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Colorado Environmental Coalition v. Office of Legacy Management

United States District Court, D. Colorado

March 7, 2017

COLORADO ENVIRONMENTAL COALITION, INFORMATION NETWORK FOR RESPONSIBLE MINING, CENTER FOR NATIVE ECOSYSTEMS, CENTER FOR BIOLOGICAL DIVERSITY, and SHEEP MOUNTAIN ALLIANCE, Plaintiffs,
v.
OFFICE OF LEGACY MANAGEMENT, and UNITED STATES DEPARTMENT OF ENERGY, Defendants.

          ORDER DENYING PLAINTIFFS' MOTION TO SUPPLEMENT

          WILLIAM J. MARTÍNEZ UNITED STATES DISTRICT JUDGE.

         Before 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 Supplement.

         I. LEGAL STANDARD

         A 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”).

         A 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.

         In 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 decision-makers. Id.

         The 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 following:

• “the agency action is not adequately explained and cannot be reviewed properly without considering the cited materials”;
• “the record is deficient because the agency ignored relevant factors it should have considered in making its decision”;
• “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).

         II. BACKGROUND

         On 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).[1] 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.

         On 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.[2] 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.

         Defendants 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.)

         On June 28, 2016-two days before the motion deadline-the parties filed a Joint Motion to Amend Case Management Plan (“Joint Motion”). (ECF No. 138.)

         Specifically referencing the upcoming motion deadline, the parties ...


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