Coalition to Protect Cowles Bog Area et al v. Salazar et al

Filing 48

OPINION AND ORDER denying Plaintiff's 45 Renewed Motion to Supplement the Record. Signed by Chief Judge Philip P Simon on 2/13/2013. (rmn)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
COALITION TO PROTECT COWLES BOG
AREA, TERRY GRIMM, ROBERT EVANS,
and CHERYL EVANS,
Plaintiffs,
v.
KENNETH SALAZAR, in his official capacity
as the United States Secretary of interior, et al.,
Defendants.

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2:12-CV-515

OPINION and ORDER
Before the Court is Plaintiffs’ “Renewed Motion to Supplement the Record” [DE 45],
which seeks to add various materials to the administrative record filed by the Defendants in this
case. The motion was just fully briefed last night, but because time is of the essence I am
providing the parties my decision in this brief opinion so that they can timely file their cross
motions for summary judgment. I may choose to supplement this Order when I decide the
substance of the case at summary judgment. For the reasons explained below, Plaintiffs’ motion
will be denied.
This case involves the National Park Service’s decision to restore part of Cowles Bog in
the Indiana Dunes National Lakeshore to a wetland, a project that involves cutting down some
3,400 trees. The Plaintiffs, who live adjacent to the effected area, abhor the tree cutting plan and
filed this case seeking a preliminary injunction halting the project. The motion for preliminary
injunction was resolved when the parties agreed to allow the Park Service to cut trees in certain
areas of the park, but to temporarily refrain from cutting trees in other areas. [DE 31, 35 and 40.]

The Park Service initially agreed to refrain from cutting in the agreed upon area until March 1,
2013, and the parties later extended their agreement to March 12, 2013. [Id.]
The Plaintiffs initiated this action pursuant to the Administrative Procedure Act on the
grounds that the Park Service failed to follow the proper procedure in arriving at their decision to
restore Cowles Bog to a wetland. In cases like this, where the decision of a federal agency is
challenged under the APA, district courts are to review the administrative record to see how the
agency reached its decision. Little Co. of Mary Hosp. v. Sebelius, 587 F.3d 849, 856 (7th Cir.
2009) (“As a general rule, under the APA, review of an agency’s decision is confined to the
administrative record to determine whether, based on the information presented to the
administrative agency, the agency’s decision is arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with the law.”). In this case, the Park Service’s ultimate decision to
embark on the restoration project is embodied in its sixty-two page, March 2012 Environmental
Assessment (“EA”) and its seven-page November 13, 2012 Finding of No Significant Impact
(which goes by the amusing acronym “FONSI”).
The key to compiling the administrative record in this case is thus to reconstruct the
document trail of how the Park Service arrived at the final drafts of the EA and the FONSI.
Deciding what exactly should and should not go into an administrative record – i.e., what’s
relevant and what’s not – can be a bit complicated. To help agencies make these decisions, in
2005 the Department of the Interior issued a thirteen-page document titled “Standardized
Guidance on Compiling a Decision File and an Administrative Record.” Available at
http://www.fws.gov/policy/m0284.pdf. Courts generally assume that the agency has acted in
good faith in creating the record and that is why it is entitled to a “presumption of administrative
regularity.” Bar MK Ranches v. Yuetter, 994 F.2d 735, 739-740 (10th Cir. 1993). As the Tenth

