Alaska v. United States Dep't of the Interior
| Decision Date | 09 March 2023 |
| Docket Number | 3:22-cv-00078-SLG |
| Parties | STATE OF ALASKA, Plaintiff, v. UNITED STATES DEPARTMENT OF THE INTERIOR, et al., Defendants. |
| Court | U.S. District Court — District of Alaska |
Before the Court at Docket 23 is Plaintiff State of Alaska's (the “State”) Motion to Supplement Administrative Record. Federal Defendants opposed the State's motion at Docket 27, to which the State replied at Docket 28.[1] Oral argument was not requested and was not necessary to the Court's determination.
This case follows a series of historical actions dating back to the 1950s when the federal government took steps to establish the Arctic National Wildlife Refuge (“ANWR,” formerly known as the Arctic National Wildlife Range).[2] In 1960, the U.S. Fish and Wildlife Service (“USFWS”), an agency within the DOI, established ANWR by issuing Public Land Order No. 2214 (“PLO 2214”), which set aside from the public domain millions of acres of land located in northeastern Alaska.[3] Over the following decades, the State followed the processes prescribed by the Alaska Statehood Act (the “Statehood Act”) and the 1980 Alaska National Interest Lands Conservation Act (“ANILCA”) to request that BLM convey to the State approximately 20,000 acres of land across several townships located between the Canning and Staines Rivers and along the northwestern boundary of ANWR.[4] For reasons that are not entirely clear from the record, no final action had been taken on these requests by the early 2010s.[5] In October 2014, the State sent a letter to BLM requesting the formal conveyance of much of this land.[6] In February 2016, BLM rejected the State's request.[7] In a separate action, BLM filed a Notice of Filing of Plats of Survey to describe formally a portion of the disputed land known as Township 6-23 based on a 2012 survey that adopted a boundary along the Staines River.[8] The State protested the Notice of Filing of Plats of Survey, which the BLM Alaska State Office denied.[9] The State appealed these actions to the IBLA, which affirmed them both in a single decision dated November 9, 2020. The State seeks judicial review of the IBLA's decision through the instant case pursuant to the Administrative Procedure Act.
At the heart of the challenged IBLA decision is the meaning of language in PLO 2214 describing ANWR's northwestern boundary as “the mean high water mark of the extreme west bank of the Canning River.”[10] This language originated in a 1957 application USFWS prepared to legally effectuate the land withdrawal for ANWR (the “1957 Withdrawal Application”).[11] The State maintains that this language unambiguously establishes ANWR's boundary as the western bank of the Canning River.[12] Federal Defendants maintain, and the IBLA found in the decision challenged here, that the reference in the 1957 Withdrawal Application and PLO 2214 to the Canning River is actually a reference to the Staines River, the westernmost distributary of the Canning River.[13] Federal Defendants' primary evidentiary support for their position is a metes and bounds description and accompanying map USFWS prepared in 1957 and a “nearly identical description of the boundary [that] was then adopted in the 1957 Withdrawal Application and the official legal description of the boundary found in” PLO 2214.[14]
To resolve this dispute, the IBLA determined that it needed to ascertain “the intent of the drafters when formulating the language of PLO 2214.”[15] In doing so, the IBLA reviewed a number of historical documents that are included in the Administrative Record filed in this Court, consisting of over 5,000 computergenerated pages of material dating back to the 1940s in the form of historical maps; legal descriptions; field reports; survey manuals, instructions and results; and correspondence among the parties and other agencies within the DOI.[16] Of relevance here, the historical maps the IBLA reviewed and cited extensively to support its decision include three U.S. Geological Survey (“USGS”) quadrangle maps containing the year 1955 that the State submitted during the IBLA proceedings.[17] Despite the 1955 marking, neither party identifies when, exactly, the USGS finalized and published these maps. The State claims that the USGS derived the maps from aerial photographs taken in 1955 but did not publish the maps until “sometime after 1955.”[18] The distinction between the year of the photographs on which the maps are based and the maps' publishing date is critical, according to the State, because it means that no government entity had physically surveyed ANWR's proposed boundary by 1957 when USFWS drafted the metes and bounds description adopted in the 1957 Withdrawal Application and PLO 2214.[19] Thus, in order to best determine the PLO 2214 drafters' intended boundary, the State asserts that the Court must look to the USGS quadrangle maps of that area that were published before 1957.[20] The State now moves to supplement the Administrative Record with 20 USGS topographic maps dated 1951 (the “1951 Maps”).[21] For reasons left untold, the State did not present the 1951 Maps to the IBLA during the underlying proceedings, so the IBLA did not review them and they did not become part of the Administrative Record designated in this case.
