Avoiding the Pitfalls in Administrative Record Review Cases

Public Land & Resources Law Review Public Land & Resources Law Review

Volume 46 Article 8

April 2024

Avoiding the Pitfalls in Administrative Record Review Cases Avoiding the Pitfalls in Administrative Record Review Cases

Kim Wilson

Brian Brammer

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AVOIDING THE PITFALLS IN ADMINISTRATIVE RECORD

REVIEW CASES

Kim Wilson

∗

& Brian Brammer

∗∗

I. INTRODUCTION .................................................................................... 116

II. FEDERAL RULES ................................................................................ 116

III. MONTANA RULES .............................................................................. 119

IV. THE INTERPLAY BETWEEN RECORD REVIEW AND THE RIGHT TO

i. KNOW ............................................................................................... 121

V. CONCLUSION .................................................................................... 127

∗

David (Kim) Wilson is a partner at Morrison Sherwood Wilson &

Deola in Helena, Montana. He has specialized in environmental and land use cases for

over thirty years.

∗∗

J.D. Candidate, University of Montana Alexander Blewett III School

of Law.

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116

INTRODUCTION

Government agencies, at all levels, make decisions all the time.

While such decisions are hardly the unique realm of environmental law,

environmental law has its fair share of agency actions that members of the

public may want to challenge. Such decisions include the Forest Service

issuing a timber cutting permit; the Fish and Wildlife Service deciding to

list, or delist, a species under the Endangered Species Act; a state agency

issuing a mining permit; or a local government approving a subdivision.

Many of those decisions are accompanied by some level of environmental

review. The record before the agency forms the basis for those decisions

and accompanying environmental review.

Record review cases involve a unique set of rules and procedures

that are different from the normal course of litigation. This article is

intended to be a practical guide for Montana environmental, and other

administrative law, practitioners on issues that arise in administrative

“record review” cases against public agencies. In this article, we will first

discuss the genesis of administrative review rules at the Federal level. We

will next look at how case law on administrative review has evolved in

Montana, and where it differs from Federal practice. Finally, we will

address the interplay between administrative record review and Montana’s

constitutional “right to know”, which guarantees members of the public

the right to inspect all public documents, as that right may affect litigants

in record review cases.

II.

FEDERAL RULES

A court’s role in administrative record review largely stems from

two landmark Supreme Court cases in the 1970s which articulated the

arbitrary and capricious standard of review and the necessity of

considering the whole administrative record in deciding cases. Applying

provisions of the Administrative Procedure Act (“APA”)

, the Supreme

Court held in Overton Park that agencies are entitled to considerable

discretion in rulemaking; and that their choices would only be overturned

if they were found to be “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.”

Two years later, the Court

clarified the application of that standard, holding that the “focal point for

judicial review should be the administrative record already in existence,

5 U.S.C. § 706.

Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 413–

14 (1971).

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AVOIDING THE PITFALLS

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not some new record made initially in the reviewing court.”

However, the

Supreme Court has subsequently offered little guidance on what should be

considered the “whole record.”

To fill this gap, lower federal courts,

including several district courts in the Ninth Circuit, have provided ample

rules of their own.

The growing consensus in the Ninth Circuit is that the

administrative record includes all documents and materials the agency

considered, directly or indirectly, when making its decision, regardless of

whether the agency submitted those documents to the court as part of the

agency’s administrative record.

Accordingly, supplementation is

appropriate, for example, when agencies do not present the whole body of

material they considered in decision-making.

Friends of the Clearwater

involved a challenge to a logging project under several federal

environmental statutes, including the National Environmental Policy Act

(“NEPA”). The Defendant agency, the United States Forest Service

(“Forest Service”), argued that because it had not considered a draft

environmental assessment (“EA”), that EA was not part of the

administrative record. The Idaho District Court found the Forest Service’s

argument unconvincing and held that it “did not square with reality” that

the draft EA would not have been directly or indirectly considered.

Accordingly, the court held that the Forest Service was required to include

the EA in the administrative record.

Several other cases help further define the application of record

review principles to the arbitrary and capricious standard. The Ninth

Circuit has held that a decision fails this standard if it “fails to consider an

important aspect of a problem, if the agency offers an explanation for the

decision that is contrary to the evidence, if the agency's decision is so

implausible that it could not be ascribed to a difference in view or be the

product of agency expertise . . . , [internal citations omitted] or if the

Camp v. Pitts, 411 U.S. 138, 142 (1973).

