                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


CAROL GRUNEWALD, et al.,

                        Plaintiffs,

                        v.                         Civil Action No. 12-cv-1738 (RLW)

JONATHAN B. JARVIS, DIRECTOR,
NATIONAL PARK SERVICE, et al.,

                      Defendants.


                                 MEMORANDUM OPINION

       Plaintiffs have moved this Court for an Order requiring Defendants to supplement the

Administrative Record with one purportedly missing document. Before the Court is Plaintiffs’

Motion to Supplement the Administrative Record With One Document (Dkt. No. 14). For the

reasons set forth below, Plaintiffs’ Motion is DENIED.

       STANDARD FOR SUPPLEMENTING THE ADMINISTRATIVE RECORD

       When reviewing agency action, the Administrative Procedure Act requires a court to

review “the whole record or those parts of it cited by a party.” 5 U.S.C. § 706. A fair review by

this Court requires it to have “neither more nor less information than did the agency when it

made its decision.” Walter O. Boswell Mem’l Hosp. v. Heckler, 749 F.2d 788, 792 (D.C. Cir.

1984). There is a strong presumption that the agency properly compiled the Administrative

Record. “Supplementation of the administrative record is the exception, not the rule.” Pac.

Shores Subdivision, Cal. Water Dist. v. U.S. Army Corps of Eng’rs, 448 F. Supp. 2d 1, 5

(D.D.C. 2006) (citations omitted). “Therefore, absent clear evidence to the contrary, an agency

is entitled to a strong presumption of regularity, that it properly designated the administrative


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record.” WildEarth Guardians v. Salazar, 670 F. Supp. 2d 1, 5 (D.D.C. 2009) (citations omitted).

“Were courts cavalierly to supplement the record, they would be tempted to second-guess agency

decisions in the belief that they were better informed than the administrators empowered by

Congress and appointed by the President.” Amfac Resorts, LLC v. U.S. Dep’t of the Interior,

143 F. Supp. 2d 7, 11 (D.D.C. 2001) (quoting San Luis Obispo Mothers for Peace v. NRC, 751

F.2d 1287, 1325-26 (D.C. Cir. 1986) (en banc)).

       In addition, a successful motion to supplement the Record cannot merely guess about

who has seen the documents at issue. A party moving to supplement the Administrative Record

“must do more than imply that the documents at issue were in the [agency’s] possession”; they

“must prove that the documents were before the actual decisionmakers involved in the

determination.” Sara Lee Corp. v. Am. Bakers Ass’n, 252 F.R.D. 31, 34 (D.D.C. 2008) (citation

omitted). The Record “should not include materials that were not considered by agency

decisionmakers.” Pac. Shores, 448 F. Supp. 2d at 4 (citations omitted).

                                         ANALYSIS

       In this case, the one document at issue is entitled “Meeting the Invasive Species

Challenge,” and was published by the National Invasive Species Council in 2001. (Dkt. No. 14-

2). Plaintiffs’ theory as to why this document “was clearly” before the Defendants (Dkt. No. 14,

at 1 & 11), appears to be as follows. The Administrative Record includes, as it unquestionably

must, the Final White-Tailed Deer Management Plan / Environmental Impact Statement

(“FEIS”). (Administrative Record (“AR”) 16450-17041). Under a section titled “Related Laws,

Policies, Plans, and Constraints: Other Legislation, Compliance, and National Park Service

Policy,” the FEIS includes a one-sentence entry for Executive Order 13112. (AR 16518). The

entry reads: “This executive order requires the NPS to prevent the introduction of invasive



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species and provide for their control and to minimize the economic, ecological, and human

health impacts that invasive species cause.” (Id.). Plaintiffs asked Defendants to include the

Executive Order in the Administrative Record. (Dkt. No. 14-4, at 2). Defendants replied that

they “do not believe it appropriate or necessary to include Executive Order 13112 in the AR (just

as we have not included copies of statutes or regulations), but will not object if Plaintiffs cite to

that Order.” (Dkt. No. 14-5, at 2-3). 1 The Executive Order, in turn, refers to the document

Plaintiffs seek to supplement the Administrative Record with, but not directly. This is because

the Executive Order is dated February 3, 1999, see 64 Fed. Reg. 6183 (Feb. 8, 1999), and refers

to the future publication of a “first edition of a National Invasive Species Management Plan”; the

government subsequently published “Meeting the Invasive Species Challenge” in October 2001,

(Dkt. No. 14-2).     Thus, Plaintiffs’ argument is that the Administrative Record should be

supplemented with a document that was referred to in a document that was referred to in the

Record.

