Airport Communities Coalition v. Graves

• Citation: 280 F.Supp.2d 1207
• Decision Date: 18 August 2003
• Docket Number: No. C02-2483R.,C02-2483R.
• Parties: AIRPORT COMMUNITIES COALITION, Plaintiff, v. Colonel Ralph H. GRAVES, Commander and District Engineer of the Seattle District, United States Army Corps of Engineers; United States Army Corps of Engineers, an agency of the United States government; and Port of Seattle, a municipal corporation, Defendants.
• Court: U.S. District Court — Western District of Washington

280 F.Supp.2d 1207

AIRPORT COMMUNITIES COALITION, Plaintiff, v. Colonel Ralph H. GRAVES, Commander and District Engineer of the Seattle District, United States Army Corps of Engineers; United States Army Corps of Engineers, an agency of the United States government; and Port of Seattle, a municipal corporation, Defendants.

No. C02-2483R.

United States District Court, W.D. Washington, at Seattle.

August 18, 2003.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Adam J. Berger, Schroeter Goldmark & Bender, Kevin L Stock, Helsell Fetterman LLP, Seattle, WA, for Plaintiff.

Laurie Kathryn Beale, Stoel Rives LLP, Seattle, WA, Lori Caramanian, U.S. Department

of Justice, Enrd General Litigation, Washington, DC, Peter J. Eglick, Helsell Fetterman LLP, Seattle, WA, Beth S. Ginsberg, Stoel Rives LLP, Seattle, WA, Traci M. Goodwin, Port of Seattle, Legal Department, Seattle, WA, Kent E. Hanson, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, Brian C. Kipnis, U.S. Attorney's Office, Seattle, WA, Siri Coates Nelson, U.S. Army Corps of Engin, Seattle, WA, Thomas L. Sansonetti, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, Linda J. Strout, Port of Seattle, Legal Department, Seattle, WA, for Defendants.

Joan M. Marchioro, Attorney General's Office, Olympia, WA, David K. Mears, Attorney General's Office, Social & Health Services, Seattle, WA, for Amicus.

ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

ROTHSTEIN, District Judge.

THIS MATTER comes before the court on cross motions for summary judgment. Having reviewed the pleadings filed in support of and in opposition to these motions, and having heard oral argument, the court finds and rules as follows:

I. BACKGROUND

As part of its Master Plan Update ("MPU") to the Seattle-Tacoma International Airport, the Port of Seattle has proposed the construction of an 8,500 foot third runway and related improvements collectively known as the Third Runway Project ("3RW Project"). The proposed project requires 23.64 million cubic yards of fill, see AR 62374, and will fill all or portions of 50 wetlands. AR 52375. Before such filling takes place, however, the Army Corps of Engineers must first issue a Clean Water Act ("CWA") Section 404 permit to the Port. 33 U.S.C. § 1344.

On December 13, 2002, the Army Corps of Engineers issued such a permit to the Port. Plaintiff, the Airport Communities Coalition ("ACC"),¹ immediately filed this suit seeking judicial review under the Administrative Procedures Act, 5 U.S.C. §§ 701-706. The parties agreed that no work would proceed on the project pending the outcome of this case. See Stipulation and Order re: Briefing Schedule and Preliminary Injunction (Dec. 13, 2002). The parties have now moved for summary judgment. The parties also have moved to strike various extra-record submissions.

II. DISCUSSION

A. Standard of review

A court may reverse a final decision of an administrative agency where the final action is "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law." 5 U.S.C. § 706(2)(A). The scope of review under this standard "is narrow and a court is not to substitute its judgment for that of the agency." Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). An agency decision will be upheld as long as there is a "rational connection between the facts found and the choice made." Id. (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962)); see also Gilbert v. Nat'l Transp. Safety Bd., 80 F.3d 364, 368 (9th Cir.1996); Friends of the Earth v. Hintz, 800 F.2d 822, 831 (9th Cir.1986) ("court may not set aside agency action as arbitrary or capricious unless there is no rational basis for the action"). In reviewing the agency's explanation, the court must "consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." State Farm, 463 U.S. at 43, 103 S.Ct. 2856 (citing Bowman Transp. Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974) and Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)).

