Georgia River Network et al v. U.S. Army Corps of Engineers et al
Filing
47
ORDER denying 28 Motion to Consider Extra-Record Documents. Signed by Judge B. Avant Edenfield on 06/27/2011. (lmm)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
GEORGIA RIVER NETWORK and
AMERICAN RIVERS,
Plaintiffs,
v.
4:10-cv-267
U.S. ARMY CORPS OF ENGINEERS;
LT. GENERAL ROBERT L. VAN
ANTWERP, U.S. Army Corps of
Engineers; COLONEL JEFFREY M.
HALL, U.S. Army Corps of Engineers,
Savannah District; RUSSELL L.
KAISER, U.S. Army Corps of Engineers,
Savannah District,
Defendants,
Plaintiffs Georgia River Network and
American Rivers (“Plaintiffs”) filed this
action to invalidate the permit. See Doc. 1
at 49. Plaintiffs are environmental
conservation organizations with members
residing in Grady County whose enjoyment
of the affected lands would be disturbed by
the proposed lake. See Doc. 1 at 5-6.
Plaintiffs challenge the Corps’s permit under
the Clean Water Act (“CWA”), 33 U.S.C.
§ 1251 et seq., the National Environmental
Policy Act (“NEPA”), 42 U.S.C. § 4321 et
seq., and the Administrate Procedure Act
(“APA”), 5 U.S.C. §§ 701-706. See Doc. 28
at 3.
Before the Court is Plaintiffs’ Motion to
Consider Extra-record Documents. See
Doc. 28.
II. ANALYSIS
And
A. General Rule
GRADY COUNTY BOARD OF
COMMISSIONERS,
Defendant-Intervener.
ORDER
I. INTRODUCTION
On May 28, 2010, the United States
Army Corps of Engineers (“Corps”) issued
the Grady County Board of Commissioners
(“Grady County”) a permit to construct a
960-acre fishing lake. See Doc. 1 at 1. The
Corps based its decision on an angler
demand study prepared by Dr. Michael
Maceina, a fisheries biologist from Auburn
University, and a wetlands delineation
study, prepared by Douglas Pope, Grady
County’s wetlands consultant. See Doc. 28
at 2, 4, 7.
Under the APA, a person harmed by an
agency action is entitled to judicial review.
See 5 U.S.C. § 702. The reviewing court
must “hold unlawful and set aside agency
action, findings, and conclusions found to be
. . . arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance
with law.” See 5 U.S.C. § 706(2)(A). But
“[t]he role of the court is not to conduct its
own investigation and substitute its own
judgment for the administrative agency’s
decision.” Pres. Endangered Areas of
Cobb ’s History, Inc. v. U.S. Army Corps of
Eng’rs, 87 F.3d 1242, 1246 (11th Cir. 1996)
( “PEACH”). The agency action must be
upheld if the agency has “considered the
relevant factors and articulated a rational
connection between the facts found and the
choice made.” See Baltimore Gas & Elec.
Co. v. Natural Res. Defense Council, 462
U.S. 87, 105 (1983).
Kirkpatrick v. White, 351 F. Supp. 2d 1261,
1272 (N.D. Ala. 2004) (quoting United
States v. Amtreco, Inc., 806 F. Supp. 1004,
1006 (M.D. Ga. 1992)).
“The focal point for judicial review
should be the administrative record already
in existence, not some new record made
initially in the reviewing court.” Fla. Power
& Light Co. v. Lorion, 470 U.S. 729, 743
(1985). “The factfinding capacity of the
district court is thus typically unnecessary to
judicial review of agency decisionmaking.”
See Fla. Power & Light, 470 U.S. at 744.
Rather than narrowly construe these four
exceptions, Plaintiffs argue that the Court
should also consider extra-record documents
(1) when the agency fails to consider “all
relevant factors in making its decision” and
(2) “in NEPA cases to assess a
determination that no [Environmental
Impact Statement] is necessary.” See Doc.
28 at 13-14 (citing Sierra Club, Inc. v.
Leavitt, 488 F.3d 904, 914 n.16 (11th Cir.
2007); Webb v. Gorsuch, 699 F.2d 157, 159
n.2 (4th Cir. 1983)).
