GRUNEWALD et al v. JARVIS et al

Filing 26

MEMORANDUM AND OPINION re: Plaintiffs' Motion to Supplement the Administrative Record With One Document. Signed by Judge Robert L. Wilkins on 2/21/2013. (lcrlw4)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

CAROL GRUNEWALD, et al.,
Plaintiffs,
Civil Action No. 12-cv-1738 (RLW)

v.
JONATHAN B. JARVIS, DIRECTOR,
NATIONAL PARK SERVICE, et al.,
Defendants.

MEMORANDUM OPINION
Plaintiffs have moved this Court for an Order requiring Defendants to supplement the
Administrative Record with one purportedly missing document. Before the Court is Plaintiffs’
Motion to Supplement the Administrative Record With One Document (Dkt. No. 14). For the
reasons set forth below, Plaintiffs’ Motion is DENIED.
STANDARD FOR SUPPLEMENTING THE ADMINISTRATIVE RECORD
When reviewing agency action, the Administrative Procedure Act requires a court to
review “the whole record or those parts of it cited by a party.” 5 U.S.C. § 706. A fair review by
this Court requires it to have “neither more nor less information than did the agency when it
made its decision.” Walter O. Boswell Mem’l Hosp. v. Heckler, 749 F.2d 788, 792 (D.C. Cir.
1984). There is a strong presumption that the agency properly compiled the Administrative
Record. “Supplementation of the administrative record is the exception, not the rule.” Pac.
Shores Subdivision, Cal. Water Dist. v. U.S. Army Corps of Eng’rs, 448 F. Supp. 2d 1, 5
(D.D.C. 2006) (citations omitted). “Therefore, absent clear evidence to the contrary, an agency
is entitled to a strong presumption of regularity, that it properly designated the administrative

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record.” WildEarth Guardians v. Salazar, 670 F. Supp. 2d 1, 5 (D.D.C. 2009) (citations omitted).
“Were courts cavalierly to supplement the record, they would be tempted to second-guess agency
decisions in the belief that they were better informed than the administrators empowered by
Congress and appointed by the President.” Amfac Resorts, LLC v. U.S. Dep’t of the Interior,
143 F. Supp. 2d 7, 11 (D.D.C. 2001) (quoting San Luis Obispo Mothers for Peace v. NRC, 751
F.2d 1287, 1325-26 (D.C. Cir. 1986) (en banc)).
In addition, a successful motion to supplement the Record cannot merely guess about
who has seen the documents at issue. A party moving to supplement the Administrative Record
“must do more than imply that the documents at issue were in the [agency’s] possession”; they
“must prove that the documents were before the actual decisionmakers involved in the
determination.” Sara Lee Corp. v. Am. Bakers Ass’n, 252 F.R.D. 31, 34 (D.D.C. 2008) (citation
omitted). The Record “should not include materials that were not considered by agency
decisionmakers.” Pac. Shores, 448 F. Supp. 2d at 4 (citations omitted).
ANALYSIS
In this case, the one document at issue is entitled “Meeting the Invasive Species
Challenge,” and was published by the National Invasive Species Council in 2001. (Dkt. No. 142). Plaintiffs’ theory as to why this document “was clearly” before the Defendants (Dkt. No. 14,
at 1 & 11), appears to be as follows. The Administrative Record includes, as it unquestionably
must, the Final White-Tailed Deer Management Plan / Environmental Impact Statement
(“FEIS”). (Administrative Record (“AR”) 16450-17041). Under a section titled “Related Laws,
Policies, Plans, and Constraints: Other Legislation, Compliance, and National Park Service
Policy,” the FEIS includes a one-sentence entry for Executive Order 13112. (AR 16518). The
entry reads: “This executive order requires the NPS to prevent the introduction of invasive

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species and provide for their control and to minimize the economic, ecological, and human
health impacts that invasive species cause.” (Id.). Plaintiffs asked Defendants to include the
Executive Order in the Administrative Record. (Dkt. No. 14-4, at 2). Defendants replied that
they “do not believe it appropriate or necessary to include Executive Order 13112 in the AR (just
as we have not included copies of statutes or regulations), but will not object if Plaintiffs cite to
that Order.” (Dkt. No. 14-5, at 2-3). 1 The Executive Order, in turn, refers to the document
Plaintiffs seek to supplement the Administrative Record with, but not directly. This is because
the Executive Order is dated February 3, 1999, see 64 Fed. Reg. 6183 (Feb. 8, 1999), and refers
to the future publication of a “first edition of a National Invasive Species Management Plan”; the
government subsequently published “Meeting the Invasive Species Challenge” in October 2001,
(Dkt. No. 14-2).

