UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CENTER FOR BIOLOGICAL DIVERSITY, et al.,

Plaintiffs,

v.

U.S. ARMY CORPS OF ENGINEERS, et al., No. 20-cv-103 (RDM) Defendants,

and

FG LA LLC,

Defendant-Intervenor.

MEMORANDUM OPINION AND ORDER

Plaintiffs Center for Biological Diversity, Healthy Gulf, Louisiana Bucket Brigade, and

RISE St. James (“Plaintiffs”) move to admit extra-record evidence in this Administrative

Procedure Act (“APA”),

et seq., challenge to the U.S. Army Corps of

Engineers’ issuance of a federal permit relating to the construction of a large plastics facility by

FG LA LLC (“FG”) in St. James Parish, Louisiana. Dkt. 27. The Army Corps of Engineers and

Lieutenant General Todd S. Semonite in his official capacity as Commanding General of the

Corps (“Corps” or “Defendants”) oppose that motion. Dkt. 44. FG, which has intervened as a

defendant, both opposes Plaintiffs’ motion, Dkt. 43, and conditionally cross-moves to

supplement the administrative record with its own materials, id.; Dkt. 45.

For the reasons explained below, the Court will grant in part and deny in part Plaintiffs’

motion and will deny FG’s conditional cross-motion. I. BACKGROUND

A. Statutory and Factual History

FG, which is “a member of the Taiwanese conglomerate Formosa Plastics Group,” Dkt. 1

at 2 (Compl. ¶ 2), seeks to build a large plastics manufacturing facility on a roughly 2,300-acre

site in St. James, Louisiana (the “Project”), Dkt. 43 at 7. The site consists “of undeveloped fields

and wetlands,” Dkt. 27 at 9, where 19th-century sugar plantations once operated, Dkt 1 at 2

(Compl. ¶ 3). To build the facility, FG had to obtain a permit from the Corps, pursuant to

Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act (“Section 404

permit” or “permit”). Dkt. 44 at 5.

Before issuing a Section 404 permit, the Corps must conduct analyses that satisfy several

different statutes. For present purposes, however, the two relevant statutes are the National

Environmental Policy Act (“NEPA”),

, et seq., and the National Historic

Preservation Act (“NHPA”),

, et seq. Under NEPA, the Corps must

consider the environmental effects of issuing a permit, including impacts on “cultural . . .

heritage.”

, 4332(2)(C). The NHPA, in turn, requires the Corps to consider

effects on historic properties prior to issuing a permit.

. Regulations

governing issuance of permits allow the Corps to “develop joint procedures with states and other

[f]ederal agencies.”

(e)(3). Although none of the parties have fully explained

the arrangement that governs in Louisiana, it appears from the record that the Louisiana

Department of Natural Resources (“LDNR”), the Louisiana Department of Environmental

Quality (“LDEQ”), and the Corps jointly oversee the permitting process. Dkt. 1 at 24 (Compl. ¶

76); Dkt. 43 at 9. When historic sites are potentially implicated, the Louisiana Division of

2 Archaeology1 reviews permit applications to determine if the proposed project might disturb sites

eligible for listing on the National Register of Historic Places. Dkt. 43 at 10; see also Dkt. 50-31

at 2–3 (Division of Archaeology letter commenting on consultants’ report); Dkt. 50-19 (Division

of Archaeology concurrence with the Project).

1. The 2017 Survey

In the spring of 2017, FG began to investigate whether the proposed Project site

contained cultural resources. Dkt. 43 at 9. During March and May of that year, contractors hired

by FG conducted background studies, shovel-test excavations, and targeted mechanical

excavations on the site but found no “intact archaeological deposits” or areas with

“archaeological research potential.”

at 9–10. FG submitted the results of this survey to the

state Division of Archaeology, which critiqued several aspects of the survey and recommended

further investigation.

; Dkt. 50-31 at 2–3. Pursuant to this recommendation, FG’s

contractors conducted further excavations and “again found no archaeological deposits or

research potential at” the Project site. Dkt. 43 at 10. Around the same time, the LDNR received

FG’s application for the Project, deemed it complete, and transferred it to the LDEQ and the

Corps for review.

; Dkt. 52-10 at 3–9.

1 The Court refers to the Louisiana “Division of Archaeology” throughout this opinion to avoid confusion, but the parties also refer to officials and actions associated with this division as officials and actions associated with the State Historic Preservation Office, or “SHPO.” For the purposes of this opinion, the two terms are treated interchangeably under the term “Division of Archaeology.”

3 2. The 2018 Excavation

On July 31, 2018, an FG contractor emailed the Corps’ Neil Gauthier to alert him to a

significant development. Dkt. 51-2 at 2–3. A third-party researcher had shared an 18782 map

with State Archaeologist Chip McGimsey, “indicat[ing] . . . two cemeteries . . . in [the FG]

project area.” See

; Dkt. 50-27. The cemeteries lay on two former plantation properties:

the Acadia plantation and the Buena Vista plantation.3 Dkt. 51-2 at 2. With respect to the

Acadia plantation, the FG contractor wrote:

You can see that the Arcadia [sic] [c]emetery is located within a large borrow area and the buffer is also largely located in the borrow area, with one side extending onto Brock Road. The borrow pit area was excavated out years before the current owner had ownership of the property. As this particular . . . map was not known to us until yesterday, the survey report does not take into account the impact of the borrow pit on the cemetery.

And, with respect to the Buena Vista plantation, she wrote:

The Buena Vista [c]emetery area is at the edge of the project area and the cemetery and the 100-foot buffer are located within a 300-foot buffer that had been planned for no development surrounding the plant facilities. Shovel test units were excavated in this area. Shovel tests are generally not the best method for identifying unmarked cemeteries, so it is not surprising that the field survey did not find evidence of this cemetery. However, this area could be left as green space, with fencing, and a plan would be developed to protect the area from future development.

The email concluded, “We would like to schedule a time to talk with you about this matter”

and asked when Gauthier and the “reviewing archeologist[]” would be available.

Ten days later, on August 10, 2018, McGimsey emailed two other Corps officials, Jason

Emery and Noah Fulmer, regarding the map. Dkt. 50-27 at 2. Describing FG and its

2 The email’s reference to the map as an “1877 map” seems to be an error; both Plaintiffs and FG refer to the map as an “1878 map.” Dkt. 27 at 16; Dkt. 43 at 10. 3 Although the email refers to “Arcadia,” it appears that the correct name is “Acadia.”

4 contractor’s “consternation” at the discovery, McGimsey explained that FG had requested that he

contact the Corps’ “archaeologists and bring [them] up to speed on the situation.”

McGimsey indicated that he and Ryan Seidemann, a Louisiana Assistant Attorney General, were

“comfortable” with a plan to keep the area identified as “the Buena Vista plantation cemetery . . .

as green space.”

“[N]o further work” would occur in the area, “except perhaps . . . put[ting]

a fence and marker up.”

How to handle the Acadia Plantation cemetery, however, was less

clear. McGimsey wrote:

The Arcadia [sic] Plantation cemetery was largely destroyed prior to the client [FG] purchasing the land when a large borrow bit was excavated at its location. Ryan [Seidemann] and I have argued, however, that it is important to determine if any burials remain along the margins of the borrow pit. The client [FG] has the option of setting this area aside as green space, but has noted that that would cause significant issues for the facility plan. If they cannot avoid this area, we are recommending testing (backhoe stripping) to determine if any burials are present. If none are found, there are no further issues and construction can proceed. If burials are found, then the client [FG] will have to decide whether to redesign to avoid the cemetery, or to remove the remains and rebury them elsewhere. At this time, I am not aware they have made a decision on how best to proceed.