B. Exceptions
Under “certain circumstances,” a
reviewing court may look beyond the
administrative record. For example,
supplementation of the
administrative record may be
appropriate where:
The Eleventh Circuit does not accept a
“relevant factors” exception. In Sierra Club,
the Eleventh Circuit used this language in a
parenthetical citation of a Ninth Circuit case,
in a footnote. See Sierra Club, 488 F.3d at
914 n. 16 (citing Inland Empire Pub. Lands
Council v. U.S. Forest Serv., 88 F.3d 754,
760 n.5 (9th Cir. 1996)). The Ninth Circuit,
also in a footnote, explained that courts may
sometimes consider extra-record
background information because “it will
often be impossible, especially when highly
technical matters are involved, for the court
to determine whether the agency took into
consideration all relevant factors unless it
looks outside the record to determine what
matters the agency should have considered
but did not.” See Inland Empire, 488 F.3d at
760 n.5 (citations omitted).
(1) an agency’s failure to explain its
action effectively frustrates
judicial review;
(2) it appears that the agency relied
on materials not included in the
record;
(3) technical terms or complex
subjects need to be explained; or
(4) there is a strong showing of
agency bad faith or improper
behavior.
Altamaha Riverkeeper, Inc. v. U. S. Army
Corps of Eng’rs, 2007 WL 1830864, at *2
(S.D. Ga. June 21, 2007) (citing PEACH, 87
F.3d at 1246 n.1). “Such exceptions are
‘narrowly construed,’ however, and the
party seeking discovery has ‘a heavy burden
to show that supplementation is necessary.’”
Neither court created an independent
exception with these footnotes. See also
Miccosukee Tribe of Indians v. United
States, 396 F. Supp. 2d 1327, 1331 (S.D.
2
Fla. 2005) (holding that the Eleventh Circuit
does not recognize this purported Ninth
Circuit exception). The Court must look to
the factors the Corps considered in its
assessment of whether the agency’s actions
were arbitrary and capricious. See Motor
Vehicle Mfrs. Ass’n of U.S., Inc. v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983). Sometimes “technical terms or
complex subjects need to be explained,” in
order for the Court to make that judgment.
See PEACH, 87 F.3d at 1246 n.1. But the
Court is typically confined to the
administrative record. See Fla. Power &
Light, 470 U.S. at 744.
Eleventh Circuit’s exception for
supplementation where “an agency’s failure
to explain its action effectively frustrates
judicial review.” See PEACH, 87 F.3d at
1246 n.1.
The Court will apply only those
exceptions that the Eleventh Circuit
explicitly referred to in PEACH. See id.
C. Plaintiffs’ Extra-Record
Evidence
Plaintiffs ask the Court to consider two
letters and two expert affidavits in addition
to the administrative record when the Court
later considers the merits of this case.
The Miccosukee court also held that the
Eleventh Circuit has not accepted Plaintiffs’
purported NEPA exception. 396 F. Supp. 2d
at 1333.
1. Dr. Brett Wright Affidavit
Plaintiffs offer Dr. Brett Wright,
Chairman of Clemson University’s
Department of Parks, Recreation, and
Tourism Management, as an expert in
recreation and tourism management. See
Doc. 28 at 11. Plaintiffs ask the Court to
consider his affidavit. See id.. In the
affidavit, Dr. Wright testifies that the angler
demand study was deeply flawed and
reported inaccurate results. See id. at 15.
Although deviation from this ‘record
rule’ occurs with more frequency in
the review of NEPA cases than in the
review of other agency decisions . . .
Courts may conduct plenary review,
and consider additional information
obtained from the parties through
affidavits or testimony, only when
the administrative record is so
inadequate as to prevent the
reviewing court from effectively
determining whether the agency
considered all environmental
consequences of its proposed action.
Plaintiffs argue that this affidavit falls
under their purported relevant factors
exception because it shows that the Corps
failed to consider the flaws in the study it
relied on. This argument fails to qualify the
affidavit, even if the Court accepted the
exception. See id. Plaintiffs do not argue that
the agency failed to consider angler demand.
Instead, Plaintiffs argue that the Corps failed
to properly interpret a study of that factor.
See id.
Id. (internal quotation and citation omitted)
(citing Nat’l Audubon Soc’y v. Hoffman, 132
F.3d 7, 14 (2d Cir. 1997), a Second Circuit
case discussing Plaintiffs’ purported NEPA
exception). Explained this way, this
exception is merely a restatement of the
Plaintiffs also attempt to qualify this
affidavit under a hybrid of PEACH’s first
3
and third exceptions. See Doc. 28 at 20.
Extra-record documents may be considered
where an “agency’s failure to explain its
action effectively frustrates judicial review”
or “technical terms or complex subjects need
to be explained.” See PEACH, 87 F.3d at
1246 n. 1. Plaintiffs concede that these
exceptions are distinct, but argue the Court
should allow supplementation here because
of the agency’s “failure to explain in the
Record the technical and complex aspects of
its decision to issue the Permit that could
potentially frustrate judicial review.” See
Doc. 28 at 19.
inconsistencies in the angler demand study
the agency relied on. See id.
