UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________
)
FORT SILL APACHE TRIBE, )
)
Plaintiff, )
)
v. ) Civil Action No. 14-958 (RMC)
)
NATIONAL INDIAN GAMING )
COMMISSION, et al., )
)
Defendants. )
_________________________________ )
MEMORANDUM OPINION
This opinion will bore all but the litigating parties because it must recall so much
of the procedural history of the case. In sum, the present question is whether the December 9,
2016 letter from the Solicitor of the Department of the Interior to the General Counsel of the
National Indian Gaming Commission remains privileged and confidential, which bars the Fort
Sill Apache Tribe, whose lands are the subject matter of the letter, from reviewing or appreciably
contesting it.
The government asserts that the December 9, 2016 letter (Solicitor’s Letter) is a
predecisional and deliberative document, but its very terms—provided ex parte to the Court—
demonstrate that it was a final and considered direction to the National Indian Gaming
Commission (NIGC) from the top legal officer at the Department of the Interior (Interior or
DOI). The government further argues that the Solicitor’s Letter is protected by the attorney work
product doctrine, the attorney-client privilege, and is a confidential settlement communication.
Only the attorney-client privilege warrants discussion.
As detailed below, the Solicitor’s Letter was the outcome of an extensive
negotiation process among the Chairman of NIGC; the United States of America; DOI; Secretary
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S.M. Jewell, now Secretary Ryan Zinke, of DOI; the DOI Assistant Secretary–Indian Affairs; the
DOI Solicitor; the Department of Justice (DOJ); and the Fort Sill Apache Tribe (the Tribe). It is
now more than four years since the Tribe first sued to obtain government action after years of
delay. To have DOJ and DOI choose to assert the attorney-client privilege for the Solicitor’s
Letter, even though they usually waive that privilege for Indian lands opinions, is extraordinarily
frustrating for the Tribe.
Nonetheless, the government is entitled to assert the privilege. Having done so
here, its privilege protects the Solicitor’s Letter from publication. Other than the Solicitor’s
Letter, however, the Court will grant the Tribe’s request to complete the record with materials
indirectly considered by NIGC.
I. FACTS
The Fort Still Apache Tribe in New Mexico are descendants of the Apache led by
the American Indian warrior Geronimo. It has a storied history that should shame the United
States: once defeated, the Tribe was forced from its aboriginal lands in New Mexico to
imprisonment in Florida under horrible conditions, then to imprisonment in Alabama under
horrible conditions, and then to imprisonment in Fort Sill, Oklahoma. These and other details
may be critical to a final decision in this matter. For now, it is sufficient to note that the Fort Sill
Apache Tribe was listed in 1979 on the first published list of tribes officially recognized by the
United States Government.
The Fort Sill Apache have long desired to operate a casino at Akela Flats, New
Mexico, which is part of its proclaimed reservation in that State. When it opened a gaming
facility at Akela Flats in April 2009, the Chairman of NIGC issued a Notice of Violation (NOV)
asserting that the Tribe had violated the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. §§
2701, 2719, because the lands were ineligible for gaming. Pending an expedited appeal to the
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full Commission, the Tribe shuttered the casino. When, after five years the Commission had not
yet issued any decision, the Tribe sued in 2014 for unreasonable delay in violation of the
Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq. By opinion issued on May 12,
2015, this Court refused to dismiss the lawsuit, see Fort Sill Apache Tribe v. NIGC, 103 F. Supp.
3d 113 (D.D.C. 2015) (Ft. Sill I), and three days later the Commission finally decided that the
lands at Akela Flats were ineligible for gaming. Ex. 1, First Am. Compl., Decision and Order
(2015 Decision) [Dkt. 30-1]. The Tribe amended its Complaint to allege that the NIGC 2015
Decision was arbitrary and capricious and in violation of law. See First Am. Compl. [Dkt. 30];
see also Second Am. Compl. [Dkt. 80].
