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Forest County Potawatomi Community v. United States

United States District Court, District of Columbia

September 12, 2017

FOREST COUNTY POTAWATOMI COMMUNITY, Plaintiff,
v.
UNITED STATES, et al., Defendants, MENOMINEE INDIAN TRIBE OF WISCONSIN and MENOMINEE KENOSHA GAMING AUTHORITY, Defendant-Intervenors.

          MEMORANDUM OPINION AND ORDER

          COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE.

         Plaintiff 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.

         Now before the Court is Defendant-Intervenors' [62] Motion to Complete the Administrative Record and to Exclude Documents from the Administrative Record (“Def.-Ints.' Mot.”), as well as Plaintiff's [63] 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.

         I. LEGAL STANDARD

         The APA 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 omitted).

         Of 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. 2001).

         II. DISCUSSION

         Two 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 separately.

         A. Plaintiff's Motion to Supplement the Administrative Record

         Plaintiff 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.

         1. Records of Meetings and Calls with the State and Menominee

         First, 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.

         Plaintiff's 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.

         2. News Reports and Other Public Documents Relating to the ...


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