Wilderness Workshop et al v. Crockett et al

Filing 48

ORDER denying 40 Defendant Intervenor's Joint Motion to Supplement Administrative Records; granting in part and denying in part 41 Plaintiffs' Motion to Strike and to Complete or Alternatively Supplement the Administrative record. The record shall be supplemented with the Decision Notices/Environmental Assessments for the projects specified in Exhibit G to Plaintiffs motion. Proposed modified briefing schedule due 6/5/12, by Judge John L. Kane on 5/21/12.(gmssl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge John L. Kane

Civil Action No. 1:11-cv-1534-AP
WILDERNESS WORKSHOP,
NATURAL RESOURCES DEFENSE COUNCIL,
THE WILDERNESS SOCIETY, and
SIERRA CLUB
Plaintiffs,
v.
ALLEN CROCKETT, in his official capacity as a representative of the Bureau of Land
Management; and
the BUREAU OF LAND MANAGEMENT.
Defendants,
and
WILLIAMS PRODUCTION RMT COMPANY, LLC, and
ANTERO RESOURCES PICEANCE CORPORATION,
Defendant-Intervenors.

ORDER
Kane, J.
This matter is currently before me on Defendant-Intervenors’ Joint Opposed Motion to
Supplement Adminstrative Records (doc. 40) and Plaintiffs’ Motion to Strike and to Complete,
or Alternatively Supplement, the Administrative Record (doc. 41). Based on the forthcoming
discussion, Defendant-Intervenors’ motion is DENIED, and Plaintiffs’ motion is DENIED in
part and GRANTED in part.

BACKGROUND
Garfield County, Colorado, is no stranger to natural resource booms. In the late 1970s
and early 1980s, it was ground zero for industry research, development, and demonstration
efforts to extract and refine crude oil from kerogen shale. Massive infrastructure investments
fueled rapid economic growth. After oil prices plummeted, however, those efforts were
abandoned and Garfield County plunged into a recession.
Over the past decade, Garfield County has experienced a similar economic expansion,
this one related to natural gas production. Although temporarily slowed by the recent economic
downturn, this recent upswing shows no sign of abating. As a result of increased natural gas
development, Garfield County has bucked national trends: unemployment in Garfield County is
well below the national average and housing prices have significantly increased. This economic
boon is not, however, without consequence or controversy. Left unregulated, natural gas
development threatens to cause significant environmental harm. Although the extent and nature
of that harm is unclear, it is undisputed that natural gas production has the potential to emit
significant amounts of air pollution.1 See, e.g., Oil and Natural Gas Sector: New Source
Performance Standards and National Emission Standards for Hazardous Air Pollutants Reviews,

1

In addition to the readily acknowledged air pollution impacts of natural gas drilling,
there is a growing body of evidence that a prominent natural gas extraction technique, hydraulic
fracturing, has the potential to contaminate drinking-water. See Stephen G. Osborn, Avner
Vengosh, Nathaniel R. Warner, and Robert B. Jackson, Methane Contamination of Drinking
Water Accompanying Gas-Well Drilling and Hydraulic Fracturing, 108 Proceedings of the
National Academy of Sciences 8172 (May 17, 2011); see also Dominic C. DiGiulio, Richard T.
Wilkin, Carlyle Miller, and Gregory Oberley, Investigation of Ground Water Contamination
near Pavillion, Wyoming (DRAFT), available at
http://www.epa.gov/region8/superfund/wy/pavillion /EPA_ReportOnPavillion_Dec-8-2011.pdf.
These studies are, however, preliminary, and there has been no definitive link between hyrdaulic
fracturing and groundwater pollution.
2

76 Fed. Reg. 52738 (Aug. 23, 2011).2
Fortunately, however, natural gas development in Garfield County is not unregulated.
Depending on the location of a deposit, natural gas production is governed by a variety of local,
state, and national regulatory regimes. Most relevant to the instant challenge, development of
natural gas resources on federal lands is subject to the procedural requirements of the National
Environmental Policy Act (“NEPA”). 42 U.S.C. §§ 4321 et seq..
In conducting its NEPA-related analyses for proposed natural gas development in
Garfield County, Defendants have relied heavily on findings contained in the
the Environmental Impact Statement accompanying the 2006 Roan Plateau Proposed Resource
Management Plan Amendment (“Roan EIS”). Among its other findings, the Roan EIS dismissed
air quality concerns, concluding, “Assumed levels of oil and gas development within the
Planning Area during the 20-year period of analysis are not projected to cause an exceedance of
any applicable standard or threshold affecting human health and the environment.” Roan Plateau
Proposed Resource Management Plan Amendment and Final Environmental Impact Statement,
AR-GL001952 at AR-GL002268.
Plaintiffs have filed suit, arguing that BLM’s continued reliance on the air quality
analysis contained in the Roan EIS violates NEPA. Because the Roan EIS only addresses
drilling in the Roan Plateau Planning Area, they argue its air quality analysis does not apply to

