Opinion
CASE NO. 4:19-CV-2771
09-16-2020
FRIENDS OF THE MAHONING RIVER, Plaintiff, v. U.S. ARMY CORPS OF ENGINEERS and Colonel Andrew J. Short, Defendants, North Eastwood, LLC, Defendant/Intervenor.
Andrew J. Karas, Megan M. Hunter, Fair Shake Environmental Legal Services, Akron, OH, for Plaintiff. Daniel R. Dertke, U.S. Department of Justice, Washington, DC, Sara E. DeCaro, Office of the U.S. Attorney, Cleveland, OH, for Defendants. Andrew O. Etter, David Rees Alexander, Karen A. Winters, Squire Patton Boggs, Columbus, OH, for Defendant/Intervenor.
Andrew J. Karas, Megan M. Hunter, Fair Shake Environmental Legal Services, Akron, OH, for Plaintiff.
Daniel R. Dertke, U.S. Department of Justice, Washington, DC, Sara E. DeCaro, Office of the U.S. Attorney, Cleveland, OH, for Defendants.
Andrew O. Etter, David Rees Alexander, Karen A. Winters, Squire Patton Boggs, Columbus, OH, for Defendant/Intervenor.
ORDER
[Resolving ECF No. 24 ]
PEARSON, United States District Judge
Pending is Plaintiff's Motion to Supplement the Administrative Record. ECF No. 24. Defendants and Defendant/Intervenor have each responded in opposition. ECF Nos. 27, 28. Plaintiff has replied. ECF No. 30. Because the documents Plaintiff seeks to add to the administrative record are either not "background information," or are already in the record, the Court denies Plaintiff's motion.
I. Background
Plaintiff seeks to challenge Defendants’ issuance of a permit to Defendant/Intervenor for the dredge and fill of waters of the United States pursuant to Section 404 of the Clean Water Act ("CWA"), 33 U.S.C. § 1344 . ECF No. 1 at PageID #: 1. The permit allows Defendant/Intervenor "to permanently impact 15.95 acres of wetlands and 1,608.5 linear feet of streams in Howland Township and the City of Niles in Trumbull County, Ohio." Id. Defendant/Intervenor's stated intended use for the permit is to "build an approximately 100-acre development, known as Enterprise Park Project," which will house a to-be-constructed hospital facility and attendant medical, educational, and resident campus facilities. Id. at PageID #: 1-2.
Plaintiff, a non-profit environmental organization, claims its members’ "recreational and aesthetic interests will be harmed by the dredge and fill activity authorized by the" permit. ECF No. 1 at PageID #: 3. Plaintiff brings three claims challenging the issuance of the permit under the CWA. Id. at PageID #: 13-15.
In the instant motion, Plaintiff seeks to supplement the administrative record with census data that is primarily, if not exclusively, relevant to its first claim, that Defendants failed to conduct an appropriate public interest analysis before issuing the permit. ECF No. 24. at PageID #: 5351, 5353-54. Plaintiff submits reports from the United States Census Bureau following the decennial Census of 2000 and 2010 for Ohio, including Trumbull County and its various subdivisions, as well as reports reflecting annual U.S. Census Bureau population estimates from 2010-2018 for Trumbull County, Howland Township, and City of Warren. ECF Nos. 24-2, 24-3, 24-4, 24-5, 24-6.
Plaintiff also seeks to supplement the administrative record with PDFs of information available on the internet, referred to as Exhibits F and G. ECF No. 24 at PageID #: 5354-56; see also ECF Nos. 24-7, 24-8. Defendants state that the substance of these materials are already part of the administrative record, because the web pages are hyperlinked within the record. ECF No. 27 at PageID #: 5733-34. Defendants "do not object if the Court wishes to refer to Plaintiff's Exhibit[s F and G] instead of following the hyperlink in the comments that are in the administrative record." Id. Accordingly, it is unnecessary for the Court to address whether it would otherwise be appropriate to supplement the administrative record with these documents.
Plaintiff argues that the administrative record does not support that there is a need for the proposed hospital facility based on the realities of population growth (more accurately, the lack thereof) in the area. ECF No. 24. at PageID #: 5353-54. Plaintiff argues that, while there are some competing assertions in the record, that there is a dearth of substantiation for competing claims of population growth, decline, and stagnation, and that the Court's analysis on the merits would be aided by the inclusion of reliable census data on the issue. Id. ; see also ECF No. 30. Plaintiff identifies the following relevant statements in the administrative record, and neither Defendants, nor Defendant/Intervenor, have supplemented that list:
ECF Doc. #22-11, pp. 2785-86 (email from Jack Mullen, stating "The GM closing with all the significant economic spin-offs and recent and significant past serious population declines will make this development very tough to successfully pull off"); 2789-90 (email from Colleen McClean, stating "Forwarding along recent reports of significant population decline in Trumbull County, even before the idling of GM Lordstown. Trumbull county was down 0.8% from July 2017 - July 2018, and it's likely going to continue to decline as more companies are forced to close"). Additionally, there are contradictory statements from North Eastwood, stating both that the regional population is increasing and decreasing, apparently contending that either of these states of
affairs supports the need for the project. Compare ECF Doc. #22-12, p.3142 ("This immediate geographic region has been in a protracted malaise since the abrupt closing of the steel mills 35 years ago; this area has lost population each year since then; the tax base of Trumbull County is at a standstill") with ECF Doc. #22-18, p. 5279 ("According to the Census (2017), the population in Warren, OFI has increased 7,5 percent from April 1, 2010 to April 1, 2017).
ECF No. 24 at PageID #: 5353-54.