While FG and state officials considered how to respond to the new information about the

burial sites, FG continued to press for the public comment process for the Project to begin. On

August 20 and 21, 2018, Mike Horvath—another FG contractor—emailed Gauthier to ask about

the status of the public notice for the Project, explaining that Horvath was “getting significant

pressure from the client (FG)” to get the notice issued. Dkt. 51-1 at 2–3. Then, on August 27,

2018, LDEQ and the Corps issued a Joint Public Notice that described the Project site, attached

maps of the site, and allowed 30 days for public comment. Dkt. 43 at 9. The notice announced

that “[t]he New Orleans District is unaware of properties listed on the National Register of

Historic Places near” the Project but cautioned that “[t]he possibility exists that the proposed

5 work [could] damage or destroy presently unknown archaeological . . . sites.” Dkt. 50-20 at 4.

The notice made no reference to the recently discovered map or to the Buena Vista or Acadia

cemeteries. Plaintiffs did not submit written comments regarding cultural resources implicated

by the Project. Dkt. 43 at 9. Two days after the notice issued, FG contractor Horvath again

emailed Gauthier to “update [him] on a cemetery issue” at the Project. Dkt. 51-1 at 2.

In October 2018, FG’s contractor investigated what it believed to be the Acadia site by

digging “a series of long, narrow trenches to look for any evidence of a cemetery, such as human

remains, grave shafts, or funerary objects.” Dkt. 43 at 11. Those investigations uncovered no

evidence of a cemetery.

That same month, FG sent these results to McGimsey, the State

Archaeologist, who sent a response four days later concurring with the investigation’s conclusion

that “no evidence of the [Acadia] cemetery was found” and approving FG’s plan to put a fence

around the Buena Vista site. Dkt. 50-19 at 2; accord Dkt. 43 at 10.

On November 1, 2018, the Corps, the LDNR, and the LDEQ issued a supplemental

public notice for a joint hearing to be held on December 6, 2018. Dkt. 57 at 2; Dkt. 50-18. “The

notice included a link to the LDNR webpage that hosts links to FG’s joint permit application,

along with the supporting documentation” for its application. Dkt. 57 at 2–3. This page

evidently included correspondence between the Division of Archaeology and FG related to

efforts to investigate the Acadia cemetery.

at 3 n.2. Based on the record before the Court, the

linked letter seems to be the first public notice of the existence of the cemeteries. In response, at

least one interest group, the Louisiana Environmental Action Network (“LEAN”), referred to the

burial sites in its comments on the Project. Dkt. 57-3 at 2, 7. LEAN noted that FG had been

asked “to identify the demarcation area of each [cemetery] and [to describe] construction of a

fence around the historic cemetery site(s).”

. The group stressed that the record provided

6 no information about “how [community members’] access [to the cemeteries would] be

guaranteed.”

at 7–8. At the public hearing on December 6, 2018, Plaintiffs did not raise

issues related to the cemeteries, Dkt. 43 at 9, although at least two members of Plaintiff RISE St.

James registered to receive notice of the LDNR final decision. Dkt. 57 at 4; Dkt. 57-5 at 2, 10.

The next public reference to the cemeteries was in a Supplemental Environmental

Assessment Statement (“SEAS”) that FG submitted to the Corps and the LDEQ on January 7,

2019. Dkt. 53 at 1; Dkt. 53-1. The SEAS was also “filed publicly on the [L]DEQ docket.” Dkt.

53 at 1. It explained:

The Acadia [c]emetery was located in what is now a borrow pit, which was dug before FG purchased the property. Additional field work was done and no evidence of a cemetery (i.e., human remains or funerary objects) was found. . . . The Division of Archaeology has no objections to future development in the area. . . .

The area identified as Buena Vista [c]emetery is located on FG’s eastern property line, within the 300 foot internal buffer zone. As a result, no construction will occur within this area. . . . To protect the area from any activities initiated by FG, FG has fenced off the area over which it has control so that there will be no disturbance from FG or its contractors. The Division of Archaeology agreed that this approach “will demarcate the cemetery location from future development.” . . . At a point in the future, FG plans to properly examine the area and will comply with all applicable rules and procedures for relocation, if necessary.

Dkt. 53-1 at 19.

Two days after receiving the SEAS, the Corps’ archaeologists concluded that no historic

properties, as defined by regulation, were in the Project area. Dkt. 43 at 13. Then, on January

31, 2019, the LDNR issued its final approval of FG’s application. Dkt. 57 at 4; Dkt. 57-6 at 2.

Those who registered for notice of the final decision—including, presumably, the two RISE St.

James members who had done so—received notification electronically the same day. Dkt. 57 at

4. Among other things, the LDNR decision noted that the Project site contained

7 two historic cemeteries that were identified by the Louisiana Division of Archaeology during the application process. The applicant performed research and testing of these areas and subsequently provided a plan for protection of one site. The other site was deemed to no longer be of concern during the review process. This plan was approved by the Louisiana Division of Archaeology.

Dkt. 57-6 at 5.

3. The 2019 Excavation

In early 2019, the Project hit another snag. A third-party researcher notified State

Archaeologist McGimsey that FG’s contractor had likely misidentified the boundaries of the

Buena Vista site and the location of the Acadia site and had yet to investigate the correct areas.

Dkt. 43 at 11. In response, FG’s contractor “conducted additional research” and identified a new

location for the Acadia cemetery—“roughly 300 feet southwest of the original investigation

site”—by “comparing a series of newer maps in the area.”

The contractor investigated the

new site in May 2019 by digging eight trenches but again “uncovered no burials, artifacts, or

other evidence that a burial place existed.”

The contractor once again concluded that, if the

Acadia cemetery had ever existed, it had been destroyed by borrow pits under a previous owner.

FG’s contractor also further investigated the Buena Vista cemetery by digging eight trenches

and found “four burials containing human remains, eight potential grave shafts, 14 posts or post

holes, and various ‘wooden fragments and coffin nails.’”

. The contractor determined

that the burial site “could have been a” cemetery for enslaved people “associated with the Buena

Vista Plantation”

and recommended construction of a fence to protect “the newly defined

boundaries of the cemetery.” Dkt. 52-3 at 6; accord. Dkt. 43 at 12. In June 2019, FG sent these

results and a fencing plan to the Division of Archaeology, Dkt. 52-2 at 2 (fencing plan); Dkt. 50-

4 at 2 (referencing receipt of the fencing plan and report on the cemetery excavation); Dkt. 43 at

12, which approved the plan in early July. Dkt. 50-4 at 2.

8 Plaintiffs did not comment on the cemeteries following release of the SEAS. But they

did submit comments on other aspects of the Project, even after the formal comment period had

closed. Plaintiffs RISE St. James and the Louisiana Bucket Brigade submitted comments

through Earthjustice on July 9, 2019, discussing concerns about pollution and greenhouse gas

emissions from the Project, among other issues. Dkt. 57-11 at 2–8. And Earthjustice submitted

further comments on behalf of Plaintiffs RISE St. James, the Louisiana Bucket Brigade, the

Center for Biological Diversity, and Healthy Gulf on August 12, 2019. Dkt. 57-12 at 2–3. These

letters both cited the January 7, 2019 SEAS; the second did so many times. Dkt. 57 at 6. Neither

letter discussed the cemeteries mentioned in the SEAS.

