Litigation BLM Preparing Ourselves For Litigation Linda Garrison

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

OBJECTIVES § 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

Why Do We Need to Know This Stuff? § 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.

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.

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.

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

BLM’s Role in Both Types: n TIME IS VERY LIMITED l Offices need to commit the necessary people to provide requested information. l Non-commitment of resources can, and often does, lead to costly losses for the Agency. l 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.

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?

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

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.

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

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.

State of Arizona Court System

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.

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).

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).

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

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

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).

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. 2 d 388, 392 (D. C. Cir. 1998).

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

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.

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.

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.

What is an Administrative Record? § The Administrative Record is the Bureau’s testimony 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.

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.

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.

Administrative Record § 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.

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

Incoming Documents § Stamp incoming documents with 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).

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

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

Confirmation of Receipt § 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.

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)

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.

Judicial Litigation Time Frames § Initial Case Call – Notification within 1 st 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 must be 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 –

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,

Jimmy C. Chisum v. U. S. Department of the Interior Case No. 05 -CV-2830 -PHX-DKD (D. Ariz. ) Administrative Record Index Document Number Date EXAMPLE Description Bates Range Volume I 1 February 28, 2001 LR 2000 Geo. Report for T. 8 N. , R. 2 E. , sec. 4, listing BLM lands & minerals cases located within that section of land. (3 pp. ) 000001000003 000004000007 2 March 1, 2001 Faxed copies (absent cover sheet) of the: 1) LR 2000 Serial Register Page for the Halcyon lode mining claim (AMC 281472); 2) Affidavit of Performance of Annual Work for the Pleasant View #1 (AMC 222267) and Halcyon (AMC 281472) claims; and, 3) Maintenance Fee Waiver Certification for the Halcyon claim (AMC 281472). (4 pp. ) 3 March 5, 2001 3809/3715 Field Inspection report by BLM’s J. Hutchinson for the Rivers Edge Trust residential occupancy on the Halcyon mining claim. (4 pp. ) 000008000011 4 March 22, 2001 E-mail from J. C. Chisum to Jim Hutchinson regarding Mr. Hutchinson’s visit to the Halcyon claim. (1 p. ) 000012 5 May 9, 2001 E-mail from J. C. Chisum to Jim Hutchinson regarding 3715, FLPMA, etc. , with attachments “So: Help Me God…” and “Overzealous”. (17 pp. ) 000013000029 December 18, 2001 File copy (without BLM letterhead) of letter from BLM to Rivers Edge Trust, Glendale, AZ, regarding the unauthorized use and occupancy of the Halcyon lode mining claim. (4 pp. ) 000030000033 7 December 18, 2001 Duplicate copy (as sent, with BLM letterhead) of letter from BLM to Rivers Edge Trust, Glendale, AZ, regarding the unauthorized use and occupancy of the Halcyon lode mining claim. Same content as Document Number 6. (4 pp. ) 000034000037 8 December 21, 2001 Certified Mail receipts for Document Number 7. (1 p. ) 000038 December 18, 2001 File copy (without BLM letterhead) of letter from BLM to J. C. Chisum, Trustee, New River, AZ, regarding the unauthorized use and occupancy of the Halcyon lode mining claim. Same content as Document Number 6, except for different addressee. (4 pp. ) 000039000042 10 December 18, 2001 Duplicate copy (as sent, with BLM letterhead) of letter from BLM to J. C. Chisum, Trustee, New River, AZ, regarding the unauthorized use and occupancy of the Halcyon lode mining claim. Same content as Document Number 9. (4 pp. ) 000043000046 11 December 21, 2001 Certified Mail receipts for Document Number 10. (1 p. ) 000047 6 9

Administrative Records Indexing Tips For Judicial Litigation § Do Not use MS Excel to index documents. § Do Use MS 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.

Administrative Records Indexing Tips for Judicial Litigation • Bates Stamp – fourth column • Shows each Bates Stamp number, but is inserted ONLY after final reviews have been conducted by attorneys or State Litigation Coordinator.

Administrative Records Indexing Tips for Judicial Litigation • Record Certification • After the Administrative Record has been finalized, it must be certified that it is a true and actual reproduction of the original record. • Signed by a designated BLM official as the “Custodian of Records”. • Stamped with BLM Certification Seal.

Administrative Litigation (IBLA) Time Frames § File – Due to IBLA within 10 workdays from date of receipt of Notice of Appeals. § Programmatic Answer/Other Documentation – Due to SOL in time frame requested. § Response to Briefs – Can require program review, technical, procedural, and/or policy review due as needed.

Responding to IBLA Appeals § Appeals Process • An appeal of a BLM decision is initiated by an “adversely affected party” through: • a Notice of Appeal, followed by • a Statement of Reasons • The Solicitor’s Office (SOL) represents BLM before all branches of the Office of Hearings and Appeals.

Responding to IBLA Appeals § Assisting the Solicitor • Provide SOL with copies of: • Notice of Appeal • Motion for Stay • Administrative Record (except mining claim recordation) • Answer SOL questions promptly. • Be prepared to provide a programmatic answer to the Notice of Appeal/Statement of Reasons, and to review the draft answer.

Administrative Litigation and Administrative Records § Steps required when submitting an Administrative Record to IBLA: • Make copies of the Administrative Record for: • Your office, • SOL, and • Other offices involved.

