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Grunewald v. Jarvis

United States District Court, District of Columbia

February 21, 2013

Carol GRUNEWALD, et al., Plaintiffs,
v.
Jonathan B. JARVIS, Director, National Park Service, et al., Defendants.

Page 356

Katherine A. Meyer, William Stewart Eubanks, II, Jessica Almy, Meyer Glitzenstein & Crystal, Washington, DC, for Plaintiffs.

Caitlin Brynna Imaki, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

ROBERT L. WILKINS, District Judge.

Plaintiffs have moved this Court for an Order requiring Defendants to supplement the Administrative Record with one purportedly missing document. Before the Court is Plaintiffs' Motion to Supplement the Administrative Record With One Document (Dkt. No. 14). For the reasons set forth below, Plaintiffs' Motion is DENIED.

STANDARD FOR SUPPLEMENTING THE ADMINISTRATIVE RECORD

When reviewing agency action, the Administrative Procedure Act requires a court to review " the whole record or those parts of it cited by a party." 5 U.S.C. ยง 706. A fair review by this Court requires it to have " neither more nor less information than did the agency when it made its decision."

Page 357

Walter O. Boswell Mem'l Hosp. v. Heckler, 749 F.2d 788, 792 (D.C.Cir.1984). There is a strong presumption that the agency properly compiled the Administrative Record. " Supplementation of the administrative record is the exception, not the rule." Pac. Shores Subdivision, Cal. Water Dist. v. U.S. Army Corps of Eng'rs, 448 F.Supp.2d 1, 5 (D.D.C.2006) (citations omitted). " Therefore, absent clear evidence to the contrary, an agency is entitled to a strong presumption of regularity, that it properly designated the administrative record." WildEarth Guardians v. Salazar, 670 F.Supp.2d 1, 5 (D.D.C.2009) (citations omitted). " Were courts cavalierly to supplement the record, they would be tempted to second-guess agency decisions in the belief that they were better informed than the administrators empowered by Congress and appointed by the President." Amfac Resorts, LLC v. U.S. Dep't of the Interior, 143 F.Supp.2d 7, 11 (D.D.C.2001) (quoting San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287, 1325-26 (D.C.Cir.1984) (en banc)).

In addition, a successful motion to supplement the Record cannot merely guess about who has seen the documents at issue. A party moving to supplement the Administrative Record " must do more than imply that the documents at issue were in the [agency's] possession" ; they " must prove that the documents were before the actual decisionmakers involved in the determination." Sara Lee Corp. v. Am. Bakers Ass'n, 252 F.R.D. 31, 34 (D.D.C.2008) (citation omitted). The Record " should not include materials that were not considered by agency decisionmakers." Pac. Shores, 448 F.Supp.2d at 4 (citations omitted).

ANALYSIS

In this case, the one document at issue is entitled " Meeting the Invasive Species Challenge," and was published by the National Invasive Species Council in 2001. (Dkt. No. 14-2). Plaintiffs' theory as to why this document " was clearly" before the Defendants (Dkt. No. 14, at 1 & 11), appears to be as follows. The Administrative Record includes, as it unquestionably must, the Final White-Tailed Deer Management Plan/Environmental Impact Statement (" FEIS" ). (Administrative Record (" AR" ) 16450-17041). Under a section titled " Related Laws, Policies, Plans, and Constraints: Other Legislation, Compliance, and National Park Service Policy," the FEIS includes a one-sentence entry for Executive Order 13112. (AR 16518). The entry reads: " This executive order requires the NPS to prevent the introduction of invasive species and provide for their control and to minimize the economic, ecological, and human health impacts that invasive species cause." ( Id. ). Plaintiffs asked Defendants to include the Executive Order in the Administrative Record. (Dkt. No. 14-4, at 2). Defendants replied that they " do not believe it appropriate or necessary to include Executive Order 13112 in the AR (just as we have not included copies of statutes or regulations), but will not object if Plaintiffs cite to that Order." (Dkt. No. 14-5, at 2-3).[1] The Executive Order, in turn, refers to the document Plaintiffs seek to supplement the Administrative Record with, but not directly. This is because the Executive Order is dated February 3, 1999, see 64 Fed.Reg. 6183 (Feb. 8, 1999), and refers to the future publication of a " first edition of a National Invasive Species Management Plan" ; the government subsequently published " Meeting the Invasive Species

Page 358

Challenge" in October 2001, (Dkt. No. 14-2). Thus, Plaintiffs' argument is that the Administrative Record should be supplemented with a document that was referred to in a ...


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