On July 9, 2019, the LDEQ held a public hearing to receive comments on the SEAS.

Dkt. 53 at 1. Representatives from RISE St. James and the Center for Biological Diversity

testified at the hearing but did not address the cemeteries.

.

4. Final Decision and Aftermath

The Corps issued FG its permit on September 5, 2019. Dkt. 27 at 9. The Corps’

Memorandum for Record, which also constitutes its Environmental Assessment,

briefly

discusses the investigations into the Buena Vista and Acadia cemeteries. See Dkt. 50-2 at 5, 8,

27, 53, 63. The Memorandum does not detail the methodology used to locate—or to attempt to

locate—the Acadia cemetery, other than saying that (1) the burial site’s location was “[b]ased on

archival information;” (2) archaeologists went “to the area and looked for this cemetery on two

separate digs and did not find any remains;” (3) “[a]fter this issue was settled[,] an anonymous

source provided information to the [Division of Archaeology] that the cemeteries may be located

in slightly different locations,” prompting the archaeologists to go “back onsite to look for the

Acadia [c]emetery again;” and (4) this final visit found nothing further at the Acadia [c]emetery

9 but “found that the Buena Vista [c]emetery had different margins.”

. The Memorandum

categorizes the Project’s impact on historic properties as “neutral” because of the mitigating

fence around the Buena Vista cemetery.

.

Plaintiff “RISE St. James, working with the Center for Constitutional Rights, submitted a

Public Records Act request to the state of Louisiana” in November 2019, Sept. 2, 2020 Hrg. Tr.

at 17–18, seeking, among other things, “all correspondence, maps, surveys, and reports relating

to” the Acadia and Buena Vista plantations and “cultural and archeological resources on those

properties, including cemeteries or burial grounds,” Dkt. 27-2 at 5 (Ex. A). As part of the

response to that request, Plaintiffs received materials that disclosed additional information about

the cemetery investigations, and they “realized that there was this very significant issue that they

had not been aware of prior.” Sept. 2, 2020 Hrg. Tr. at 18. On December 18, 2019, Plaintiffs

RISE St. James, the Louisiana Bucket Brigade, and the Center for Biological Diversity sent a

letter to Gauthier requesting that the Corps reopen its NHPA process to evaluate the Project’s

effects on historic properties, including “two cemeteries that may contain the remains of

enslaved people and Civil War soldiers.” Dkt. 54-1 at 10. Plaintiffs explained that they had

learned from state-released records “that there ha[d] been an extensive back and forth about

possible human remains at the Acadia [c]emetery.”

. “[T]o ensure the accuracy of [the

Corps’] conclusions,” Plaintiffs urged the agency “to investigate this issue in more depth and

consider additional [protective] measures.”

Plaintiffs also noted that they had submitted a

related FOIA request to the Corps on November 14, 2019 but had received no response.

at

13–14.

On April 11, 2020, after filing suit, Plaintiffs followed up on their request to reopen and

submitted a report on the cemetery investigation that Coastal Environments, Inc. (“CEI”) had

10 prepared for Plaintiffs in February 2020. Dkt. 54-1 at 4–6; Dkt. 27 at 2; Dkt. 43 at 6. Gauthier

replied to this email on May 1, 2020, asserting that the Corps’ archaeologists could not open

some of the files, and Plaintiffs provided a corrected version the same day. Dkt. 54-1 at 1–2.

Since that time, Plaintiffs have received no communication from the Corps with respect to their

request to reopen the NHPA process for the Project. Sept. 2, 2020 Hrg. Tr. at 20.

B. Procedural History and Request to Admit Extra-Record Evidence

Plaintiffs filed this action on January 15, 2020. Dkt 1. They challenge the Corps’

decision to issue the permit on several grounds. First, they allege that the Corps’ Environmental

Assessment for the Project was inadequate,

at 28–29 (Compl. ¶¶ 95–97), that the Corps

irrationally found that no significant impact on the environment would result,

and that the

Corps improperly declined to complete an Environmental Impact Statement,

(¶ Compl.

94), in violation of NEPA and the APA. Second, Plaintiffs allege that the Corps conducted an

inadequate “public interest” review prior to issuing the permit in violation of the Rivers and

Harbors Act, the Clean Water Act, and the APA.

at 32–33 (Compl. ¶¶ 110–14). Third, they

allege that the Corps failed to consider practicable alternatives that would have less of an impact

on the aquatic environment, in violation of the Clean Water Act and the APA.

at 33–34

(Compl. ¶¶ 116–122). Finally, they allege that the Corps inadequately accounted for effects on

historic property before issuing the permit, in violation of the NHPA and the APA.

at 34–35

(Compl. ¶¶ 124–26).

To advance their arguments with respect to the Corps’ violation of NEPA and the NHPA,

Dkt. 27 at 12, Plaintiffs move to admit eight documents as extra-record evidence, falling into

three categories.

11 1. CEI Report

The first and most significant piece of extra-record evidence is a February 2020

archaeological report by Coastal Environments, Inc. (“CEI report”). Dkt. 27 at 2. This is the

same report that Plaintiffs sent the Corps in April 2020 as an addendum to their request to reopen

the NHPA process for the Project. See Dkt. 54-1 at 4–6. Noting that FG’s archaeological

assessments provide “no explanation of how the ‘Acadia [c]emetery’” was located for either the

first or second investigation, Dkt. 27-2 at 47, 52 (Ex. E), the CEI report conducts its own map

analysis,

at 52–69, and identifies a different location for the Acadia cemetery, concluding that

“neither set of trenches previously excavated by [FG] fell within the limits of the cemetery

location,”

. In other words, the report posits that FG has yet to investigate the correct

location for the Acadia cemetery.

The CEI report concludes that (1) FG’s contractors and the Division of Archaeology

“twice overlooked the existence of historic Acadia and Buena Vista cemeteries on the [Project]

site;” (2) FG “repeatedly searched in the wrong location, delineated the wrong boundaries, and

reported inaccurate survey efforts” for the two burial sites; (3) “[three] additional burial sites

may exist on the [P]roject site;”4 and (4) “further investigation is needed to avoid construction

impacts to graveyards,” particularly the Acadia cemetery and the other potential sites identified

by CEI. Dkt. 27 at 14.

4 Although Plaintiffs’ motion references four such sites, in their reply brief, Plaintiffs adjust this number to three in light of Defendants’ representation that one site is not on the Project site. Dkt. 47 at 11.

12 2. Emails Sent Between McGimsey of the Louisiana Division of Archaeology and Others Prior to the Permit’s Issuance

The second category of extra-record evidence that Plaintiffs seek to offer includes emails

sent between the state Division of Archaeology and other parties prior to the Corps’ issuance of

the permit in September 2019. Dkt. 27 at 2–3. According to Plaintiffs, these emails “[s]how

[t]hat the Corps [k]new or [s]hould [h]ave [k]nown [t]hat [i]t [h]ad [f]ailed to [a]dequately”

assess effects on cultural resources. Dkt. 27 at 17. Plaintiffs received these emails as part of a

public records request made on their behalf through the Center for Constitutional Rights. These

emails are attached as exhibits A–D to a declaration by Pam Spees, the lawyer who made the

request. 27-2 at 1. Exhibit A is the Public Records Act Request the Center for Constitutional

Rights submitted on behalf of RISE St. James to the Louisiana Division of Archaeology,

included to authenticate the other exhibits,

, and the remaining exhibits are emails that

RISE St. James received through its public records request, as follows.

