United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
Matthew A. Stinnett, United States Magistrate Judge.
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.
MOTION TO SUPPLEMENT THE ADMINISTRATIVE
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. 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.
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).
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
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.
Broad Categories of Documents
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.
Documents related to a meeting between Plaintiffs, their
attorney, and National Register program staff in
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 ...