WildEarth Guardians v. United States of America et al
MEMORANDUM OPINION AND ORDER by District Judge Robert C. Brack re: 112 NOTICE by WildEarth Guardians re 110 Order Supplemental Brief re: Administrative Record Issues. (jn)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
No. CV 14-0666 RB/SCY
ARMY CORPS OF ENGINEERS,
MEMORANDUM OPINION AND ORDER
The Court said that the administrative record for this litigation would be comprised of the
administrative record that defendant United States Army Corps of Engineers lodged with the
Court, certain RPA Compliance Reports, and any other documents that the parties had agreed to.
In this matter before the Court, the parties debate what documents they had agreed to include in
the administrative record.
WildEarth Guardians (“Guardians”) misread a June 28, 2016 email from the United
States Department of Justice. The email said that the United States Army Corps of Engineers
(“Corps”) agreed to include “7.11.08 BA Cochiti Deviation.pdf” in the administrative record
(“record”). (See Doc. 113, Ex. A at 5.) The email also said that the United States Bureau of
Reclamation (“Reclamation”), then a defendant in the case, agreed to add fourteen other
documents in the record.1 (See id., Ex. A at 5–6.)
Reclamation is no longer part of this lawsuit.
In an exhibit attached to its motion for the Court to supplement the record—not in the
motion itself—Guardians said that the Corps had agreed to supplement the record with the
following five documents:
“06072016191435-2004 Population Monitoring Report Platania.pdf”
“FWS Hydrologic Objective.pdf”
“2006 Recent Channel Incision and Floodplain Evolution.pdf”
(Doc. 97, Ex. 1 at 7, 9–10.) Guardians was wrong. Those five documents came from the
fourteen documents that Reclamation agreed to include in the record. (See Doc. 113, Ex. A at 5–
6.) The Corps, which only agreed to include “7.11.08 BA Cochiti Deviation.pdf,” never
consented to the five bulleted documents above. (See id., Ex. A at 5.)
However, the Corps made a mistake too. In its response to Guardians’ motion to
supplement the record, the Corps commented: “[Guardians’] list of materials includes several
documents Federal Defendant had already agreed to add to the Administrative Record, so it is
unclear why they are part of the Amended Motion.” (Doc. 103 at 1 n.1.) This comment showed
that the Corps was aware of Guardians’ claim—despite the claim being buried in an exhibit—
and that the Corps erroneously adopted Guardians’ false claim. Later, the Corps tried to
backpedal, saying that its comment “simply questioned why [Guardians] had included
documents in its list if [the Corps] had already agreed to include them . . . .” (See Doc. 113 at 2
(emphasis added).) The later explanation is simply not true. The Corps’ original comment was
not conditional, but clearly indicated the Corps’ belief that Guardians’ list did contain material
that the parties had already consented to.
The Court now must decide the consequence of Guardians’ and the Corps’ mistakes.
The Court understands Guardians’ argument that the Corps waived its right to object to
the five bulleted documents. Unfortunately for Guardians, countervailing considerations
outweigh its argument.
As described in the Facts section, Guardians is clearly wrong when it said that the Corps
had already agreed to the five bulleted documents. Guardians is essentially asking the Court to
walk away from a known error. Yet there is no compelling reason to do this. Some reasons the
Tenth Circuit has provided for holding that parties had waived their argument include: promoting
finality in litigation, conserving judicial resources, and preventing the district court’s efforts from
going to waste. See Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 721 (10th Cir. 1993). None
of those rationales apply here to compel the Court to ignore a known error. It also seems
inequitable to penalize the Corps for its mistake when this issue only arose due to Guardians’
original error. Furthermore, the parties should have waited until the scope of the record was
resolved before briefing the merits, (see Doc. 113, Ex. A at 6–7), so there would be no reliance
interest to necessitate adopting Guardians’ mistake.
Guardians also raised the consent point in an obscure manner—through an exhibit
attached to its original motion. Even though the Corps had notice of Guardians’ point, the
indirect nature of Guardians’ argumentation may have given the Corps the misimpression that
this was not a disputed issue. In fact, the Corps accidentally objected to two documents that
Guardians claims the Corps had agreed to include—“06072016191435-2004 Population
Monitoring Report Platania.pdf” and “FWS Hydrologic Objective.pdf.” (See Doc. 103 at 21.)
The Court recognized that Guardians may not have provided the Corps with adequate
notice of its consent argument. The Court previously said, “WildEarth Guardians claims that the
Corps has agreed to include [certain documents] in the record. If true, the Court will not oppose
[the consented-to inclusion].” (See Doc. 107 at 8 n.1, 13 n.3 (emphasis added).) By saying “if
true,” the Court left open the very possibility of what transpired here: the Corps told the Court
that Guardians’ averment about an agreement regarding certain documents was actually not true.
As such, the Court opposes the inclusion of those documents in the record.
Therefore, the Court rules that the five bulleted documents from the Facts section above
are not part of the record. By the parties’ agreement, “7.11.08 BA Cochiti Deviation.pdf” will be
part of the record (See Doc. 113 at 1.)
This is an exhaustive list of what is in the record:
The documents already lodged with the Court as part of the Corps’ record.
RPA Compliance Reports for the years 2003, 2004, 2006, 2011, and 2013.2
7.11.08 BA Cochiti Deviation.pdf
For the reasons stated above, the Court DENIES Guardians’ motion to supplement the
record with the five bulleted documents from the Facts section above.
ROBERT C. BRACK
UNITED STATES DISTRICT JUDGE
The Court previously included the 2005 and 2014 RPA Compliance Reports and excluded the 2013 Report. (Doc.
107 at 9.) This was inconsistent with Reclamation’s record. (See Doc. 97 at 18.) The Court will file an amended
memorandum opinion and order to change Doc. 107 to reflect what was already lodged with the Court in
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