305 F.R.D. 256
D.N.M.2015Background
- Plaintiffs are long‑time Hispanic permittees and local entities who graze cattle on two allotments in the Carson National Forest; District Ranger Diana Trujillo issued a 2010 Decision Notice reducing permitted grazing by 18% rather than adopting the EA’s preferred (lesser) reduction.
- Plaintiffs challenged the Decision Notice under NEPA, NFMA, SYFMA and the APA and initially alleged a standalone First Amendment retaliation claim against Trujillo; the court later held the challenge is review of final agency action subject to the APA and ultimately dismissed the First Amendment claim for failure to exhaust administrative remedies.
- Plaintiffs moved to supplement/complete the administrative record and for limited discovery, alleging the Forest Service omitted materials and acted in bad faith (retaliation) so as to justify extra‑record evidence and depositions.
- The Forest Service produced a large administrative record but contested inclusion of certain documents proffered by Plaintiffs and argued that supplementation/discovery is warranted only on a strong showing of bad faith or other narrow exceptions.
- The court held (i) Plaintiffs failed to make the strong evidentiary showing of bad faith needed to trigger the bad‑faith exception and so denied discovery and admission of post‑suit affidavits; (ii) a proper administrative record must include all materials the Forest Service officials actually considered in formulating or reviewing the 2010 Decision Notice, not only what was before the appeal officers; and (iii) courts may consider extra‑record materials that establish legislative (not adjudicative) facts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Plaintiffs made a sufficient showing of agency bad faith to permit supplementation of the administrative record and limited discovery | Plaintiffs argued prior allegations and proffered affidavits, letters, and internal reports show retaliatory animus and bad faith, warranting extra‑record discovery and supplementation | Forest Service argued Plaintiffs’ allegations are insufficient; administrative record is voluminous and presumption of regularity stands absent a strong, particularized showing of bad faith | Denied: Plaintiffs failed to make the required strong evidentiary showing of bad faith; no discovery; post‑suit affidavits excluded as extra‑record evidence of adjudicative facts |
| Scope of the administrative record: must it include materials considered at any stage or only those before appeal officers? | Plaintiffs argued the record must include all materials the agency considered in decisionmaking (not limited to materials that reached appellate reviewers) | Defendants suggested record need only include materials considered by the appeal decisionmakers or that were before the appeals board | Held for Plaintiffs on scope: administrative record must include all documents and materials directly or indirectly considered by the agency officials who formulated or reconsidered the 2010 Decision Notice; parties may designate materials they reasonably believe were considered |
| Whether certain proffered documents (affidavits, Civil Rights Report, historical FS reports, Nontimber Forest Report) are admissible extra‑record | Plaintiffs sought admission of affidavits (post‑filing), a Civil Rights Report, two historical FS reports, and a non‑timber forest products report | Defendants opposed, arguing these are adjudicative, post‑hoc, or not considered by decisionmakers | Court excluded post‑suit affidavits and the Civil Rights and local 1935/1947 reports (adjudicative facts not before decisionmakers); allowed citation/use of the Non‑timber Forest Report as legislative/technical background |
| Whether the court can consider materials outside the administrative record at all | Plaintiffs urged liberal supplementation and consideration of extra‑record evidence to show failures in NEPA/NFMA analysis and motive | Defendants argued review should be confined to the administrative record except in rare circumstances | Held: Court may consider extra‑record materials only to establish legislative facts or to explain technical terms; otherwise review is limited to the administrative record and supplementation is narrowly cabined |
Key Cases Cited
- Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) (recognizes limited circumstances to go outside the administrative record and the Overton hearing concept)
- Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) (framework for judicial deference to agency statutory interpretations)
- Auer v. Robbins, 519 U.S. 452 (1997) (deference to an agency’s interpretation of its own regulations)
- Bar MK Ranches v. Yuetter, 994 F.2d 735 (10th Cir. 1993) (administrative record consists of materials directly or indirectly considered by agency decisionmakers)
- Olenhouse v. Commodity Credit Corp., 42 F.3d 1560 (10th Cir. 1994) (district courts should treat APA review as appeals and avoid summary‑judgment devices that shift burdens)
- Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443 (9th Cir. 1996) (enumerates exceptions when courts may consider extra‑record materials)
- Citizens for Alternatives to Radioactive Dumping v. U.S. Dep’t of Energy, 485 F.3d 1091 (10th Cir. 2007) (Tenth Circuit recognizes bad‑faith exception to administrative‑record rule)