2

For a more thorough discussion of health impacts, including air quality impacts,
attributable to natural gas development in Garfield County, see Roxana Witter, Lisa McKenzie,
Meredith Towle, Kaylan Stinson, Kenneth Scott, Lee Newman, and John Adgate, Health Impact
Assessment for Battlement Mesa, Garfield County, Colorado (February 2011), available at
http://www.garfield-county.com/environmental-health/battlement-mesa-health-impact-assessme
nt-draft2.aspx
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oil and gas drilling outside the Roan Plateau Planning Area. Accordingly, Plaintiffs argue
Defendants’ reliance on the air quality analysis contained in the Roan EIS in approving the
Spruce Creek Master Development Plan (“MDP”), the North Castle Springs MDP, and the West
Mamm MDP is misplaced. Thus, according to Plaintiffs, Defendants’ approvals of these three
projects are arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with
law.
After the Defendants submitted the administrative records for the challenged decisions,
Defendant-Intervenors and Plaintiffs filed the instant motions seeking to strike documents from
the records and to complete and/or supplement the records with additional documents.
DISCUSSION
Because the National Environmental Policy Act does not provide for a private right of
action, review of Plaintiffs’ claims is governed by the Administrative Procedure Act. 5 U.S.C. §
704; see, e.g., Wyoming v. U.S. Dep’t of Agric., 661 F.3d 1209, 1226 (10th Cir. 2011).
Accordingly, that review is generally limited to the record before the agency at the time of
Defendants’ challenged actions. 5 U.S.C. § 706; see, e.g., Ctr. for Native Ecosystems v. Salazar,
711 F. Supp. 2d 1267, 1272 (D. Colo. 2010).
The initial responsibility for designating the record of the challenged actions lies with
Defendants. To the extent it is consistent with established procedures, their designation of the
record is generally afforded a presumption of regularity. Bar MK Ranches v. Yuetter, 994 F.2d
735, 740 (10th Cir. 1993). Absent argument to the contrary, I assume Defendants’ designation
of the record in this case is consistent with their established procedures and I presume the record
to be properly designated.

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This presumption is not, however, determinative. Defendants may not omit evidence and
documents considered in the decisionmaking process. See Camp v. Pitts, 411 U.S. 138, 142.
Nor, with limited exception, may they include in the record evidence and documents not
considered in reaching the challenged decision. See Citizens to Pres. Overton Park, Inc. v.
Volpe, 401 U.S. 402, 419 (1971). Accordingly, Plaintiffs or Defendant-Intervenors may rebut
the presumption of regularity by adducing clear evidence that the record is either over- or underinclusive. WildEarth Guardians v. U.S. Forest Serv., 713 F. Supp. 2d 1243, 1254 (D. Colo.
2010). Upon such a showing, I must either strike from the record documents that were not
before the agency at the time of the challenged decision or complete the record with documents
that were in fact considered by the agency. Once the proper composition of the record is
ascertained, I must then consider exceptions allowing supplementation of the record with
materials not actually considered by the agency, but which are necessary for the court to conduct
a substantial inquiry.3
Applying this framework to the instant motions, I begin by reviewing Plaintiffs’ motion
to strike documents from the record before turning to their motion to complete the record.
Finally, I turn to Plaintiffs’ and Defendant-Intervenors’ motions to supplement the record.
Plaintiffs’ Motion to Strike
Plaintiffs argue that two items should be stricken from the administrative record: the
Automated Fluid Minerals Support System (“AFMSS”) database and the Declaration of Allen B.
Crockett (doc. 38-6). Because Plaintiffs’ objections to these items are significantly intertwined, I