Ctr. for Biological Diversity v. Bernhardt, No. CV 19-109-M-

DLC, 2020 U.S. Dist. LEXIS 40646 at *6 (D. Mont. 2020).

Doe v. Trump, No. 3:19-cv-1743-SI, 2020 U.S. Dist. LEXIS

65441 at *5 (D. Or. 2020) (quoting Thompson v. U.S. Dep’t of Labor, 885 F.2d 551,

555 (9th Cir. 1989).

Portland Audubon Soc'y v. Endangered Species Comm., 984 F.2d

1534, 1548 (9th Cir. 1993).

Friends of the Clearwater v. Higgins, 523 F. Supp. 3d 1213, 1228

(D. Idaho 2021).

42 U.S.C. § 4321 et seq.

Id. at 1228.

10.

Id.

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agency's decision is contrary to the governing law.”

This language built

off of a Supreme Court holding

and has been used by the Ninth Circuit

several times. In 2014, the Ninth Circuit found that an Alaskan oil lease’s

potential environmental impacts had not been properly estimated because

the Bureau of Ocean Energy Management had relied on an improbably

low estimate of the amount of oil to be produced.

However, the

application of the broader standard becomes intensely fact-specific

regarding individual rules. As an example, using the same language the

Ninth Circuit held that a Forest Service rule was not arbitrary and

capricious because using habitat as a proxy for species viability

requirements when there is a known relationship between species and

habitat.

So while the general rule is well-established, room for argument

remains around what aspects of a problem are important—and what data

is necessary to support individual decisions.

Federal courts have held that while the existing record should be

the focal point of deliberation, other materials can be considered in limited

circumstances. Under these rules, Courts may consider “extra-record

evidence” in four situations:

(1) if admission is necessary to determine whether the

agency has considered all relevant factors and has

explained its decision, (2) if the agency has relied on

documents not in the record, (3) when supplementing the

record is necessary to explain technical terms or complex

subject matter, or (4) when plaintiffs make a showing of

agency bad faith.

As a practical matter, these limited exceptions favor parties attempting to

get additional information into the record such as litigants challenging an

agency decision, and not the agency itself. Generally, agencies may not

supplement their records after a decision has been made.

In an appeal of an agency’s decision, the court should consider

what facts the agency relied on to make its decision. If such appeal is

11.

Lands Council v. Powell, 379 F.3d 738, 743 (9th Cir. 2004)

(citations omitted).

12.

Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463

U.S. 29, 43 (1983).

13.

Native Vill. of Point Hope v. Jewell, No. 12-35287, 2014 U.S.

App. LEXIS 1150, at *11 (9th Cir. 2014).

14.

Lands Council v. McNair, 537 F.3d 981, 998 (9th Cir. 2008).

15.

Lands Council v. Cottrell, 731 F. Supp. 2d 1028, 1044 (D. Idaho

2010) (citing Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443,

1450 (9th Cir. 1996)).

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attempting to overturn the agency’s action, the court can decide in the

agency’s favor “only on the grounds articulated by the agency itself.”

This means that courts must review the decision-making process by which

a decision was made, to determine whether an agency has acted in good

faith or relied on post hoc rationalizations.

The Federal administrative record review rules offer clear

guidance on what constitutes the administrative record, and the rare

instances where limited exceptions may apply that may apply to expand a

record. Courts are expected to rely on the administrative record before the

agency and are disfavored from considering documents not before the

agency.

III.

MONTANA RULES

The Montana Supreme Court’s jurisprudence on administrative

record issues is less clear than that of the federal courts, with the Montana

Court more inclined than Federal Courts to consider exceptions to the

general rules. Notably, several Montana Supreme Court cases addressing

the issue contain concurring opinions or dissents disputing the Court’s

tendency to expand the definition of the record.

A leading Montana case is Skyline Sportsmen v. Board of Land

Commissioners,

where the Court broadly viewed what constitutes the

record and how it may be challenged. In Skyline, recreation and sporting

organizations challenged a decision by the Board of Land Commissioners

on a land exchange. At issue, in part, was the adequacy of the EA

conducted on the exchange. The Plaintiffs’ view was that the private land

being exchanged did not have commensurately valuable streams as

required by the Montana Constitution.

The Court first noted that the

standard of review for an informal administrative decision (i.e., one not

subject to the Montana Administrative Procedure Act) is arbitrary,

capricious, or unlawful.

Under that standard, the Court then determined

that it was appropriate for the district court to accept new evidence and not

limit its review to the administrative record, and held:

In a proceeding to determine whether an agency decision

was arbitrary, capricious, or unlawful, unless the

reviewing court looks beyond the record to determine

16.

