Uintah County et al v. Salazar et al, No. 2:2010cv00970 - Document 263 (D. Utah 2016)
Court Description: MEMORANDUM DECISION denying 238 Motion to Compel Completion or Supplementation of the Administrative Record. Signed by Magistrate Judge Brooke C. Wells on 3/24/16. (jlw)
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Uintah County et al v. Salazar et al Doc. 263 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION UINTAH COUNTY, UTAH, et al., v. MEMORANDUM DECISION AND ORDER DENYING MOTION TO COMPEL COMPLETION OR SUPPLEMENTATION OF THE RECORD S.M.R. JEWELL, Secretary, U.S. Dept. of the Interior, et al., Case No. 2:10-cv-970 DB BCW Plaintiffs, Defendants. SOUTHERN UTAH WILDERNESS ALLIANCE, et al. District Judge Dee Benson Magistrate Judge Brooke Wells Intervenor-Defendants. This matter is before the court on Plaintiffs’ Joint Motion to Compel Completion or Supplementation of the Administrative Record. 1 The question before the court concerns the scope of the administrative record for review in this case. At the heart of the dispute also lies the interpretation of three orders entered by Judge Benson. 2 At oral argument on the motion Plaintiffs were represented by Constance Brooks and Elliot Lawrence. 3 Defendants were represented by Sara Porsia and Mike Smith. Intervenor-Defendants Southern Utah Wilderness Alliance was represented by Heidi McIntosh. Following the hearing the court reviewed the 1 Docket no. 238. The court heard argument at the same hearing on the Federal Defendants Motion for Protective Order. At the start of the hearing the parties stated they resolved that motion. See Minute Order, docket no. 260. 2 Order dated 1 July 2014, docket no. 197; Order dated 21 November 2014, docket no. 224; Order dated 21 November 2014, docket no. 225. 3 Near the close of oral argument Plaintiffs were given a “one-minute response.” Tr. Dec. 18, 2015 Hrg p. 44. At that time Mr. Anthony Rampton came forward from the gallery and offered some final arguments and a chicken analogy in support of Plaintiffs’ position. Mr. Rampton did not enter an appearance at the start of oral argument. Although the court permitted Mr. Rampton to argue, the belated manner in which he entered the fray, so to speak, was less than ideal and not very professional. Tr. Dec. 18, 2015 Hrg p. 44-45. Dockets.Justia.com transcript of arguments, the memoranda and relevant case law. After considering these materials, the court finds it proper to interpret Judge Benson’s orders in the context of the Supreme Court’s decision in Lujan v. National Wildlife Federation. 4 When read in that context, the court DENIES Plaintiffs’ Motion to Compel Completion or Supplementation of the Administrative Record. 5 BACKGROUND This case involves challenges to certain national policies that address the management of federal public lands with wilderness “characteristics” or attributes and the management of oil and gas leasing. Generally Plaintiffs “challenge the Defendants’ [alleged] unlawful de facto wilderness management of an estimated six million acres of public land in the State of Utah managed by the Bureau of Land Management (BLM).” 6 Plaintiffs assert Defendants actions of engaging in de facto wilderness management violates the law and existing BLM RMPs (resource management plans or land use plans). Specifically Plaintiffs take issue with certain policies including Secretarial Order 3310, Instruction Memorandums 2011-154 and 2010-117, and portions of the BLM handbook relating to certain policies of land management. 7 Plaintiffs’ Complaint sets forth much of the history and interaction for many of the policies, rules, laws and acts of congress that govern the use of public lands. These include inter alia the Wilderness Act of 1964, the Federal Land Policy and Management Act of 1976 (FLPMA), Wilderness Study Areas (WSAs), Areas of Critical Environmental Concern (ACECs), the National Environmental Policy Act (NEPA), Administrative Procedures Act (APA), 4 110 S.Ct. 3177 (1990). 5 Docket no. 238. 6 Mtn. p. 13, docket no. 238. 7 See Second Amended Compl., docket no. 153. 2 Wilderness Inventory, Secretarial Order 3310, Instruction Memorandum 2011-154, Instruction Memorandum 2010-117 and sections within the BLM handbook. The court does not repeat that lengthy history here but a review of it may be helpful to the reader. At issue here is the inclusion or exclusion of more than 400 documents into the administrative record that allegedly demonstrate de facto wilderness management. 8 The procedural history of this case has many twists and turns. Plaintiffs filed their original complaints in late 2010 and following consolidation Defendant-Intervenor Southern Utah Wilderness Alliance (SUWA) moved to dismiss the complaints. SUWA argued the Plaintiffs “lacked standing, failed to challenge final or ripe agency actions, alleged improperly programmatic claims, and failed to state a claim upon which relief may be granted.” 