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State v. McCarthy

United States District Court, D. Maine

November 18, 2016

STATE OF MAINE, et al. Plaintiffs,
GINA MCCARTHY, in her capacity as Administrator, United States Environmental Protection Agency, et al. Defendants.



         On February 2, 2015, the U.S. Environmental Protection Agency (“EPA”) formally disapproved certain surface water quality standards that the plaintiffs State of Maine and the Maine Department of Environmental Protection (“Maine DEP”) (collectively, “Maine”) had promulgated under the Clean Water Act, 33 U.S.C.A. §§ 1251-1388 (2016). ECF No. 30-1. Maine seeks judicial review of EPA's disapproval (the “February 2015 Disapproval”) pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C.A. §§ 701-706 (2016), and the citizen suit provisions of the Clean Water Act, 33 U.S.C.A. § 1365(a)(2) (2016). ECF No. 30. Maine also seeks declaratory relief. Id.

         In March 2016, the EPA filed an administrative record (ECF No. 38) consisting of 174 documents. ECF No. 48 at 1. Maine now seeks to supplement the record with twenty-six additional documents (the “Documents”).[1] ECF No. 46 at 1. Alternatively, Maine argues that I should consider the Documents as extra-record evidence or take judicial notice of them. Id. at 1, 10.


         When a challenge to an agency's decision is presented, the agency must compile and designate the administrative record that it directly or indirectly considered in reaching its decision on the action being challenged. Cty. of San Miguel v. Kempthorne, 587 F.Supp.2d 64, 72 (D.D.C. 2008) (quotation omitted). “[T]he focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142 (1973); see also Boston Redev. Auth. v. Nat'l Park Serv., --- F.3d ----, 2016 WL 5335493, at *4 (1st Cir. Sept. 23, 2016).

         An agency's designation of the administrative record is entitled to a presumption of administrative regularity. Friends of the Boundary Mountains v. U.S. Army Corps of Eng'rs, 2013 WL 4589466, at *1 (D. Me. Aug. 28, 2013) (citation omitted). This presumption of regularity may be rebutted only upon clear evidence that “the agency's designated record is not accurate and complete[.]” Kempthorne, 587 F.Supp.2d at 72 (quoting The Fund for Animals v. Williams, 391 F.Supp.2d 191, 194 (D.D.C. 2005) (internal quotation marks omitted); see also Amfac Resorts, LLC v. U.S. Dept. of the Interior, 143 F.Supp.2d 7, 12 (D.D.C. 2001) (describing the evidentiary standard as a “significant showing[, ]” “strong[, ]” “substantial[, ]” and “prima facie”).

         Other courts faced with allegations of an incomplete record have started their inquiry by determining what encompasses the “whole record.” See Kempthorne, 587 F.Supp.2d at 71 (quoting Amfac Resorts, 143 F.Supp.2d at 12). The whole administrative record “should include all materials that might have influenced the agency's decision, and not merely those on which the agency relied in its final decision.” Amfac Resorts, 143 F.Supp.2d at 12 (quoting Bethlehem Steel v. EPA, 638 F.2d 994, 1000 (7th Cir. 1980) (internal quotation marks omitted)). This may include the work and recommendations of an agency decision maker's subordinates, id. at 12-13, but not “deliberative intra-agency memoranda and other such records” that are ordinarily privileged, id. at 13 (citing In re Subpoena Duces Tecum Served on Office of Comptroller of Currency, 156 F.3d 1279, 1280 (D.C. Cir. 1998) (other citations omitted).

         “In the event the administrative record is found inadequate for judicial review, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.” Olsen v. United States, 414 F.3d 144, 155 (1st Cir. 2005) (quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985) (internal quotation marks omitted)). “Ideally, the agency-not the district court- should be the body to augment the record.” Maine Med. Ctr. v. Burwell, --- F.3d ----, 2016 WL 6310800, at *3 n.4 (1st Cir. Oct. 27, 2016). In the “rare circumstances” where remand to the agency is not appropriate, the administrative record may be supplemented if there is a “strong showing of bad faith or improper behavior” by agency decision makers. Olsen, 414 F.3d at 155 (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971). The administrative record may also be supplemented where there is a “failure to explain administrative action as to frustrate effective judicial review.” Camp, 411 U.S. at 142-43; see also Olsen, 414 F.3d at 155-56.

         Maine contends that the circumstances surrounding the EPA's February 2015 Disapproval were “unusual, ” ECF No. 46 at 4, and that the EPA's accompanying rationale (R. 5303-5353) “raises questions about EPA's underlying motives and warrants the consideration of all of the Documents[, ]” ECF No. 50 at 1. I interpret this argument-questioning the EPA's motives-as an allegation of improper behavior by agency decision makers.