Id.

17.

951 P.2d 29 (Mont. 1997).

18.

Id. at 31.

19.

Id. at 32 (citing North Fork Pres. Ass’n v. Dep’t of State Lands, 778

P.2d 862, 867 (Mont. 1989)).

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what matters the agency should have considered, it is

impossible for the court to determine whether the agency

took into consideration all relevant factors in reaching its

decision.

The Court noted that at trial, the organizations presented several

factual witnesses who testified about the quality of the fisheries in the

lands the State was giving up in the exchange for land containing

waterbodies with less viable fisheries.

These witnesses’ testimony

informed the Court’s decision that Plaintiffs had raised significant issues

of material fact as to the equivalence of the two parcels at issue.

The

Court concluded that the organizations should be accorded an opportunity

to engage in “full discovery to explore the factual basis, or lack thereof,

for the Board’s findings” that the streams the State was receiving in the

exchange constituted bodies of water with significant public values.

In a concurring opinion, Judge Buyske expressed a concern that

would be echoed in the future by those advocating for a more limited scope

of record: “I believe the path the majority chose to take . . . runs too broadly

through a factual analysis and invites future litigants to view district court

proceedings as a means to do what should have been done at the

administrative agency level—develop the record.”

Judge Buyske’s

sentiments were echoed in the dissent by Justice Gray: “While it is clear

that the Board of Land Commissioners . . . did not cover themselves in

glory via their conduct in these proceedings, I cannot join the Court's

sweeping effort to reconstitute the administrative record on which the

Board made its decision in order to provide the plaintiffs a ‘second bite at

the apple’.”

The same tension is found in the case of Aspen Trails Ranch, LLC

v. Simmons.

There, a developer sought subdivision preliminary plat

approval for a development adjacent to Prickly Pear Creek.

After the city

commission approved the preliminary plat with conditions, neighbors filed

a lawsuit challenging the decision. Prior to reaching a decision, the district

1980)).

20.

Id. (citing Asarco, Inc. v. U.S. EPA, 616 F.2d 1153, 1160 (9th Cir.

21.

Id. at 33–34.

22.

Id. at 34.

23.

Id.

24.

Id. (Buyske, J., concurring).

25.

Id. at 36 (Gray, J., dissenting).

26.

230 P.3d 808 (Mont. 2010).

27.

Id. at 811.

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court held a one-day evidentiary hearing focusing on the environmental

assessment (“EA”) submitted by the applicant.

EAs under the Subdivision and Platting Act

differ from EAs

under the Montana Environmental Policy Act (“MEPA”).

Under the

Subdivision and Platting Act, the proponent of a subdivision must prepare

an EA as part of an application, which the County Commission then

scrutinizes in determining whether to grant the preliminary plat.

Under

MEPA, the agency prepares the EA.

The Subdivision and Platting Act

explicitly states that both the EA itself and the standards of review for EAs

are distinct from those under MEPA.

In Aspen Trails, the EA at issue was reviewed under the

requirements of the Subdivision and Platting Act.

This Act granted

standing to contiguous landowners to sue over plat approvals.

The

District Court ruled in favor of the neighboring landowners and against the

City Commission, voiding the preliminary plat.

During an evidentiary

hearing, the court was presented with evidence that the groundwater level

was too high for a subdivision and that there was insufficient evidence for

the Commission to plan for the effects upon groundwater.

On appeal as

to whether it was proper for the district court to hold the evidentiary

hearing, the Montana Supreme Court, relying on Skyline Sportsmen,

concluded without further discussion that the district court did not err

when it conducted an evidentiary hearing and received evidence

concerning the adequacy of the EA.

In a concurring opinion reflecting the same caution against

expansion of the record expressed in Judge Buyske’s Skyline Sportsmen

concurrence, Justice Rice took issue with the majority’s acceptance of the

evidentiary procedures at the district court level. “I strongly believe the

District Court erred in the procedures it undertook to review the challenge

to the plat, and that this Court should not condone it.”

Justice Rice then

reviewed in detail the “general administrative law governing this issue,” a

28.

Id. at 812.

29.

MONT. CODE ANN. § 76-3-603.

30.

MONT. CODE ANN. §§ 75-1-101–324.

31.

MONT. CODE ANN. §§ 76-3-603, 608(1).

32.

ADMIN. R. MONT. 17.4.609(1).

33.

MONT. CODE ANN. § 76-3-603(2).

34.