3

I incorporate by reference my lengthy discussion of these standards found in WildEarth
Guardians v. U.S. Forest Serv., 713 F. Supp. 2d 1243 (D. Colo. 2010) and Ctr. for Native
Ecosystems v. Salazar, 711 F. Supp. 2d 1267 (D. Colo. 2010).
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consider them in tandem.
The AFMSS is a database in which Bureau of Land Management land law examiners
record all applications for permits to drill (“APDs”). Its contents are not static; instead, they
change with every entry. The database is frequently used by the Bureau of Land Management to
generate reports, which can include information relating to the number and location of
applications to drill in a specified area.
As a threshold matter, it is important to note that the record includes the AFMSS
database in name only; the contents of the AFMSS database are not actually included in the
administrative record. According to Defendants, they “included” the AFMSS database because
it was indirectly considered by BLM Supervisor Allen Crockett in reaching the challenged
decision. As both parties concede, Defendants cannot generate post-decisional evidence by
running after-the-fact queries. Nor can Defendants directly rely on information contained in the
database, but not included in the administrative record, as justification for their challenged
decisions.
Plaintiffs’ primary contention is with Defendants’ indirect reliance on the contents of the
AFMSS database via Mr. Crockett’s declaration. In his declaration, Mr. Crockett alleges that,
because of routine database queries conducted in the course of his employment, he was generally
aware of the number of APDs issued in the Colorado River Valley Field Office. He states that
this knowledge informed the decisionmaking process.
Plaintiffs argue this constitutes a post hoc rationalization unsupported by the record and
contradicted by its post-decisional correspondence with the agency. Although Defendants
acknowledge the declaration was not actually considered in the course of the challenged

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decisionmaking, they argue it is necessary to ensure meaningful review of the challenged
decisions.4 Specifically, they argue the declaration explains the manner in which data from the
AFMSS database was relied upon.
Plaintiffs’ arguments, though based on legitimate concerns, do not justify striking Mr.
Crockett’s declaration. To the extent the declaration explains the relevance of specific AFMSS
database queries contained in the record, it permissibly contributes to review of the challenged
decisionmaking. The declaration cannot, however, introduce facts or arguments unsupported by
the record.
Accordingly, Plaintiffs motion to strike is denied.5 Defendants’ use of these materials is
not, however, without limitation. Although Defendants may use these materials to explain the
contents of the administrative record, they may not rely upon them as independent justification
for rationales otherwise unsupported by the administrative record.
Plaintiffs’ Motion to Complete
Plaintiffs next argue that the record should be completed with the decision notices and
environmental assessments (“DN/EAs”) for thirty projects in the Colorado River Valley Field
Office that relied upon the Roan EIS. Because these DN/EAs were approved by either Allen

4

As Plaintiffs note, Defendants failed to file a separate motion seeking to supplement the
record with Mr. Crockett’s declaration. Although nominally required by the local rules, it is
most efficacious to waive that requirement in this circumstance.
5

Plaintiffs seek to include in the record their communications with agency staff
documenting Defendants’ contemporaneous knowledge of the number of permitted wells relying
upon the air quality analysis in the Roan EIS. These documents are, however, largely irrelevant
to Mr. Crockett’s statements, which address his general knowledge of the number of permitted
wells. Should Defendants seek to argue that Mr. Crockett had knowledge of the number of
permitted wells tiered to the Roan EIS, however, Plaintiffs should file a renewed motion seeking
to supplement the record with those communications.
7

Crockett, the decisionmaker who approved the challenged projects, or Steven Bennett, the
current field manager of the Colorado River Valley Field Office where Mr. Crockett works,
Plaintiffs argue they were directly and/or indirectly considered by the relevant decisionmaker.
Defendants argue that because Plaintiffs allege these DN/EAs weren’t analyzed as part of the
cumulative impacts analysis for the challenged decisions, they cannot now argue that they were
in fact considered by the relevant decisionmakers.
Defendants’ argument conflates the standard for completing an administrative record
with the standard for prevailing on the merits of Plaintiffs’ cumulative impacts claim. It is
possible to demonstrate that a decisionmaker has considered a document, which would require
its inclusion in the record, without ceding the ultimate issue of whether that document was
analyzed in the context of the cumulative impacts analysis. The deficiency of Defendants’
argument notwithstanding, however, Plaintiffs have failed to establish that these documents were
directly or indirectly considered in the context of the challenged decisions.
In order to justify completion of the record with the proffered documents, Plaintiffs must
adduce clear evidence of (1) when the documents were presented to the agency; (2) to whom; (3)
and under what context. See WildEarth Guardians, 713 F. Supp. 2d at 1254. Plaintiffs easily
meet the first two elements, the documents were created or reviewed by Allen Crockett, the
relevant decisionmaker; however, they fail to adequately establish the third element.
Plaintiffs must establish by clear evidence “the context in which materials were
considered by decision makers in the relevant decision making process.” Id. at1256 (emphasis
added). Neither the fact that Mr. Crockett created or considered the challenged documents in the
context of other decisions nor the inclusion of “boilerplate” language in these documents

