KANE, Senior District Judge.
Before me is Petitioner's (WSSC) Motion to Complete and Supplement the Administrative Record (Doc. 37).
This lawsuit challenges the Federal Respondents' respective final agency decisions requiring WSSC to undertake a sizable and complicated Greenback Cutthroat Trout Restoration Project ("GBCT Project"). Ostensibly under the authority of the Federal Land Policy and Management Act of 1976, 43 U.S.C. § 1765 et seq. ("FLMPA"), the agencies' Records of Decision ("RODs") seek to condition WSSC forty-plus year use and operation of the Expanded Long Draw Dam and Reservoir ("Expanded LDR") on the implementation of an ecological restoration project that aims to create a sustainable GBCT "meta-population" in 37 miles of streams and 106 acres of lakes at high elevation in the Northern Rocky Mountains. Motivating WSSC's central objection to the GBCT Project is a belief that the selection of the GBCT Project is inconsistent with the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq. ("NEPA"), the Council on Environmental Quality regulations implementing NEPA, 40 C.F.R. § 1500-1518, and violates FLPMA. In the instant motion, Petitioner WSSC seeks an order obliging Federal Respondents to beef up the Record with a set of handwritten notes produced by Kevin Colby, a Forest Service Interdisciplinary Team ("IDT") member and author of the Forest Service's "Specialist Report-Aesthetics" ("Colby Notes").
The IDT Mr. Colby participated on was actively involved in Federal Respondents' NEPA analysis. The IDT met between 2005, when the Federal Respondents began the NEPA process, and 2010, when the Federal Respondents issued their RODs. The IDT did not meet quite every month during that five year span, but it met most months and typically prepared agendas and minutes for its meetings. What agendas and minutes the IDT formally created, Federal Respondents have included in the Record. For some meetings, however, the IDT created no formal agendas and/or minutes, and Federal Respondents have not included in the Record any documentation for those meetings.
As a result of a 2008 Freedom of Information Act request, WSSC obtained the Colby Notes, which include notes taken during August 2005, December 2005, February 2007, and December 2007 IDT meetings — all meetings for which no formal documentation exists. As the Record is therefore silent on these assemblies, the
WSSC challenges the Respondents' actions under NEPA and FLPMA. As these statutes fail to define or specify the standard of review to be used in examining Respondents' actions, the Administrative Procedures Act ("APA"), 5 U.S.C. § 500 et seq., provides the framework for this appeal. Accordingly, I must apply the standards articulated in the APA in considering the merits of Petitioner's Motion to Complete/Supplement the Administrative Record.
Under the APA, I review Respondents' informal rulemaking to determine if it was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). As the Supreme Court held in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), "the generally applicable standards of § 706 require the reviewing court to engage in a substantial inquiry." Id. at 415, 91 S.Ct. 814. At the same time, the Supreme Court acknowledged "the Secretary's decision is entitled to a presumption of regularity." Id. The Court emphasized, however, that the "presumption is not to shield [the Secretary's] action from a thorough, probing, in-depth review." Id. The tension inherent in this language is revealed by the Court's own declaration that though "this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency." Id. at 416, 91 S.Ct. 814.
Therefore, in conducting my review of Respondents' actions, I must strike a balance between presumption and probe. In order to afford appropriate deference, I review the administrative agency's decision as an appellate body. See Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1580 (10th Cir.1994). As a result, I apply the Federal Rules of Appellate Procedure and, generally, confine my review to the evidence relied upon by Respondents in reaching the challenged decision. Id. at 1580. In order to ensure a "substantial inquiry," however, I also apply a variety of rules and exceptions consistent with my responsibility to ensure meaningful judicial review. This general framework governs not only my analysis of the agencies' challenged decision, but also my analysis regarding the sufficiency of the Administrative Record submitted by Respondents
The APA directs that "the court shall review the whole record or those parts of it cited by a party...." 5 U.S.C. § 706. As I have noted before, the definition of the "whole record" has, unfortunately, proven rather opaque. Addressing the scope of review in Overton Park, the Supreme Court instructed lower courts to limit their review of agency decisions to "the full administrative record that was before the Secretary at the time he made his decision." 401 U.S. at 420, 91 S.Ct. 814. The Court refined this mandate in Camp v. Pitts, 411 U.S. 138, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973), stating that "[t]he focal point for judicial review should be the administrative record already in existence, not some new record made initially in the
Of course, one cannot review the "whole record" without knowing what comprises "the whole record." In accordance with my role in reviewing agency action under § 706, I begin my review of the sufficiency of the submitted Administrative Record by applying a "presumption of regularity" to the record as it is designated by the agency. In order to ensure a "probing inquiry" and a "thorough, probing, in-depth review," however, I also consider the exceptions by which Petitioners may prove the insufficiency of an agency designated record and introduce additional documentation and evidence. It does not escape me that there has been considerable brouhaha concerning these exceptions that allow an administrative record to grow, and courts differ in their formulation and application of these exceptions.
In order to decide whether the administrative record submitted by Respondents is complete, I must determine whether the record contains "all documents and materials directly or indirectly considered by the agency." Bar MK Ranches v. Yuetter, 994 F.2d 735, 739 (10th Cir.1993). Consistent with the deference owed an agency under § 706, I assume the agency properly designated its record absent clear evidence to the contrary. Id. at 740. Therefore, the
To overcome the presumption of regularity and meet the burden of proving that the record designated by the agency is incomplete, Petitioner must clearly set forth in their motion: (1) when the documents were presented to the agency; (2) to whom; (3) and under what context. WildEarth Guardians v. Salazar, 713 F.Supp.2d 1243, 1254 (D.Colo.2010) (citing Pacific Shores Subdivision v. U.S. Army Corps of Engrs., 448 F.Supp.2d 1, 7 (D.D.C.2006)). This showing is not, however, sufficient grounds for admitting the proffered documents into the Administrative Record. Petitioners must also establish that these documents were directly or indirectly considered by the relevant agency decision makers. Bar MK, 994 F.2d at 739.