       There is a difference between “supplementing the Record” and “going beyond the

Record.” See, e.g., Cape Hatteras Access Pres. Alliance v. U.S. Dep’t of Interior, 667 F. Supp.

2d 111 (D.D.C. 2009). The former seeks to add documents that were before the agency but not

included in the Administrative Record, while the latter seeks to add documents not before the

agency but that should nonetheless be in the Administrative Record. Plaintiffs here ask to

supplement the Record, as made clear by their Motion, which states “this document . . . was

clearly before the agency when it made its decision,” (Dkt. No. 14, at 1), as well as by their

Reply, which states their Motion should be granted under County of San Miguel v. Kempthorne,




1
        Plaintiffs’ representation that the Park Service “agreed that the Executive Order should be
in the Administrative Record” is thus not accurate. (See Dkt. No. 23, at 5).
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587 F. Supp. 2d 64, 77 (D.D.C. 2008) (Dkt. No. 23, at 2); County of San Miguel is a case about

Record supplementation.

       Plaintiffs fail to meet the “heavy burden” required of a party moving to supplement the

Record. WildEarth, 670 F. Supp. 2d at 6. Their argument that the Administrative Record must

be supplemented with a document referenced in a document not in the Administrative Record

stretches the meaning of what is “before the agency” beyond the breaking point. “A broad

application of the phrase ‘before the agency’ would undermine the value of judicial review . . . .”

Pac. Shores, 448 F. Supp. 2d at 5. Plaintiffs’ argument has been considered and rejected by

other courts, and Plaintiffs have not presented a convincing reason to stray from that precedent.

See, e.g., Ctr. For Native Ecosystems v. Salazar, 711 F. Supp. 2d 1267, 1277 (D. Colo. 2010)

(finding the “consideration through citation argument stretches the chain of indirect causation to

its breaking point and cannot be a basis for compelling completion of an Administrative

Record”). In fact the argument here is even weaker, because in Ctr. For Native Ecosystems the

first document in the chain appeared in the Administrative Record. That is not the case in this

matter, as the Executive Order is not in the Administrative Record, but only mentioned.

       Plaintiffs’ claim that their “motion should be granted under County of San Miguel,” (Dkt.

No. 23, at 2), overstates the holding of that court and thus its relevance here. In County of San

Miguel, the court supplemented the Administrative Record with two sets of documents related to

whether a particular species should be listed under the Endangered Species Act. First, the court

ordered the Record supplemented with two documents that the defendants in that case had

previously stipulated were part of the Record in related litigation. 587 F. Supp. 2d at 73.

Second, in that case the plaintiffs had requested pursuant to the Freedom of Information Act

(“FOIA”) all “public documents possessed by the U.S. Fish and Wildlife Service that comprise



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the ‘administrative record’ for the final listing determination . . . . ” Id. at 74. The government

in that case had turned over documents to plaintiffs pursuant the FOIA request that it then tried

to keep out of the Administrative Record, causing the court to reject the government’s

“inconsistent representations.” Id. The key issues considered by the court in County of San

Miguel are not present here, and the case is therefore readily distinguishable.

       The law provides a presumption that an agency properly compiled the Administrative

Record that may be rebutted only upon “clear evidence to the contrary.” Fund for Animals v.

Williams, 391 F. Supp. 2d 191, 197 (D.D.C. 2005) (citation omitted). The government has

stated it “did not consider or rely, directly or indirectly, on” the 2001 document. (Dkt. No. 14-7).

Although Plaintiffs have alleged that the document “was clearly before the agency,” (Dkt. No.

14, at 1 & 11), the clarity is not discernible by the Court. Instead it appears that Plaintiffs have

done nothing more than “imply that the document[] at issue w[as] in the [agency’s] possession,”

Sara Lee Corp., 252 F.R.D. at 34, because a document referred to in the Administrative Record

in turn refers to its eventual existence. As have others, this Court finds that Plaintiffs’ chain of

inferences stretches too far.

                                             CONCLUSION

       For the foregoing reasons, Plaintiffs’ Motion to Supplement the Administrative Record is

DENIED. An Order accompanies this Memorandum.
                                                                       Digitally signed by Judge Robert L.
                                                                       Wilkins
                                                                       DN: cn=Judge Robert L. Wilkins, o=U.S.
                                                                       District Court, ou=Chambers of
                                                                       Honorable Robert L. Wilkins,
                                                                       email=RW@dc.uscourt.gov, c=US
Date: February 21, 2013                                                Date: 2013.03.11 10:15:48 -04'00'


                                                     ROBERT L. WILKINS
                                                     United States District Judge




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