In conducting this review, the "focal point ... 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, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). Review may be expanded beyond the record, however, if it is necessary to explain agency decisions. Animal Def. Council v. Hodel, 840 F.2d 1432, 1436 (9th Cir.1988). In the Ninth Circuit, extra-record materials are allowed (1) if necessary to determine whether the agency has considered all relevant factors and has explained its decision, (2) when the agency has relied on documents not in the record, or (3) when supplementing the record is necessary to explain technical terms or complex subject matter. Inland Empire Pub. Lands Council v. Glickman, 88 F.3d 697, 704 (9th Cir.1996). Extra-record documents may also be admitted "when plaintiffs make a showing of agency bad faith." Nat'l Audubon Soc. v. United States Forest Serv., 46 F.3d 1437, 1447 n. 9 (9th Cir.1993). All of these exceptions are provided in order to ensure the integrity of the administrative process.

B. Motions to strike

In support of its motion for summary judgment, ACC submits the declaration of Dr. Stephen Hockaday, ACC's expert on aircraft operation forecasting, in which he summarizes and attaches new data and information that have become available since the Corps issued its decision on December 13, 2002. That information includes, inter alia, newly published forecasts by the FAA and new air traffic data from the Port. Defendants have moved to strike this declaration as extra-record evidence.

The information in Hockaday's declaration does not fit into any of the exceptions provided by the Ninth Circuit for allowing extra-record material. ACC contends, however, that such extra-record information should be admissible, especially in this case, where the new information so "clearly" calls into question the underlying assumptions and facts upon which the Corps' decision to issue the permit are based. ACC relies on Association of Pacific Fisheries v. EPA, 615 F.2d 794 (9th Cir.1980) for the proposition that "[i]f the studies showed that the Agency proceeded upon assumptions that were entirely fictional or utterly without scientific support, then post-decisional data might be utilized by the party challenging the regulation."² 615 F.2d at 812 (citing Am. Petroleum Inst. v. EPA, 540 F.2d 1023, 1034 (10th Cir.1976) ("After promulgation, events indicating the truth or falsity of agency predictions should not be ignored.")). Even under that standard, however, ACC's evidence is not admissible in the present case. Here, the extra-record information represents new information that was not available at the time the Corps made its decision. If the information had been available within that time frame, the court could then use that information to determine whether the Corps acted arbitrarily and capriciously in not considering that information as a relevant factor. Likewise, if the new information revealed that the information in the record was wrong at the time that it was put in the record and considered by the Corps, then the evidence would be admissible.

Neither of these situations, however, is the case here where the Corps did not and could not have considered the extra-record information because it did not exist at that time. Instead, the new information represents "Monday morning quarterbacking." If the court were to consider this new information in an arbitrary and capricious analysis, the court would effectively transform that analysis into de novo review, a level of review for which this court is not authorized. See 5 U.S.C. § 706 (establishing standard of review for agency action). Rather, the appropriate procedure is to submit the new information to the Corps so that it can reconsider the decision to issue the permit. (In fact, ACC has done exactly that — request that the Corps reconsider the permitting decision.)

Consequently, to the extent that Dr. Hockaday's declaration contains extra-record information, it is stricken.³ Rybachek v. EPA, 904 F.2d 1276, 1296 (9th Cir.1990) (quoting Pacific Fisheries that it is not "appropriate ... for either party to use post-decision information as a new rationalization either for sustaining or attacking the Agency's decision"); Asarco, Inc. v. EPA, 616 F.2d 1153, 1160 (9th Cir.1980) ("Consideration of the evidence to determine the correctness or wisdom of the agency's decision is not permitted.").

The Port also has submitted extra-record information. Exhibit E of Laurie Beale's declaration consists of extra pages from a Washington Department of Ecology report on background soil concentrations for various metals. Apparently, only the report's executive summary was included in the record. ACC objects to this submission on the basis that the selected pages now being submitted comprise extra-record information. Such a submission, however, falls well within the exceptions provided for by the Ninth Circuit. It is evident from the presence of the executive summary in the record that the Corps considered the report. Extra-record information regarding documents that the agency relies on but were not included in the record is admissible. S.W. Center for Biological Diversity v. United States Forest Service, 100 F.3d 1443, 1450 (9th Cir. 1996). Accordingly, the court denies ACC's motion to strike this exhibit.⁴

C. Corps' decision to issue permit

ACC contends that the Corps' decision to issue the 404 permit was arbitrary and capricious because (1) the Corps failed to...