Exhibit B consists of a series of emails from January and February 20195 between Donald

Hunter of CEI, Inc. and Chip McGimsey of the Louisiana Division of Archaeology discussing

the 2018 excavation. Dkt. 27 at 18. In the exchange, Hunter advises McGimsey that he is

“greatly concerned that [FG] did not examine the correct area” for the Acadia cemetery,

probably due to its misreading of latitude and longitude lines on the 1878 map. Dkt. 27-2 at 12

(Ex. B). Hunter and McGimsey exchange further emails about standard practices related to

cartographic regression analysis used to locate sites.

at 8–11. Exhibit C is an email exchange

between the Louisiana Attorney General’s office and McGimsey from February 2019. Dkt. 27 at

5 Although Plaintiffs identify this email exchange as occurring in 2020, it is clear from the exhibit that the exchange occurred in 2019. See Dkt. 27-2 at 8–13 (Ex. B).

13 18. In this exchange, the participants discuss the need for FG to adjust its fence around the

Buena Vista cemetery and to re-excavate Acadia in light of new doubts about the exact locations

of each. Dkt. 27-2 at 15–16 (Ex. C). The Louisiana Attorney General’s office advises that,

because of recent reevaluations of the 2018 excavation, FG needs to excavate the newly

identified Acadia cemetery area.

. Although the Attorney General’s office surmises that

this development will displease FG, it notes that further investigation would be required “of

anyone else” and the State “need[s] to be consistent,” especially because it was “not [the State’s]

error that led to the misplacement of the possible location on the maps.”

Finally, Exhibit D

is another email between the Louisiana Attorney General’s office and McGimsey. Dkt. 27 at 18.

This one, from August 2018, responds to the initial discovery of the cemeteries, and the Attorney

General’s office recommends that McGimsey discuss the matter with the Corps. Dkt. 27-2 at

19–21 (Ex. D). A clarifying communication from FG as to next steps is included in the email

exchange.

. Post-Permit Communications Between FG, Corps, and Plaintiffs

The third category consists of communications sent and received on behalf of Plaintiff

RISE St. James after the Corps issued the permit. Dkt. 27 at 3. Plaintiffs offer this evidence to

“[s]how [t]hat [c]ultural and [h]istoric [r]esources [a]re” affected by the permit. Dkt. 27 at 19.

These exhibits are also attached to the Spees declaration and lettered Exhibits F–H. Exhibit F is

a May 22, 2020 letter the Center for Constitutional Rights sent on behalf of Plaintiff RISE St.

James to counsel for FG, copying the Corps.

. The letter represents that “[r]ecords

obtained from the Louisiana Division of Archaeology . . . indicate that [FG] plans heavy

construction on the site of the Acadia Plantation Cemetery,” notes that “four new sites are [also]

of concern,” and requests that FG “advise whether [it] plans to search under the field road for

14 burials at the Acadia Plantation Cemetery and investigate the four newly identified sites.” Dkt.

27-2 at 170–72 (Ex. F). The letter further requests public access to the cemeteries.

.

Exhibit G is a June 15, 2020 letter sent from counsel for FG to the Center for Constitutional

Rights declining public access to the cemetery and describing a plan to do further archaeological

investigation at the Buena Vista site, including potential relocation of remains. Dkt. 27 at 20;

Dkt. 27-2 at 174–76 (Ex. G). Exhibit H is a June 15, 2020 email sent by counsel for FG to the

Center for Constitutional Rights to the same effect. Dkt. 27 at 20, Dkt. 27-2 at 178–80 (Ex. H).

The Corps and FG oppose Plaintiffs’ motion to admit any of the extra-record evidence,

Dkt. 43; Dkt. 44, and FG conditionally cross-moves to supplement the administrative record with

its own extra-record evidence, Dkt. 43; Dkt. 45.

II. ANALYSIS

A. Standard for Consideration of Extra-Record Evidence

Plaintiffs ask that the Court consider extra-record evidence in this APA challenge to the

Corps’ issuance of a permit to FG. The question whether to admit extra-record evidence is often

confused with the question whether the administrative record is complete, perhaps because the

same phrase—“‘supplementing’ [the] administrative record”—is often used to refer to both.

Oceana, Inc. v. Locke,

(D.D.C. 2009); see also The Cape Hatteras Access

Preservation All. v. Dep’t of Interior,

(D.D.C. 2009); Pac. Shores

Subdivision v. Army Corps of Engineers,

, 5–6 (D.D.C. 2006). Although both

questions require the Court to evaluate whether and when it should go beyond the administrative

record compiled by the agency, they implicate different considerations and require application of

different tests. See Oceana v. Pritzker,

, 112 n.2 (D.D.C. 2015); Cape

Hatteras, 667 F. Supp. 2d at 114–115; Pac. Shores, 448 F. Supp. 2d at 5–6.

15 A request to “add[] to . . . the administrative record . . . documents the agency

considered” when it made its decision, Pac. Shores,

, that is, to complete the

administrative record, is consistent with the principle that judicial review of an administrative

decision should turn on what was before the agency when it acted—nothing more and nothing

less, see Walter O. Boswell Mem’l Hosp. v. Heckler,

, 792 (D.C. Cir. 1984) (court

“should have before it neither more nor less information than did the agency when it made its

decision”). The APA itself directs courts to review administrative actions based on “the whole

record or those parts of it cited by a party,”

, which means “the full administrative

record that was before the [agency] at the time [of its] decision,” Citizens to Preserve Overton

Park, Inc. v. Volpe,

(1971), abrogated on other grounds by Califano v.

Sanders,

(1977). Because the administrative record must therefore include “all

materials” that were “before the agency at the time the decision was made,” James Madison Ltd.

by Hecht v. Ludwig,

(D.C. Cir. 1996) (internal quotations and citations

omitted); see also Am. Wildlands v. Kempthorne,

(D.C. Cir. 2008), a court

should grant a motion to complete the administrative record if “the moving party . . . rebut[s] the

presumption of administrative regularity and show[s] that the documents to be included were

before the agency decisionmaker,” Pac. Shores,

.

A motion to admit extra-record evidence, in contrast, seeks to expand the record beyond

that which was before the agency when it rendered its decision. See Pritzker,

n.2; Cape Hatteras, 667 F. Supp. 2d at 114–15. Such a motion thus runs counter to the

principle that judicial review of an administrative action is just that—a review of the

administrative action the agency took based on what was before it at the time it acted. Materials

generated after the fact or materials that were not before the agency typically have little bearing

16 on what the agency actually did. For this reason, courts are leery of requests to consider extra-

record evidence in APA cases. On rare occasions, however, extra-record evidence can help

elucidate what the agency decided or did not consider, and, in those unusual circumstances, a

court may rely on extra-record evidence for those limited purposes. See Theodore Roosevelt

Conservation P’ship v. Salazar,

(D.C. Cir. 2010) (“[T]his is the exception, not

the rule.”).

To succeed on a motion to admit extra-record evidence, the moving party must

“demonstrate unusual circumstances justifying a departure from [the] general rule.” Dania

Beach v. FAA,

(D.C. Cir. 2010) (quoting Tex. Rural Legal Aid v. Legal Servs.