Thus, Plaintiffs’ argument is that the Administrative Record should be

supplemented with a document that was referred to in a document that was referred to in the
Record.
There is a difference between “supplementing the Record” and “going beyond the
Record.” See, e.g., Cape Hatteras Access Pres. Alliance v. U.S. Dep’t of Interior, 667 F. Supp.
2d 111 (D.D.C. 2009). The former seeks to add documents that were before the agency but not
included in the Administrative Record, while the latter seeks to add documents not before the
agency but that should nonetheless be in the Administrative Record. Plaintiffs here ask to
supplement the Record, as made clear by their Motion, which states “this document . . . was
clearly before the agency when it made its decision,” (Dkt. No. 14, at 1), as well as by their
Reply, which states their Motion should be granted under County of San Miguel v. Kempthorne,

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Plaintiffs’ representation that the Park Service “agreed that the Executive Order should be
in the Administrative Record” is thus not accurate. (See Dkt. No. 23, at 5).
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587 F. Supp. 2d 64, 77 (D.D.C. 2008) (Dkt. No. 23, at 2); County of San Miguel is a case about
Record supplementation.
Plaintiffs fail to meet the “heavy burden” required of a party moving to supplement the
Record. WildEarth, 670 F. Supp. 2d at 6. Their argument that the Administrative Record must
be supplemented with a document referenced in a document not in the Administrative Record
stretches the meaning of what is “before the agency” beyond the breaking point. “A broad
application of the phrase ‘before the agency’ would undermine the value of judicial review . . . .”
Pac. Shores, 448 F. Supp. 2d at 5. Plaintiffs’ argument has been considered and rejected by
other courts, and Plaintiffs have not presented a convincing reason to stray from that precedent.
See, e.g., Ctr. For Native Ecosystems v. Salazar, 711 F. Supp. 2d 1267, 1277 (D. Colo. 2010)
(finding the “consideration through citation argument stretches the chain of indirect causation to
its breaking point and cannot be a basis for compelling completion of an Administrative
Record”). In fact the argument here is even weaker, because in Ctr. For Native Ecosystems the
first document in the chain appeared in the Administrative Record. That is not the case in this
matter, as the Executive Order is not in the Administrative Record, but only mentioned.
Plaintiffs claim that their “motion should be granted under County of San Miguel,” (Dkt.
No. 23, at 2), overstates the holding of that court and thus its relevance here. In County of San
Miguel, the court supplemented the Administrative Record with two sets of documents related to
whether a particular species should be listed under the Endangered Species Act. First, the court
ordered the Record supplemented with two documents that the defendants in that case had
previously stipulated were part of the Record in related litigation. 587 F. Supp. 2d at 73.
Second, in that case the plaintiffs had requested pursuant to the Freedom of Information Act
(“FOIA”) all “public documents possessed by the U.S. Fish and Wildlife Service that comprise

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the ‘administrative record’ for the final listing determination . . . . ” Id. at 74. The government
in that case had turned over documents to plaintiffs pursuant the FOIA request that it then tried
to keep out of the Administrative Record, causing the court to reject the government’s
“inconsistent representations.” Id. The key issues considered by the court in County of San
Miguel are not present here, and the case is therefore readily distinguishable.
The law provides a presumption that an agency properly compiled the Administrative
Record that may be rebutted only upon “clear evidence to the contrary.” Fund for Animals v.
Williams, 391 F. Supp. 2d 191, 197 (D.D.C. 2005) (citation omitted). The government has
stated it “did not consider or rely, directly or indirectly, on” the 2001 document. (Dkt. No. 14-7).
Although Plaintiffs have alleged that the document “was clearly before the agency,” (Dkt. No.
14, at 1 & 11), the clarity is not discernible by the Court. Instead it appears that Plaintiffs have
done nothing more than “imply that the document[] at issue w[as] in the [agency’s] possession,”
Sara Lee Corp., 252 F.R.D. at 34, because a document referred to in the Administrative Record
in turn refers to its eventual existence. As have others, this Court finds that Plaintiffs’ chain of
inferences stretches too far.
CONCLUSION
For the foregoing reasons, Plaintiffs’ Motion to Supplement the Administrative Record is
DENIED. An Order accompanies this Memorandum.
Digitally signed by Judge Robert L.
Wilkins
DN: cn=Judge Robert L. Wilkins,
o=U.S. District Court, ou=Chambers
of Honorable Robert L. Wilkins,
email=[e-mail], c=US
Date: 2013.02.21 17:09:41 -05'00'

Date: February 21, 2013

ROBERT L. WILKINS
United States District Judge

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