The parties then turned their attention to settlement efforts. The Court belabors
this history because it illustrates the constant delays:
• 10/13/15 Joint Motion to Stay (30 days) for settlement discussions among the
Chair, NIGC; United States; Department of Interior (DOI); S.M. Jewell,
Secretary, DOI; Kevin Washburn, DOI Assistant Secretary, Indian Affairs; Board
of Indian Affairs; DOI Solicitor’s Office; Department of Justice (DOJ) and the
Tribe [Dkt. 42];
• 11/16/14 Jt. Motion to Continue Stay (30 days) [Dkt. 43];
• 12/16/15 Jt. Motion to Continue Stay (90 days) [Dkt. 44];
• 2/01/16 Jt. Status Report and Motion to Continue Stay (47 days) [Dkt. 45];
• 3/17/16 Jt. Motion Nunc Pro Tunc to Continue Stay (91 days) [Dkt. 46];
• 6/1/16 Jt. Motion to Continue Stay (76 days) [Dkt. 47];
• 7/6/16 Jt. Motion to Stay (35 days) [Dkt. 48];
• 8/15/16 Court-ordered Status Conference;
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• 9/16/16 Telephone conference [Dkt. 65];
• 11/15/16 Status Conference [Dkt. 90];
• 12/2/16 Status Conference [Dkt. 64].
At the August 2016 status conference, the Tribe explained that the Commission
had rejected Akela Flats for gaming on the premise that the Tribe was not a federally
acknowledged Indian tribe. See 8/15/16 Status Conference Tr. at 3 [Dkt. 61]. NIGC had failed
“to address that the Bureau of Indian Affairs acknowledged that the [T]ribe was an
acknowledged tribe on January 31st, 1979, Federal Register 7(D) page 71194,” which predated
the “part 83 regs” on which NIGC had relied. Id. 1 Recognizing this and other alleged plain
errors in the 2015 Decision, the Tribe suggested to Interior that it might be possible to settle the
dispute once the correct facts were before all parties. DOI then agreed that “because their earlier
letters didn’t address the acknowledgment issue, they would review that issue and issue a new
letter. That would then get sent over to the [NIGC] and then [the Commissioners] could
determine if they’re going to reconsider” the 2015 Decision. Id. at 4-5.
The parties agreed to such a framework for settlement in October or November of
2015, with numerous commitments along the way as to when the letter would be issued but with
no progress on that point for nine months. Id. at 5. At the August 2016 status conference, the
Tribe asked, “since we changed our position in reliance on this process, if we might not all
benefit from a court order saying that a letter will issue and the NIGC will reconsider or not” by
a date certain. Id. at 6.
1
25 C.F.R. Part 83 (Procedures for Federal Acknowledgment of Indian Tribes).
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DOI did not object to the Tribe’s proposal for a Court order to bring conclusion to
the discussions, although it sought more time than the Court was willing to allow. DOI then
responded, “Sounds good.” Id. at 8. The parties jointly submitted a proposed order to the Court,
which it then issued. 9/17/2016 Order [Dkt. 51].
At a status conference on September 16, 2016, counsel for DOI expressed concern
that the Court’s order (jointly submitted) was overly broad. Asked to explain the difficulty in
preparing a letter from the Solicitor, counsel responded that “there are disagreements [between
DOI and DOJ] as to the merits of the tribe’s claims.” 9/16/2016 Status Conference Tr. [Dkt 65]
at 6.
Eventually, the Solicitor’s Office issued the Letter to NIGC on December 9, 2016
and NIGC decided, in January 2017 (2017 Decision), to refuse to change its 2015 Decision. On
motion, this Court determined that the 2017 Decision constituted final agency action subject to
appeal by the Tribe. See May 25, 2018 Mem. Op. [Dkt 98]. When DOI filed the Administrative
Record, Dkt. 100, the Tribe moved to complete the record, or in the alternative, to supplement it,
with the Solicitor’s Letter and certain other materials dealing with the Tribe’s status and federal
acknowledgment that had been submitted to DOI (through its counsel at DOJ) as it considered
and drafted the Solicitor’s Letter. Mot. of Pl. Fort Sill Apache Tribe to Complete and
Supplement the Admin. R. With Respect to the January 2017 Decision of the National Indian
Gaming Comm’n (Mot.) [Dkt. 102]. DOI opposes the motion in full. Federal Defs.’ Opp’n to
Pl.’s Mot. to Complete and Supplement the Admin. R. (Opp’n) [Dkt. 103].