Steps Required to Submit to IBLA § Send IBLA the original Administrative Record. • Include BLM Form 1842 -2, with: • Contact name and telephone number • Mailing address (to return the • • Administrative Record at conclusion) Include the original Notice of Appeal, with submission envelope as proof of mailing date. Send by Certified Mail with return receipt requested or Federal Express.

Pending Administrative Litigation § File maintenance during IBLA process: • The originating office is responsible for the continued maintenance of the “duplicate copy” of the Administrative Record on hand. • The originating office is also responsible for ensuring that all offices involved (i. e. , IBLA, SOL, and other affected offices) receive copies of any additional documents received that were not part of the original Administrative Record.

Return of the Administrative Record § When the original Administrative Record is returned from IBLA, it must be kept in the exact same order as received. • Under no circumstances should the original Administrative Record be commingled or added to other case file documents. • The opposing party can file an APA review action in Federal District Court. • If this happens, The Court will order a review of the original Administrative Record.

Return of the Administrative Record § The Court will only accept an exact copy of the same Administrative Record that IBLA reviewed. • The Opposing Party has up to Six (6) Years to appeal an IBLA decision.

The Role of Declarations in Administrative and Judicial Litigation • Declarations offer sworn testimony that is given to the Administrative tribunal or the Court. • Declarations serve to describe • processes followed, the facts established, and conclusions drawn. Declarations are necessary to explain technical terms or complex subject matter. • Prepare a “resume” for

Litigation Protocol § When a case is pending, it is not under BLM’s jurisdiction. • Only counsel for each side should communicate about the case. • For Judicial Litigation, jurisdiction is with BLM attorneys (i. e. , U. S. Attorney’s Office or DOJ); • For Administrative Litigation, the SOL has jurisdiction.

Litigation Protocol § Do Not talk to anyone about the case outside of BLM (Ref: IM No. AZ-2007 -35). • Don’t risk saying anything that can be used against BLM as the case proceeds. § Do Not try to advise or discuss the case with the opposing side’s representatives without the advice of BLM Counsel of Record. • Instead suggest they contact: • the SOL for Administrative Litigation, or • the U. S. Attorney’s Office or DOJ for Judicial Litigation.

Litigation Protocol § Witness/Testimony Authorization § If BLM is a party to the litigation: • A supervisor may authorize any employee to testify, or be an expert witness, in any case that BLM is involved in. § If BLM is not a party to the litigation: • Any employee who is served a subpoena to testify or to provide copies of BLM records must obtain the State Director’s approval to comply. • These are called Touhy Requests and must be processed in accordance with strict regulations. (See IM No. AZ-2005 -041).

Settlements § Settlements • If Settlement Negotiations are mentioned or discussed, NOTIFY MANAGEMENT IMMEDIATELY! § Judicial Litigation: • U. S. Attorney’s Office and/or DOJ has ultimate authority for settling any BLM lawsuit. • Agency personnel generally are consulted along with the SOL before finalization of any Settlement Agreement.

Settlements § Administrative Litigation: • BLM, with the assistance of SOL, has ultimate authority for settling any Administrative appeal.

Extra, Extra Read All About It § The Media And Litigation • We do not try our cases in the media, but in the Courts. • Any inquiries from the media should be referred to the Division of Communications (AZ-912), for advice.

Litigation Costs BLM

Capturing Litigation Costs § Any Employee working on a natural resource- related Administrative Appeal and/or Judicial Litigation should use appropriate project codes to track associated costs. Ref: IM No. AZ-2007 -15, Capturing Litigation Costs

Capturing Litigation Costs § BLM Form 1323 -1, Reimbursable Project Log, captures all related costs. • Keep this form in the Administrative Record on the lefthand side to serve as proof of administrative costs involved in the Project or Case. • Examples of administrative costs include: Time spent gathering information; inspections; meetings; phone discussions; developing management responses; preparing, copying, and mailing files; participating in Settlement Agreements; travel, credit card charges, and similar expenses.

Capturing Litigation Costs § Capture time spent on your T&A by using the appropriate codes. § Document all operational costs with Form 1323 -1 and in the Management Information System (MIS).

2 Rules of Litigation to Remember…. . § If you did it, but didn’t write it down, it DIDN’T HAPPEN! § If you wrote it down, but can’t find it, it DOESN’T EXIST!

Any Other QUESTIONS?

Reference Information • IM No. AZ-2007 -35, Communications Protocol with the Office of the Solicitor. • IM No. AZ-2007 -023, Safeguarding Privacy Information. • IM No. AZ-2005 -041, Touhy Requests. • WO IM No. 2006 -225, Standardized Guidance on Compiling a Case (Decision) File and an Administrative Record (Deputy Solicitor’s Memorandum, June 27, 2006). • Processes for Tracking Litigation Costs in the BLM: – IB No. AZ-2007 -15, Capturing Litigation Costs. – WO IM No. 2002 -241, August 26, 2002, – WO IM No. 2002 -108, March 4, 2002, Change 1, April 9, 2002, and Change 2, November 6, 2002. • Departmental Manual, BLM Manual, CFRs. Point of Contact for Guidance: • Linda Garrison • State Litigation Coordinator, AZ-930 • 602 -417 -9542