Corp.,

(D.C. Cir. 1991)). Although no all-embracing rule governs every such

circumstance, for purposes of present dispute, the parties agree that the test set forth in Animal

Legal Defense Fund v. Perdue,

(D.C. Cir. 2017), is dispositive. Dkt. 27 at

11–12; Dkt. 43 at 15; Dkt. 44 at 9, 9 n.2. Under that test, there are “at least three” circumstances

that justify the consideration of extra-record evidence: “(1) The agency deliberately or

negligently excluded documents that may have been adverse to its decision; (2) the District Court

need[s] to supplement the record with background information in order to determine whether the

agency considered all of the relevant factors; or (3) the agency failed to explain administrative

action so as to frustrate judicial review.”6

(internal punctuation omitted); see

6 At least the first of these three prongs applies to completion of the administrative record as well. See Fund for Animals v. Williams,

(D.D.C. 2005). Decisions in this circuit also sometimes use a separate four-part test for considering whether to admit extra- record evidence. See, e.g., Pritzker,

(explaining that consideration of extra-record evidence is appropriate “when the agency (1) acted in bad faith in reaching its decision, (2) engaged in improper behavior in reaching its decision, (3) failed to examine all relevant factors, or (4) failed to adequately explain its grounds for decision”).

17 also Dania Beach,

(listing the same three exceptions); Am. Wildlands,

(same); Madison,

(same). These narrow exceptions must be applied

sparingly to maintain incentives for interested parties to present their evidence and views fully

before an agency renders a final decision and to ensure that courts limit their role to the review of

what occurred before the agency. See Hill Dermaceuticals, Inc. v. FDA,

(D.C.

Cir. 2013) (reserving the invocation of extra-record evidence for “gross procedural

deficiencies”); Ctr. for Sci. in the Pub. Interest v. Dep’t of Treasury,

, 1000 n.3

(D.C. Cir. 1986) (barring extra-record evidence because it was “not . . . made part of the record

although . . . available during the comment period”). “[J]ust as the opportunity to comment is

meaningless unless the agency responds to significant points raised by the public, so too is the

agency’s opportunity to respond to those comments meaningless unless the interested party

clearly states its position” during the comment period. CTS Corp. v. EPA,

(D.C.

Cir. 2014) (emphasis in original) (internal punctuation omitted). Accordingly, when evaluating

whether to admit extra-record evidence, courts must consider whether admission constitutes “an

end run around the agency’s substantive . . . judgments.”

Because the CEI report and Exhibits F-H came into existence after the Corps issued

FG’s permit, they necessarily constitute extra-record evidence. The emails exchanged between

the state Division of Archaeology’s McGimsey and other parties, however, predate the permit,

and Plaintiffs’ contention that the emails prove that the Corps “knew—or should have known—

about flaws in the historic resource analysis” might be interpreted as an argument that the Corps’

decisionmakers knew of the emails when deciding to issue the permit or that the state officials

were acting as the Corps’ agents for purposes of conducting the archaeological assessment. Dkt.

27 at 18. Such an argument would amount to a motion to complete the record, rather than to

18 admit extra-record evidence. See Cape Hatteras,

(defining the

“administrative record” as “those documents that were before the agency decisionmaker”); see

also Fed. R. App. P. 16(a) (defining the administrative record as “the order involved, any

findings or reports on which that order is based, and the pleadings, evidence, and other parts of

the proceedings before the agency”).

That, however, is not the argument that Plaintiffs make. They argue, instead, that the

emails satisfy the “extra-record exception,” Dkt. 27 at 18, and they offer no basis to conclude

that the Corps knew about these specific emails. To be sure, they do argue that the emails relate

to issues the Corps should have known about, like “flaws in the historic resources analysis and

the importance of ensuring it was conducted properly.” Dkt. 47 at 26. But that contention has

no bearing on the question whether the emails at issue were before the agency when it issued the

permit. The Court will, accordingly, apply the extra-record-evidence standard to all of the

evidence at issue.

B. CEI Report

Plaintiffs first argue that the CEI report satisfies all three of the extra-record exceptions

identified in Animal Legal Defense Fund,

. The Court will address each

exception in turn.

1. Agency Deliberately or Negligently Excluded the CEI Report or Its Contents

According to Plaintiffs, the CEI report “contains relevant information that should have

been part of the Corps’ identification efforts[] but was negligently missed and overlooked,” Dkt.

47 at 20, thus satisfying the first Animal Legal Defense Fund exception.

; Dkt.

47 at 20. Defendants and FG disagree. According to Defendants, “[t]he CEI [r]eport cannot

have been ‘excluded’ from the record given that it significantly post-dates the permit.” Dkt. 44 at

19 10. FG contends that the CEI report is not “adverse” to the Corps’ decision and that the

exception therefore does not apply. Dkt. 43 at 22.

Whether and how the first Animal Legal Defense Fund exception applies to extra-record

material—as opposed to material that was before the agency but was erroneously excluded from

the record—is far from clear. The exception has its roots in Kent County v. EPA,

(D.C. Cir. 1992). In that case, the plaintiffs challenged how the EPA had calculated a landfill’s

“waste characteristics” score.

. Plaintiffs discovered several documents prepared by

the EPA’s own experts concluding that the agency’s methodology led to inaccurate results.

. EPA decisionmakers had evidently not uncovered these regional office documents when

making their decision.

Although the D.C. Circuit acknowledged that the EPA was not

expected to find “all documents that address a particular issue before making its decision,” the

court concluded that it was arbitrary for the EPA to rely on documents that were less on point

while ignoring more relevant “documents that discuss what appears to be a well-aired debate.”

These documents merited consideration because the agency “was . . . negligent in failing to

discover them.”

But the D.C. Circuit did not accept all of the extra-record documents at

issue and, instead, excluded one of the extra-record documents because it was not created until

“after the EPA [had] issued its decision in Kent County’s case.”

Although the court does not

address the question in detail, the court’s reasoning is evident: a document produced after the

agency made its decision could not have been negligently or intentionally withheld by the agency

when compiling the administrative record.

Whether admitting documents that an agency possesses but does not know about amounts

to completing the administrative record or admitting extra-record evidence is a question that the

Court need not decide for present purposes. What matters is that neither Kent County nor any

20 other precedent that Plaintiffs have cited supports the notion that the exception for material that

the agency deliberately or negligently excluded from the record extends to documents that did

not exist at the time the agency acted. A decisionmaker might deliberately exclude a report that

is adverse to her decision or might overlook a report that is buried in the files of a regional

office; she cannot, however, exclude or overlook a report that was created months after the

agency acted.

Plaintiffs attempt to sidestep this difficulty by arguing that the CEI report includes

information that was available and excluded at the time the Corps issued the permit. Dkt. 47 at

20 (accusing the Corps of “negligently exclud[ing] relevant information,” rather than excluding

the report itself). Defendants, for their part, maintain that “this mischaracterizes the exception.”

Dkt. 44 at 12. Defendants have the better of the argument. For one thing, the exception refers to

“deliberately or negligently excluded documents,” not “information.” Animal Legal Def. Fund,

(emphasis added). That distinction, moreover, makes sense because an

exception for deliberately or negligently excluded information would sweep too broadly and

would undermine the principle that APA review is not de novo but, rather, is limited to what

occurred before the agency. It is the rare agency decision that is impervious to critique from a

later expert report, and such reports can easily be cast by interested parties as containing

information that the agency might have discovered had it thought harder or searched more

extensively. Opening the door to judicial consideration of information that an agency might

have discovered upon further study—even if limited to cases of agency negligence—proves too

much and would allow a “narrow” exception to consume the “black-letter” rule that “a reviewing

court should have before it neither more nor less information than did the agency when it made

its decision.” CTS Corp. v. EPA,

(D.C. Cir. 2014) (citations omitted).

