                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


 FOREST COUNTY POTAWATOMI
 COMMUNITY,

         Plaintiff,                                        Civil Action No. 15-105 (CKK)
         v.

 UNITED STATES, et al.,

         Defendants,

 MENOMINEE INDIAN TRIBE OF
 WISCONSIN and MENOMINEE
 KENOSHA GAMING AUTHORITY,

         Defendant-Intervenors.


                          MEMORANDUM OPINION AND ORDER
                                (September 12, 2017)

       Plaintiff Forest County Potawatomi Community has brought this action under the

Administrative Procedure Act (“APA”) against Defendants United States of America, the United

States Department of the Interior, the Secretary of the Interior, and the Assistant Secretary of

Indian Affairs (collectively, the “Federal Defendants”), challenging the Federal Defendants’

decision to disapprove a 2014 amendment to a gaming compact between Plaintiff and the State

of Wisconsin (the “2014 Compact Amendment”) under the Indian Gaming Regulatory Act, 25

U.S.C. §§ 2701 et. seq, (“IGRA”). The Court has granted the Menominee Indian Tribe of

Wisconsin (“Menominee”) and the Menominee Kenosha Gaming Authority’s (collectively, the

“Defendant-Intervenors”) Motion for Leave to Intervene as Defendants.

       Now before the Court is Defendant-Intervenors’ [62] Motion to Complete the

Administrative Record and to Exclude Documents from the Administrative Record (“Def.-Ints.’
Mot.”), as well as Plaintiff’s [63] Motion to Supplement the Administrative Record (“Pl.’s

Mot.”). Upon consideration of the pleadings, the relevant legal authorities, and the record as a

whole, the Court will GRANT-IN-PART and DENY-IN-PART Defendant-Intervenors’ motion

and DENY Plaintiff’s motion. The Court concludes that both parties’ arguments for adding

documents to the certified administrative record are speculative and insufficient to overcome the

presumption that the record has been properly compiled. Additionally, the Court finds that it is

appropriate to exclude certain financial records from the administrative record because the

Federal Defendants have certified that these records were not considered during the decision

making process.

                                     I. LEGAL STANDARD

       The APA directs the Court to “review the whole record or those parts of it cited by a

party.” 5 U.S.C. § 706. This requires the Court to review “the full administrative record that

was before the Secretary at the time he made his decision.” Citizens to Preserve Overton Park v.

Volpe, 401 U.S. 402, 420 (1971), abrogated on other grounds by Califano v. Sanders, 430 U.S.

99 (1977). Courts in this Circuit have “interpreted the ‘whole record’ to include all documents

and materials that the agency directly or indirectly considered . . . [and nothing] more nor less.”

Pac. Shores Subdivision, Cal. Water Dist. v. U.S. Army Corps of Eng’rs, 448 F. Supp. 2d 1, 4

(D.D.C. 2006) (citation omitted). “In other words, the administrative record ‘should not include

materials that were not considered by agency decisionmakers.’” Id. (citation omitted).

“[A]bsent clear evidence, an agency is entitled to a strong presumption of regularity, that it

properly designated the administrative record.” Id. at 5. “Supplementation of the administrative

record is the exception, not the rule.” Id. (quoting Motor & Equip. Mfrs. Ass’n, Inc. v. EPA, 627

F.2d 1095, 1105 (D.C. Cir. 1979)); see also Franks v. Salazar, 751 F. Supp. 2d 62, 67 (D.D.C.




                                                 2
2010) (“A court that orders an administrative agency to supplement the record of its decision is a

rare bird.”) (citation omitted).

        Of course, an agency “may not skew the record by excluding unfavorable information but

must produce the full record that was before the agency at the time the decision was made.”

Blue Ocean Inst. v. Gutierrez, 503 F. Supp. 2d 366, 369 (D.D.C. 2007). Nor may the agency

exclude information from the record simply because it did not “rely” on the excluded

information in its final decision. Maritel, Inc. v. Collins, 422 F. Supp. 2d 188, 196 (D.D.C.

2006). Rather, “a complete administrative record should include all materials that ‘might have

influenced the agency’s decision[.]’” Amfac Resorts, L.L.C. v. U.S. Dep’t of the Interior, 143 F.