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establish that he considered them in the context of the challenged decisions. At best, Plaintiffs’
circumstantial evidence suggests a likelihood that the relevant decisionmakers were aware of
these documents in reaching the challenged decisions. Awareness does not, however, constitute
consideration. Absent clear evidence that these DN/EAs were actually considered by the
relevant decision makers, I defer to the agency’s designation of the administrative record. See
id.
Plaintiffs’ Motion to Supplement
In the alternative, Plaintiffs seek to supplement the record with the above noted DN/EAs.
Plaintiffs argue that the proffered DN/EAs illuminate a broad section of analysis that is wholly
lacking in the record. Specifically, they argue the DN/EAs offer further proof that Defendants
failed to ensure that drilling projects tiered to the Roan EIS fell within the scope of that EIS.
They also argue that these DN/EAs are directly relevant to determining whether Defendants
adequately considered the cumulative air quality impacts of the challenged actions in
combination with past, present, and reasonably foreseeable future oil and gas development in the
region.
Defendants counter, suggesting that the DN/EAs are not necessary to review of the
challenged decisions. Furthermore, even if those documents would be necessary to fully explain
the challenged decisions, Defendants argue the list of DN/EAs proffered by Plaintiffs would
provide sufficient basis for determining whether Defendants should have considered those
DN/EAs in reaching the challenged decisions.
Ordinarily, the record on review must be limited to the evidence before the agency at the
time it made the challenged decisions. See, e.g., Ctr. for Native Ecosystems, 711 F. Supp. 2d at

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1273-74 (citing Overton Park, 401 U.S. at 420; Camp v. Pitts, 411 U.S. 138, 142 (1973); and
Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985)). There are, however, exceptions
by which the parties may supplement the record with extra-record evidence.
Although the contours of these exceptions are somewhat muddled, the Tenth Circuit has
repeatedly recognized an exception when “the record is deficient because the agency ignored
relevant factors it should have considered in making its decision.”6 See, e.g., Custer Cnty. Action
Ass’n v. Garvey, 256 F.3d 1024, 1028 n.1 (10th Cir. 2001) (quoting Am. Mining Cong. v.
Thomas, 772 F.2d 617, 626 (10th Cir. 1985)). Most relevant to Plaintiffs’ challenge, the Tenth
Circuit has tacitly recognized the relevance of extra-record evidence in NEPA cases where there
are gaps or inadequacies in the NEPA process. See Citizens for Alt. to Radioactive Dumping v.
U.S. Dep’t of Energy, 485 F.3d 1091, 1096 (10th Cir. 2007) (quoting Lee, 354 F.3d at 1242) (“In
dealing with scientific and technical evidence, extra-record evidence ‘may illuminate whether an
[environmental impact statement] has neglected to mention a serious environmental
consequence, failed adequately to discuss some reasonable alternative, or otherwise swept
stubborn problems or serious criticism . . . under the rug’”) (alterations in original).
Plaintiffs fail to articulate how the DN/EAs inform the determination of whether the
challenged drilling projects fell within the scope of the Roan EIS. They have, however,
successfully established the necessity of the DN/EAs to a determination of their claim that
Defendants have failed to analyze the cumulative air quality impacts of the challenged actions in
combination with past, present, and reasonably foreseeable future oil and gas development in the

6

For a more thorough discussion of the uncertainty surrounding the exact contours of
these exceptions see Ctr. for Native Ecosystems, 711 F. Supp. 2d at 1278-79.
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region. In order to assess whether the challenged decisions contained any analysis of the air
quality impacts of other projects in the region, it is necessary to determine the nature of those air
quality impacts as specified in the DN/EAs for those projects.
Accordingly, the administrative record should be supplemented with the DN/EAs listed
in Plaintiffs’ Exhibit G (doc. 41-7) to their Motion to Strike and to Complete, or Alternatively
Supplement, the Administrative Record. Those documents are, however, only admissible for the
purpose of determining whether Defendants considered the cumulative air quality impacts of the
challenged actions in combination with past, present, and reasonably foreseeable future oil and
gas development in the region.
Defendant-Intervenors’ Motion to Supplement
Defendant-Intervenors seek to introduce an April 25, 2011 memorandum sent from BLM
Supervisor Allen Crockett to oil and gas operators in the Colorado Valley Field Office region.
In that memorandum, Mr. Crockett explains the rationale underlying Defendants’ reliance on the
air quality analysis in the Roan EIS for projects located oustide the geographic scope of that EIS.
Both Plaintiffs and Defendants oppose supplementing the record with this memorandum, arguing
that the memorandum post-dates the challenged decisions and lacks support in the administrative
record.
Extra-record materials that provide additional explanations of the reasons for an agency’s
decision are admissible where “the agency action is not adequately explained and cannot be
reviewed properly without considering the cited materials.” Am. Mining Cong., 772 F.2d at 626
(citing Overton Park, 401 U.S. at 420). Relying upon this exception, Defendant-Intervenors
argue that because the Crockett memorandum explains Defendants’ decision to tier the air