9 Rather than opposing the motion, Plaintiffs moved for jurisdictional discovery. The court granted the request for jurisdictional discovery on July 3, 2012. 10 Approximately a year later the parties stipulated that jurisdictional discovery was complete and that Plaintiffs could file an Amended Complaint. 11 Defendants then moved to dismiss the amended complaint for many of the same reasons raised in its prior motion. Judge Benson denied the motion finding that “Plaintiffs have satisfied the pleading requirements with regard to jurisdiction. Jurisdiction is properly before the court and Plaintiffs have met the standing and ripeness requirements as expressed in their briefs. Plaintiffs have also properly pled a claim upon which relief may be granted.” 12 8 See mtn p. 1, docket no. 238. 9 Respondent’s mem in op. p. 4, docket no. 246. 10 Docket no. 131. 11 Docket no. 146. 12 Order dated 1 July 2014 p. 2, docket no. 197. 3 Undeterred by their loss, Defendants sought partial reconsideration of their motion to dismiss 13 and also filed a Motion to Certify Order for Immediate Appeal under 28 U.S.C. §1292(b). 14 Defendants urged the court “to reconsider two aspects of the July 1 Order related to this court’s subject matter jurisdiction over Defendants: 1) whether Plaintiffs’ claims are impermissible programmatic challenges to agency action and 2) whether Plaintiffs may proceed with claims alleging that Defendants’ actions were ultra vires.” 15 The court noted that a motion to reconsider is not a new opportunity to advance old arguments 16 and denied the motion to reconsider. In their motion to certify Defendants presented two main issues for certification; “(1) Whether the Bureau of Land Management (BLM) has legal authority under the Federal Land Policy and Management Act (FLPMA) to manage lands for protection of their wilderness character; and (2) Whether Plaintiffs’ claims are programmatic challenges over which the court lacks subject matter jurisdiction.” 17 The court found that the requirements of § 1292(b) were not met and denied the motion to certify. An initial administrative record was filed in this case in March 2015 18 and the Government filed notice in July 2015 that the record was complete. 19 The Joint Motion to Compel Completion or Supplementation that is currently before the court followed. 20 13 Docket no. 201. 14 Docket no. 208. 15 Order dated 21 November 2014 p. 2, docket no. 225. 16 See Buck v. Myers, 2008 WL 2224302 *1 (D.Utah May 29, 2008). 17 Order dated 21 November 2014 p. 1, docket no. 224. 18 Docket no. 227. 19 Docket no. 232. 20 Docket no. 238. 4 ANALYSIS The issue here concerns the scope of the administrative record under the Administrative Procedures Act (APA). The APA provides a right to judicial review for individuals adversely affected by an agency action. 21 The term “agency action” is defined in the APA as “the whole or part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 22 In order to bring a claim under the APA a party must meet the constitutional standing requirements under Article III. In addition, “Plaintiffs must also meet the statutory standing requirements of the APA: Plaintiffs must show there has been some ‘final agency action’ and must ‘demonstrate that [their] claims fall within the zone of interests protected by the statute forming the basis of [their] claims.’” 23 The Supreme Court aptly described this requirement in Lujan v. National Wildlife Federation. 24 “Under the terms of the APA, [a] respondent must direct its attack against some particular ‘agency action’ that causes it harm.” 25 “Reviews of agency action in the district courts must be processed as appeals.” 26 And a district court applies the Federal Rules of Appellate Procedure. 27 A district court reviews an agency action to determine if it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 28 A review under this standard should generally be based on the 21 5 U.S.C. §§701-06; see Utah v. Babbitt, 137 F.3d 1193, 1203 (10th Cir. 1998) (“Because neither FLPMA nor NEPA provide for a private right of action, Plaintiffs rely on the judicial review provisions of the APA10 in bringing their claims.”). 22 5 U.S.C. § 551(13). 23 Babbitt, 137 F.3d at 1203 (quoting Catron County Bd. of Comm’rs v. United States Fish & Wildlife Serv., 75 F.3d 1429, 1434 (10th Cir. 1996)). 24 497 U.S. 871 (1990). 25 Id. at 890. 26 Oldenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1580 (10th Cir. 1994). 27 See id. 28 5 U.S.C. § 706(2)(A). 5 full administrative record that was before all decision makers. 