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II. LEGAL STANDARD
The Tribe has moved to complete, or in the alternative, to supplement, the
administrative record, with the 39 documents it submitted to Interior in support of its claims. 2
Because the Court does not go beyond requiring Interior to complete the administrative record,
only the legal standard for a motion to complete is presented below.
In keeping with the principle that a court sitting to review agency action under the
APA does not engage in a de novo review of the matter, judicial review is generally limited to
the administrative record. Camp v. Pitts, 41 U.S. 138 (1973). To facilitate such review, when a
regulatory challenge is raised the law requires that the agency identify and produce the complete
administrative record. NRDC v. Train, 519 F.2d 287, 291 (D.C. Cir. 1975). That record
“properly consists of the materials before the agency and no more nor less,” see Oceana, Inc. v.
Ross, 290 F. Supp. 3d 73, 78 (D.D.C. 2018), which “includes all materials [the agency] directly
or indirectly relied on to make all decisions, not just final decisions.” Nat’l Wilderness Institute,
2002 WL 34724414 at *3 (citing AMFAC Resorts, LLC v. U.S. Dep’t of the Interior, 143 F.
Supp. 2d 7, 10 (D.D.C. 2001)); see also CTS Corp. v. EPA, 759 F.3d 52, 64 (D.C. Cir. 2014) (“It
is black-letter administrative law that in an [Administrative Procedure Act] case, a reviewing
court should have before it neither more nor less information than did the agency when it made
its decision.”) (citations omitted). “As part of the record, the Court may consider any document
that might have influenced the agency’s decision and not merely those documents the agency
2
The Tribe also moves, in the alternative, to admit the documents it submitted to DOI as extra-
record evidence. This Circuit has recognized eight exceptions permitting judicial review of non-
record evidence in APA cases. Nat’l Wilderness Inst. v. U.S. Army Corps of Eng’rs, 2002 WL
34724414 at *3 (D.D.C. October 9, 2002) (enumerating all eight exceptions). Because the Court
finds that a review of extra-record evidence is not necessary in this case, analysis of the
documents under these exceptions is not required.
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expressly relied on in reaching its final determination.” Charleston Area Med. Ctr. v. Burwell,
216 F. Supp. 3d 18, 23 (D.D.C. 2016) (citing Nat’l Courier Ass’n v. Bd. of Governors of Fed.
Reserve Sys., 516 F.2d 1229, 1241 (D.C. Cir. 1975) (quotation omitted)). Indeed, to be
complete, the record must include “all materials that ‘might have influenced the agency’s
decision,’ and not merely those on which the agency relied in its final decision.” AMFAC
Resorts, 143 F. Supp. 2d at 12 (citation omitted).
An agency enjoys a presumption of regularity with respect to the administrative
record it prepares; as the decisionmaker, it is generally in the best position to identify and
compile the record. Pac. Shores Subdiv., Cal. Water Dist. v. U.S. Army Corps of Eng’rs, 448 F.
Supp. 2d 1, 5 (D.D.C. 2006) (“[A]bsent clear evidence to the contrary, an agency is entitled to a
strong presumption of regularity, that it properly designated the administrative record.”) (citation
omitted). Therefore, to prevail on a motion to complete the record, a plaintiff must “put forth
concrete evidence and identify reasonable, non-speculative grounds for [its] belief that the
documents were considered by the agency and not included in the record.” Oceana, Inc. v. Ross,
290 F. Supp. 3d 73, 78-89 (D.D.C. 2018) (citations omitted). If a court finds that the record
produced “clearly do[es] not constitute the ‘whole record’ compiled by the agency,” it will order
the agency to complete the record. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.