Aspen Trails Ranch, LLC v. Simmons, 230 P.3d 808, 820 (Mont.

2010).

35.

Id. at 811.

36.

Id. at 815.

37.

Id. at 812–13.

38.

Id. at 820.

39.

Id. at 821–822 (Rice, J., concurring).

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discussion that serves as a tutorial on a more limited view of what should

constitute the record for review in administrative decision cases. First, he

noted that the Ninth Circuit has “steadfastly applied” Overton Park and

Camp to hold that courts reviewing an agency decision are limited to the

administrative record, while also “narrowing the exceptions for trial courts

to admit extra-record evidence.”

Justice Rice favorably cited the decision

in Lands Council,

that the exceptions only apply in “extraordinary

circumstances” and that the “scope of these exceptions permitted by our

precedent is constrained, so that the exception does not undermine the

general rule.”

Turning to Montana jurisprudence, Justice Rice then reviewed a

line of previous Montana decisions underscoring the principle that the

determination of whether an agency acted arbitrarily, capriciously or

unlawfully, is to be based on the record.

In particular, Justice Rice looked

to Kiely Constr. L.L.C v. City of Red Lodge,

where the Court affirmed

the district court decision to exclude city council minutes, and testimony

of individual council members, in support of their challenged decision.

The excluded testimony was judged to be “post-decision statements”

which would be closer to post hoc rationalizations than an accurate

reflection of the administrative record during the rulemaking process.

Justice Rice closed by taking the majority to task for sanctioning

the “unfortunate departure from these bedrock principles. The danger in

this approach is that it rewards gamesmanship in the administrative

process.”

He further noted that the Skyline approach is treated by

commentaries as an exception to the general rule, agreeing with District

Judge Buyske’s concurring opinion in Skyline.

Following Aspen Trails, the Montana Supreme Court has issued

inconsistent rulings in record review cases, in some cases departing from

what Justice Rice termed “bedrock principles”, and in others following a

stricter view of the administrative record like the federal courts. For

instance, in Hobble Diamond Ranch, LLC v. State,

the plaintiffs argued

that the district court unlawfully received evidence outside the

40.

Id. at 822–823 (Rice. J., concurring) (citing Lands Council v.

Powell, 395 F.3d 1019, 1029 (9th Cir. 2005)).

41.

Id. at 823 (Rice. J., concurring) (citing Lands Council, 395 F.3d at

1030).

42.

Id. at 824 (Rice. J., concurring).

43.

57 P.3d 836, 856 (Mont. 2002).

44.

Aspen Trails Ranch, LLC, 230 P.2d at 823 (Rice. J., concurring)

(citation omitted).

45.

Id. at 824 (Rice. J., concurring).

46.

Id.

47.

268 P.3d 31, 34 (Mont. 2012).

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administrative record in a case involving a decision by the Montana

Department of Transportation (“DOT”) to approve placement of a

billboard on DOT land. The Montana Supreme Court upheld the district

court’s ruling, citing Aspen Trails in support of its conclusion that the

district court did not abuse its discretion in allowing the evidence.

However, later the same year, in Richards v. County of Missoula,

the Supreme Court stuck to a more traditional view of the administrative

record. Richards, a private individual sought subdivision approval from

Missoula County on rural lands.

To mitigate the subdivision’s impacts to

wildlife, he consulted Montana Fish, Wildlife and Parks (“FWP”) and

incorporated FWP’s recommendations into the County application.

However, after the application was submitted, FWP “switched its

position” before the county considered the application.

Richards filed a

petition for judicial review in the district court and sought to depose and

obtain testimony from various FWP officials to determine the basis for

their opposition. The district court denied the request.

The Montana Supreme Court agreed with the district court’s

decision to not allow the Richards’ additional evidence. The court first

noted that Richards “relies on the false premise that he can attack FWP's

report on judicial review with information not contained in the

administrative record. This Court long has stated that it will consider only

the record before the governing body in reviewing whether the body's

decision is arbitrary and capricious.”

While the Court noted that Richards

argued that the decision in Aspen Trails would allow such extraneous

evidence,

the Court agreed with the County that Aspen Trails was an

“extremely limited exception to the general review to consideration of the

record before the governing body.”

However, in Montana Environmental Information Center v.

Montana Department of Environmental Quality (MEIC v. DEQ), the

Montana Supreme Court seemingly reversed course yet again.

The

district court ruled in plaintiffs’ favor and invalidated a mining permit

based on the record before the agency and found that DEQ did not follow

48.

Id. at 39.

49.

288 P.3d 175, 182 (Mont. 2012).

50.

