In re: Murray Energy Corporation v. EPA, et al

Filing

Per Curiam MEMORANDUM OPINION and ORDER on Administrative Record: Petitioners motions to complete the record are GRANTED in part and DENIED in part. The Agencies are hereby ORDERED to include the Moyer April 24, 2015 Technical Analysis (sans 10 11 and attached revised draft final rule) with its Appendix A (free of handwritten underlining and notations), in the administrative record. In all other respects, the motions are DENIED. Damon J. Keith, David W. McKeague, and Richard Allen Griffin, Circuit Judges. [15-3751, 15-3799, 15-3817, 15-3820, 15-3822, 15-3823, 15-3831, 15-3837, 15-3839, 15-3850, 15-3853, 15-3858, 15-3885, 15-3887, 15-3948, 15-4159, 15-4162, 15-4188, 15-4211, 15-4234, 15-4305, 15-4404]

Case: 15-3751

Document: 119-2

Filed: 10/04/2016

Page: 1

Case Nos. 15-3751, et al.
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED
In re: UNITED STATES DEPARTMENT
OF DEFENSE AND UNITED STATES
ENVIRONMENTAL PROTECTION
AGENCY FINAL RULE: CLEAN WATER
RULE: DEFINITION OF “WATERS OF
THE UNITED STATES,” 80 Fed. Reg.
37,054 (June 29, 2015),

MURRAY ENERGY CORPORATION, et al.,
Petitioners,
v.
UNITED STATES DEPARTMENT OF
DEFENSE, DEPARTMENT OF THE ARMY
CORPS OF ENGINEERS; and UNITED
STATES ENVIRONMENTAL
PROTECTION AGENCY, et al.,
Respondents.

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Oct 04, 2016
DEBORAH S. HUNT, Clerk

MEMORANDUM OPINION
AND ORDER ON
ADMINISTRATIVE RECORD

BEFORE: KEITH, McKEAGUE and GRIFFIN, Circuit Judges.
PER CURIAM. Petitioners in these actions consolidated by the Judicial Panel on MultiDistrict Litigation for handling as a multi-circuit case, challenge the validity of a Final Rule
adopted by respondents U.S. Army Corps of Engineers and U.S. Environmental Protection
Agency, “the Clean Water Rule.” 80 Fed. Reg. 37,054 (June 29, 2015). The Clean Water Rule
clarifies the definition of “waters of the United States,” as used in the Clean Water Act, 33

Case: 15-3751

Document: 119-2

Filed: 10/04/2016

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Case No. 15-3751, et al.
In re: Dep’t of Defense and EPA Clean Water Rule
U.S.C. § 1251 et seq. The Rule became effective on August 28, 2015, but in October, we issued
a nationwide stay pending further proceedings in this case. In re EPA and Dep’t of Def. Final
Rule, 803 F.3d 804 (6th Cir. 2015). In February, we denied motions to dismiss and held that
jurisdiction is properly laid in this court. In re Dep’t of Def. and EPA Final Rule, 817 F.3d 261
(6th Cir. 2016). Now before the court are petitioners’ motions to complete the administrative
record.
The Agencies have filed a Corrected Certified Index of the Administrative Record. The
index alone consists of 632 pages. Yet, petitioners contend the record omits materials that were
undisputedly considered by the Agencies and should be made part of the “whole record” on
which judicial review must be based. See Citizens to Preserve Overton Park v. Volpe, 401 U.S.
402, 419 (1971) (citing the APA, 5 U.S.C. § 706); Hill Pharmaceuticals, Inc. v. Food & Drug
Admin., 709 F.3d 44, 47 (D.C. Cir. 2013) (noting that reviewing court should have before it
neither more nor less information than was before the agency when it took action).
For their part, the Agencies recognize that the record should consist of all materials
compiled by them that were either directly or indirectly considered, citing Sierra Club v. Slater,
120 F.3d 623, 632 (6th Cir. 1997), and Pacific Shores Subdivision, Cal. Water Dist. v. U.S. Army
Corps of Eng’rs, 448 F.Supp.2d 1, 4 (D.D.C. 2006). Further, they add that their certification of
the record is entitled to a presumption of regularity. Overton Park, 401 U.S. at 415; Bar MK
Ranches v. Yuetter, 994 F.2d 735, 740 (10th Cir. 1993). The presumption can be overcome only
by “clear evidence to the contrary.” Sherwood v. Tennessee Valley Authority, 590 F. App’x 451,
459–60 (6th Cir. 2014) (quoting Bar MK Ranches, 994 F.2d at 740).
Although petitioners have identified several categories of documents they contend are
improperly omitted from the record, they have carried their “clear evidence” burden only in

