CLF v. US Fed’l Hwy Admin.

2006 DNH 090

• Court: District Court, D. New Hampshire
• Decided: August 14, 2006
• Docket: CV-06-45-PB
• Status: Published

Opinion

CLF v . US Fed’l Hwy Admin. CV-06-45-PB 08/14/06

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Conservation Law Foundation

v. Case N o . 06-cv-45-PB Opinion No. 2006 DNH 090

US Federal Highway Admin. and NH Dep’t of Transportation

O R D E R

Conservation Law Foundation’s (“CLF”) seeks to supplement

the administrative record in this case with an affidavit of

William C . Ingham, Jr., a former wildlife ecologist with the New

Hampshire Department of Fish & Game (“NHF&G”), and excerpts from

the final environmental impact statement (“FEIS”) for the

expansion of Loon Mountain Ski Area. Defendants Federal Highway

Administration (“FHWA”) and New Hampshire Department of

Transportation (“NHDOT”) object on the basis that the deadline

for filing supplemental record documents has passed and CLF has

failed to show that further supplementation is warranted.1

1 The case management order issued on April 2 7 , 2006 (Doc. N o . 12) set the deadline for filing any proposed supplement to the administrative record as May 2 5 , 2006. In the typical NEPA case, the reviewing court “looks first

and foremost at the record before the agency” to determine

whether the Environmental Impact Statement (“EIS”) “is ‘adequate’

in light of the information and comments before the agency at the

time it produced the Statement.” Valley Citizens for a Safe

Environment v . Aldridge, 886 F.2d 4 5 8 , 460 (1st Cir. 1989). The

administrative record generally “consists of all documents and

materials directly or indirectly considered by the [decision-

making] agency.” Bar MK Ranches v . Yuetter, 994 F.2d 735, 739

(10th Cir. 1993). Supplementation of the record “by affidavits,

depositions, or other proof of an explanatory nature” may be

appropriate where the record is inadequate to explain the

agency’s decision. Sierra Club v . Marsh, 976 F.2d 763, 772 (1st

Cir. 1992) (quotation omitted). Extra-record evidence also may

aid the court in determining whether “an EIS has neglected to

mention a serious environmental consequence, failed adequately to

discuss some reasonable alternative, or otherwise swept stubborn

problems or serious criticism under the rug.” O r . Natural Res.

Council v . Lowe, 109 F.3d 5 2 1 , 526-27 (9th Cir. 1997) (quotation

and ellipsis omitted); accord County of Suffolk v . Secretary of

the Interior, 562 F.2d 1368, 1384 (2d Cir. 1977).

-2- CLF previously sought to depose Ingham concerning his role

in developing NHF&G’s comments on the draft environmental impact

statement (“DEIS”). CLF claims that Ingham’s criticisms of the

DEIS were “‘swept under the rug’ and hidden from the public’s

view in the EIS process.”2 Pl.’s Mem. of Law in Supp. of Mot. to

Supplement R. at 4 . I agree with defendants that CLF has not

shown that Ingham’s affidavit fits any recognized exception to

the general rule against extra-record evidence. The affidavit

does not help to explain the decision at issue here, nor does it

bring to light any important matters that the FEIS ignored. See

Valley Citizens, 886 F.2d at 460. As defendants correctly point

out, the administrative record includes Ingham’s comments on the

DEIS and FHWA’s response to them, as well as an internal NHDOT

memorandum that acknowledges the alleged improper conduct. See

AR at 24137-38, 24487, 26787-89. I thus conclude that

supplementation of the record is not warranted.

2 CLF also suggests that Ingham’s testimony reveals improper conduct on the part of NHDOT, although CLF concedes that it has not made a “strong showing of bad faith or improper behavior.” See Citizens to Preserve Overton Park, Inc. v . Volpe, 401 U.S. 4 0 2 , 420 (1971).

-3- CLF submits an excerpt from the Loon Mountain FEIS in

response to questions posed by the court concerning the

differences between a private party and a governmental agency

acting as the applicant in the EIS process. Although I

appreciate CLF’s efforts in researching this issue, I do not find

it appropriate to supplement the administrative record with

documents that are not relevant to the decision at issue here.

Instead, the parties can use documents that are already in the

administrative record to analyze NHDOT’s role under the relevant

statutes and regulations.

For the foregoing reasons, CLF’s motion to supplement the

record (Doc. N o . 44) is denied.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

August 1 4 , 2006

cc: Counsel of Record

-4-