         Maine also cites alleged “unreconciled inconsistencies” between the February 2015 Disapproval and the Clean Water Act, the 1980 Acts, and the EPA's “historical approach to Maine's [water quality standards] in Indian Waters[, ]” id., and claims that these inconsistencies amount to a failure to adequately explain administrative action in a way that frustrates effective judicial review, ECF No. 46 at 4.[2] The 1980 Acts consist of the Maine Indian Claims Settlement Act, 25 U.S.C §§ 1721-1735 (“MICSA”) (2015) and the Maine Implementing Act, 30 M.R.S.A. §§ 6201-6214 (“MIA”).

         Maine also asserts that certain exhibits (Exhibits 1, 2, 4, 7, and 12-18) are adverse to the EPA's position, and therefore should supplement the record or otherwise be considered for that reason alone. ECF No. 46 at 5.

         An agency “may not skew the [administrative record] in its favor by excluding pertinent but unfavorable information[, ]” and may not exclude information on the grounds that it did not rely on that information for its final decision. Fund for Animals, 391 F.Supp.2d at 197 (citing Envtl. Def. Fund v. Blum, 458 F.Supp. 650, 661 (D.D.C. 1978)). Where a party makes a prima facie showing that the agency either intentionally or negligently excluded from the record evidence adverse to its position, then supplementation of the record may be proper. San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287, 1327 (D.C. Cir. 1984), vacated in another part, 760 F.2d 1320 (D.C. Cir. 1985) (en banc), and aff'd, 789 F.2d 26 (D.C. Cir. 1986) (en banc). Documents qualify as “adverse” where they “potentially disprove” the agency's position, with the burden on the plaintiff to make a “substantial, ” or prima facie showing. Kempthorne, 587 F.Supp.2d at 76-77.


         A. Stipulation Regarding the EPA's Position

         It is necessary to pinpoint EPA's position in this case in order to judge whether a particular exhibit is adverse to that position. The parties have stipulated that the EPA asserts that:[3] (1) prior to the February 2015 Disapproval, there had never been any water quality standards in effect for any Clean Water Act purpose for any Maine Indian Waters, ECF No. 44 at 2, ¶ 1; (2) Maine's water quality standards were not applicable and did not need to be attained in any Maine Indian Waters for any purpose under the Clean Water Act, id. at 2-3, ¶ 2; (3) the only water quality standards that have ever been in effect or needed to be attained in Maine Indian Waters for Clean Water Act purposes are those set forth and approved for the first time in EPA's February 2015 Disapproval, id. at 3, ¶ 5; (4) the February 2015 Disapproval represents the first time that the EPA stated its interpretation that Maine's longstanding designated use of fishing, set forth in Maine's Water Classification Program, 28 M.R.S.A. §§ 464-470 (2016), also encompasses a designated use of sustenance fishing for Clean Water Act purposes for any Indian tribes in Maine in any Maine Indian Waters, id. at 4, ¶ 7; (5) the EPA's actions before 2005, in which it applied Maine's water quality standards directly to Indian Waters, were mistakes, id. at 5, ¶ 14; and (6) before the February 2015 Disapproval, the EPA had never addressed whether members of Indian tribes in Maine are the intended target population of an EPA-approved state designated use of sustenance fishing, and whether unsuppressed tribal fish consumption rates must be used when establishing water quality standards in Maine Indian Waters, id. at 6, ¶ 15.

         In determining whether a given document is adverse to or potentially disproves the EPA's position, I refer to these stipulations in my analysis.[4]

         B. The Exhibits

         With the three bases for supplementing the administrative record in mind- improper agency behavior, failure to adequately explain administrative action, and exclusion of documents adverse to the agency's position-I now turn to a consideration of the Documents.

         Exhibit 1: Exhibit 1 (ECF No. 46-2) is a March 1982 “Status Report on Maine Indians” written by the EPA. Maine argues that the report emphasizes that Maine law on environmental protection applies in Indian territory and is inconsistent with the February 2015 Disapproval. ECF No. 46 at 5-6. The EPA notes that its February 2015 Disapproval says substantially the same thing as Exhibit 1, i.e., Maine has the authority to adopt water quality standards that are applicable to waters in Indian lands. ECF No. 48 at 6 (citing ECF No. 30-1 at 1).

         I am not persuaded that Exhibit 1 is adverse to or inconsistent with the EPA's position. See ECF No. 44. Therefore, Maine's Motion to Supplement the Administrative Record is denied with respect to Exhibit 1.