29 A district court must have before it the “whole record” on which the agency acted. “[T]he focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” 30 “The complete administrative record consists of all documents and materials directly or indirectly considered by the agency.” 31 An agency may not unilaterally determine what constitutes the Administrative Record. 32 Nor, can an agency supplement the Administrative Record submitted to the district court with post hoc rationalizations for its decisions. 33 The designation of the Administrative Record, however, like any established administrative procedure, is entitled to a presumption of administrative regularity. 34 Thus, “the court assumes the agency properly designated the Administrative Record absent clear evidence to the contrary.” 35 “A motion to complete the administrative record requires clear evidence that material directly or indirectly considered was not included by the agency.” 36 I. Motion to Compel Completion Plaintiffs “have emphasized from the beginning, this case challenges the change in management of the Utah public lands to de facto wilderness in excess of the statutory authority granted by FLPMA and without complying with required procedures to change management of 29 See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971). 30 Camp v. Pitts, 411 U.S. 138, 142 (1973). 31 Yuetter, 994 F.2d at 739. See also Lloyd v. Illinois Regional Transp. Authority, 548 F.Supp. 575, 590 (N.D.Ill.1982); Tenneco Oil Co. v. Department of Energy, 475 F.Supp. 299, 317 (D.Del.1979). 32 Tenneco Oil Co. v. Dep’t of Energy, 475 F.Supp. 299, 317 (D.Delaware 1979); see also Yuetter, 994 F.2d at 739. 33 American Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 539 (1981); Citizens to Preserve Overton Park, 401 U.S. at 419. 34 Wilson v. Hodel, 758 F.2d 1369, 1374 (10th Cir. 1985). 35 Yuetter, 994 F.2d at 740. 36 Mtn p. 9 (citing to Yuetter, 994 F.2d at 739). 6 public lands.” 37 To this end, Plaintiffs argue for the inclusion of over 400 documents to be added to the administrative record. These include inter alia, at least 40 Expressions of Interest in Leasing (EOIs), 45 individual maps, “four maps associated with informational memoranda” 38 and documents that contain a “checklist or discussion documenting direction not to offer any nominated parcels in citizen proposed wilderness.” 39 Plaintiffs also acquired “at least 120 separate emails and 32 letters discussing various management issues pertaining to the citizen-proposed wilderness area.” 40 These allegedly “disclose the factors considering by DOI [Department of the Interior] in undertaking the challenged management actions.” 41 There are also other documents and maps regarding decisions about rights-of-way, road maintenance and the issuance of leases. 42 In essence, all of these items are allegedly necessary to have a complete record and not allow the Defendants to “unilaterally define the administrative record to exclude documents and agency actions.” 43 Plaintiffs allege that these materials are relevant to their claims of de facto wilderness management and that Defendants’ actions were ultra vires. In opposition, Defendants argue these materials are not part of the administrative record because Plaintiffs fail to “identify any specific agency action to which the requested documents relate.” 44 According to Defendants, conspicuously absent from Plaintiffs’ proposed materials are any “documents which constitute agency decision on rights-of-way, issuances of leases, or other 37 Reply p. 16. 38 Mtn. p. 14. 39 Id. 40 Id. at 19. 41 Id. 42 See id. at 21. 43 Id. at 3. 44 Response p. 7, docket no. 244. 7 final management actions.” 45 Moreover, such “programmatic challenges” as that brought by Plaintiffs are not permissible under the Supreme Court’s decision in Lujan v. National Wildlife Federation. 46 It is at this point in the parties’ respective positions that they also differ in their interpretation of Judge Benson’s orders from July and November 2014. 47 Plaintiffs argue for a strict reading of Judge Benson’s orders arguing that they foreclose Defendants’ arguments about impermissible programmatic challenges to agency action. In contrast, Defendants assert that Judge Benson’s orders did not address the scope of the administrative record or “hold that any particular documents must be part of that record for the de facto wilderness theory.” 