21 Beyond that, even if a post-decision document that incorporates pre-decision information

might fall within the exception, the movant must, at a minimum, identify with specificity the

available information that the agency deliberately or negligently declined to consider. In City of

Dania Beach, the plaintiffs sought to admit “hundreds of pages of” extra-record documents from

prior Environmental Impact Statements (“EISs”) to challenge the FAA’s approval of an airport

expansion.

. The FAA had started the NEPA analysis afresh years after these

prior EISs, and the expansion was based on the new batch of EISs, not the old ones.

Still, the

plaintiffs claimed “that the administrative record nevertheless must include documents produced

since the FAA first began considering the airport’s expansion” and that the FAA “selectively

excluded adverse documents from the earlier administrative process.”

But the D.C. Circuit

rejected this “vague proffer.”

Criticizing the plaintiffs for “simply submit[ing] the entirety of

the three draft EIS statements” rather than “identifying particular documents adverse to the

FAA,” the Court concluded that the plaintiffs’ claim was “too generalized to support such a

massive inflation of the record.”

at 590–91.

Here, as in Dania Beach, Plaintiffs attempt to justify the admission of a sizeable report

(albeit smaller than the documents contemplated in Dania) based on bits of information that,

according to Plaintiffs, the agency negligently excluded from the record. Plaintiffs claim that

unlike the Dania Beach petitioners, their motion does not lack specificity because it exposes “the

Corps’ negligent search for historic maps and other readily available resources.” Dkt. 47 at 22.

But this statement does not identify which maps or “other readily available resources” were

excluded, nor does it explain why Plaintiffs must admit a report discussing these materials, rather

than the materials themselves. And, most importantly, Plaintiffs do not identify information (1)

that is not otherwise in the administrative record, (2) that was readily available to the agency at

22 the time it acted, as the internal EPA documents were to the agency in Kent County or the former

EISs were to the agency in Dania Beach; and (3) that the agency disregarded. Even if the Corps

might have discovered the information at issue had it, for example, requested that CEI conduct

an investigation before the Corps issued the permit or had the Corps conducted an archival

search for additional maps, the exception applies to material that the agency negligently or

intentionally ignored—not information that the agency might have discovered based on a more

searching investigation.

Given these difficulties, the Court concludes that the CEI report does not qualify under

the first exception for extra-record evidence.

2. Background to Determine Whether Agency Considered Relevant Factors

Plaintiffs also maintain that the CEI report “illuminates several new, relevant factors that

the Corps failed to consider,” Dkt. 47 at 9, thereby satisfying the second Animal Legal Defense

Fund exception.

. Specifically, the report “reveals . . . errors and omissions . . .

in the Corps’ identification of historic grave sites” and shows that “surveys for the Acadia

[c]emetery were consistently conducted in the wrong location.” Dkt. 47 at 9. The report also

“indicates that one-third of the Acadia cemetery lies outside of the borrow pits dug by the

previous landowner . . . calling into serious question the Corps’ . . . conclusion that a previous

landowner destroyed the cemetery.” Id. at 11. Lastly, the report identifies “three anomalies . . .

that may constitute historic resources” on the Project site. Id.

Defendants dismiss these contributions as “‘nuanced points’ about [] particular issue[s]”

that fail to “point out . . . ‘entirely new’ general subject matter that the defendant agency failed to

consider.” Dkt. 44 at 12 (quoting Oceana, Inc. v. Ross, No. 17-cv-829 (CRC),

, at *4 (D.D.C. April 17, 2020)). Plaintiffs, Defendants continue, “do not provide any

23 information to suggest that the Corps entirely overlooked the Project’s potential impacts on

burial sites[;] . . . the Corps did consider this relevant factor.”

. FG, for its part,

downplays the differences between the CEI report and those by its contractors, noting that the

reports share “several important points of agreement,” including “the same basic method to

ascertain the location of the sites.” Dkt. 43 at 18. As to the Acadia cemetery location, FG

asserts that the location identified by the CEI report “differ[s] by mere feet” from the location

excavated by FG.

On several occasions, the D.C. Circuit has considered the admissibility of extra-record

evidence purporting to show that an agency failed to consider relevant factors, either by ignoring

a body of information altogether, see e.g., Animal Legal Def. Fund,

(D.C.

Cir. 2017) (directing district court to reconsider its decision denying leave to supplement the

administrative record with “records the agency had in its possession at the time of its decision,”

including agency investigations and first-hand accounts from members of the public of a zoo’s

license violations); Hill Dermaceuticals,

(holding that district court properly

declined to consider “21 extra-record declarations that purportedly provide[d] detailed technical

information” because the information was not before the agency when it acted); Theodore, 616

F.3d at 513–15 (holding that district court properly declined to consider a draft EIS from a

separate project that implicated cumulative impacts of the challenged project because the

challenger “had ample opportunity to seek to introduce the evidence before [the agency], but

they did not”); Madison, 82 F.3d at 1095–96 (holding that district court properly declined to

consider all bank files and underwriting materials reviewed by bank examiners, who prepared

detailed memoranda summarizing their findings, because the files were not part of the record

compiled by the agency when it declared banks insolvent), or by using flawed methodology, see,

24 e.g., CTS Corp., 759 F.3d at 63–64 (concluding that petitioner’s reliance on post-decision expert

report critiquing methodology used by EPA to evaluate groundwater contamination at a

hazardous waste site was “procedurally foreclosed”); Am. Wildlands,

(holding

district court properly declined to consider two post-decision letters from scientists claiming

agency misinterpreted their data in declining to list a type of trout as endangered); Esch, 876

F.2d at 990–92 (considering testimony by agency decisionmakers related to how claims were

processed in dispute over ending plaintiffs’ farm subsidies).

Of these decisions, CTS Corporation v. EPA,

, most closely parallels the

present dispute—although it still differs from this case in important respects. In that case, CTS

Corporation petitioned to review the EPA’s decision to add a site formerly owned by the

company to the National Priorities List as a candidate for environmental cleanup.

. CTS

challenged the EPA’s groundwater analysis by offering an extra-record expert report that

critiqued the EPA’s investigation and purportedly proved that contamination could not have

traveled from the former CTS site as the EPA had posited.

at 63–64. The issues addressed in

the expert report had not been raised during the comment period or prior to the agency’s

decision, CTS explained, because the necessary data were not made available until the final

rulemaking.

. The D.C. Circuit nonetheless held that the petitioners were not entitled to

rely on the report. Although the court noted that CTS’s argument “fail[ed] in multiple respects,”

the most relevant reason for the case at hand was CTS’s failure to seek the opportunity to weigh

in on the agency’s analysis prior to offering the report in litigation.

The court wrote: “if CTS

felt that further comment on EPA’s [groundwater] analysis was necessary after the EPA added

the study to the final record, CTS could have petitioned the EPA for either reconsideration or a

new rulemaking” or to “reopen the notice-and-comment period.”

. “Alternatively, CTS

25 could have pursued a procedural challenge arguing that EPA’s failure to include the

[groundwater] data in the record at the promulgation stage required that it be afforded an

additional opportunity to comment on the data.”

