United States District Court, D. Colorado
ROCKY MOUNTAIN PEACE & JUSTICE CENTER, CANDELAS GLOWS/ROCKY FLATS GLOWS, ROCKY FLATS RIGHT TO KNOW, ROCKY FLATS NEIGHBORHOOD ASSOCIATION, and ENVIRONMENTAL INFORMATION NETWORK EIN INC., Plaintiffs,
v.
UNITED STATES FISH AND WILDLIFE SERVICE, GREG SHEEHAN, in his official capacity as Acting Director, U.S. Fish and Wildlife Service, RYAN ZINKE, in his official capacity as Secretary of the Interior, DAVID LUCAS, in his official capacity as Project Leader, Region 6, U.S. Fish and Wildlife Service, UNITED STATES FEDERAL HIGHWAY ADMINISTRATION, BRANDYE HENDRICKSON, in her official capacity as Acting Administrator of the United States Federal Highway Administration, and ELAINE L. CHAO, in her official capacity as Secretary of Transportation, Defendants.
ORDER
PHILIP
A. BRIMMER UNITED STATES DISTRICT JUDGE
This
matter is before the Court on Plaintiffs' Motion to
Supplement the Administrative Record and Consider
Extra-Record Evidence [Docket No. 43]. Plaintiffs seek to add
eight documents to the administrative record. Id. at
2. Plaintiffs characterize four of these documents as
“Omitted Documents, ” which were exhibits to
plaintiffs' preliminary injunction motion, an exhibit to
plaintiffs' related reply, and an exhibit introduced at
the preliminary injunction hearing:
1. Exhibit 8 to Plaintiffs' Motion for Preliminary
Injunction, the 2012 Kaltofen Study [Docket No. 7-8],
2. Exhibit 12 to Plaintiffs' Motion for Preliminary
Injunction, the Cook Jury Verdict Form [Docket No. 7-12],
3. Exhibit 28 to Plaintiffs' Motion for Preliminary
Injunction, Prof. Harvey Nichols Second Declaration [Docket
No. 22-2], and
4. Plaintiffs' Exhibit 16, entered into evidence at the
preliminary injunction Hearing, see Docket No. 38 at
4.
The
remaining four documents are portions of the testimony from
the July 17, 2018 preliminary injunction hearing:
5. Mr. John Barton's testimony [Docket No. 43-1 at 1-28,
Tr. at 28-43] (“Barton Testimony”),
6. Mr. Harvey Nichols' testimony [Docket No. 43-1 at
29-34, Tr. at 43-61] (“Nichols Testimony”),
7. Mr. Michael Ketterer's testimony [Docket No. 43-1 at
34-47, Tr. at 61-74] (“Ketterer Testimony”), and
8. Mr. Jon Lipsky's testimony [Docket No. 43-1 at 48-56,
Tr. at 94-102] (“Lipsky Testimony”).
“Judicial
review of an agency decision is generally limited to review
of the administrative record.” Custer Cty. Action
Ass'n v. Garvey, 256 F.3d 1024, 1027 n.1 (10th Cir.
2001) (citing Federal Power Comm'n v.
Transcontinental Gas Pipe Line Corp., 423 U.S.
326, 331 (1976)). “The circumstances which warrant
consideration of extra-record materials are ‘extremely
limited.'” Id. (quoting American
Mining Cong. v. Thomas, 772 F.2d 617, 626 (10th Cir.
1985)). Nevertheless, “parties have offered
extra-record studies and other evidence under a number of
justifications, including: (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 issues, and (5) that evidence
coming into existence after the agency acted demonstrates
that the actions were right or wrong.” Am. Min.
Cong., 772 F.2d at 626 (10th Cir. 1985) (citations
omitted).
Plaintiffs
argue that the Omitted Documents were “available to
[defendant United States Fish and Wildlife Service (the
“Service”)] when [it] promulgated” the
March 23, 2018 Environmental Action Statement (the
“2018 EAS”) at issue in this case. Docket No. 43
at 5. As defendants point out, however, plaintiffs do not
make any showing that they actually provided the documents to
defendants. See Docket No. 46 at 5 (citing Ctr.
for Native Ecosystems v. Salazar, 711 F.Supp.2d 1267,
1275 (D. Colo. 2010) (“[T]he burden to rebut the
presumption of a complete record initially rests with
Petitioners who must show by clear evidence that the record
fails to include documents or materials considered by
Respondents in reaching the challenged decision.”)). In
reply, plaintiffs argue that testimony by Mr. Lucas, the
Service's project manager for the Rocky Flats National
Wildlife Refuge (the “Refuge”), at the
preliminary injunction hearing “suggests the Service
considered the radionuclide contamination adjacent
to the Refuge in determining the location of at least a
portion of the public trails.” Docket No. 47 at 2
(emphasis added). Mr. Lucas testified that, “[b]ased on
public feedback and our own evaluation, we agreed that [using
a road that goes to the Department of Energy central operable
unit] probably was not the best idea, and we utilized the
existing road that goes east/west here” to reroute the
trail. Tr. 120:13-24. The problem with plaintiffs'
argument is that, while the central operable unit is located
in the middle of the refuge, and therefore adjacent to it,
the Kaltofen Study and the Cook Jury Verdict Form relate to
contamination found outside of the Refuge, not in the central
operable unit. Prof. Nichols' Second Declaration relates
to testing he performed in the 1970s, long before the
Department of Energy cleanup and the more recent
contamination testing results contained in the administrative
record. Plaintiffs' Exhibit 16 is an email by Mr.
Lucas' predecessor mentioning the “plutonium
plume” downwind of the central operating unit, but
there is no evidence that Mr. Lucas was aware of the email
before he saw it at the preliminary injunction hearing or
that it was otherwise considered by the Service in making its
decisions related to the 2018 EAS. Tr. at 137:10-138:17.
Moreover, the email does not appear relevant to the trail
changes made in the 2018 EAS because the 2018 EAS did not
address potential changes to the trail routes in the plume
area. See R. at 7 (“Proposed trail connection
not included in this determination.”). Thus, Mr.
Lucas' testimony does not suggest that the Service
considered, directly or indirectly, any of the information
plaintiffs contend was improperly omitted. The Court finds
that plaintiffs have not carried their burden of showing that
defendants considered the Omitted Materials in issuing the
2018 EAS. See Ctr. for Native Ecosystems, 711
F.Supp.2d at 1275.
Plaintiffs
argue that all of the documents they seek to add to the
administrative record “will provide the Court with
essential information to understand the nature of the
agency's decision, and will enable the Court to clearly
appreciate the issues.” Docket No. 43 at 6. Plaintiffs
state in conclusory fashion that the documents are
“highly relevant and necessary for effective judicial
review, ” but do not explain why. Id.;
seealso Docket No. 47 at 4 (“The
extra-record evidence is necessary to show the Service did
not undertake a proper NEPA analysis before issuing the
EAS.”). The administrative record already contains
substantial evidence regarding the history of Rocky Flats and
contamination in the area of the Refuge. The Court finds
plaintiffs have not carried their burden to show that the
documents that they seek to add to the record are necessary
for review of the administrative action. See Lee v. U.S.
Air Force, 354 F.3d 1229, 1243-44 (10th Cir. 2004)
(“The extra-record [evidence] indicate[s] that there is
disagreement ...