffs on October 30, 2009. In the first, plaintiffs seek an order directing defendants to produce documents requested by them under FOIA. Dkt. No. 140. The second requests the complete production by the DOI of all administrative record documents, challenging the withholding of many of those documents under various privileges, and additionally seeks leave for the plaintiffs to engage in limited discovery. Dkt. No. 141. Those motions, which are fully briefed and were argued before the court on March 17, 2010, are now ripe for determination.
A. Plaintiffs' Motion to Compel Production Of FOIA Documents
Plaintiffs' FOIA motion centers upon various requests for documents made beginning on October 30, 2006 as well as the DOI's responses to those requests provided in January of 2009 and supplemented more recently.*fn4 Plaintiffs complain that in addition to being grossly untimely, 1) the DOI's response was not properly labeled or organized but instead was produced in such a way as to be tantamount to a "document dump"; 2) certain of the documents produced are unreadable or corrupt; 3) some documents have been withheld without explanation; 4) the DOI has improperly withheld documents under claims of various privileges, including under exemptions four and five of FOIA, 5 U.S.C. § 552(b)(4) and (5); 5) the privilege log accompanying the production is insufficient in many respects, including by not identifying authors and recipients of documents withheld and summarizing their contents; and 6) in response to specific requests for those documents, the DOI failed to provide materials associated with the preparation of the EIS and the agency's compliance with the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. § 4321, et seq.
Among the issues raised in plaintiffs' FOIA motion is defendants' withholding of a large number of documents received by the agency or its consultant, the Berger Group, from the OIN and designated by the agency as CBI, the agency presumably contending that those documents are protected from disclosure under FOIA Exemption 4. This issue appears to have been resolved based upon a recent concession by the OIN that those documents may be released to the plaintiffs, subject to the entry of an appropriate protective order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure.*fn5
The plaintiffs' FOIA motion implicates the fifteenth and sixteenth causes of action of their second amended complaint. The fifteenth cause of action alleges that defendants failed to comply with the requirements of FOIA, including the time limitations set forth under the Act and its corresponding regulations, and that as a result plaintiffs were effectively deprived of their opportunity to review documents under consideration by the agency and to provide meaningful input into the decision-making process. Second Amended Complaint (Dkt. No. 94) ¶¶ 274-89. Plaintiffs' sixteenth cause of action complains of defendants' failure to provide documents ...