Consistent with the "presumption of regularity" noted above, I hesitate to allow parties to supplement the record with evidence not considered by the agency in reaching its challenged decision. As the D.C. Circuit has noted, "To review more than the information before the Secretary at the time she made her decision risks our requiring administrators to be prescient or allowing them to take advantage of post hoc rationalizations." Walter O. Boswell Mem'l Hosp. v. Heckler, 749 F.2d 788, 792 (D.C.Cir.1984). Despite my general reluctance, however, I must consider the exceptions which allow a party to introduce extra-record evidence. Although these exceptions find their nascence in the Supreme Court's ruling in Overton Park, which allowed lower courts to conduct some form of de novo review "when the action is adjudicatory in nature and the agency factfinding procedures are inadequate... [and] when issues that were not before the agency are raised in a proceeding to enforce nonadjudicatory agency action...," 401 U.S. at 415, 91 S.Ct. 814, they have since morphed into their own creatures.
As two commentators argued nearly fifteen years after the Court's decision in Overton Park, "courts have developed so many unwritten exceptions to the doctrine of record review, that industrious advocates now can introduce any evidence they choose in cases reviewing informal administrative action." Steven Stark and Sarah Wald, Setting No Records: The Failed Attempts to Limit the Record in Review of Administrative Action, 36 Admin. L. Rev. 333, 336 (1984). Although this proclamation is arguably overstated,
Unfortunately, lower courts have failed to articulate coherently and consistently the exceptions which justify supplementation of the record. For example, though the 10th Circuit recognized five possible exceptions in Custer County Action Ass'n v. Garvey, 256 F.3d 1024, 1028 n. 1 (2001)(quoting American Mining Cong., 772 F.2d at 626, and listing possible justifications as: (1) the agency action is not adequately explained and cannot be reviewed properly without considering the cited materials; (2) the record is deficient because the agency ignored relevant factors it should have considered in making its decision; (3) the agency considered factors that were left out of the formal record; (4) the case is so complex and the record so unclear that the reviewing court needs more evidence to enable it to understand the issues; and (5) evidence coming into existence after the agency acted demonstrates the actions were right or wrong), it listed only two exceptions in Lee v. U.S. Air Force, 354 F.3d 1229, 1242 (2004)(citing American Mining Cong., 772 F.2d at 626, and noting that supplementation was appropriate "where the agency ignored relevant factors it should have considered or considered factors left out of the formal record").
WSSC asserts the Colby Notes are appropriate for completion because they reflect deliberative agency discussion that appears nowhere in the agencies' designated Record.
Federal Respondents oppose any exception allowing the introduction of the Colby Notes and claim the meetings for which no documentation was provided to Petitioner were "non-substantive and no notes or other materials were generated." Although it may be true that "no notes" by way of official minutes were generated at the meetings for which WSSC requests information, it is patently untrue that "no" notes were ever generated at these meetings. Mr. Colby's notes, by their very existence, belie any assertion to the contrary, and the otherwise undocumented meetings that occurred on August 2005, December 2005, February 2007, and December 2007 provided the impeti for those notes being generated.
The content of the Colby Notes illustrates, moreover, that the aforementioned meetings were indeed "substantive." For example, Colby Notes from a December 2005 IDT meeting reveal the session covered matters relating to an easement, a conversation regarding questions involving the Federal Land Policy and Management Act of 1976 ("FLPMA"), and, perhaps most crucially, four alternatives the IDT was considering in conjunction with its consideration of its ultimately selected plan, the Greenback Cutthroat Trout Restoration Project ("GBCT Project") challenged in this action. As such, the Colby Notes reflect agency thoughts and plans on matters vital to their challenged decision-making.
What remains is to assess whether WSCC has satisfied the requirements sketched above with respect to the showings required to complete a record with given materials. I find that WSSC successfully meets each and all. First, I find that WSSC has clearly set forth 1) when the documents were presented to the agency; 2) to whom; and 3) under what context. The analysis of this three prong requirement is here mercifully straightforward. Because Mr. Colby dated his writings, the "when" is indicated on the Colby Notes themselves. The "who" involved in the matters referenced by the Colby Notes are the IDT members who were present at the August 2005, December 2005, February 2007, and December 2007 meetings. The context is, obviously, that of a meeting environment.
Next, I find the nature of the Colby Notes is such that I must necessarily deem the evidence as considered by the relevant decision-makers. See footnote 8, supra.
Given the Record's vacuity for the August 2005, December 2005, February 2007, and December 2007 meetings, the Colby Notes must be added to complete the record. In response to a WSCC email inquiring as to who authored the Colby Notes, Defendant's Forest Fisheries expert, Kristen Sexton, stated, "Kevin's notes be should [sic] reflected by the official meeting notes for the same dates and I would refer you to those for a better understanding of Kevin's cryptic writing." She is right. The Colby Notes should be reflected by the official meeting notes for the same dates. But, of course, there are no official meeting notes for many of the Colby Notes' dates, and thus a reviewing court's charge to make a "substantial inquiry" into matters of agency record review is frustrated absent the record's completion with the Colby Notes. Petitioner's Motion, Doc. 37, is GRANTED.