Supp. 2d 7, 12 (D.D.C. 2001).

                                        II. DISCUSSION

        Two motions relating to the administrative record in this matter are currently pending

before the Court: (A) Plaintiff’s Motion to Supplement the Administrative Record and (B)

Defendant-Intervenors’ Motion to Complete the Administrative Record and to Exclude

Documents from the Administrative Record. The Court will address each separately.

A. Plaintiff’s Motion to Supplement the Administrative Record

        Plaintiff argues in its motion that three categories of documents should be added to the

record: (1) records of the Assistant Secretary of Indian Affairs and his representatives’ meetings

or calls with the State of Wisconsin and Menominee, (2) news articles and other public

documents relating to the 2014 Compact Amendment, and (3) certain gaming compacts and

compact-related agreements. Plaintiff has not satisfied its burden of showing that any of these

documents should be added to the administrative record.

        1. Records of Meetings and Calls with the State and Menominee

        First, Plaintiff argues that the administrative record should be supplemented with records


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of meetings or calls Plaintiff contends the Federal Defendants may have had with the State of

Wisconsin and Menominee, during which Plaintiff speculates that the 2014 Compact

Amendment “would have been discussed.” Pl.’s Mot. at 9. Plaintiff argues that “there should be

written documentation of the meetings and calls.” Id. at 10.

       Plaintiff’s argument fails because it is based on little more than assumptions and

speculation. Even if the records Plaintiff seeks to add to the administrative record existed—

which has not been established—Plaintiff has not provided any evidence that they were

considered either directly or indirectly during the decision making process. Although Plaintiff

has offered evidence that suggests that meetings and calls between these entities may have

occurred, Plaintiff merely speculates about what might have been discussed during those

meetings—it has no real evidence that the purported discussions were relevant to or considered

during the decision making process for the 2014 Compact Amendment. Federal Defendants

have certified that they were not. In its reply brief, Plaintiff argues that “these meetings and calls

. . . necessarily would have involved discussions of the 2014 Compact Amendment.” See Reply

Mem. in Support of Pl.’s Mot., ECF No. 68, at 4 (emphasis added). But this is precisely the type

of speculation that is insufficient to overcome the presumption that an administrative record

certified by an agency is properly designated. See WildEarth Guardians v. Salazar, 670 F. Supp.

2d 1, 6 (D.D.C. 2009) (denying motion to supplement administrative record because plaintiff

could not “provide reasonable, non-speculative grounds demonstrating that the [the document]

itself was considered, either directly or indirectly, by the Secretary.”) (emphasis in original).

Plaintiff’s motion to supplement the record with records of meetings or calls Federal Defendants

may have had with the State of Wisconsin and Menominee will be denied.




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       2. News Reports and Other Public Documents Relating to the 2014 Compact
          Amendment

       Second, Plaintiff argues that the administrative record should be supplemented with news

reports and other public documents relating to the 2014 Compact Amendment that Plaintiff

contends the Defendants must have been monitoring at the time they were considering the

amendment. Pl.’s Mot. at 11.

       Again, Plaintiff’s argument is speculative and far from sufficient to defeat the

presumption of regularity afforded to a certified administrative record. Plaintiff has offered

some support for the unsurprising notion that the Federal Defendants were aware of news

coverage related to a proposed Kenosha casino and the 2014 Compact Amendment generally, but

have presented no evidence that any particular document that is missing from the administrative

record was considered either directly or indirectly during the decision making process. Instead,

they merely argue that these materials were widely available, were “likely” sent to Federal

Defendants, and therefore must have been considered. Id. at 12. These types of speculative

arguments are insufficient to satisfy Plaintiff’s burden. Plaintiff offers no real evidence to rebut

the presumption that the administrative record is properly designated without these news reports,

and accordingly its motion to supplement the record with them will be denied.