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quality analysis for the challenged projects to the Roan EIS, it may be included in the
administrative record. This argument does not justify supplementation of the record.
Despite their inconsistency in defining the parameters of the exceptions allowing
supplementation of an administrative record with extra-record materials, courts have consistently
recognized the impermissibility of post hoc rationalizations. Although the line of demarcation
between an explanation and a rationalization is far from clear, courts apply a series of filters to
reduce the chance of improper supplementation.7
As a threshold matter, courts only consider supplementation of an administrative record
when the proffered materials are necessary to explain the agency’s action. By requiring a
showing of necessity, courts limit the possibility for error to those cases in which consideration
of those materials is essential to meaningful judicial review.8 Defendant-Intervenors have made
no such showing in this case; that extra-record materials offer an explanation for Defendants’
actions does not mean that they are necessary to explain Defendants’ actions.9
7

The difficulty in distinguishing rationalization from explanation is not limited to courts
of law. Indeed, the difficulty is inherent in the English language; the roots of these terms,
explain and rationalize, are often listed as synonyms of each other. See, e.g., Websters Third
New International Dictionary 1885 (1976).
8

Relying on Citizens for Envtl. Quality v. United States, Defendant-Intervenors argue
that a showing of necessity is not required. 731 F. Supp. 970, 982-83 (D. Colo. 1989). Although
Defendant-Intervenors focus upon the court’s statement that the materials at issue were merely
“helpful,” the court’s decision hinged upon its finding that the materials were “necessary to
effective judicial review.” Id. Notwithstanding the confusion created by the court’s clumsy
diction, this case does not support a rule that would drastically increase the applicability of the
limited exceptions allowing supplementation of an administrative record.
9

A brief comparison with Plaintiffs’ argument in support of their motion to supplement
underscores this point. Unlike the Crockett memorandum, the DN/EAs for other projects in
close proximity to the Spruce Creek MDP, the North Castle Springs MDP, and the West Mamm
MDP are necessary to meaningful review of Plaintiffs’ claim that Defendants failed to consider
the cumulative impacts of those other projects in reaching the challenged decisions.
12

Furthermore, Defendant-Intervenors have failed to demonstrate how the memorandum
explains materials Defendants actually considered in reaching the challenged decisions. In order
to ensure that extra-record materials “explain the administrative record rather than [serve] as a
substitute for it,” Lewis v. Babbitt, 998 F.2d 880, 882 (10th Cir. 1993), there must be some
evidence linking the purported explanation to the administrative record. Such evidence need not
take the form of direct citation, but a party seeking to supplement the record with a post hoc
explanation must marshal sufficient evidence to support a finding that the proferred explanation
is implicit in the already extant administrative record.
Notwithstanding Defendant-Intervenor’s conclusory statements to the contrary, they
present no evidence that the Crockett memorandum actually explains the contents of the
administrative record. The memorandum cites only to the Roan EIS. Although it makes generic
reference to permitting decisions made after 2004, it does not specifically cite the DN/EAs for
the challenged projects. Most significantly, Defendant-Intervenors fail to cite any evidence in
the administrative records that Defendants employed the “contiguous airshed” rationale in
reaching the challenged decisions.
Because Defendant-Intervenors have failed to establish either that the Crockett
memorandum is necessary to meaningful review of Defendants actions or that the explanation
contained in the Crockett memorandum is implicit in the administrative record, they have failed
to overcome the presumption in favor of limiting review to the record before the agency at the
time it made the challenged decisions. Accordingly, their motion to supplement is denied.
CONCLUSION
Based on the foregoing discussion, Defendant-Intervenor’s Joint Motion to Supplement

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Administrative Records (doc. 40) is DENIED. Plaintiffs’ Motion to Strike and to Complete, or
Alternatively Supplement, the Administrative Record (doc. 41) is DENIED in part and
GRANTED in part. The record shall be supplemented with the Decision Notices/Environmental
Assessments for the projects specified in Exhibit G to Plaintiffs’ motion.
Pursuant to the Joint Case Management Plan, the parties shall submit a proposed
modified briefing schedule on or before June 5, 2012.

Dated: May 21, 2012

BY THE COURT:
/s/ John L. Kane
Senior U.S. District Court Judge

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