Id. at 177.

51.

Id.

52.

Id. at 178.

53.

Id.

54.

Id. at 179.

55.

Id.

56.

Id.

57.

451 P.3d 493, 500 (Mont. 2019).

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proper procedures.

The court’s rationale was another example of

intensely fact-specific inquiry. In this case, DEQ’s contention that its

monitoring regime at outflow sites was “representative” was found to be

merely conclusory.

Yet in reversing the district court, the Court remanded for an

evidentiary hearing. In support of that decision, the Court ruled that DEQ’s

decision was based on “nothing more than conclusory statements”, and

that DEQ must “cogently explain” why it exercised its discretion such a

manner.

Accordingly, the Court reversed the district court, and remanded

the case to the district court to determine this factual issue.

Subsequently, MEIC petitioned the Court for rehearing, arguing

that although the Court’s analysis of DEQ’s rulemaking was largely

correct, the proposed remedy was incorrect.

MEIC argued that the proper

remedy should have been vacatur and remand to the rulemaking agency,

DEQ, not to the lower court.

As noted in the petition, the Court

previously held vacatur and remand to the rulemaking agency was the

proper remedy in Ravalli Cnty. Fish & Game Ass’n.

Under MEIC’s

interpretation, remand to the district court would have resulted in judicial

factfinding which would be “inconsistent with precedent, and burdensome

for courts, agencies, and litigants.”

This is an important consideration, as rehearing would potentially

allow agencies to engage in post hoc rationalization and require parties to

take on the expense of discovery and trial.

In other words, the Court

allowed the agency to better explain its decision after the fact, the very

practice it had previously condemned in Kiely, among other cases.

However, the Court declined to reconsider, stating: “[t]he burden remains

on the plaintiffs to prove the remaining allegations alleged in the

complaint. Upon review, we hold that the decision does not conflict with

a statute or controlling decision not addressed.”

58.

Id. at 519.

59.

Id. at 516–17.

60.

Id. at 517.

61.

Id.

62.

Plaintiff-Appellees’ Petition for Rehearing at 1, Mont. Env’t Info.

Ctr. v. Mont. Dep't of Env’t Quality, 451 P.3d 493 (Mont. 2019) (No. DA 18-0110).

63.

Id.

64.

Id. at 4.

65.

Id. at 8.

66.

Id.

67.

Order on Petition for Rehearing at 2–3, Mont. Env’t Info. Ctr., 451

P.3d 493 (No. DA 18-0110).

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What is a Montana practitioner to make of these conflicting cases,

and how does the practitioner determine whether extraneous evidence will

be allowed as evidence in an administrative record review case? The best

advice may be to follow and assume the general rule as set forth in the

federal courts, but to be alert for opportunities to supplement the record, if

appropriate. In any record review case, counsel should seek a scheduling

order that contains both a deadline for the agency to file the administrative

record, and a deadline for parties to object to, or move to supplement, the

record. In the best-case scenario, the practitioner will be able to know what

the pool of documents potentially in the administrative record is in

advance through public records requests, as discussed below.

IV.

THE INTERPLAY BETWEEN RECORD REVIEW AND THE RIGHT TO

KNOW

The administrative record is, of course, a collection of public

records. Those records are available to litigants, both before and during

litigation, through Montana’s public record laws and “right to know”,

potentially informing a litigant in advance of issues that may arise

concerning the record.

Montana’s 1972 Constitution enshrined broad rights to open and

accountable government, which would have been unthinkable just a few

years earlier. Prior to the late 1960’s, a few monied interests, such as

mining and timber, virtually controlled the Montana Legislature through

backroom lobbying.

However, the power of these companies had waned

by the time of the Constitutional Convention, providing opportunities for

public participation advocates. As a result, the Montana Constitution now

recognizes what has been termed a “right to know”: “[n]o person shall be

deprived of the right to examine documents or to observe the deliberations

of all public bodies or agencies of state government and its subdivisions,

except in cases in which the demand of individual privacy clearly exceeds

the merits of public disclosure.”

The Montana Supreme Court has long

held that the provision, which is a fundamental right, is “unique, clear,

unambiguous, and speaks for itself without requirement for ‘extrinsic aids

or rules of construction.”’

68.

Peter M. Meloy, Double and Nothing: Open Government in

Montana Under Article II, Section 9 and Section 10, 79 MONT. L. REV. 49, 52

(2018).

69.

MONT. CONST. Art. II, § 9.

70.

Nelson v. City of Billings, 412 P.3d 1058, 1063 (Mont. 2018).