48 The court is persuaded by Defendants arguments regarding Judge Benson’s orders. There is nothing in his orders that defines the scope of the administrative record. The fact that Judge Benson rejected Defendants arguments regarding programmatic challenges in the context of standing does not foreclose their application to the scope of the administrative record. In addition the court finds that Judge Benson’s orders must be read against the backdrop of the Supreme Court’s decision in Lujan v. National Wildlife Federation. In Lujan a wildlife group challenged the “land withdrawal review program” of the BLM. The dispute centered on the use of certain affidavits and whether the land withdrawal review program was an agency action within the meaning of the APA. 49 The Court rejected the notion that the land withdrawal review program was an “agency action” and compared it to other programs such as a “weapons procurement program” of the Department of Defense or a “drug 45 Id. 46 497 U.S. 871 (1990). 47 See Background supra, docket no. 197, docket no. 224 and docket no. 225. 48 Response p. 5. 49 Lujan, 497 at 890. 8 interdiction program” of the Drug Enforcement Administration. 50 The Court stated that “[u]nder the terms of the APA, respondent must direct its attack against some particular ‘agency action’ that causes it harm.” 51 Here, the undersigned makes no determination on the merits of Plaintiffs’ case. Under the principles set forth in Lujan, however, the court finds that the materials in the administrative record must be tied to an agency action. Plaintiffs have failed to meet this requirement as it relates to the materials they seek to include in the administrative record. In addition, the court finds the distinction drawn between extra-record materials and those included in an administrative record as set forth in Colorado Envtl. Coal v. Office of Legacy Mgmt. 52 instructive. In Colorado Coal some environmental organizations sought review of the Department of Energy’s (DOE) decision to expand its uranium lease program in Colorado. The DOE filed a motion to strike “four state agency lease documents cited to and described by [the] plaintiffs” arguing they were extra-record evidence that was not properly before the court. 53 In denying the DOE’s motion the court cited to the principle that “a court may consider extrarecord materials for purposes of determining whether it has jurisdiction over the matter,” which may be different than those materials for inclusion into an administrative record. 54 The undersigned declines to place a label on the evidence Judge Benson used in entering his orders. 50 Id. 51 Id. at 891. 52 819 F.Supp.2d 1193 (D.Colorado 2011). 53 Id. at 1202. 54 Id. See also Sierra Club v. Yeutter, 911 F.2d 1405, 1421 (10th Cir.1990) (holding that district court did not abuse its discretion in considering extra-record evidence in order to determine whether it had jurisdiction); Nw. Envtl. Def. Ctr. v. Bonneville Power Admin., 117 F.3d 1520, 1528 (9th Cir.1997) (considering extra-record evidence “not in order to supplement the administrative record on the merits, but to determine whether [the court has] jurisdiction”); Friends of the Clearwater v. Dombeck, 222 F.3d 552, 560–61 (9th Cir.2000) (denying motion to strike and considering extra-record evidence in order to evaluate whether agency had rectified a prior NEPA violation after the onset of legal proceedings). 9 But, under the principles found in Colorado Coal, the mere fact that there is other evidence in the record, like the type Plaintiffs seek to include, does not equate to its automatic inclusion in the administrative record. Rather, such materials may be extra-record evidence used for a determination of jurisdiction. Accordingly, based upon the undersigned’s reading of Judge Benson’s orders and relevant case law, the court DENIES the Motion to Compel Completion.55 II. Motion to Compel Supplementation In the alternative Plaintiffs ask the court to supplement the record. “Supplementation of the record refers to the addition of documents not before the agency when the decision was made.” 56 Usually “review is to be based on the full administrative record that was before the [decision maker] at the time he made his decision.” 57 Supplementation of the administrative record is rare and not permitted unless a party “’can demonstrate unusual circumstances justifying a departure from this general rule.’” 58 “The Tenth Circuit explicitly allows for supplementation of the administrative record if the Plaintiffs can demonstrate that ‘the agency's fact-finding procedures [were] inadequate.’” 59 The Tenth Circuit has also recognized five exceptions to the general rule against the use of extra-record materials although any exception “must be extremely limited.” 60 These exceptions include: 55 It is not the intent of the undersigned magistrate judge to question Judge Benson’s orders or the authority of the district court to render a decision in this matter. Rather, based upon the parties’ arguments it became necessary to interpret these orders in the context of this dispute. 56 Mtn p. 23. 57 Citizens to Preserve Overton, 401 U.S. at 420. 