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Circuit put it: “[T]he designation of the Administrative Record, like any established
administrative procedure, is entitled to a presumption of administrative regularity. The court
assumes the agency properly designated the Administrative Record absent clear evidence to the
contrary.” Id.
Plaintiffs’ Motion argues that the record should be supplemented with four categories of
materials: 1) draft versions of the EA, 2) documents related to Plaintiff Cheryl Evans’ FOIA
requests, 3) several administrative orders from the Director of the National Park Service, and 4)
a catchall category of ambiguous other documents. The first two of these categories will be
analyzed in some detail below, but let me first quickly dispose of the latter two categories.
First, with respect to the administrative orders from the Director of the National Park
Service, Plaintiffs “find it unbelievable” that these orders were not included in the record. [DE
45 at 5.] This type of hyperbole is unhelpful. The bottom line is that these orders are publicly
available and can be cited by the parties in their briefs as legal (or really quasi-legal) authority as
they deem appropriate. So nothing will prevent the Plaintiffs from citing to them or relying on
them in their summary judgment papers; they have no place in the factual record of this case,
however.
Plaintiffs express concern on “whether they will be able to rely on” the director’s orders
under Local Rule 7-1(f). [DE 45 at 6.] This concern is entirely unfounded. Local Rule 7-1(f)
states in its entirety: “A copy of any decision, statute, or regulation cited in a motion or brief
must be attached to the paper if – and only if – it is not available on Westlaw or Lexis. But if a
copy of a decision, statute, or regulation is only available electronically, a party must provide it
to the court or another party upon request.” N.D. Ind. L. R. 7-1(f). I am at a complete loss as to
how Plaintiffs could read this rule as somehow preventing them from citing to the director’s

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orders in their briefing. Moreover, since the director’s orders have already been filed in this
case, the parties are instructed that they need not provide them again to the Court or attach them
as exhibits to further briefing; they should just cite to them as they see fit.
I can also quickly dispose of what I am calling Plaintiffs’ “catchall category” of other
ambiguous documents. Plaintiffs state:
Plaintiffs would like to add additional material such as the land patents (Ex. O,
Pls. Am. Compl.) and information concerning Henry Cowles to dispute
Defendants’ claims concerning the 1850 swamp act and Cowles. involvement
with the property. Such documents prove the misleading and inaccurate nature of
the EA. These documents include the 1986 report by Wilcox, Shedlock &
Hendrickson which notes Cowles true involvement with the property.
[DE 45 at 17.] This request is unsupported by any legal theory; instead, it is based on some
vague desire (“Plaintiffs would like to add . . .”), and only elliptically identifies exactly what
should be included. Indeed, I am at a loss to know what precisely the Plaintiffs wish to add to
the record. The use of phrases like “such as” and “information concerning” and “such
documents” makes it difficult to decipher what exactly the Plaintiffs are asking to be added to
the record. And because, in any event, the Plaintiffs have failed to prove that these items were
before the decision-maker or were excluded because of the Park Services’ bad faith, there is no
basis to include them in the record.
Moving on to the slightly thornier issues involved in Plaintiffs’ other two categories:
draft versions of the EA and documents related to Plaintiff Cheryl Evans’ FOIA requests. As
alluded to above, requests to supplement an administrative record fall into two general
categories: 1) materials that were considered by the agency decision-makers but were
improperly left out of the record when it was filed and 2) materials that show a claim of bad faith
or improper behavior on the part of the agency decision-maker. See, e.g., Theodore Roosevelt
Conservation P’ship v. Salazar, 616 F.3d 497, 514 (D.C. Cir. 2010); Lands Council v. Powell,
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395 F.3d 1019, 1030 (9th Cir. 2005); Menominee Indian Tribe of Wisconsin v. U.S. Dept. of
Interior, 2010 WL 4628916, at *3 (E.D. Wis. Nov. 4, 2010).
The documents related to Plaintiff Cheryl Evans’ FOIA requests don’t fit into either of
these categories. These documents are approximately a half dozen pages of emails and letters
between Cheryl Evans and National Park Services’ employees regarding the status of her FOIA
requests. See DE 10-5 and 10-6. First, they were not before the decisionmaker when decisions
about the EA and the FONSI were made and are completely immaterial to those decisions.
Second, while Plaintiffs assert that these document show the Defendants’ bad faith, they have
not met the high standard required for that argument. That is, in order to overcome the
“presumption of regularity” afforded to the government the Plaintiffs have to make a “strong
showing of bad faith.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420
(1971) (“[T]here must be a strong showing of bad faith or improper behavior before [an inquiry
into the administrative decisionmaking process] may be made.”). Here Plaintiffs’ “conclusory
statements [of bad faith] fall far short of the ‘strong showing’ of bad faith required to justify
supplementing the record.” James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1095 (D.C.
Cir. 1996).
The closer question is on the draft versions of the EA that Plaintiffs hope to add to the
record. This issue is somewhat complicated because the Department of Interior’s
aforementioned “Standardized Guidance on Compiling a Decision File and an Administrative
Record” indicates that some drafts should be included in the record while others should not.
Thus, “[d]rafts of primary or relevant documents indicating substantive deliberations or
discussions” should be included in the record while draft documents that “simply agree with
previous drafts or represent primarily grammatical edits or were not circulated outside the