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When analyzing Article II, section 9 issues, the Court uses a three-

step-process:

First, we consider whether the provision applies to the

particular political subdivision against whom

enforcement is sought. Second, we determine whether the

documents in question are "documents of public bodies"

subject to public inspection. Finally, if the first two

requirements are satisfied, we decide whether a privacy

interest is present, and if so, whether the demand of

individual privacy clearly exceeds the merits of public

disclosure.

To empower the right to know, the Legislature established open

meeting laws and instructed that they be construed liberally.

The result

of Article II, section 9 is the presumption that every document within the

possession of public officials is subject to inspection.

The “right to examine documents” component of the “right to

know” is implemented in part through the Public Records Act.

Under the

statute, people have the power to request information from agencies and

agencies must make such information broadly accessible. The agency is

then required to either make the documents available or “provide the

requesting person with an estimate of the time it will take to fulfill the

request . . .”

Finally, while the agency may charge a fee for such requests,

“the fee may not exceed the actual costs directly incident to fulfilling the

request in the most cost-efficient and timely manner possible.”

Notably,

there is no exception in the definition of “public records” that would allow

an agency to withhold public documents if litigation is ongoing.

Recently in Montana, as the cases discussed below illustrate,

agency efforts to withhold documents, either because the documents are

involved in or relevant to a lawsuit, assertions of privilege by agencies, or

by charging excessive fees for access to documents, has led to several

lawsuits that are working their way through the Court system.

71.

Bryan v. Yellowstone Cnty. Elem. Sch. Dist. No. 2, 60 P.3d 381,

389 (Mont. 2002) (citing Becky v. Butte-Silver Bow Sch. Dist. 1, 906 P.2d 193, 196

(Mont. 1995)).

72.

MONT. CODE ANN. §§ 2-3-201–21.

73.

Bryan, 60 P.3d 390.

74.

MONT. CODE ANN. §§ 2-6-1001–33.

75.

Id. § 2-6-1006(2)(a)–((b).

76.

Id. § 2-6-1006(3).

77.

Id. § 2-6-1002(11).

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In Montana Environmental Information Center v. State of

Montana, an ongoing case, Plaintiff MEIC sought certain documents from

the Governor’s office, including emails with a mining company, related to

the Administration’s decision to drop the “bad actor” lawsuit against the

owner of a major copper mine proposed in the Cabinet Mountains.

MEIC

had previously filed a separate lawsuit against the state permitting agency,

DEQ,

over the decision by the Administration to not enforce the “bad

actor” provision of the law.

The suit against the Governor’s office was prompted by the refusal

of the Governor’s Office to provide any of the documents concerning the

dropping of the bad actor lawsuit requested by MEIC, or a privilege log

documenting what was being withheld, because of what the Governor’s

Office termed “Plaintiffs’ inappropriate use of the “right to know” as a

litigation tool.”

MEIC has contested the Governor’s Office’s claim that

Nelson v. City of Billings, discussed below, supports the State’s position.

There is no authority for the proposition that the constitutional right to

examine government documents is set aside if an agency is involved in

litigation. That case has been fully briefed for summary judgment and a

decision is pending.

In another case, Jayson O’Neill v. Greg Gianforte, the Plaintiff

sought a bill monitoring form used by the Gianforte Administration during

the 2021 Montana Legislature, and any completed forms that were

exchanged between agencies and the Governor’s or Lieutenant Governor’s

office.

The Governor’s Office categorically denied the request, claiming

that the documents requested were “privileged in their entirety” under

attorney-client privilege.

The Governor’s Office refused to even provide

a privilege log as it would still “disclose which bills were reviewed, and

78.

Plaintiffs’ Second Notice of Supplemental Authority at 2, Mont.

Env’t Info. Ctr. v. Montana, No. DDV 2022-209 (Mont. 1st Dist. Ct. Dec. 15, 2022);

see Petition for Writ of Mandamus and Complaint for Declaratory Relief at 2–3,

Ksanka Elders Advisory Comm. v. Dorrington, No. CDV 2021-1126 (Mont. 1st

Dist. Ct. Nov. 10, 2021), https://perma.cc/QXH8-68T9.

79.

Petition for Writ of Mandamus and Complaint for Declaratory

Relief at 1, Ksanka Elders Advisory Comm., No. CDV 2021-1126.

80.

MONT. CODE ANN. § 82-4-360(1).

81.

