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Pawnee Nation of Oklahoma v. United States Bureau of Indian Affairs

United States District Court, N.D. Oklahoma

January 8, 2020

PAWNEE NATION OF OKLAHOMA; WALTER R ECHO-HAWK; LANCE ECHO-HAWK; BERNADETTE ECHO-HAWK; ALVIN GEORGE ECHO-HAWK; GEORGE T. ECHO-HAWK; DAVID D. ECHO-HAWK; HELEN NORRIS; HELAIRE ECHO-HAWK; HOWARD ECHO-HAWK; HOLLY ECHO-HAWK; and DEBRA ECHO-HAWK, Plaintiffs,
v.
UNITED STATES BUREAU OF INDIAN AFFAIRS; UNITED STATES BUREAU OF LAND MANAGEMENT; and KEVIN HAUGRUD, in his official capacity as acting Secretary of the United States Department of the Interior, Defendants.

          OPINION AND ORDER

          JODI F. JAYNE, JUDGE

         Before the Court is Federal Defendants' Motion to Strike Extra-Record Materials Submitted with Plaintiffs' Opening Merits Brief (ECF No. 73), which was referred by United States District Judge James H. Payne (ECF No. 82). For reasons explained below, the Motion to Strike is denied.

         I. Procedural History and Description of Challenged Exhibits

         In their First Amended Complaint, the Pawnee Nation of Oklahoma (“Pawnee Nation”) and eleven individual members of the Pawnee Nation challenged certain decisions by Defendant federal agencies (“Federal Defendants”) related to oil and gas drilling on Pawnee allotments in the Cimarron River Valley. Specifically, Plaintiffs challenged Federal Defendants' decisions to: (1) approve seventeen oil and gas leases (“Leases”); (2) approve Applications for Permits to Drill issued in August 2015 and February 2016 (“APDs”), which authorized lessee Crown Energy (“Crown”) to drill oil and gas wells on the Leases; and (3) approve specific requests by Crown related to water use and disposal for certain drilled wells (“Water Requests”), which occurred in the spring and summer of 2016.[1] Plaintiffs alleged the Federal Defendants, in approving the Leases, APDs, and Water Requests, failed to comply with the National Environmental Policy Act (“NEPA”), the National Historic Preservation Act (“NHPA”), Executive Order 11, 988 (“EO 11988”), the American Indian Agricultural Resource Management Act (“AIARMA”), and other laws, all resulting in grounds for reversal of such decisions under the Administrative Procedures Act (“APA”). Finally, Plaintiffs alleged the Federal Defendants breached trust obligations to the Pawnee Nation.

         On September 14, 2017, Judge Payne issued an Opinion and Order ruling on Federal Defendants' motion to dismiss. Following dismissal of certain claims by Judge Payne, the remaining issues are whether the Federal Defendants' approvals of the APDs and Water Requests should be set aside under the APA. In compliance with the Amended Case Scheduling Order (ECF No. 70), Federal Defendants completed the administrative record (“AR”), [2] and the parties filed briefs on the merits of the administrative appeal.

         Without moving to supplement the AR, Plaintiffs attached three extra-record exhibits to their opening brief. Exhibit 1 consists of eleven total declarations, three by Pawnee Nation officials and eight by individual tribal members who are partial owners of the allotment affected by the oil and gas approvals at issue (collectively “Plaintiffs' Declarations”). Generally, the declarations allege harm flowing to the Pawnee Nation and individuals as a result of the challenged agency decisions. For example, the Executive Director of the Pawnee Nation declares that the decisions contravene the Pawnee Nation's laws and harm the Nation's natural resources. The Chief Operating Officer for the Pawnee Tribal Development Corporation discusses the adverse effects of the approval decisions on the Nation's environmental resources, such as the flooding of a well pad that negatively affected the Cimarron River. Another official discusses Crown threatening detention of a Pawnee tribal member, Walter Echo-Hawk, if he visited a drilling site without obtaining approval of the Nation. The declarations of individual tribal members discuss harm to their specific allotments allegedly caused by approval of the APDs, such as spills of oil and salt water and water diversion from the Cimarron River.

