Livable Lake Stevens v. United States Army Corps of Engineers

• Court: District Court, W.D. Washington
• Decided: February 21, 2023
• Docket: 2:21-cv-01423
• Status: Unknown

Opinion

1 THE HONORABLE RICHARD A. JONES

8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 9 AT SEATTLE

10 LIVABLE LAKE STEVENS, 11 Plaintiff, Case No. 2:21-cv-01423-RAJ 12 v.

13 UNITED STATES ARMY CORPS OF ORDER DENYING PLAINTIFF’S 14 ENGINEERS, et al., MOTION TO ADMIT ADDITIONAL DOCUMENTS TO THE RECORD/ADMIT 15 Federal Defendants, EXTRA-RECORD DOCUMENTS

16 and,

17 COSTCO WHOLESALE

18 CORPORATION, 19 Intervenor-Defendant. 20 21 I. INTRODUCTION 22 THIS MATTER comes before the Court on Plaintiff Livable Lake Stevens’s 23 Motion to Admit Additional Documents to the Record/Admit Extra-Record Documents 24 (“Motion”). Dkt. # 28. Having reviewed the Motion, record, proposed additional 25 documents, and relevant law, the Court DENIES Plaintiff’s Motion. 26

27 1 II. DISCUSSION 2 Plaintiff challenges the U.S. Army Corps’s (“Corps”) decision to issue a wetland 3 fill permit at a proposed site in Snohomish County. Dkt. #1. In seeking review under the 4 Administrative Procedure Act (“APA”), Plaintiff contends that the current Administrative 5 Record (“AR”) is incomplete. Dkt. # 28 at 2. 6 In their Motion, Plaintiff seeks to add six documents (“Documents”) to the AR. 7 See Dkt. # 28-1, Exhibits 1-6. Plaintiff argues the Documents should be included to 8 complete the AR because they were directly or indirectly considered by the Corps when 9 issuing the permit. Dkt. # 28 at 2. Alternatively, if the Court concludes the AR is 10 complete, Plaintiff argues the Court should still admit the Documents as extra-record 11 evidence because they are necessary to determine if the Corps considered all relevant 12 factors when making its decision. Dkt. # 28 at 2–3, 5. The Court declines to do either. 13 Review of agency action under the APA is generally restricted to the 14 administrative record already in existence. San Luis & Delta-Mendota Water Authority v. 15 Jewell, 747 F.3d 581, 602 (9th Cir. 2014); Northwest Environmental Advocates, 2019 16 WL 6977406, at *2 (D. Or. Dec. 20, 2019). The administrative record should be the 17 “whole record” consisting of all documents directly or indirectly considered by the 18 agency. Northwest Environmental Advocates, 2019 WL 6977406, at *3. An agency’s 19 determination of what is in the record, however, is entitled to a “presumption of 20 administrative regularity” that can only be rebutted by “concrete evidence that the record 21 is incomplete.” California v. U.S. Dept. of Labor, 2:13-cv-02069, 2014 WL 1665290, at 22 *4, 5 (E.D. Cal. Apr. 24, 2014). 23 Federal district courts are permitted to admit extra-record evidence only in 24 “limited circumstances”: (1) if admission is necessary to determine whether the agency 25 has considered all relevant factors and has explained its decision, (2) if the agency relied 26 on documents not in the record, (3) if supplementing the record is necessary to explain 27 technical terms or complex subject matter, or (4) if plaintiffs make a showing of agency 1 bad faith. Lands Council v. Powell, 395 F.3d 1019, 1030 (9th Cir. 2005). These 2 exceptions are narrowly construed and applied. Id. 3 A. Adding Documents to the Administrative Record 4 Plaintiff argues the AR is incomplete without the Documents for two reasons. 5 First, Plaintiff asserts that the Documents were indirectly or directly considered by the 6 agency because they were in the Corps’s possession. See Dkt. # 28 at 7–10. This 7 argument fails. Plaintiff must do more than “imply that the documents at issue were in 8 the agency’s possession.” Pinnacle Armor, Inc. v. U.S., 923 F.Supp.2d 1226, 1239 (E.D. 9 Cal. Feb. 12, 2013). Rather, Plaintiff must identify reasonable, non-speculative grounds 10 for its belief that the documents were considered by the agency. Id. Here, Plaintiff states 11 that the Corps were in possession of the Documents. Dkt # 28 at 7–10. In response, the 12 Corps disclaims possession of some of the Documents and states it did not consider the 13 ones in its possession. Dkt. # 29 at 3–5. Plaintiff does not provide concrete evidence that 14 rebuts the Corps’s statements to show reasonable and non-speculative grounds that the 15 Corps actually considered those Documents.1 16 Second, Plaintiff argues the Corps indirectly or directly considered the Documents 17 because they were put on notice of the Documents through Plaintiff’s reference and 18 citation to them in their comments submitted to the Corps. See Dkt. # 28 at 7–10. Courts 19 in the Ninth Circuit have continuously held that the “consideration through citation” 20 argument “stretches the chain of indirect causation to its breaking point and cannot be a 21 basis for compelling completion of an Administrative Record.” California, 2:13-cv- 22 02069, 2014 WL 1665290, at * 9; (quoting Center for Native Ecosystems v. Salazar, 711 23 F.Supp.2d 1267, 1277 (D. Colo. 2010)). Here, Plaintiff, when referring to document 1, 24 makes a consideration through citation argument when saying it “cited to [document 1]” 25 in their comment submitted to Corps, so the “Corps clearly considered – at least