         Exhibits 2 and 3: Exhibit 2 is a 1993 EPA analysis of the Penobscot Indian Nation's (“Penobscots'”) application for “Treatment as a State” status under § 518(e) of the Clean Water Act, which was undertaken by the tribe in an effort to receive funds under § 106 of the Clean Water Act. ECF No. 46-3. Exhibit 3 is a letter from To the extent that Maine alleges that a specific document is evidence of an unexplained departure from EPA precedent, I treat it as an allegation that the document is adverse to the EPA's position or that the EPA failed to adequately explain its administrative action the EPA to the Penobscots summarizing the same issues raised in Exhibit 2. ECF No. 46-4.

         Maine argues that, in Exhibit 2, the EPA “concludes that the history and text of [the Maine Implementing Act, 30 M.R.S.A. §§ 6201-6214] reflect an intention to limit the jurisdictional authority of Maine's tribes[, ]” and that this represents an inadequately explained inconsistency with the February 2015 Disapproval. ECF No. 46 at 6. The EPA argues that Exhibit 2 is irrelevant to its February 2015 Disapproval because the document is focused upon the Penobscots' “Treatment as a State” status. ECF No. 48 at 8.

         Although Exhibit 2 does discuss the 1980 Acts and the limitations they imposed upon the sovereignty of Maine Indian tribes, see ECF No. 46-3 at 8-14, the EPA did not cite Indian tribe sovereignty or jurisdiction as a basis for its disapproval of certain of Maine's water quality standards, see ECF No. 30-1 at 47-48, nor is it mentioned in the parties' joint stipulation regarding the EPA's position in this litigation, see ECF No. 44. Accordingly, I am not persuaded that this document is adverse to or inconsistent with the EPA's position. Furthermore, Maine has not alleged that Exhibit 2 constitutes evidence of improper agency behavior. See ECF No. 46 at 5-6. Thus, Maine's Motion to Supplement the Administrative Record is denied with respect to Exhibit 2. Maine's motion is also denied with respect to Exhibit 3 because that document is substantively similar to Exhibit 2.

         Exhibit 4: Exhibit 4 is a 1995 memorandum from James Sappier, then the EPA's Regional Indian Program Director for Region 1, to nine New England Indian tribe representatives, in which Sappier refers to a “proposed concept paper” that contemplated allowing Indian tribes to promulgate their own water quality standards without any underlying tribal authority under the Clean Water Act. ECF No. 46-5.

         Maine argues that this memorandum is evidence of improper EPA behavior because it reflects the “EPA's pursuit of a tribal water quality regulatory agenda without the requisite [Clean Water Act] tribal authority and in violation of the 1980 Acts and the [Clean Water Act].” ECF No. 46 at 5 n.4. The EPA counters that Exhibit 4 reflects consideration of “base [water quality standards] for Indian country nation-wide[, ]” because States other than Maine lack authority to establish water quality standards for Indian country, and that communicating this fact to the Maine Tribes does not show bad faith or an improper purpose. ECF No. 48 at 6.

         The enthusiastic language contained in Exhibit 4 (“It looks like EPA has finally woken up!”) and the reference to Indian tribes as the appropriate “governing body, ” (“Where standards do not exist, EPA must work with the governing body-in this case the Tribes-of the certification area”) permits a rebuttable inference that the EPA sought to recognize Maine tribal jurisdiction over water quality standards despite the tribes' reduced sovereignty under the 1980 Acts. ECF No. 46-5 at 1; see also Maine Indian Claims Settlement Act, 25 U.S.C.A. §§ 1721-1735 (2016); Maine Implementing Act, 30 M.R.S.A. §§ 6201-6214. Although the proposed concept under consideration was a nationwide concept, the fact that the memorandum was addressed to representatives of Indian tribes throughout New England, including representatives from the Passamaquoddy tribe, Penobscot Indian Nation, the Houlton Band of Maliseet Indians, and the Aroostook Band of Micmac Indians, supports this inference.

         While the inference of improper EPA behavior that may be drawn from Exhibit 7 is by no means conclusive, it is sufficient, on its face, to grant Maine's Motion to Supplement the Administrative Record with respect to Exhibit 4.

         Exhibit 5: Exhibit 5 is a 2000 memorandum from the EPA's New England Region Office of Regional Counsel to the U.S. Department of the Interior concerning National Pollution Discharge Elimination System permit-holders discharging waste in and around Maine Indian country. ECF No. 46-6. Attached to the memorandum are two lists of entities that the EPA ...

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