Miami Nation of Indians of Indiana v. Babbitt, 3:92-CV-586RM.

• Citation: 979 F.Supp. 771
• Decision Date: 11 October 1996
• Docket Number: No. 3:92-CV-586RM.,3:92-CV-586RM.
• Parties: MIAMI NATION OF INDIANS OF INDIANA, et al., Plaintiffs, v. Bruce BABBITT, et al., Defendants.
• Court: United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana

979 F.Supp. 771

MIAMI NATION OF INDIANS OF INDIANA, et al., Plaintiffs, v. Bruce BABBITT, et al., Defendants.

No. 3:92-CV-586RM.

United States District Court, N.D. Indiana, South Bend Division.

October 11, 1996.

COPYRIGHT MATERIAL OMITTED

Arlinda F. Locklear, Jefferson, MD, David L. Kiley, Sr., Albert C. Harker, Kiley Osborn Kiley Harjer, Marion, IN, for Plaintiffs.

Scott Keep, Dept. of the Interior, Div. of Indian Affairs, Washington, DC, R. Anthony Rogers, U.S. Dept. of Justice, Environmental & Natural Resources Div., General Litigation Section, Washington DC, Barbara N. Coen, Dept. of the Interior, Div. of Indian Affairs, Washington DC, for Defendants.

MEMORANDUM AND ORDER

MILLER, District Judge.

The plaintiffs (collectively the "Miamis") have filed a motion to "complete and supplement the administrative record and to allow expert testimony," and a request for oral argument on the motion. The defendants (collectively the "United States") oppose the motion with respect to the administrative record and expert testimony, and have not addressed the request for oral arguments. Since the parties' briefs sufficiently apprised the court of their respective positions, the court denies the request for oral argument. For the following reasons, the court grants in part the Miamis' motion to complete and supplement the administrative record and to allow expert testimony.

I. Background

The Miami Indian tribe (the "Miamis") historically lived in the central and northern regions of Indiana. From 1795 to 1840, the Miami's entered into several treaties with the United States. As a result of one of those treaties, the Miamis split into two groups, with one group relocating to Kansas and the other remaining in Indiana. Generally, the United States interacted with the Indiana Miamis as covered under the United States' trust responsibilities. See, e.g., Miami Nation v. Lujan, 832 F.Supp. [253,] at 253-255 [(N.D.Ind.1993)] (discussing history of relations between the Miamis and the United States). In 1897, however, Assistant Attorney General Willis Van Devanter decided that the Indiana Miamis no longer were tribal Indians, and thus no longer were covered by the United States' trust responsibilities. See id. at 255. The Secretary of the Interior (the "Secretary") approved the decision and withdrew acknowledgment of the Indiana Miamis; the Department of the Interior (the "Department") has refused to acknowledge the Indiana Miamis as an Indian tribe since then.

Until 1978, the Department made its decisions whether to acknowledge an Indian tribe on a case-by-case basis. See 25 Fed.Reg. 39,361 (1978). In 1978, the Department promulgated regulations providing a procedure for acknowledging the existence of Indian tribes. See 25 C.F.R. Part 83 (1978)¹ (the "1978 regulations"). On March 25, 1980, the Miamis filed a petition for federal acknowledgment as an Indian tribe pursuant to these regulations. On July 19, 1990, the Assistant Secretary of the Interior published his proposed finding that the Miamis do not meet the political influence and community criteria of the acknowledgment regulations. 55 Fed.Reg. 29,423 (1990). On June 18, 1992, the Assistant Secretary published his final determination that the Miamis do not exist as an Indiana tribe and, therefore, are not entitled to a government-to-government relationship with the United States. 57 Fed.Reg. 27,312 (1992).

The Miamis then filed a four-count complaint in this court. Count 1 sought a ruling that the Secretary of the Interior's decision withdrawing federal recognition of the Indiana Miamis in 1897 was ultra vires; the court ruled that the applicable statute of limitations barred that claim. Miami Nation v. Lujan, 832 F.Supp. at 257. Count 4 of the complaint ... seeks review of the Department's application of the acknowledgment regulations to the Miamis.

Counts 2 and 3 of the complaint challenge the validity of the Department's 1978 regulations. In Count 2, the Miamis allege that the defendants exceeded their congressional authorization in issuing the regulations by allegedly imposing stricter requirements upon tribes seeking recognition after 1978 than those imposed before 1978. In Count 3, the Miamis allege that the regulations are invalid because they fail to define key terms or specify a burden of proof, because they provide no mechanism for independent review or administrative appeal, and because the regulations treat Indian tribes recognized before 1978 differently than those petitioning for tribal status after 1978.