“Judicial review of an agency decision is limited to ‘the administrative record already in existence, not some new record made initially in the reviewing court.'”[22] The administrative record “consists of all documents and materials directly or indirectly considered by agency decision-makers and includes evidence contrary to the agency's position.”[23]
District courts may consider extra-record evidence-that is, evidence the agency did not consider in reaching the challenged decision-only in the following circumstances:
(1) if admission is necessary to determine “whether the agency has considered all relevant factors and has explained its decision,” (2) if “the agency has relied on documents not in the record,” (3) “when supplementing the record is necessary to explain technical terms or complex subject matter,” or (4) “when plaintiffs make a showing of agency bad faith.”[24]
“These exceptions are to be narrowly construed, and the party seeking to admit extra-record evidence initially bears the burden of demonstrating that a relevant exception applies.”[25]
The State urges the Court to supplement the Administrative Record with the 1951 Maps based on two of the recognized exceptions to the general rule that judicial review of an agency action is limited to those “documents and materials directly or indirectly considered by agency decision-makers.”[26] The State contends that the 1951 Maps would (1) help the Court determine “whether the IBLA considered all relevant factors” in reaching its decision and (2) are “necessary . . . to ‘explain technical terms' and ‘complex subject matter.'”[27] In opposition, Federal Defendants respond that (1) the State waived its opportunity to supplement the Administrative Record with the 1951 Maps because it did not present them during the IBLA proceedings and (2) neither of the Lands Council exceptions advanced by the State apply.[28] The Court first addresses Federal Defendants' administrative-waiver argument and then turns to the Lands Council exceptions.
Federal Defendants maintain that the principle of administrative waiver extends to the admission of extra-record evidence on a motion to supplement an administrative record.[29] Federal Defendants cite three cases that they view as illustrative.[30] In response, the State asserts that the doctrine of administrative waiver applies only to issues, and not to documents, that were not presented to the agency during the administrative proceedings.[31]
The Court finds that Federal Defendants' argument is unsupported by the caselaw. Although Federal Defendants are correct in observing that a court generally should not consider arguments that a party failed to raise during the administrative proceedings, this prohibition does not apply to documents that might help a court evaluate whether an agency considered all relevant factors and adequately explained its decision.[32] As the State points out, courts are reticent to apply the administrative-waiver doctrine to attempts to supplement administrative records.[33] The only Ninth Circuit case Federal Defendants cite to support the extension of this principle to extra-record evidence is Havasupai Tribe v. Robertson.[34] In Havasupai Tribe, the Tribe sought an order requiring the U.S. Forest Service to supplement or revise an environmental impact statement (“EIS”) prepared as part of the Forest Service's approval of the development of a mine.[35]The Tribe requested the court remand based on a letter discussing groundwater issues that the Tribe presented after the EIS was completed.[36] On appeal, the Ninth Circuit held that the Tribe “had some obligation” to raise these issues before the EIS was completed.[37] And it noted that the district court determined that the agency had adequately addressed all of the groundwater issues the Tribe raised.[38]Havasupai Tribe did not involve a circumstance such as this in which the State seeks to have this Court, in the first instance, consider evidence that was never presented to the agency.[39]
It is unclear why the State failed present the 1951 Maps to the IBLA, although the State properly raised the general argument those maps support during the administrative proceedings. That argument, to be clear, is that the documents available to USFWS when it drafted the legal description of ANWR in the 1957...
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