United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE.
Forest County Potawatomi Community has brought this action
under the Administrative Procedure Act (“APA”)
against Defendants United States of America, the United
States Department of the Interior, the Secretary of the
Interior, and the Assistant Secretary of Indian Affairs
(collectively, the “Federal Defendants”),
challenging the Federal Defendants' decision to
disapprove a 2014 amendment to a gaming compact between
Plaintiff and the State of Wisconsin (the “2014 Compact
Amendment”) under the Indian Gaming Regulatory Act, 25
U.S.C. §§ 2701 et. seq,
(“IGRA”). The Court has granted the Menominee
Indian Tribe of Wisconsin (“Menominee”) and the
Menominee Kenosha Gaming Authority's (collectively, the
“Defendant-Intervenors”) Motion for Leave to
Intervene as Defendants.
before the Court is Defendant-Intervenors'  Motion to
Complete the Administrative Record and to Exclude Documents
from the Administrative Record (“Def.-Ints.'
Mot.”), as well as Plaintiff's  Motion to
Supplement the Administrative Record (“Pl.'s
Mot.”). Upon consideration of the pleadings, the
relevant legal authorities, and the record as a whole, the
Court will GRANT-IN-PART and DENY-IN-PART
Defendant-Intervenors' motion and DENY Plaintiff's
motion. The Court concludes that both parties' arguments
for adding documents to the certified administrative record
are speculative and insufficient to overcome the presumption
that the record has been properly compiled. Additionally, the
Court finds that it is appropriate to exclude certain
financial records from the administrative record because the
Federal Defendants have certified that these records were not
considered during the decision making process.
directs the Court to “review the whole record or those
parts of it cited by a party.” 5 U.S.C. § 706.
This requires the Court to review “the full
administrative record that was before the Secretary at the
time he made his decision.” Citizens to Preserve
Overton Park v. Volpe, 401 U.S. 402, 420 (1971),
abrogated on other grounds by Califano v. Sanders,
430 U.S. 99 (1977). Courts in this Circuit have
“interpreted the ‘whole record' to include
all documents and materials that the agency directly or
indirectly considered . . . [and nothing] more nor
less.” Pac. Shores Subdivision, Cal. Water Dist. v.
U.S. Army Corps of Eng'rs, 448 F.Supp.2d 1, 4
(D.D.C. 2006) (citation omitted). “In other words, the
administrative record ‘should not include materials
that were not considered by agency
decisionmakers.'” Id. (citation omitted).
“[A]bsent clear evidence, an agency is entitled to a
strong presumption of regularity, that it properly designated
the administrative record.” Id. at 5.
“Supplementation of the administrative record is the
exception, not the rule.” Id. (quoting
Motor & Equip. Mfrs. Ass'n, Inc. v. EPA, 627
F.2d 1095, 1105 (D.C. Cir. 1979)); see also Franks v.
Salazar, 751 F.Supp.2d 62, 67 (D.D.C. 2010) (“A
court that orders an administrative agency to supplement the
record of its decision is a rare bird.”) (citation
course, an agency “may not skew the record by excluding
unfavorable information but must produce the full record that
was before the agency at the time the decision was
made.” Blue Ocean Inst. v. Gutierrez, 503
F.Supp.2d 366, 369 (D.D.C. 2007). Nor may the agency exclude
information from the record simply because it did not
“rely” on the excluded information in its final
decision. Maritel, Inc. v. Collins, 422 F.Supp.2d
188, 196 (D.D.C. 2006). Rather, “a complete
administrative record should include all materials that
‘might have influenced the agency's
decision[.]'” Amfac Resorts, L.L.C. v. U.S.
Dep't of the Interior, 143 F.Supp.2d 7, 12 (D.D.C.
motions relating to the administrative record in this matter
are currently pending before the Court: (A) Plaintiff's
Motion to Supplement the Administrative Record and (B)
Defendant-Intervenors' Motion to Complete the
Administrative Record and to Exclude Documents from the
Administrative Record. The Court will address each
Plaintiff's Motion to Supplement the Administrative
argues in its motion that three categories of documents
should be added to the record: (1) records of the Assistant
Secretary of Indian Affairs and his representatives'
meetings or calls with the State of Wisconsin and Menominee,
(2) news articles and other public documents relating to the
2014 Compact Amendment, and (3) certain gaming compacts and
compact-related agreements. Plaintiff has not satisfied its
burden of showing that any of these documents should be added
to the administrative record.
Records of Meetings and Calls with the State and
Plaintiff argues that the administrative record should be
supplemented with records of meetings or calls Plaintiff
contends the Federal Defendants may have had with the State
of Wisconsin and Menominee, during which Plaintiff speculates
that the 2014 Compact Amendment “would have been
discussed.” Pl.'s Mot. at 9. Plaintiff argues that
“there should be written documentation of the meetings
and calls.” Id. at 10.
argument fails because it is based on little more than
assumptions and speculation. Even if the records Plaintiff
seeks to add to the administrative record existed- which has
not been established-Plaintiff has not provided any evidence
that they were considered either directly or indirectly
during the decision making process. Although Plaintiff has
offered evidence that suggests that meetings and calls
between these entities may have occurred, Plaintiff merely
speculates about what might have been discussed during those
meetings-it has no real evidence that the purported
discussions were relevant to or considered during the
decision making process for the 2014 Compact Amendment.
Federal Defendants have certified that they were not. In its
reply brief, Plaintiff argues that “these meetings and
calls . . . necessarily would have involved
discussions of the 2014 Compact Amendment.”
See Reply Mem. in Support of Pl.'s Mot., ECF No.
68, at 4 (emphasis added). But this is precisely the type of
speculation that is insufficient to overcome the presumption
that an administrative record certified by an agency is
properly designated. See WildEarth Guardians v.
Salazar, 670 F.Supp.2d 1, 6 (D.D.C. 2009) (denying
motion to supplement administrative record because plaintiff
could not “provide reasonable, non-speculative grounds
demonstrating that the [the document] itself was
considered, either directly or indirectly, by the
Secretary.”) (emphasis in original). Plaintiff's
motion to supplement the record with records of meetings or
calls Federal Defendants may have had with the State of
Wisconsin and Menominee will be denied.
News Reports and Other Public Documents Relating to the ...