Office of the Governor’s Reply in Support of Motion for Summary

Judgment at 3, Mont. Env’t Info. Ctr. v. Montana, No. DDV 2022-209 (Mont. 1st

Dist. Ct. June 27, 2022), https://perma.cc/B4GC-QG2C.

82.

Order on Cross Motions for Summary Judgment at 2, Jayson

O’Neill v Greg Gianforte, No. CDV-2021-951 (Mont. 1st Dist. Ct. Dec. 14, 2022),

https://perma.cc/ZR3W-WRKW.

83.

Id.

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by whom, with the effect of chilling candid legal communication among

agency counsel.”

In the summary judgment ruling against the Governor’s Office,

the district court judge framed the issues as whether the documents were

privileged under an executive communication privilege, a deliberative

process privilege, or the attorney-client privilege.

In her evaluation, she

first discussed at length the case of Nelson v. City of Billings. Under

Montana law, due process rights do not extend to the actions of state

agencies.

However, constitutional guarantees apply to all arms of the

government, including the right to know.

Applying the rationale

employed by the court in Nelson, the district court balanced the right to

privacy against potential privileges.

Privileges, such as attorney-client

privilege, should be construed narrowly considering the obstacle they may

present to the truth-finding process.

Therefore, public bodies should not

be allowed to use those privileges to “impede transparency.”

In Montana,

there is no case law on executive privilege.

In O’Neill, the district court first addressed the Governor’s claims

of executive or deliberative process privilege. The Court dismissed the

Governor’s reliance on executive privilege cases from other jurisdictions,

saying it was not “compelling in light of the ‘unique, clear, and

unequivocal’ language in Article II, Sec. 9.”

The district court then distinguished the facts in Nelson from those

in the instant case. In Nelson, while the City did assert attorney-client and

work-product privileges as to some requested documents, the City

provided over seven thousand pages of responsive documents and a

privilege log to the requester.

After reviewing Nelson, the district court

in O’Neill noted that the “executive privilege” claimed by the State had

not even been recognized by federal courts until 1974, following the

84.

Id. (citation omitted).

85.

Id. at 1.

86.

The Associated Press v. Bd. of Pub. Educ., 804 P.2d 376, 379

(Mont. 1991).

87.

Id. at 391–92.

88.

Order on Cross Motions for Summary Judgment at 7, Jayson

O’Neill v Greg Gianforte, No. CDV-2021-951 (Mont. 1st Dist. Ct. Dec. 14, 2022),

https://perma.cc/8NW6-2P7S.

89.

Am. Zurich Ins. Co. v. Mont. Thirteenth Judicial Dist. Court, 280

P.3d 240, 245 (Mont. 2012).

90.

Nelson v. City of Billings, 412 P.3d 1058, 1069 (Mont. 2018).

91.

Order on Cross Motions for Summary Judgment at 9, Jayson

O’Neill v Greg Gianforte, No. CDV-2021-951 (Mont. 1st Dist. Ct. Dec. 14, 2022),

https://perma.cc/8NW6-2P7S.

92.

Id. (citing Nelson, 412 P.3d at 1063).

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Montana Constitutional Convention; thus, it could not have been

“preexisting” as recognized in the Nelson decision.

The district court then reviewed the State’s reliance on Crites v.

Lewis & Clark County.

Distinguishing that case, the district court said,

“There is no evidence that the Framers contemplated any kind of executive

privilege like that the Governor now asserts.”

Additionally, the District

Court distinguished McLaughlin v. Mont. State Legislature

as not being

analogous.

The Governor had attempted to argue that as the judicial

branch can demand other branches produce documents, the executive

should have an analogous power.

The court held that the Governor had

misframed the issue as an internecine squabble between the executive and

judiciary when in fact the conflict over privilege was between the

Governor and “the people.”

Ultimately, the district court ruled against the Governor’s Office

on his claim of executive privilege. “If Montana courts were to recognize

the kind of privilege the Governor has described, it is unclear whether any

documents in the Governor’s control would remain subject to disclosure.

Recognizing broad executive privileges would effectively gut the right to

know as it applies to the Executive Branch because every document may

inform the Governor’s decision making in some way.”

100

The district court

also disputed the Governor’s Office’s claim that all the documents were

protected by the Attorney-Client privilege. The district court ordered the

Governor’s Office to produce all the documents for in camera review.

101

Another situation where agencies may make document review and

production more difficult is in agencies’ use of the provisions of Mont.

Code Ann. § 2-6-1006 to charge excessive fees for production of

documents. Several district courts have recently interpreted the statute, and

ruled that such fees are limited, as the statute requires, to the “actual costs

directly incident to fulfilling the request in the most cost-efficient and

timely manner possible.”