402, 419 (1971) (quoting 5 U.S.C. § 706), abrogated on other grounds by Califano v. Sanders,
430 U.S. 99 (1977); see also Charleston Area Med. Ctr., 216 F. Supp. 3d at 23.
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III. ANALYSIS
The Fort Sill Apache Tribe seeks to complete the administrative record with two
kinds of documents: the Solicitor’s Letter and 39 documents that the Tribe submitted to DOI
during its consideration and preparation of the Solicitor’s Letter. 3
A. The Solicitor’s 2016 Letter
U.S. courts have frequently held the federal government to “the most exacting
fiduciary standards” in its relations with the American Indian Nations. Seminole Nation v.
United States, 316 U.S. 286 (1942). The Supreme Court has recently described the fiduciary
relationship between the United States and American Indian Tribes as defined by the
government’s sovereignty or specific statutes and regulations, but not by general common law
principles or the common law of trustee fiduciary duties. United States v. Jicarilla Apache
Nation, 564 U.S. 162 (2011). Yet “[t]he attorney-client privilege ranks among the oldest and
most established evidentiary privileges known to our law.” Jicarilla Apache Nation, 564 U.S. at
165. Whether, and the extent to which, such a privilege applies as between federal actors has
occasioned varied comment over the years. 4
3
The Tribe also seeks any other documents relied upon by DOI and NIGC in consideration of its
2017 Decision and requests the Court to review in camera the privilege designations of the five
emails exchanged by the Commission and NIGC counsel between December 9, 2017 and
January 12, 2018. Mot. at 1-2. Plaintiff’s request to supplement the record with these additional
documents will be denied because the Court finds that these documents are also protected by the
attorney-client privilege.
4
See Nancy Leong, Attorney-Client Privilege in the Public Sector: A Survey of Government
Attorneys, 20 Geo. J. Legal Ethics 163 (2007); Patricia E. Salkin and Allyson Phillips,
Eliminating Political Maneuvering: A Light in the Tunnel for the Government Attorney-Client
Privilege, 39 Ind. L. Rev. 561 (2006); Todd A. Ellinwood, In the Light of Reason and
Experience: the Case for a Strong Government Attorney-Client Privilege, 2001 Wis. L. Rev.
1291 (2001); Michael Stokes Paulsen, Who “Owns” the Government’s Attorney-Client
Privilege?, 83 Minn. L. Rev. 473 (1998); Lory A. Barsdate, Attorney-Client Privilege for the
Government Entity, 97 Yale L. J. 1725 (1988).
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The dispute in Jicarilla Apache Nation concerned alleged mishandling of an
Indian Trust Fund by the DOI and the Department’s assertion of the attorney-client privilege to
shield five categories of documents:
(1) Requests for legal advice relating to trust administration sent by
personnel at DOI to the Office of the Solicitor, which directs legal
affairs for the DOI;
(2) Legal advice sent from the Solicitor’s Office to personnel at the
Interior and Treasury Departments;
(3) Documents generated under contracts between Interior and an
accounting firm;
(4) Interior documents concerning litigation with other tribes; and
(5) Miscellaneous documents not falling into the other categories.
Id. at 167. Relying on the traditional fiduciary relationship, and applying the common law
relating to trusts, the Court of Federal Claims and Court of Appeals for the Federal Circuit
ordered disclosure of almost all documents in the first two categories listed above. The Federal
Circuit “rejected the Government’s argument that, because its duties to the Indian tribes were
governed by statute rather than the common law, it had no general duty of disclosure that would
override the attorney-client privilege.” Jicarilla Apache Nation, 564 U.S. at 169.
The Supreme Court disagreed. It stated that “[t]he objectives of the attorney-
client privilege apply to governmental clients.” Id. at 169 (citing Restatement (Third) of the Law
Governing Lawyers § 74, Comment b, pp. 573-74 (1998)). “Unless applicable law provides
otherwise, the Government may invoke the attorney-client privilege in civil litigation to protect
confidential communications between Government officials and Government attorneys.” Id. at
170. The common law exception for fiduciaries was not pertinent because the government “is
not a private trustee.” Id. at 173. “Though the relevant statutes denominate the relationship
between the Government and the Indians a ‘trust,’ see. e.g., 25 U.S.C. § 162a, that trust is
defined and governed by statutes rather than the common law.” Id. (citing United States v.
