Oakey et al v. U.S. Army Corps of Engineers et al

Filing 58

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiffs Motion to Complete the Administrative Record 50 is DENIED. Signed by District Judge John A. Ross on 4/29/2013. (RAK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

PAMELAH OAKEY AND WILLIAM
OAKEY,
Plaintiffs,
vs.
UNITED STATES ARMY CORPS OF
ENGINEERS, et al.,
Defendants.

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Case No. 4:12CV2207 JAR

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs’ Motion to Complete the Administrative
Record. (ECF No. 50). This matter is fully briefed and ready for disposition.
“[J]udicial review under the APA is limited to the administrative record that was before the
agency when it made its decision.” Voyageurs Nat. Park Ass'n v. Norton, 381 F.3d 759, 766 (8th
Cir. 2004); Newton Cnty. Wildlife Ass'n v. Rogers, 141 F.3d 803, 807 (8th Cir. 1998)(“APA
review of agency action is normally confined to the agency's administrative record.”). “That
record, ‘not some new record made initially in the reviewing court,’ becomes the ‘focal point’ for
judicial review.” Voyageurs Nat. Park Ass'n, 381 F.3d at 766 (quoting Camp v. Pitts, 411 U.S.
138, 142 (1973)). “When … there is a contemporaneous administrative record and no need for
additional explanation of the agency decision, ‘there must be a strong showing of bad faith or
improper behavior’ before the reviewing court may permit discovery and evidentiary
supplementation of the administrative record.” Newton Cnty. Wildlife Ass'n, 141 F.3d at 807.
“By confining judicial review to the administrative record, the APA precludes the reviewing court

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from conducting a de novo trial and substituting its opinion for that of the agency. Voyageurs Nat.
Park Ass'n, 381 F.3d at 766 (citing United States v. Morgan, 313 U.S. 409, 422 (1941)).
In their Motion, Plaintiffs ask the Court to “issue an order requiring the Corps to complete
the administrative record to include the minutes, transcripts, or recordings of public meetings on
this project at which the Corps was present, along with the notes or other records of conversations
between the Corps and MSD concerning the project.” (Id.). Specifically, Plaintiffs contend that
the administrative record does not include the project plans, which MSD made available to the
public at the February 16, 2010 public meeting and which are dated January 2010. (ECF No. 54,
p. 3).
In response, the Corps and MSD state that the complete administrative record was certified
by the Corps. (ECF No. 53, p. 3; ECF No. 52, p. 2). Jennifer Brown, Regulatory Project Manage
for the St. Louis District, Corps of Engineers, attested that there are “no minutes, transcripts,
recordings or notes from the single MSD-sponsored public meeting she attended on May 17,
2012,” and “[t]here are no additional documents, of any kind, which have not been produced as
part of the Administrative Record filed with this Court on March 1, 2013.” (ECF No. 53, p. 3).
In its Sur-Reply, the Corps states that the January 2010 plans that were presented at the February
16, 2010 public meeting were not submitted to the Corps with MSD’s permit application for
Permit P-2773. (ECF No. 57, pp. 2-3). The Corps was first made aware of these plans during the
instant litigation. (Id., p. 2). Likewise, the Corps contends that the January 2010 plans are not
evidence of a substantial environmental issue that the Corps missed; the Corps states that it
“clearly demonstrated that it conducted a complete Environmental Assessment and Statement of
Finding.” (Id., p. 2).

Consequently, the Corps argues that the January 2010 plans are not a

proper part of the administrative record.
The Court finds that the January 2010 plans should not be made a part of the administrative
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record in this case.

Based upon the affidavits provided by the Corps, it is clear that the

administrative record is complete. The January 2010 plans were never provided to the Corps in
conjunction with MSD’s permit application and were not considered by the Corps in issuing
Permit P-2773. In addition, Plaintiffs have provided no indication of bad faith or improper
behavior on behalf of the Corps or MSD that would require review of matters extraneous to the
administrative record. Therefore, the January 2010 plans should not be included in the agency
record.
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ Motion to Complete the Administrative
Record [50] is DENIED.

Dated this 29th day of April, 2013.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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