58 American Wildlands v. Kempthorne, 530 F.3d 991, 1002 (D.C.Cir. 2008) (quoting Tex. Rural Legal Aid, Inc. v. Legal Servs. Corp., 940 F.2d 685, 698 (D.C.Cir. 1991)). 59 Jarita Mesa Livestock Grazing Ass’n v. U.S. Forest Service, 58 F.Supp.3d 1191, 1239 (D.New Mexico 2014) (quoting Franklin Sav. Ass’n v. Dir., Office of Thrift Supervision, 934 F.2d 1127, 1141 n.7 (10th Cir. 1991)). 60 American Min. Congress v. Thomas, 772 F.2d 617, 626 (10th Cir. 1985). 10 (1) that the agency action is not adequately explained and cannot be reviewed properly without considering the cited materials; (2) that the record is deficient because the agency ignored relevant factors it should have considered in making its decision; (3) that the agency considered factors that were left out of the formal record; (4) that the case is so complex and the record so unclear that the reviewing court needs more evidence to enable it to understand the issue; and (5) that evidence coming into existence after the agency acted demonstrates that the actions were right or wrong. 61 Here, Plaintiffs have failed to demonstrate Defendants’ fact-finding procedures were inadequate. Plaintiffs, however, do attempt to rely on two of the exceptions, the first and the fifth. Under the first exception Plaintiffs assert “the documents will aid this Court's review of the agency action by adequately explaining the agency action at issue in this case.” 62 “The Plaintiffs challenge the application of Secretarial Order 3310 and its accompanying manuals to project-level decisions by the agency.” 63 Here, Plaintiffs fail to articulate a “project-level decision” to review so the court is not persuaded this exception applies. Next, the “’few published decisions that apply this [fifth] exception appear to involve situations in which evidence was produced to show the projections or predictions upon which an agency action was based either proved accurate or inaccurate.’” 64 There are no identified or challenged predictive judgments by the BLM in this case so the court finds this exception does not apply. The APA does not permit courts to weigh in on the merits of competing policy 61 Id. at 626 (citations omitted). See also Center for Native Ecosystems v. Salazar, 711 F.Supp.2d 1267, 1278-79 (D.Colorado 2010) (noting the inconsistent nature in which courts have enumerated these exceptions and “hoping that the 10th Circuit will grasp the nettle and provide a clear articulation of the exceptions allowing district courts in this circuit to supplement the Administrative Record with extra-record evidence.”). 62 Mtn p. 24. 63 Id. 64 Stewart v. Kempthorne, 2007 WL 1594972 *3 (D.Utah June 1, 2007) (quoting Murakami v. United States, 46 Fed. Cl. 731, 736-37 (Fed. Cl. 2000) (analyzing the fifth exception and noting that evidence must not have been “available” before or during the administrative proceedings)). 11 preferences, so Plaintiffs attempt to use this exception to admit extra-record evidence to show that the agency’s policy decisions are wrong fails. Accordingly, “[t]he narrow conditions warranting an exception to the general rule are not present in this case.” 65 The court therefore denies Plaintiffs’ motion to supplement the record. 66 III. The Alternative Request for Limited Discovery Plaintiffs ask the court in the alternative to “authorize limited discovery to complete the Administrative Record.” 67 Plaintiffs argue that discovery is needed to obtain a thorough and compete Administrative Record. “Limited discovery is appropriate to aid in establishing the ‘whole record’ when ‘the agency, in bad faith, failed to include information in the record.’” 68 Plaintiffs argue bad faith exists here based upon Defendants continued exclusion of “keystone documents” that limit the court’s review based on the Defendants’ theory of the case. The court is not persuaded by Plaintiffs argument that excluding documents amounts to bad faith. If this were the case then anytime an agency excluded contested documents from an administrative record then their actions could be labeled as bad faith. The documents at issue here were contested and Defendants presented reasonable arguments for their exclusion. The court therefore finds Defendants did not act in bad faith and limited discovery is not appropriate in this instance. ORDER For the reasons set forth above, the court DENIES Plaintiffs’ Joint Motion to Compel Completion or Supplementation of the Administrative Record. 69 65 Custer County Action Ass’n v. Garvey, 256 F.3d 1024, 1044 n.1 (10th Cir. 2001). 66 See id. 67 Reply p. 15. 68 Id. (quoting S. Utah Wilderness Alliance v. Thompson, 811 F.Supp. 635, 643 n.4 (D.Utah 1993)). 69 Docket no. 238. 12 IT IS SO ORDERED. DATED this 24 March 2016. Brooke C. Wells United States Magistrate Judge 13
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