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Navajo Nation, 537 U.S. 488, 505 (2003) (“[T]he analysis must train on specific rights-creating
or duty-imposing statutory or regulatory prescriptions.”)).
In sum, “the [Jicarilla Apache Nation] must point to a right conferred by statute or
regulation in order to obtain otherwise privileged information from the Government against its
wishes.” Id. at 201. The statute upon which the Nation relied, 25 U.S.C. §§ 161-162a, was
insufficient, despite its description of the Secretary as “trustee of various Indian tribes”
concerning Indian funds, because “the Government exercises its carefully delimited trust
responsibilities in a sovereign capacity to implement national policy respecting the Indian
tribes.” Id. at 178.
Neither party mentions Jicarilla Apache Nation and the Fort Sill Apache fail to
“point to a right conferred by statute or regulation” to obtain the Solicitor’s Letter. That letter
clearly qualifies as “[l]egal advice sent from the Solicitor’s Office to personnel at the Interior,”
subject to the attorney-client privilege in civil litigation. Id. at 167; but see In re Bruce R.
Lindsey (Grand Jury Testimony), 148 F.3d 1100, 1103, 1108 (D.C. Cir. 1998) (recognizing the
government attorney-client privilege as “rather absolute in civil litigation” but declining to
extend it to permit a government lawyer to “withhold from a grand jury information relating to
the commission of possible crimes by government officials and others”).
The motion to complete the record with the Solicitor’s Letter will be denied.
B. Documents the Tribe Provided to Interior
Confusion and frustration have become mainstays of this case. The latest
manifestation presents itself in the parties’ conflation of completion of the record and
supplementation of the record in APA cases. Completion entails ensuring that the entire record
is before the court—the addition of those documents that influenced the agency in its
decisionmaking. Oceana, Inc., 290 F. Supp. 3d. at 78. Supplementation involves the addition of
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newly created evidence or of documents that were not before the agency when the decision was
made, but should have been; supplementation generally requires a showing that an exception to
the record rule applies. Id. at 77-78; see also James N. Saul, Overly Restrictive Administrative
Records and the Frustration of Judicial Review, 38 Envtl. L. 1301, 1308 (2008).
The Fort Sill Apache moves to complete the record with 39 documents it
submitted to DOJ, upon request, to inform Interior’s analysis of the status of its lands in New
Mexico. The Court will construe the motion as one to the complete the record, because the Tribe
argues that these specific documents were “considered by DOI” after submission to its counsel at
DOJ. Mot. at 38-39. Agency consideration is a touchstone of a motion to complete the record—
the addition of relevant documents that were considered, directly or indirectly, by the agency
decisionmaker at the time of the decision are properly part of the record. See Charleston Area
Medical Ctr, 216 F. Supp. 3d at 23 (“As part of the record, the Court may consider ‘any
document that might have influenced the agency's decision’ and not merely those documents the
agency expressly relied on in reaching its final determination.”) (citing Nat’l Courier Ass’n, 516
F.2d at 1241); see also Walter O. Boswell Memorial Hosp. v. Heckler, 749 F.2d 788, 792 (D.C.
Cir. 1984); Saul, 38 Envtl. L. at 1313. By contrast, supplementation entails the addition of newly
created evidence or documents not previously before the agency decisionmakers. AMFAC
Resorts, 143 F. Supp. 2d at 12; see also Saul, 38 Envtl. L. at 1319-20.
This is an important distinction because the two implicate very different burdens.
A motion to supplement—to look beyond the complete record—generally requires the presence
of an exception to the record rule, such as effective frustration of judicial review, see Camp, 411
U.S. at 142–43, or a “‘strong showing of bad faith or improper behavior’ on the part of the
agency.” Community for Creative Non–Violence v. Lujan, 908 F.2d 992, 997 (D.C. Cir. 1990)
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(citing Overton Park, 401 U.S. at 420). By contrast, on a motion to complete the record, a
plaintiff must only “put forth concrete evidence and identify reasonable, non-speculative grounds
for [its] belief that the documents were considered by the agency and not included in the record.”