In other words, the D.C. Circuit

acknowledged that interested parties might need further opportunity to respond to data revealed

in the final agency decision. But to do so, an interested party must show that the agency’s action

was procedurally flawed, thereby opening a path for further administrative proceedings, or must

pursue administrative remedies, such as seeking reconsideration or the reopening of the comment

period.

Here, the CEI report provides background information on whether the Corps considered

the relevant factor of the location of the Acadia cemetery. As is commonly the case, the parties

debate “at what level of generality [the Court] should define the relevant factor which the agency

must consider,” Ross,

, at *4 (quotation omitted), with Defendants framing the

relevant factor as “impacts on burial sites” generally, Dkt. 44 at 14. But the case on which

Defendants rely makes clear that “[i]n a complicated, scientific analysis . . . consideration of the

intermediary evidentiary factors which lead to the ultimate conclusion are the very means by

which the agency renders its decision and, generally speaking, any of them can be a relevant

factor justifying” admission of extra-record evidence. Ross,

, at *4 (internal

quotation marks omitted). The process of locating a burial site constitutes an “intermediary

evidentiary factor[]” in evaluating that site. Therefore, the process of locating a burial site and

any potential errors in that effort constitute a relevant factor the agency must consider. FG’s

contention that the location “differ[s] by mere feet,” Dkt. 43 at 18, is unavailing in the present

context, where a difference of feet can mean the difference between investigating a potential

historic burial site and excavating an inconsequential patch of dirt. Simply put, the Court is

26 persuaded that the correct location of the cemetery is a relevant factor bearing on the Corps’

decision to grant the permit.

But the Court’s analysis does not end there. Having concluded that the extra-record

document might show that the Corps failed to consider a relevant factor, the Court must consider

whether admitting the report would honor the mandate to “structure [parties’] participation so

that it . . . alerts the agency to the [parties’] position and contentions.” Theodore, 616 F.3d at

514–15. As in CTS, Plaintiffs explain their late submission of an expert study by citing the

agency’s failure to disclose important information in the agency’s notice—here, the Corps’

failure to acknowledge the expected location of burial sites (or any information about the sites)

in its notice of proposed action. Dkt. 47 at 17–18. This failure, according to Plaintiffs, violated

the Corps’ regulations to disclose “current knowledge on historic properties” in its public notice.

(emphasis omitted) (citing

(10)). Because the agency did not disclose

this information, Plaintiffs argue, they cannot be faulted for failing to raise the issue until now.

The Corps’ failure to disclose the suspected existence of burial sites at the proposal stage

raises a legitimate concern. Correspondence in the existing record between FG contractors,

McGimsey, and the Corps suggests that the Corps knew of the discovery and had reason to

appreciate its significance at the time of the August 2018 comment period. See Dkt. 51-1; 51-2;

50-27. But the problem with Plaintiffs’ argument is that even though the initial public notice

contained no reference to the cemeteries, Defendants have identified several other forms of

notice that were provided prior to issuance of the permit—and while the Corps was apparently

still accepting comments—including a joint public notice issued in November 2018, Dkt. 57 at 2;

27 Dkt. 50-18, and the SEAS released in January 2019, Dkt. 53 at 1; Dkt. 53-1.7 The second

document was not released by the Corps, but Defendants have persuasively shown that Plaintiffs

were aware of the SEAS and that they cited it to critique other concerns raised by the Project.

Knowing of the existence of the cemeteries is distinct from knowing of the “extensive

back and forth about possible human remains at the Acadia [c]emetery,” which Plaintiffs stress

they did not learn about until filing a public records request. Dkt. 54-1 at 13. Even so, according

to the D.C. Circuit in CTS, the unavailability of information prior to an agency’s final decision

does not necessarily pave the way for interested parties’ extra-record analyses, even those

responding to newly revealed data. “[T]he remedy for an alleged procedural violation [such as

this] is not the outright judicial displacement of agency analysis . . . but rather the opportunity to

comment on the data before the agency in the first instance.” CTS,

. The question,

therefore, is whether any of the circumstances in the case at hand justify treating the CEI report

differently from how the Court treated the extra-record report in CTS.

The cases differ in at least one meaningful way. In CTS, the plaintiff offered the extra-

record scientific report to challenge the merits of the agency’s decision, see

(“CTS[] . . . seeks to bypass the administrative record and process altogether and have this court

consider new scientific evidence in the first instance.”), and referenced an alleged procedural

deficiency only as an excuse for not filing the report prior to the agency’s final decision,

. Here, in contrast, Plaintiffs seek to rely on the CEI report for several reasons, some of which

go to the merits of the Corps’ decision and some of which purport to show “gross procedural”

errors in the Corps’ decision-making process, Hill Dermaceuticals,

. Of particular

7 Earthjustice submitted comments on behalf of Plaintiffs to LDEQ as late as August 12, 2019, Dkt. 57-12 at 2, well after the existence of potential burial sites was publicly disclosed. 28 relevance here, Plaintiffs claim in their Complaint that “[t]he Corps did not adequately . . .

disclose . . . the impacts of its proposed action on . . . at least two cemeteries containing the

remains of enslaved people, in violation of the National Historic Preservation Act,” Dkt. 1 at 35

(Compl. ¶ 125), and further argue that “the CEI [r]eport . . . bear[s] upon the adequacy of the

Corps’ compliance with the public notice and comment procedures under the NHPA,” Dkt. 47 at

23. Admitting the CEI report for the limited purpose of revealing a procedural violation differs

from admitting the report as evidence that the Corps’ permitting decision was flawed on the

merits. As the CTS court explained, extra-record evidence “‘may be invoked to challenge gross

procedural deficiencies’” and to “help the court to determine whether the administrative record is

deficient in the first place.”

(emphasis and citations omitted). The Court

concludes that Plaintiffs should be given the opportunity to show, if they can, that this is such a

case.

Although the line between background information that might assist the Court in

assessing whether the agency committed a procedural misstep resulting in the agency’s failure to

consider an important factor and information that goes to the merits of the agency’s decision is a

fine one, it is a line that the Court can police in its evaluation of the parties’ cross-motions for

summary judgment. When it comes to those motions, Plaintiffs may, for example, cite to the

CEI report as background to help the Court evaluate their contention that the Corps failed to

provide the required public notice regarding the cemeteries and, as a result of that procedural

deficiency, failed to consider the possibility that FG was looking in the wrong places. Because

the CEI report bears upon the possible mis-location of the Acadia cemetery, and the Court has

determined that this possible mis-location is a relevant factor, Plaintiffs may cite the CEI report

to illustrate the kind of “essential” information that the Corps forewent by allegedly failing to

29 “comply with notice and comment procedures.” Dkt. 47 at 23 (citing

(d)(1)).

But Plaintiffs may not offer the report to demonstrate that “remains from the Acadia site may

still be on the [Project] property,” Dkt. 43 at 25, because that would call on the Court to

“consider new scientific evidence in the first instance” and weigh the CEI report against the FG

contractors’ report. CTS,

. In sum, Plaintiffs may offer the CEI report as context

to reveal the Corps’ procedural deficiencies, but not to “to critiqu[e the] analysis,”

,

contained in the Corps’ Memorandum and Environmental Assessment,8 Dkt. 50-2. With these

provisos, the Court will grant Plaintiffs’ motion to offer the CEI report as extra-record evidence

for the purpose of demonstrating the Corps committed a “gross procedural” error, Hill

Dermaceuticals,

, resulting in the agency’s failure to consider a relevant factor,

Animal Legal Def. Fund,

.

