United States District Court, D. Maine
STATE OF MAINE, et al. Plaintiffs,
GINA MCCARTHY, in her capacity as Administrator, United States Environmental Protection Agency, et al. Defendants.
ORDER ON MOTION TO SUPPLEMENT THE ADMINISTRATIVE
RECORD, OR ALTERNATIVELY, FOR CONSIDERATION OF EXTRA-RECORD
LEVY U.S. DISTRICT JUDGE
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.
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”). 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.
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).
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”).
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).
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
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.
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. 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
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.
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.
Stipulation Regarding the EPA's Position
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: (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.
determining whether a given document is adverse to or
potentially disproves the EPA's position, I refer to
these stipulations in my analysis.
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.
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).
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.
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.
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.
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.
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
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.
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
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.
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 ...