26 1 The Corps did investigate the accuracy of the data in document 1, Dkt. # 30 at 2; 27 however, Plaintiff provides no evidence that the Corps considered the document when issuing the permit. 1 indirectly – or the Corps clearly should have considered” it. Dkt. # 28 at 8 ¶ 1. Plaintiff 2 makes the same argument for documents 2, 3, and 6.2 Plaintiff cannot present concrete, 3 non-speculative evidence that the Corps indirectly or directly considered the Documents. 4 Therefore, the Court defers to the Corps’s determination that assumes the administrative 5 record has been properly designated. Cook Inletkeeper v. EPA, 400 Fed. App’x 239, 240 6 (9th Cir. 2010). 7 B. Admitting Documents as Extra-Record Evidence 8 Plaintiff seeks to use the “relevant factor” exception outlined in Lands Council to 9 admit the Documents as extra-record evidence. Plaintiff argues that the Documents must 10 be admitted because they are necessary to determine if the Corps considered all the 11 relevant factors when issuing the permit. See Dkt. # 28 at 7–10. This Court cannot 12 “second-guess the agency’s certification that the record submitted to the court is complete 13 based on assertions, supposition, or speculation.” California, 2014 WL 1665290, at *8. 14 Because this Court defers to the determination that the AR is properly designated, 15 Plaintiff’s “relevant factor” argument is moot. 16 The Ninth Circuit has held that parties wishing to invoke one of the Lands Council 17 exceptions must first show that the administrative record is inadequate. Northwest 18 Environmental Advocates, 2019 WL 6977406, at *8 (D. Or. Dec. 20, 2019). Such a 19 requirement is consistent with Ninth Circuit’s instruction that the Lands Council 20 exceptions be narrowly construed. Id. Consistent with other district courts within the 21 Ninth Circuit, this Court will not consider the Lands Council exceptions where the 22 plaintiff fails to provide concrete evidence that the AR is inadequate. Id. at *3. The Court 23 agrees with the Corps that the Documents are either duplicative or representative of 24

25 2 Plaintiff states documents 2 and 3 were “specifically referenced in comments submitted to the Corps by plaintiff LLS.” Dkt. # 28 at 8 ¶ 3. Plaintiff also argues that document 6 was “referenced 26 in the report by LLS’ experts attached to comments submitted by plaintiff to the Corps” therefore Corps were on notice of the document and must have indirectly or directly considered it. Id. at 10 27 ¶ 2. 1 information already within the record. See, e.g., AR 0022-25, 1254; AR 2440-2446. 2 Having made that determination, the Court declines to admit the Documents as extra- 3 record evidence. 4 III. CONCLUSION 5 For the reasons above, the Court DENIES Plaintiff’s Motion to Add Additional 6 Documents to the Record/Admit Extra-Record Evidence. Dkt. # 28. 7 8 DATED this 21st day of February, 2023. 9 10 A 11

12 The Honorable Richard A. Jones 13 United States District Judge 14

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