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Knight v. U.S. Army Corps of Engineers

United States District Court, E.D. Texas, Sherman Division

July 29, 2019

DUSTIN KNIGHT, ET AL.,
v.
U.S. ARMY CORPS OF ENGINEERS, ET AL.

          MEMORANDUM OPINION AND ORDER

          AMOS L. MAZZANT UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Plaintiffs' Motion to Complete the Administrative Record (Dkt. #17), which, after careful consideration, will be denied.

         BACKGROUND

         In early 2018, Defendants United States Army Corps of Engineers (the “Corps”) and Col. Christopher A. Hussin issued a permit to the North Texas Municipal Water District (“North Texas Municipal”) to construct the Lower Bois d'Arc Creek Reservoir (the “Reservoir”). Plaintiffs, who reside near the proposed site for the Reservoir, challenge the decision to issue the permit, citing the “significant degradation of waters” the Reservoir would cause, the lack of a plan to offset or mitigate these adverse consequences, and a failure to conduct an analysis that would ensure that the “least environmentally damaging practicable alternative was selected.” (Dkt. #1 at p. 19). Plaintiffs brings claims under the Administrative Procedures Act (the “APA”) on this basis, prompting Defendants to compile an administrative record that will inform the Court's review of these claims (the “Adminstrative Record”). Plaintiffs now move to add certain documents to the Administrative Record.

         LEGAL STANDARDS

         Judicial review of an APA claim is generally limited to the administrative record-that is, “all documents and materials directly or indirectly considered by agency decision-makers and includes evidence contrary to the agency's position.” Exxon Corp. v. Dept. of Energy, 91 F.R.D. 26, 33 (N.D. Tex. 1981) (Higginbotham, J.) (citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-88 (1951)). “Where an agency has presented a certified copy of the complete administrative record, ‘the court assumes the agency properly designated the Administrative Record absent clear evidence to the contrary.'” City of Dallas, Tex. v. Hall, No. 3:07-cv-60, 2007 WL 3257188, at *8 (N.D. Tex. Oct. 29, 2007) (citing Bar MK Ranches v. Yuetter, 994 F.2d 735, 740 (10th Cir. 1993)). “Despite this assumption, . . . a party is allowed to conduct discovery and/or complete or supplement the record where it demonstrates there is a reasonable basis to believe that materials considered by agency decisionmakers are not in the record.” Id. A party seeking to “complete the record” must therefore provide “reasonable, non-speculative grounds to believe that materials considered in the decision-making process are not included in the record.” Id.

         A party seeking to supplement the Administrative Record with documents the agency did not consider must satisfy a higher standard. More specifically, the moving party must demonstrate that there are “unusual circumstances” that require supplementation of the Administrative Record, such as where:

(1) the agency deliberately or negligently excluded documents that may have been adverse to its decision;
(2) the district court needed to supplement the record with “background information” in order to determine whether the agency considered all of the relevant factors, or;
(3) the agency failed to explain administrative action so as to frustrate judicial review.

Medina Cty. Envt'l Action Ass'n v. Surface Transp. Bd., 602 F.3d 687, 706 (5th Cir. 2010) (citing Am. Wildlands v. Kempthorne, 530 F.3d 991, 1002 (D.C. Cir. 2008)).

         DISCUSSION

         Plaintiffs insist that the following documents should be added to the Administrative Record: (1) the Texas Water Development Board 2016 Region C Water Plan (the “Region C Water Plan”); (2) five documents discussed and cited in public comments; and (3) a privilege log. The Court disagrees.

         I. The ...


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