Some of the purportedly quoted text is riddled with inaccuracies, potentially from attempting to use copy/paste functions on scanned text. The Court reminds Plaintiff's counsel of his obligation to accurately represent purportedly quoted text.
II. Standard of Review
The Administrative Procedures Act ("APA") requires courts to "review the whole record or those parts of it cited by a party." 5 U.S.C. § 706 . Generally, "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." Sierra Club v. Slater , 120 F.3d 623, 638 (6th Cir. 1997) (citations and quotation marks omitted). Under limited circumstances, a court may supplement the record, "such as when an agency deliberately or negligently excludes certain documents, or when the court needs certain ‘background information’ in order to determine whether the agency considered all of the relevant factors." Id. (citations and quotation marks omitted). The Sixth Circuit cautions a Court considering expanding its review beyond the administrative record that it "must be careful not to allow such evidence to change the character of the hearing from one of review to a trial de novo." United States v. Akzo Coatings of Am., Inc. , 949 F.2d 1409, 1428 (6th Cir. 1991). Accordingly, the party seeking to supplement the administrative record bears the heavy "burden of showing ‘exceptional circumstances’ requiring supplementation of the record." Little Traverse Lake Prop. Owners Ass'n v. Nat'l Park Serv. , 883 F.3d 644, 652 (6th Cir. 2018) (emphasis added). "[S]upplementation of the record before the reviewing court is rare[.]" Id. at 657.
When a party seeks to supplement the record with background information, which is Plaintiff's exclusive argument, a court evaluates whether the agency's "failure to explain [its] administrative action ... frustrate[s] effective judicial review." Envtl. Def. Fund, Inc. v. Costle , 657 F.2d 275, 285 (D.C. Cir. 1981) (quoting Camp v. Pitts , 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973) ). The submitted evidence must be "necessary for adequate judicial review[,]" Partners in Forestry Co-op. v. U.S. Forest Serv. , 45 F. Supp. 3d 677, 683 (W.D. Mich. 2014) (emphasis added), and not just create a "fuller record[.]" Ctr. for Biological Diversity v. U.S. Forest Serv. , No. 2:17-CV-372, 2018 WL 7200718, at *8 (S.D. Ohio Sept. 7, 2018). As the Sixth Circuit has explained: "[C]ourts may consider additional information only when the administrative record is so inadequate as to prevent the reviewing court from effectively determining whether the agency considered all environmental consequences of its proposed actions." Little Traverse Lake Prop. Owners Ass'n v. Nat'l Park Serv. , 883 F.3d 644, 658 (6th Cir. 2018) (quoting Nat'l Audubon Soc'y v. Hoffman , 132 F.3d 7, 15 (2d Cir. 1997) (alterations omitted)).
III. Discussion
The Court "may consider additional evidence as either background information to aid the court's understanding, or to determine if the agency examined all relevant factors or adequately explained its decision." Akzo Coatings , 949 F.2d at 1428. The census data falls into none of these categories. The Court does not require the Census data to understand the contents of the record. The data does not speak to an issue on which the administrative record is entirely silent, nor does it give any insight into Defendant's thought process when issuing the permit. Plaintiff's motion must fail because Plaintiff seeks to create a more full record, not to provide background information.
"When a record is inadequate, a court may obtain from the agency, either through affidavits or testimony, such additional explanations of the reasons for the agency decision as may prove necessary." Ctr. for Biological Diversity , 2018 WL 7200718, at *10 (quoting Envtl. Def. Fund, Inc. , 657 F.2d at 285 ).
The core of Plaintiff's argument is that "although there are competing claims in the administrative record by [Defendant/Intervenor] and commenting objectors on what the population in the relevant locales are, there is no statement by [Defendant] on how it resolved these disputes and what bearing the population trends in the area had on its decision to issue the permit." ECF No. 30 at PageID #: 5748. While that may well be true, "Plaintiff[ ] conflate[s] the need for supplementation with the underlying merits of their claim." Ctr. for Biological Diversity , 2018 WL 7200718, at *9. "[A]ny dearth of information in [Defendant's] record regarding the [need for a new hospital] may inform the Court's ultimate decision on the merits, but such a determination is not properly before the Court at this juncture." Id. (citing Pacifcans for a Scenic Coast v. Cal. DOT , Case No. 3:15CV2090, ECF No. 98, 2016 U.S. Dist. LEXIS 55672, at *7 (N.D. Cal. Apr. 25, 2016)).
Plaintiff has not met its burden to demonstrate that the administrative record must be expanded to even allow for judicial review. Rather, it attempts to tip the scales by infusing the record with information it wishes Defendant had been confronted with (or independently obtained) when it was initially considering the permit. This is improper: "Plaintiffs had an opportunity to raise objections and submit additional evidence during the [ ] public comment period. They did not, but ‘[i]f they had, their [substantiated] criticism would have been incorporated in the administrative record for future judicial review.’ " Little Traverse Lake Prop. , 883 F.3d at 658 (quoting Davidson v. U.S. Dep't of Energy , 838 F.2d 850, 855 (6th Cir. 1988) ). "In this case, Plaintiffs, not [Defendant], omitted the documents they now seek to add to the record." Id.
Because Plaintiff limited its argument to the background information exception, the Court does not consider whether the Census data's absence from the record was because Defendant "deliberately or negligently exclude[d] certain documents" that should have been included or sought out by Defendant when it initially considered the permit.
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IV. Conclusion
Based on the foregoing, Plaintiff's Motion to Supplement the Administrative Record (ECF No. 24 ) is denied.
Pursuant to the Court's Case Management Conference Plan/Order (ECF No. 19 ), the parties shall file a joint proposed scheduling order for briefing on cross motions for summary judgment on or before September 30, 2020.
IT IS SO ORDERED.