United States District Court, D. Colorado
COLORADO ENVIRONMENTAL COALITION, INFORMATION NETWORK FOR RESPONSIBLE MINING, CENTER FOR NATIVE ECOSYSTEMS, CENTER FOR BIOLOGICAL DIVERSITY, and SHEEP MOUNTAIN ALLIANCE, Plaintiffs,
OFFICE OF LEGACY MANAGEMENT, and UNITED STATES DEPARTMENT OF ENERGY, Defendants.
ORDER DENYING PLAINTIFFS' MOTION TO
WILLIAM J. MARTÍNEZ UNITED STATES DISTRICT JUDGE.
the Court is Plaintiffs' Motion to Supplement the
Administrative Record with Extra-Record Evidence
(“Motion to Supplement”). (ECF No. 142.)
Defendants Department of Energy and its subsidiary, the
Office of Legacy Management (together, “DOE”),
oppose the Motion to Supplement in its entirety, and
argue-accurately, as will be explained below-that two-thirds
of the Motion is a near-sanctionable waste of time.
(See ECF No. 144.) The Court denies the Motion to
proper administrative record must contain “all
documents and materials directly or indirectly considered by
the agency.” Bar MK Ranches v. Yuetter, 994
F.2d 735, 739 (10th Cir. 1993). The Court presumes that the
agency properly designated its record absent clear evidence
to the contrary. Id. at 740. The plaintiff bears the
burden to rebut that presumption. Ctr. for Native
Ecosystems v. Salazar, 711 F.Supp.2d 1267, 1275 (D.
Colo. 2010) (“CNE”).
plaintiff may move to “complete” the record, or
to “supplement” it, or both. “Completing
the record” means adding materials the agency
considered but failed to include in the record. Id.
at 1274 n.7. “Supplementing the record” means
adding materials the agency did not consider, but should
nonetheless be included in the record to permit a proper
evaluation of the agency's decision. Id.
seeking to complete the record, a plaintiff must establish
“(1) when the documents were presented to the agency;
(2) to whom; (3) and under what context.” Id.
at 1275. Having established these elements, the plaintiff
must finally establish that the documents were indeed
considered directly or indirectly by the relevant agency
standard for supplementing the record is less
straightforward. In theory, supplementation should be
“extremely limited” because “[a]ggressive
use of extra-record materials . . . would run directly
counter” to the notion that “the agency's
action must be reviewed on the basis articulated by the
agency and on the evidence and proceedings before the agency
at the time it acted.” Am. Min. Cong. v.
Thomas, 772 F.2d 617, 626 (10th Cir. 1985). In the last
few decades, however, the Tenth Circuit has endorsed various
justifications for supplementing the record, including the
• “the agency action is not adequately explained
and cannot be reviewed properly without considering the cited
• “the record is deficient because the agency
ignored relevant factors it should have considered in making
• “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
• “evidence coming into existence after the agency
acted demonstrates the actions were right or wrong.”
Custer Cnty. Action Ass'n v. Garvey, 256 F.3d
1024, 1028 n.1 (10th Cir. 2001).
October 18, 2011, this Court issued an order holding that DOE
had prepared an inadequate Environmental Assessment
(“EA”) for its Uranium Lease Management Program
in southwestern Colorado. See generally Colorado Envtl.
Coal. v. Office of Legacy Mgmt., 819 F.Supp.2d 1193 (D.
Colo. 2011). The Court therefore vacated the EA and
remanded the matter to DOE for development of a new
environmental analysis. Id. at 1224. The Court also
stayed existing uranium leases and enjoined DOE from issuing
new leases. Id.
February 27, 2012, this Court modified that injunction to
permit DOE to approve certain “absolutely
necessary” activities, including those necessary to
complete a more thorough environmental analysis, and certain
reclamation activities. 2012 WL 628547, at
*2-3. That injunction remains in effect
(“Injunction”). The Injunction states that,
“[a]fter Defendants conduct an environmental analysis
on remand that fully complies with NEPA [the National
Environmental Policy Act], ESA [the Endangered Species Act],
all other governing statutes and regulations, and this
Court's October 18, 2011 Opinion and Order, Defendants
may move the Court to dissolve this injunction.”
Id. at *5.
filed such a motion in October 2015, seeking to dissolve the
Injunction on an abbreviated record. (ECF No. 124.) The Court
denied that motion without prejudice, finding that it could
not dissolve the Injunction on an abbreviated record. (ECF
No. 132 at 2-3.) The Court therefore ordered DOE to assemble
a new, complete administrative record and then to move again
to dissolve the Injunction. (Id. at 3-4.) The Court
subsequently entered a case management plan that required
lodging of the new administrative record by March 31, 2016,
followed by a June 30, 2016 deadline to file motions to
complete or supplement the record, if any. (ECF No. 134 at
1.) DOE filed the new administrative record on March 31,
2016, as required. (See ECF No. 135.)
28, 2016-two days before the motion deadline-the parties
filed a Joint Motion to Amend Case Management Plan
(“Joint Motion”). (ECF No. 138.)
referencing the upcoming motion deadline, the parties