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author’s immediate office or working group typically should not be included in an AR.” The
Defendants contend that they complied with this directive in compiling the record: “Defendants
included substantive comments and drafts between the Indiana Dunes National Lakeshore and
the Regional Director’s office, but did not include ‘internal working drafts’ and comments within
the Lakeshore (including between the Lakeshore and the contractor who prepared the EA and
FONSI).” [DE 47 at 12.]
Nevertheless, Plaintiffs contend that the various other drafts still should be added to the
record. Plaintiffs don’t provide a particularly coherent legal theory as to why these drafts should
be in the record, but again there are basically two reasons why they would get in – they were
actually part of the decisionmaker’s decision or they provide evidence of the Defendants’ bad
faith. Plaintiffs make no argument that these drafts include evidence of bad faith. They do argue
that some of these drafts were provided to the decisionmaker and should be included for this
reason. But the Defendants have indicated that the drafts that were excluded are only those that
were in “the author’s immediate office or working group,” and these are exactly the sort of drafts
that should be left out of the record because they only demonstrate the “internal deliberative
process of the agency.” Portland Audubon Soc’y v. Endangered Species Comm., 984 F.2d 1534,
1549 (9th Cir. 1993) (“neither the internal deliberative process of the agency nor the mental
processes of individual agency members” are proper components of the administrative record).
A well reasoned Southern District of New York opinion from last year explains why the
rule with respect to draft documents should be like this:
First, as noted, it reflects that it is the agency’s articulated justification for its
decision that is at issue; the private motives of agency officials are immaterial.
Second, not including such materials advances the functional goal of encouraging
the free flow of ideas within agencies, with agency employees not inhibited by the
prospect of judicial review of their notes and internal communications, which could
otherwise render agency proceedings useless both to the agency and the courts.
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Comprehensive Cmty. Dev. Corp. v. Sebelius, __ F. Supp. 2d __, 2012 WL 2953966, at *6
(S.D.N.Y. July 20, 2012) (internal citations and quotations omitted). Furthermore, this policy
makes sense in the context of my limited review of an agency’s administrative decision, which is
simply to ensure that it was “in accordance with the law” and not “arbitrary, capricious, [or] an
abuse of discretion.” Little Co. of Mary Hosp., 587 F.3d at 856. The D.C. Circuit has aptly
summarized this principle:
When a party challenges agency action as arbitrary and capricious the
reasonableness of the agency’s action is judged in accordance with its stated
reasons. Agency deliberations not part of the record are deemed immaterial. That
is because the actual subjective motivation of agency decisionmakers is
immaterial as a matter of law – unless there is a showing of bad faith or improper
behavior.
In re Subpoena Duces Tecum Serviced on Office of Comptroller of Currency, 156 F.3d 1279,
1279-80 (D.C. Cir. 1998) (internal quotations and citations omitted). Thus, given that Plaintiffs
have not made any strong showing of bad faith, the draft documents that Plaintiffs request are
simply immaterial to the question of whether the final decisions in the EA and FONSI were
made lawfully and with a rational basis.
Therefore, for the reasons stated above, Plaintiffs’ “Renewed Motion to Supplement the
Record” [DE 45] is DENIED.
SO ORDERED.
ENTERED: February 13, 2013

s/ Philip P. Simon
PHILIP P. SIMON, CHIEF JUDGE
UNITED STATES DISTRICT COURT

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