       3. Other Agreements or Compacts

       Finally, Plaintiff argues that the administrative record should be supplemented with four

gaming compacts and compact-related agreements that Plaintiff contends were referred to in the

Federal Defendants’ Disapproval Letter. These include: (1) an Indemnification Agreement

between the Ho-Chunk Nation and the State of Wisconsin, (2) a Colorado River Indian Tribes

and State of Arizona Class III Gaming Compact and related Federal Register Notice, (3) a

Compact between the Seminole Tribe of Florida and the State of Florida and related Federal



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Register Notice, and (4) a Tribal-State Gaming Compact between the Wiyot Tribe and the State

of California, a related Federal Register Notice and an Approval Letter. Pl.’s Mot. at 18.

Plaintiff argues that “[t]he Disapproval Letter specifically relied upon its decisions as to other

compacts as grounds for disapproving the 2014 Compact Amendment,” pointing to generalized

language in that letter that refers to “other instances,” “compact amendments between other

tribes and the State of Wisconsin,” and “other compact amendments.” Id. at 20. Plaintiff claims

that the documents it seeks to add to the administrative record “are some of the compacts that the

Assistant Secretary is referencing.” Id.

       Once again, Plaintiff’s argument fails because it is based on speculation—Plaintiff has

presented no concrete evidence that these documents were considered either directly or indirectly

during the decision making process. See The Cape Hatteras Access Pres. All. v. U.S. Dep’t of

Interior, 667 F. Supp. 2d 111, 114 (D.D.C. 2009) (denying motion to supplement administrative

record because plaintiffs’ arguments were not “enough to overcome the strong presumption that

[the agency] properly designated the administrative record, and the plaintiffs have not introduced

any concrete evidence that” the documents were before the agency). There is no evidence that

any party submitted or cited to these documents during the Federal Defendant’s consideration of

the 2014 Compact Amendment, and Federal Defendants represent that they “included within the

administrative record all compacts, compact-related agreements, and associated federal notices

cited in the decision and considered directly or indirectly by the Assistant Secretary.” Fed.

Defs.’ Combined Opp’n to Pl.’s Mot. and Def.-Ints.’ Mot., ECF No. 67 (“Defs.’ Opp’n”), at 14.

Absent evidence that this is not the case, Plaintiff’s motion fails.

       In sum, the Court will deny Plaintiff’s Motion to Supplement the Administrative Record

because Plaintiff has failed to demonstrate that any of the categories of documents it claims are




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missing were actually considered, either directly or indirectly, during the decision making

process. Accordingly, the Court also rejects Plaintiff’s request that the Court order Federal

Defendants to conduct additional searches to find allegedly missing records.

B. Defendant-Intervenors’ Motion to Complete the Administrative Record and to Exclude
   Documents from the Administrative Record

       Defendant-Intervenors have also moved to modify the administrative record. They first

request that two categories of documents be added to the record: (1) documents cited within

documents that Defendant-Intervenors submitted to the Federal Defendants when they were

considering the 2014 Compact Amendment, and (2) documents related to a settlement agreement

in the matter New York v. Jewell, 08-cv-00644-LEK-DEP (N.D.N.Y.). Defendant-Intervenors

also move to exclude from the administrative record certain financial records that the Federal

Defendants have recently agreed to include in the record at the request of Plaintiff.

       1. Documents Cited Within Submitted Documents

       First, Defendant-Intervenors seek to supplement the administrative record with certain

documents that were cited or relied upon within documents that Defendant-Intervenors submitted

to the Federal Defendants during their consideration of the 2014 Compact Amendment. This

category of documents includes (1) the testimony of the Acting Deputy Assistant Secretary for

Indian Affairs for Policy and Economic Development before the Senate Committee on Indian

Affairs, (2) a letter from the Principal Deputy Assistant Secretary for Indian Affairs to the

Governor of New York, (3) a letter from the Assistant Secretary for Indian Affairs to the

Governor of Massachusetts, (4) a letter from the Assistant Secretary for Indian Affairs to the

Governor of California, (5) a letter to the Chairman of the Federated Indians of Graton

Rancheeria from the Acting Assistant Secretary for Indian Affairs, (6) a letter to the Chairperson

of the Pinoleville Pomo Nation from the Assistant Secretary for Indian Affairs, and (7) a letter to



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the Chairman of the Shingle Springs Band of Miwok Indians from the Assistant Secretary for

Indian Affairs.