The agency need not act as an expert
witness, explaining “technical terms or
complex subjects” to the Court. See
PEACH, 87 F.3d at 1246 n.1. The agency
need only adequately explain its action. See
id. Where “technical terms or complex
subjects need to be explained” the Court can
allow supplementation. See id.
Plaintiffs offer Donley Kisner as an
expert in wetland photographic
interpretation. See Doc. 28 at 12. In his
affidavit, Kisner testifies that his own
review of the area indicates that three times
as many wetlands will be affected by the
proposed fishing lake as the wetlands
delineation study the agency relied on. See
id. at 12-13.
Plaintiffs argue that this letter also falls
under their purported relevant factors and
hybrid technical terms exceptions because it
too shows that the Corps failed to consider
or explain the flaws in the study it relied on.
These contentions are rejected for the same
reasons cited above.
Plaintiffs’ Motion to Consider Extrarecord Documents, see Doc. 28, is DENIED
with respect to the DNR letter.
3. Donley Kisner Affidavit
Plaintiffs’ proffered extra-record
evidence is an expert’s testimony attacking
the expert report relied upon by the Corps.
See Doc. 28 at 20-21. This is not the sort of
evidence the Court might need to understand
this subject matter, this is an attempt to
commence a battle of the experts after the
record has been closed.
Plaintiffs argue that this affidavit also
falls under their purported relevant factors
exception. See id. at 18-19. But, as with the
angler study, Plaintiffs do not argue that the
Corps failed to consider wetlands
delineation. Plaintiffs instead attempt to
begin another battle of the experts on this
issue. This argument fails to qualify the
affidavit, even if the Court accepted
Plaintiffs’ exception.
Plaintiffs’ Motion to Consider Extrarecord Documents, see Doc. 28, is DENIED
with respect to Dr. Wright’s affidavit.
Plaintiffs contend that this affidavit
should be considered under their hybrid
exception for the agency’s failure to explain
technical details. See id. at 22-23. This
argument is rejected for the same reasons
cited above.
2. Georgia DNR Letter
Plaintiffs offer a 2006 letter from the
Georgia Department of Natural Resources
(“DNR”) to State Senator John Bulloch. See
Doc. 28 at 12. This letter argues there are
4
Plaintiffs also attempt to qualify this
affidavit under their NEPA exception. See
id. at 24-25. But the Eleventh Circuit does
not recognize this as a distinct exception.
n. 1. Plaintiffs should have brought this
evidence before the agency.
Plaintiffs’ Motion to Consider Extrarecord Documents, see Doc. 28, is DENIED
with respect to this letter.
Plaintiffs’ Motion to Consider Extrarecord Documents, see Doc. 28, is DENIED
with respect to Kisner’s affidavit.
III. CONCLUSION
“The focal point for judicial review
should be the administrative record already
in existence, not some new record made
initially in the reviewing court.” Fla. Power
& Light, 470 U.S. at 743.
4. Douglas Pope Letter
Plaintiffs offer a 2002 letter from
wetlands consultant Douglas Pope to Grady
County. See Doc. 28 at 13. Plaintiffs
contend that this letter shows Grady
conspired to underestimate the amount of
affected wetlands and exposes Pope’s
flawed methodology in delineating the
wetlands. See id.
Plaintiffs’ Motion to Consider Extrarecord Documents, see Doc. 28, is
DENIED.
This 27th day of June 2011.
Plaintiffs argue that this exhibit should
be considered under their hybrid exception.
See Doc. 28 at 23. According to Plaintiffs,
this letter outlines a faulty methodology and,
therefore, Plaintiffs cannot attempt to use it
to explain “technical terms or complex
subjects” to the Court. See PEACH, 87 F.3d
at 1246 n. 1. It also fails to qualify under the
exception for situations where “the agency’s
failure to explain its action effectively
frustrates judicial review.” See id. The
letter purports to fill a gap in the record
explaining how a report presented to the
agency was created, not a hole in the
agency’s explanation. See Doc. 28 at 23.
,g A:j; ,',:•
B AVANT PDENFIELØ, JUDGE
UNFED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
Plaintiffs use this letter to levy a bad
faith allegation against Grady County.
While “a strong showing of agency bad faith
or improper behavior” can justify
supplementation, allegations of bad faith
against a litigant before the agency have no
such effect. See PEACH, 87 F.3d at 1246
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