The court granted the United States' motion for summary judgment on Counts 2 and 3 on April 24, 1995. Miami Nation of Indians of Indiana v. Babbitt, 887 F.Supp. 1158 (N.D.Ind.1995).

The Miamis and the United States now find themselves locked in a dispute over discovery and the appropriate scope of the administrative record. Accordingly, the Miamis seek an order: (1) requiring that the government include in the administrative record all materials the agency considered in deciding the Miamis' petition for recognition, including drafts, notes, and logs prepared by Branch of Acknowledgment and Research ("BAR") staff and contract consultants and those guidelines, internal directives, and manuals applicable to the Miami petition; (2) authorizing depositions and setting a hearing to take testimony from BAR staff, tribal consultants, and a "teaching" expert to explain the technical, complex issues involved in this matter and the decision-making process in this case; and (3) requiring Tribal and court access to the records from other government recognition decisions.

II. Completion of Administrative Record

Under the Administrative Procedure Act ("APA"), the court ultimately reviews the agency's action in this case to determine if it was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). The APA directs that "[i]n making the foregoing determination, the court shall review the whole record or those parts of it cited by a party." 5 U.S.C. § 706. The parties dispute whether the agency has produced the "whole record."

Generally, judicial review of agency action is limited to review of the administrative record. Friends of the Earth v. Hintz, 800 F.2d 822, 828 (9th Cir.1986). In Florida Power & Light Co. v. Lorion, 470 U.S. 729, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985), the Supreme Court emphasized that when reviewing administrative decisions:

"[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." The task of the reviewing court is to apply the appropriate APA standard of review, 5 U.S.C. § 706, to the agency decision based on the record the agency presents to the reviewing court.

Id. at 743-44, 105 S.Ct. at 1607 (quoting Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973)).

Animal Defense Council v. Hodel, 840 F.2d 1432, 1436 (9th Cir.1988). "The complete administrative record consists of all documents and materials directly or indirectly considered by the agency." Bar MK Ranches v. Yuetter, 994 F.2d 735, 739 (10th Cir.1993).

An agency may not unilaterally determine what constitutes the Administrative Record, nor can the agency supplement the Administrative Record submitted to the district court with post hoc rationalizations for its decision. However, the designation of the Administrative Record, like any established administrative procedure, is entitled to a presumption of administrative regularity. The court assumes the agency properly designated the Administrative Record absent clear evidence to the contrary. When a showing is made that the record may not be complete, limited discovery is appropriate to resolve that question.

Id. at 739-740.

Having the "whole record" before it is crucial to the court's review under the APA.

The reason is that the court cannot determine whether the final agency decision reflects the rational outcome of the agency's consideration of all relevant factors when the court has no idea what factors or data were in fact considered by the agency. In assessing whether the agency's action was arbitrary and capricious, the court must test the action against the "full administrative record that was before the (agency official) at the time he made the decision."

* * * * * * In the present case, it appears that the exhibits attached to the federal defendants' motion do not comprise the entire administrative record. Further, it would be improper for this court to allow the federal defendants to determine unilaterally what shall constitute the administrative record and thereby limit the scope of the court's inquiry. For that reason, plaintiffs are entitled to discover any materials, including internal memoranda, guidelines, or hearing transcripts, that are necessary to complete the administrative record.

The federal defendants correctly observe that they may be permitted to offer affidavits or live testimony in order to explain the record, but that the court may not engage in a de novo review of the administrative actions. It bears emphasis, perhaps, that this court intends to review the federal agency decisions under the narrow standards of § 706 of the APA rather than to embark on a full-blown review of the agency actions. Such limited review under the APA is inappropriate, however, in the absence of the full administrative record.

Lloyd v. Illinois Regional Transp. Authority, 548 F.Supp. 575, 590-591 (N.D.Ill.1982).

In any event, "[t]he court assumes the agency properly designated the Administrative Record absent clear evidence to the contrary." Bar MK Ranches v. Yuetter, 994 F.2d at 740.

The Administrative Record in this case, as described by the United States, includes "supporting materials which form the basis for the decisions" and "material relied upon for making the final determination." The Record specifically does not include ...