       Defendant-Intervenors did not actually submit these documents to the Federal

Defendants, nor did they expressly ask the Federal Defendants to consider them. On December

5, 2014, Defendant-Intervenors sent an email to the Federal Defendants attaching a letter from

Menominee Chairperson Laurie Boivin, and a legal memorandum drafted by an attorney, John

Wilhelmi (the “Wilhelmi Memo”). The letter urged the Assistant Secretary of the Bureau of

Indian Affairs to disapprove the compact amendments for several reasons. Def.-Ints.’ Mot., Ex.

19. It noted that Ms. Boivin had “included a legal memorandum with this letter, which sets forth

a more complete explanation of these reasons.” Id. at 2. The attached legal memorandum, in

turn, referenced some of the documents Defendant-Intervenors now seek to add to the record.

Def.-Ints.’ Mot., Ex. 3. Both Ms. Boivin’s letter and the Wilhelmi Memo were included by the

Federal Defendants in the administrative record, but the documents cited within the Wilhelmi

Memo were not. On December 19, 2014, Defendant-Intervenors sent a second email, again

urging the disapproval of the amendment. In that email, Defendant-Intervenors asked the

Federal Defendants to consider two legal opinions that had been prepared for and addressed to

Ms. Boivin. The attached legal opinions, in turn, cited other documents Defendant-Intervenors

now seek to add to the record. Def.-Ints.’ Mot., Exs. 4, 5. Again, the legal opinions were

included in the administrative record, but the various documents cited within those opinions were

not.

       The Court will not order the record supplemented with the documents cited within

Defendant-Intervenors’ submissions. The Court agrees with Defendant-Intervenors that the mere

fact that they did not themselves physically supply the Federal Defendants with copies of these




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documents is not alone a sufficient reason to exclude them from the administrative record. See

Am. Wild Horse Pres. Campaign v. Salazar, 859 F. Supp. 2d 33, 46 (D.D.C. 2012) (rejecting

argument that documents were not properly part of the administrative record simply because

plaintiffs did not provide copies of them to the defendant agency). That being said, there is

simply no evidence that the Federal Defendants actually considered these referenced documents.

Federal Defendants oppose the addition of these documents to the record, and represent that

“[t]he Assistant Secretary did not directly or indirectly consider these documents in making his

decision.” Defs.’ Opp’n at 19. Defendant-Intervenors did not request that the Federal

Defendants consider these documents. The Court is not persuaded, on the particular facts of this

case, that the mere fact that portions of these documents were cited within other documents

Defendant-Intervenors did ask Federal Defendants to consider is enough to show that they

themselves were considered. 1 Defendant-Intervenors’ motion to supplement the record with

these documents will therefore be denied.

       2. Documents Related to the New York v. Jewell Settlement Agreement

       Second, Defendant-Intervenors seek to supplement the administrative record with certain



1
 This case is distinguishable from Am. Wild Horse Pres. Campaign v. Salazar, 859 F. Supp. 2d
33 (D.D.C. 2012). In that case, the court found that “exceptional circumstance[s]” justified
adding documents to the administrative record because those documents were cited, quoted and
relied on extensively in plaintiffs’ comments opposing the defendant-agency’s action, and
plaintiffs expressly asked the defendant-agency to consider the documents. Id. at 43. Plaintiffs
in that case also, “less than two hours after the comment period ended, attempted to submit the
[documents] to the agency.” Id. at 45. The court found that supplementation was warranted
because, among other things, plaintiffs had “requested that [the agency] examine” the documents
and “specifically directed the agency to” them. Id. The Court concurs with the analysis in Am.
Wild Horse Pres., but the exceptional facts that supported supplementation in that case are
missing here. Here, Defendant-Intervenors seek to add documents to the administrative record
based on the mere fact that they were cited within memorandums attached to Defendant-
Intervenors’ submissions. They did not expressly ask Federal Defendants to consider these other
documents or attempt to submit them to Federal Defendants. The “exceptional circumstances”
present in Am. Wild Horse Pres. are simply absent here.