The Court emphasizes, however, that it is merely opening the door for Plaintiffs to make

this type of narrow argument—an argument that focuses on process and not results. Nor has the

Court formed a view on whether such an argument is meritorious or whether Plaintiffs have

overstepped the narrow limits on the use of extra-record evidence. Consideration of those

questions must await the parties’ briefs on summary judgment.

3. Frustration of Judicial Review

Plaintiffs also argue that the CEI report demonstrates that the Corps “failed to adequately

explain its decision.” Dkt. 47 at 22. The CEI report must be admitted, according to Plaintiffs,

because it highlights procedural deficiencies on the part of FG and the Corps,

at 22–23, the

8 The Court does not find that the Corps’ failure to identify the three “anomalies” mentioned in the CEI report rises to the level of a relevant factor that the Corps failed to consider. Moreover, Plaintiffs have not identified which information the Corps failed to disclose that would have made the identification of these anomalies possible sooner. Thus, the Court sees no reason that the three anomalies should be referenced going forward. 30 record does not show the Corps made “a good faith, reasonable effort” to assess harm to historic

resources, id. at 24, and the record does not support the Corps’ contention that the Project will

have a neutral effect on historic resources, id. at 24–25. Without the CEI report to show these

failings, Plaintiffs assert that “[j]udicial review will be frustrated.” Dkt. 27 at 17.

Extra-record evidence is not admitted simply because the record fails to support a party’s

position; it is admitted under the third Animal Legal Defense Fund exception,

,

when the record does not permit the court to engage in meaningful judicial review. The case

Plaintiffs cite, Dkt. 27 at 17, National Mining Association v. Jackson,

(D.D.C. 2012), illustrates such a scenario. In that case, the plaintiffs claimed that the EPA was

applying final guidance as a binding administrative rule and offered extra-record documents to

support that position.

. The Court admitted the documents at issue because the record

was “entirely bare as to how the EPA ha[d] applied the [f]inal [g]uidance.”

Here, in contrast,

the CEI report sheds little light on how the Corps decided to issue the permit, and the existing

record provides Plaintiffs with the information necessary to seek review of what the Corps

actually decided.

As to whether the CEI report “will bear upon the adequacy of the Corps’ compliance with

the public notice and comment procedures under the NHPA,” Dkt. 47 at 23, the Court’s limited

grounds for admission above address this justification. Broader admission is not merited under

this third exception, because the mere existence of an adverse extra-record report does not prove

the record is “entirely bare” to the point of frustrating judicial review. And to the extent

Plaintiffs refer to “procedural deficiencies” to describe inaccuracies with the agency’s

methodology for examining the burial sites, this contention is only a permutation of its “relevant

factor” argument above.

31 Because the third prong of Animal Legal Defense Fund’s exceptions is either inapplicable

or cumulative of the second,

, the Court will deny Plaintiff’s motion to admit the

CEI report beyond the narrow purpose of background information for claims based on deficient

notice and failure to consider a relevant factor.

B. Emails Between the Division of Archaeology and Other Parties

Plaintiffs maintain that the emails sent prior to the Corps’ permit decision, Exhibits A–D

of the Spees declaration, constitute background information necessary to determine whether the

Corps considered the factors relevant to its decision. Dkt. 27 at 17–18. These emails, according

to Plaintiffs, highlight errors in FG’s investigation leading up to the 2019 excavation and

demonstrate that the Corps “should have given heightened scrutiny to the surveys and

information regarding the Acadia [c]emetery.” Dkt. 47 at 27.

Defendants and FG both assert, among other responses, that the current record already

reveals the “iterative review process lasting more than two years and involving multiple follow-

up investigations and surveys.” Dkt. 43 at 27; accord. Dkt. 44 at 20. FG further notes that the

record includes “potential flaws in the maps used to locate” the burial sites. Dkt. 43 at 27. Both

are correct, and the record also reveals that new insights repeatedly came from outside parties,

not the contractors themselves, as demonstrated by the factual background laid out above.

Because the Court agrees with Defendants’ contention that the current record is sufficient

without these documents, the Court need not address Defendants’ other objections to their

admission.

The Court will therefore deny Plaintiffs’ motion to admit the extra-record emails, exhibits

A–D.

32 C. Post-Permit Communications About Burial Sites

Finally, Plaintiffs maintain that Exhibits F–H of the Spees declaration, communications

between a representative for Plaintiff RISE St. James, FG, and the Corps, should be admitted to

show that the Corps failed to consider relevant factors. Dkt. 27 at 19–20. They argue that the

communications reveal that FG is “(1) prohibiting public access to the Buena Vista [c]emetery;

(2) impacting the look and feel of the Buena Vista [c]emetery with chain-link fencing and an

adjacent petrochemical complex; and (3) pursuing the cemetery’s relocation.” Id. at 21. These

actions on the part of FG, according to Plaintiffs, prove that the Corps “should have . . . analyzed

. . . project impacts to cultural and historic resources under” the applicable statutes. Id.

The Court agrees with Defendants that post-decision materials that discuss post-decision

actions by permittees are “beyond the scope of the claims raised here, which only challenge

whether the decision complied with the law, not whether the permit is being correctly

implemented.” Dkt. 44 at 23. Despite Plaintiffs’ suggestions to the contrary, Dkt. 47 at 29,

actions taken after an agency makes its decision cannot prove that the agency failed to consider

relevant factors. The Court “should have before it neither more nor less information than did the

agency when it made its decision.” Walter O. Boswell Mem’l Hosp., 749 F.2d at 792.

The Court will, accordingly, deny Plaintiffs’ motion to admit exhibits F–H.

D. FG’s Cross-Motion to Admit Extra-Record Evidence

Because the Court is admitting the CEI report, albeit in a limited fashion, the Court must

consider FG’s conditional cross-motion to admit an extra-record “permit application previously

filed by a third party, which shows that the earlier owner excavated the borrow pits at the Acadia

site so that the contents could be used offsite.” Dkt. 43 at 25 (emphasis in original); Dkt. 43-2 at

7; Dkt. 45. “If Plaintiffs are allowed to use the CEI report to argue that remains from the Acadia

33 site may still be on the Sunshine property,” FG argues, “the Court should also consider the proof

that the contents of that site were moved to a different property.” Dkt. 43 at 25. The Court is not

admitting Plaintiffs’ evidence to show that “remains from the Acadia site may still be on the

Sunshine property” but, rather, as background information relating to the adequacy of the Corps’

notice and whether it failed to consider an important factor. As a result, there is no need to admit

FG’s extra-record exhibit, and the Court will, accordingly, deny that motion.

CONCLUSION

For these reasons, the Court hereby DENIES in part and GRANTS in part Plaintiffs’

motion to admit extra-record evidence, Dkt. 27. The Court ADMITS the CEI report for the

limited purpose of providing background information to Plaintiffs’ procedural claim as to

deficient notice from the Corps and whether the Corps, as a result, failed to consider an

important factor. The Court declines to admit the remaining extra-record evidence offered by

Plaintiffs, Exhibits A–D and F–H. Because the Court admits Plaintiffs’ extra-record evidence in

a more limited fashion than contemplated by FG’s cross-motion, the Court DENIES FG’s

conditional cross-motion to add extra-record evidence, Dkt. 43; Dkt. 45.

SO ORDERED.

/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge

Date: September 22, 2020

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