Forest County Potawatomi Community v. United States of America, 270 F. Supp. 3d 174

Background

Forest County Potawatomi Community sued federal officials under the APA challenging the Assistant Secretary of Indian Affairs’ disapproval of a 2014 amendment to its gaming compact with Wisconsin under IGRA. Menominee Tribe and Menominee Kenosha Gaming Authority intervened as defendants.
The parties dispute the scope and contents of the certified administrative record; Plaintiff moved to supplement the record with several categories of documents, and Defendant-Intervenors moved both to add certain documents and to exclude two financial reports newly offered for inclusion.
Plaintiff sought (1) records of meetings/calls between the Assistant Secretary (or staff) and the State/Menominee, (2) news/public documents about the amendment, and (3) other gaming compacts/agreements referenced in the Disapproval Letter.
Defendant-Intervenors sought (1) documents cited within their submitted materials (e.g., letters/testimony cited in memoranda), (2) documents related to the New York v. Jewell settlement, and (3) exclusion of two financial reports that federal defendants agreed to add at Plaintiff’s request.
The Federal Defendants certified which documents were actually considered and represented that certain contested documents (including the two financial reports) were not considered during decisionmaking.
The Court denied Plaintiff’s supplementation motion in full; denied Defendant-Intervenors’ requests to add documents but granted their request to exclude the two financial reports (i.e., those reports shall not be part of the record).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether records of meetings/calls between Federal actors, the State, and Menominee should be added	Such records likely exist and would have been considered	Federal Defs. certified they did not consider them; no evidence they were considered	Denied — speculative, no evidence they were considered
Whether news articles/public materials about the compact should be added	Federal officials likely monitored and considered widely available coverage	Federal Defs. certify they did not consider specific articles; presumption of proper record	Denied — speculative, insufficient to overcome presumption of regularity
Whether other compacts/agreements referenced in Disapproval Letter should be added	Disapproval letter referred to other compacts; those referenced compacts should be in the record	Federal Defs. included the compacts they relied on and did not consider the additional ones	Denied — no concrete evidence those specific documents were considered
Whether documents cited within Defendant-Intervenors’ submissions or Jewell materials should be added; whether two financial reports should be excluded	Def.-Ints.: cited documents are necessary to understand submitted memoranda; Jewell docs were relevant; exclude financials only if not considered	Federal Defs.: these cited/case documents were not considered; Federal Defs. certified the two financial reports were not considered	Partial: Denied as to adding cited/Jewell documents (no evidence they were considered); Granted as to exclusion of the two financial reports (Federal Defs. certified they were not considered)

Key Cases Cited

Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) (courts review the full administrative record before the agency)
Califano v. Sanders, 430 U.S. 99 (1977) (discussing limits of Overton Park on other grounds)
Pacific Shores Subdivision, Cal. Water Dist. v. U.S. Army Corps of Eng’rs, 448 F. Supp. 2d 1 (D.D.C. 2006) (administrative record includes materials directly or indirectly considered; agency gets presumption of regularity)
Motor & Equip. Mfrs. Ass’n, Inc. v. EPA, 627 F.2d 1095 (D.C. Cir. 1979) (supplementation of administrative record is the exception)
Franks v. Salazar, 751 F. Supp. 2d 62 (D.D.C. 2010) (courts rarely order supplementation)
Blue Ocean Inst. v. Gutierrez, 503 F. Supp. 2d 366 (D.D.C. 2007) (agency may not skew record by excluding unfavorable information)
Maritel, Inc. v. Collins, 422 F. Supp. 2d 188 (D.D.C. 2006) (record should include materials that might have influenced the agency)
Amfac Resorts, L.L.C. v. U.S. Dep’t of the Interior, 143 F. Supp. 2d 7 (D.D.C. 2001) (complete administrative record includes materials that might have influenced decision)
WildEarth Guardians v. Salazar, 670 F. Supp. 2d 1 (D.D.C. 2009) (denying supplementation where plaintiff offered only speculative grounds)
The Cape Hatteras Access Preservation Alliance v. U.S. Dep’t of Interior, 667 F. Supp. 2d 111 (D.D.C. 2009) (denying supplementation absent concrete evidence documents were before agency)
American Wild Horse Preservation Campaign v. Salazar, 859 F. Supp. 2d 33 (D.D.C. 2012) (exceptional circumstances can justify supplementation when agency was asked to consider documents and they were relied upon)