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Case: 15-3751

Document: 119-2

Filed: 10/04/2016

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Case No. 15-3751, et al.
In re: Dep’t of Defense and EPA Clean Water Rule
relation to one, or at least portions thereof: the April 24, 2015 U.S. Army Corps of Engineers
Memorandum from Jennifer Moyer, Regulatory Program Chief, to Major General John W.
Peabody, entitled “Technical Analysis of Draft Final Rule on Definition of ‘Waters of the United
States,’” together with its Appendix A, “Representative Examples.” The Agencies do not deny
that this memorandum was considered, but they contend that it and other Army Corps
memoranda are predecisional deliberative documents, reflecting subjective motivations and
decision-making thought processes. The Agencies contend that such deliberative materials are
properly exempted from the record, citing San Luis Obispo Mothers for Peace v. U.S. Nuclear
Regulatory Comm’n, 751 F.2d 1287, 1325–29 (D.C. Cir. 1984), as well as the EPA’s own
internal “Administrative Records Guidance.”
Deliberative process materials are generally exempted from inclusion in the record in
order to protect the quality of agency decisions by ensuring open and candid communications.
See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975); Formaldehyde Inst. v. Dep’t of
Health & Human Servs., 889 F.2d 1118, 1122 (D.C. Cir. 1989). Further, we generally defer to
an agency’s interpretation of its own rules. See Thomas Jefferson Univ. v. Shalala, 512 U.S. 504,
512 (1994).
Many of the Army Corps memoranda identified by petitioners contain predominantly
deliberative materials and were properly omitted from the record. However, our review of the
Moyer Technical Analysis under the EPA’s own Administrative Record Guidance reveals it to
be predominantly factual and technical in nature. As to inter-agency correspondence that is both
“deliberative (for example, expressing staff opinions) and non-deliberative (for example,
providing technical information or decisions) . . . [o]nly the non-deliberative information is part
of the record.” R. 109, Agencies’ Attachment 2, Admin. Records Guidance at 8. Applying this

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Case: 15-3751

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Case No. 15-3751, et al.
In re: Dep’t of Defense and EPA Clean Water Rule
standard to the Moyer Technical Analysis, we find that paragraphs 10 and 11 are in the nature of
opinions and recommendations that are deliberative. In addition, the “revised draft final rule”
attached to the Moyer memorandum shows suggested changes and comments.

It, too, is

essentially deliberative in nature. The remainder of the four-page Moyer memorandum and its
Appendix A are factual and technical and are properly included in the record.1
As to the other documents petitioners contend should be included in the record,
denominated as public EPA documents, National Environmental Policy Act (“NEPA”)
documents, and Science Advisory Board Panel (“SAB”) documents, petitioners have failed to
carry their burden of rebutting the applicable presumption of regularity by clear evidence.
Accordingly, petitioners’ motions to complete the record are GRANTED in part and
DENIED in part. The Agencies are hereby ORDERED to include the Moyer April 24, 2015
Technical Analysis (sans ¶¶ 10–11 and attached revised draft final rule) with its Appendix A
(free of handwritten underlining and notations), in the administrative record.

In all other

respects, the motions are DENIED.
ENTERED BY ORDER OF THE COURT

________________________________________
Deborah S. Hunt, Clerk

1

A second Moyer memorandum to Major General Peabody, dated May 15, 2015, and entitled “Economic
Analysis and Technical Support Document Concerning the Draft Final Rule on Definition of ‘Waters of the United
States,’” also contains deliberative and non-deliberative material. However, because the non-deliberative contents
cannot be neatly extricated from the deliberative, we find no impropriety in the Agencies’ omission of this and other
Army Corps memoranda from the record.

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