         Exhibit 2 consists of the Declaration of Ava Farouche (“Farouche”), an attorney for Plaintiffs, which describes two maps attached to the declaration as Exhibit A (“FEMA map”) and Exhibit B (“well location map”). Exhibit 3 consists of a letter from the Bureau of Indian Affairs to Michael Freeman, counsel for Plaintiffs, dated May 24, 2018 (“5/24/18 letter”), stating that approval of certain leases that were originally challenged in this litigation did not comply with NEPA and were invalid.

         II. Federal Defendants' Motion to Strike Exhibits 1-3

         Federal Defendants move to strike Exhibits 1-3 based on Plaintiffs' failure to obtain leave of court to supplement the AR. Federal Defendants move to strike Plaintiffs' Declarations (Exhibit 1) as improper attempts to invite the Court to substitute its judgment for that of the agency regarding environmental impact of approvals of the APDs and Water Requests. Federal Defendants move to strike the FEMA map, and accompanying portions of Farouche's declaration (portions of Exhibit 2), as an improper attempt to contradict the agency's expert conclusion that no floodplains were present on one of the approved sites. Federal Defendants do not raise specific challenges or arguments regarding the 5/24/18 letter or the well location map, and do not object to their inclusion in the AR on any grounds except Plaintiffs' failure to obtain leave of Court. For reasons explained below, the Court permits supplementation of the AR with all of Exhibits 1-3 and denies the Motion to Strike.

         A. Legal Standards Governing Supplementation of AR

         “Judicial review of agency action is normally restricted to the administrative record.” Citizens For Alternatives To Radioactive Dumping v. U.S. Dep't of Energy, 485 F.3d 1091, 1096 (10th Cir. 2007). Courts may permit supplementation and consider extra-record evidence in “extremely limited circumstances.” Id. Such circumstances generally may include: “(1) the agency action is not adequately explained and cannot be reviewed properly without considering the cited materials; (2) the record is deficient because the agency ignored relevant factors it should have considered in making its decision; (3) the agency considered factors that were left out of the formal record; (4) the case is so complex and the record so unclear that the reviewing court needs more evidence to enable it to understand the issues; and (5) evidence coming into existence after the agency acted demonstrates the actions were right or wrong.” Custer Cty. Action Ass'n v. Garvey, 256 F.3d 1024, 1027 n.1 (10th Cir. 2001) (citing Am. Min. Cong. v. Thomas, 772 F.2d 617, 626 (10th Cir. 1985)). Courts have also recognized that extra-record evidence may be relevant “where there are gaps or inadequacies in the NEPA process.” Rags Over the Arkansas River, Inc. v. Bureau of Land Mgmt., No. 1:12-CV-00265-JLK, 2014 WL 12741064, at *1 (D. Colo. Mar. 28, 2014) (referring to this circumstance as “NEPA exception”). Any exceptions to the presumption of regularity and fullness of the record are narrowly construed, and the party seeking supplementation bears the burden of proving an exception applies. Id.

         In contrast to extra-record evidence offered in support of reversal of the agency's decision, courts may freely consider extra-record evidence offered solely for the purpose of establishing a plaintiff's standing. U.S. Magnesium, LLC v. U.S. E.P.A., 690 F.3d 1157, 1165 (10th Cir. 2012). Because Article III standing requirements do not apply to agency proceedings, facts relevant to standing are not typically part of the administrative record. Id. In challenging agency action, plaintiffs must “‘take pains to supplement the record in any manner necessary to enable [courts] to address with as much precision as possible any question of standing that may be raised.'” Id. (quoting Pennell v. City of San Jose, 485 U.S. 1, 8 (1988)).

         B. Court Excuses Procedural Deficiency

         Although a motion to supplement is the proper procedural course, the Court exercises its discretion to decide the issues on the merits. The Court is mindful that Plaintiffs ...


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