102

93.

Id. at 10.

94.

Id. at 10–11, (citing Crites v. Lewis & Clark Cnty., 444 P.3d 1025

(Mont. 2019)).

95.

Id. at 11.

96.

Id. (citing McLaughlin v. Mont. State Legislature, 493 P.3d 980,

994–95 (Mont. 2021)).

97.

Id. at 12.

98.

Id.

99.

Id. at 13.

100.

Id. at 15 (emphasis in original).

101.

Id. at 18.

102.

MONT. CODE ANN. § 2-6-1006(3).

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130

In Lee Enterprises v. Montana Public Service Commission,

103

Lee,

which publishes daily newspapers across Montana, requested eleven

categories of documents from the Public Service Commission (“PSC”). In

response, the PSC informed Lee that it would need to pay the agency

$31,000 for legal staff to review the documents prior to disclosing

anything. Subsequent requests for documents were met with additional

requests for fees.

104

The parties moved for summary judgment.

105

Lee

argued at summary judgment that charging a fee for legal review violated

its Article II, section 9 rights to know, and asserted that those rights should

not be conditioned on the ability to pay.

106

The district court agreed and

granted Lee summary judgment on the issue of legal review fees, but sided

with the PSC on the lesser issue of charging holding fees.

107

The court held

that although responding to records requests may burden an agency,

including the cost of paying employees to respond, that burden is part of

the agency’s duties.

108

Similarly, in Victory Ins. Co., the district court held that under

Mont. Code Ann. § 2-6-1006, the State Auditor cannot charge for attorney

time in reviewing document requests.

109

Further, the court ruled that § 2-

6-2006(3) “is not a grant of authority, but rather a limitation on it. It does

not state what kinds of activities are chargeable, but rather limits the

amount chargeable to ‘actual costs’.”

110

The District Court also ruled that

the Auditor may not charge State employees’ health care costs, under the

statute as “part of staff time spent gathering the requested information.”

111

)

While MEIC, O’Neill, and these other recent cases involving

excessive charges have not yet resulted in ultimate review by the Montana

Supreme Court, they illustrate a new, more aggressive stance against

public document production by State agencies.

112

This new approach

103.

Order on Cross Motions for Summary Judgment at 2, Lee

Enterprises v. Montana Public Service Commission, No. ADV 2021-1198 (Mont. 1st

Dist. Ct. June 6, 2022).

104.

Id. at 2–3.

105.

Id. at 2.

106.

Id. at 6.

107.

Id. at 9.

108.

Id. at 7.

109.

Order at 8, Victory Ins. Co. v. Office of the Montana State

Auditor, No. BDV 2017-1011 (Mont. 1st Dist. Ct. Oct. 11, 2018).

110.

Id. at 7.

111.

Id. at 9.

112.

See MEIC v. DEQ, 451 P.3d 493 (Mont. 2019); Respondent’s

Answer and Affirmative Defenses, O’Neill v. Gianforte, No. CDV-2021-951 (Mont.

1st Dist. Ct. Dec. 14, 2022), https://perma.cc/MYU3-RH68; Order on Cross Motions

for Summary Judgment, Lee Enterprises v. Montana Public Service Commission,

No. ADV 2021-1198 (Mont. 1st Dist. Ct. June 6, 2022).

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could limit a litigating party’s ability to determine, in advance of litigation,

what documents the agency relied on in making a decision (and thus

whether to pursue a claim). And during litigation, it could compromise a

party’s ability to determine whether the record produced by the agency is

complete. However, the Constitution’s requirement that “no person shall

be deprived of the right to examine documents . . . of all public bodies or

agencies of state government. . ., except in cases in which the demand of

individual privacy outweighs the right to know”

113

does not sanction an

exception for documents that may be related to litigation.

CONCLUSION

Montana environmental practitioners must be aware of both

federal and state case law to determine what constitutes the record in

administrative record review matters. Unfortunately, as discussed in this

article, in Montana State courts, the administrative record review “rules”

are far from clear or consistent, and practitioners are well advised to

become familiar with the string of Montana Supreme Court decisions

addressing these issues. Moreover, practitioners should also be aware of

additional tools at their disposal for reviewing agency records before or

during litigation, under Montana’s “right to know.” A full knowledge of

administrative record review rules, as well as agency practices, will help

lawyers navigate the pit falls that can arise in challenging final agency

decisions.

113.

MONT. CONST. art. II, § 9.