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Norton v. Beasley

United States District Court, E.D. Kentucky, Central Division, Lexington

May 15, 2019

THOMAS NORTON, et al., Plaintiffs,
v.
JOY BEASLEY, in her official capacity as Keeper of the National Register of Historic Places, et al., [1] Defendants.

          MEMORANDUM OPINION AND ORDER

          Matthew A. Stinnett, United States Magistrate Judge.

         This matter is before the Court on Plaintiffs' Motion to Supplement the Administrative Record and Take Limited Discovery Regarding the Administrative Record [DE 34] and their Motion to Reassign Case [DE 35]. The motions have been fully briefed by both parties and are ripe for decision. The district judge referred the motions to the undersigned for disposition. [DE 42]. For the reasons stated herein, both motions will be DENIED.

         I. MOTION TO SUPPLEMENT THE ADMINISTRATIVE RECORD

         This case requests judicial review of National Park Service (“NPS” or “the agency”) decision to list certain properties on the National Register of Historic Places, pursuant to the Administrative Procedure Act. 5 U.S.C. 701-05.[2] In determining whether the NPS made a decision that was arbitrary, capricious, an abuse of discretion, or not in accordance with the law, “the court shall review the whole record or those parts of it cited by a party . . . .” 5 U.S.C. § 706.

         “The designation of the Administrative Record, like any established administrative procedure, is entitled to a presumption of administrative regularity. The court assumes the agency properly designated the Administrative Record absent clear evidence to the contrary.” Bar MK Ranches v. Yuetter, 994 F.2d 735, 740 (10th Cir. 1993) (internal citation omitted).

In order to overcome the presumption that the record was not properly designated, plaintiff must put forth concrete evidence. Plaintiff cannot merely assert that other relevant documents were before the [agency] but were not adequately considered. Instead, plaintiff must identify reasonable, non-speculative grounds for its belief that the documents were considered by the agency and not included in the record. Finally, plaintiff must do more than imply that the documents at issue were in the [agency's] possession. Rather, plaintiff must prove that the documents were before the actual decisionmakers involved in the determination.

Bullwinkel v. U.S. Dept. of Energy, 2013 WL 384902, at *2 (W.D.Tenn. 2013) (quoting Sara Lee Corp. v. Am. Bakers Ass'n, 252 F.R.D. 31, 33 (D.D.C. 2008). “As a general matter, courts confine their review to the administrative record, which includes all materials compiled by the agency[ ] that were before the agency at the time the decision was made. [. . . ] Courts have suggested that in order to justify supplementation, a plaintiff must make a strong showing of bad faith.” Sierra Club v. Slater, 120 F.3d 623, 638 (6th Cir. 1997) (internal quotation marks and citations omitted).

         For the reasons stated herein, the Court concludes Plaintiffs have not put forth “concrete evidence, ” or identified “reasonable, non-speculative grounds” that there are documents considered by the agency but not included in the Administrative Record before the Court, or that there was any bad faith in the compilation of the Administrative Record.

         A. Exhibits 1-11

         In their motion, Plaintiffs request inclusion of their Exhibits 1-11; however, each of these, save one page of Exhibit 6, is already in the Administrative Record. [Response, DE 38, Page ID # 587-88, setting forth the pages in the Administrative Record where the documents can be found]. The fax cover sheet of Exhibit 6 to Plaintiff's Motion that is not included is illegible and, at most, ministerial. [DE 34-6, Page ID # 525]. Plaintiffs have not identified any reason to believe that the fax cover sheet was considered by the agency in making its decision. Accordingly, the Court will deny the request as to the fax cover sheet of Exhibit 6 and deny the remainder of the request as moot because it is included in the Administrative Record.

         B. Broad Categories of Documents

         Plaintiffs also ask that Defendants supplement the Administrative Record to include several categories of documents, which the Court will not require to be added to the Administrative Record for the reasons stated below.

         1. Documents related to a meeting between Plaintiffs, their attorney, and National Register program staff in 2009.

         Plaintiffs allege that there is nothing in the Administrative Record “reflecting the occurrence of that meeting or the substance of what was discussed at the meeting.” [DE 34 at Page ID # 503]. Even if “a visit to Washington, D.C., by several deeply concerned Kentucky property owners was memorialized by the Defendants in some manner[, ]” there is no allegation that the agency considered any such documents related to this meeting in making its decision. Plaintiffs essentially ...


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