Oceana, Inc., 290 F. Supp. 3d at 78-79.
The Court finds that the Tribe has done just that. As recited above, the Tribe
submitted documents upon request from DOJ, acting as counsel for NIGC and DOI, to DOJ, and
DOI relied on those documents to draft the Solicitor’s Letter. As memorialized in this Court’s
order, NIGC committed to review the Solicitor’s Letter and, upon that basis, to decide whether to
reconsider its 2015 Decision. See 9/17/2016 Order. DOJ now contends that the 39 documents
submitted by the Tribe itself, referenced liberally in the Solicitor’s Letter, are not part of the
record. Specifically, it argues that NIGC was not in “possession” of the 39 documents and “did
not rely upon or consider the 39 documents during the decisionmaking process.” Opp’n at 40.
The argument concerning possession is unpersuasive. DOJ was most certainly in
possession of the documents because the Tribe provided them to DOJ directly. 5 Clearly, DOI
had possession of the 39 documents because it studied them assiduously and cited them in the
Solicitor’s Letter sent to NIGC. DOJ argues that the documents were “not submitted to the
proper division of an agency,” Opp’n at 39, but this argument is rejected on these particular
facts. As the parties all agreed—including DOJ, DOI and NIGC, among others—the DOI
Solicitor reviewed the documents submitted by the Fort Sill Apache Tribe and analyzed the
5
During the long course of DOI’s consideration of the status of Akela Flats as Indian lands, the
Fort Sill Apache responded to repeated requests for information and documents concerning the
Tribe’s recognition by the United States. See Decl. of Jeffrey Haozous in Supp. of Mot. to
Complete and Supplement the Admin. R. (Haozous Decl.) [Dkt. 102-3] ¶ 3. The Tribe submitted
such records in three tranches in October 2016. See Ex. 1, Haozous Decl., 10/11/16 Letter and
Attachments [Dkt. 102-4]; Ex. 2, Haozous Decl., 10/12/16 Letter and Attachments [Dkt. 102-5];
Ex. 3, Haozous Decl., 10/17/16 Letter and Attachments [Dkt. 102-6].
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status of its lands at Akela Flats. The Solicitor’s Letter reflects and cites the documents as part
of the Solicitor’s directions to NIGC. An agency may not scrub the record of all evidence that
does not support the agency’s final decision. Blue Ocean Inst. v. Gutierrez, 503 F. Supp. 2d 366,
369 (D.D.C. 2007) (An agency “may not skew the record by excluding unfavorable information
but must produce the full record that was before the agency at the time the decision was made.”).
The complete record is comprised of “all documents and materials directly or indirectly
considered by the agency,” regardless of outcome. AMFAC Resorts, 143 F. Supp. 2d at 12. The
issue does not turn on whether specific documents were in the direct, physical possession of
agency decisionmakers, but whether they were directly or indirectly considered by those
decisionmakers. Id.
With this in mind, the Court turns to NIGC’s consideration of the 39 documents.
Having agreed to consider the Solicitor’s Letter, and being under a Court order to consider the
Solicitor’s Letter, the Court concludes and finds that NIGC did consider the entirety of the
Solicitor’s Letter and thus indirectly considered the 39 documents that were discussed in its
analysis. The Court finds that the 39 documents submitted by the Tribe comprise part of the
administrative record and will order the production of the documents to complete the record.
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IV. CONCLUSION
The December 9, 2016 Solicitor’s Letter is protected by the attorney-client
privilege and the government agencies had a choice whether to withhold it from the
Administrative Record or waive the privilege. They chose to withhold it. However, as discussed
above, the 39 documents submitted by the Fort Sill Apache Tribe to DOJ, at Interior’s behest,
were part of the materials indirectly considered by NIGC in rendering its 2017 Decision and
therefore must be made part of the administrative record so that it is complete. A memorializing
Order accompanies this Memorandum Opinion.
Date: November 28, 2018
ROSEMARY M. COLLYER
United States District Judge
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