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documents related to a settlement agreement in the matter New York v. Jewell, 08-cv-00644-

LEK-DEP (N.D.N.Y.) and the United States’ position on that settlement—issues Defendant-

Intervenors discussed in their submission to the Federal Defendants. Defendant-Intervenors

argue that these documents “are necessary to a complete and accurate understanding of the actual

terms of the final settlement, and the United States’ position with regard to the settlement,” and

that “[t]hese documents were in the possession of the Department and must have been considered

directly or indirectly to the extent the settlement itself was considered by the Department at all.”

Def.-Ints.’ Mot. at 14. This category of records contains two documents from the Jewell matter:

(1) a letter motion from Michael R. Smith for Oneida Nation of New York requesting approval

of a stipulation of dismissal and (2) a Memorandum Decision and Order.

       Again, the Court finds that Defendant-Intervenors have not overcome the “strong

presumption” that the Federal Defendants properly compiled the administrative record. Pac.

Shores, 448 F. Supp. 2d at 5. Federal Defendants oppose the addition of these documents to the

administrative record because they were not considered during the decision making process.

Defs.’s Opp’n at 21. In response, Defendant-Intervenors merely argue that these documents

“must have been considered,” because Federal Defendants “would have known of the impact” of

these documents. See Def.-Ints.’ Reply to Fed. Defs.’ Opp’n, ECF No. 70, at 5-6. These

speculative arguments are insufficient to satisfy Defendant-Intervenors’ burden to justify

supplementing the record. As such, Defendant-Intervenors’ motion to supplement the record

with these documents will be denied.

       3. Financial Reports that Federal Defendants Agreed to Add to the Record at the
          Request of Plaintiff

       Finally, Defendant-Intervenors seek to exclude from the administrative record two

financial reports that the Federal Defendants have recently agreed to add to the record at the



                                                 10
request of Plaintiff. Defendant-Intervenors argue that “[t]here is no indication that the two

documents . . . were actually before the Federal Defendants when they considered the 2014

Amendment.” Def.-Ints.’ Mot. at 17-18. Plaintiff opposes this motion and argues that

Defendant-Intervenors have not shown clear evidence that the records were not considered by

the Federal Defendants, which Plaintiff contends is Defendant-Intervenors’ burden. See Pl.’s

Opp’n to Def.-Ints.’ Mot., ECF No. 65, at 4. Federal Defendants do not oppose the exclusion of

these documents from the record. Defs.’ Opp’n at 16 n.4.

       The parties’ dispute fundamentally boils down to a debate over who has the burden of

proof in the unusual instance where a government agency agreed during negotiations to add

documents to a previously-compiled administrative record, but has not actually certified one way

or the other whether the documents genuinely should be in the record—i.e., whether they were

actually considered during the decision making process. This debate has now been rendered

academic, because the Federal Defendants have filed a certification with the Court stating that

the financial records at issue are not properly part of the administrative record because “[n]either

document . . . was considered by the Department, either directly or indirectly, during the decision

making process.” See Notice of Filing Suppl. Certification of Administrative Record, ECF No.

74. In light of this certification, the strong presumption is that the administrative record is

complete without these financial records. For many of the same reasons that the Court has

rejected all of the parties’ other arguments in favor of modifying the administrative record,

which the Court will not restate here, the Court finds that a sufficient showing has not been made

to rebut this presumption. Accordingly, Defendant-Intervenors’ motion to exclude these

documents will be granted. These documents shall not be made part of the administrative record.




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                               III. CONCLUSION AND ORDER

       For the foregoing reasons, it is hereby

       ORDERED that Plaintiff’s [63] Motion to Supplement the Administrative Record is

DENIED. It is further

       ORDERED that Defendant-Intervenors’ [62] Motion to Complete the Administrative

Record and to Exclude Documents from the Administrative Record is GRANTED-IN-PART

and DENIED-IN-PART. Defendant-Intervenors’ motion is denied to the extent they sought to

add documents to the administrative record, but granted to the extent they sought to exclude the

recently-added financial records. It is further

       ORDERED that the parties shall file a Joint Status Report by no later than September 26,

2017, indicating how they propose to proceed in this matter and, if appropriate, proposing a

schedule for the briefing of dispositive motions.

       SO ORDERED.

Date: September 12, 2017                               ___/s/___________________________
                                                       COLLEEN KOLLAR-KOTELLY
                                                       United States District Judge




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