1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
SILVER STATE LAND, LLC, Plaintiff,

v. TOMMY P. BEAUDREAU, in his official capacity as Acting Assist ant Secretary of Land and Minerals Management, U.S. Department of the Interior, et al. , Defendants. Civil Action No. 13-cv-00717 (BAH) Judge Beryl A. Howell

MEMORANDUM OPINION Several days before the plaintiff, Silver St ate Land, LLC, expected to receive the patent for approximately 480 acres of federal land located in the City of Henderson, Nevada, the patent was withdrawn and the plaintiff was not permitted to consummate the purchase of the land. The plaintiff thereafter filed this action against Tommy P. Beaudreau, in his official capacity as Acting Assistant Secretary, Land and Minerals Ma nagement (“LMM”), U.S. Department of the Interior (“DOI”), and Neil Kornze, in his offici al capacity as Principal Deputy Director, DOI’s Bureau of Land Management (“BLM”), (colle ctively “defendants”) to (1) set aside the determination of the LLM to withdraw the sale of a land patent; and (2) a llow the sale to proceed as required by law. Pending before the Court is the plaintiff’s motion to supplement the administrative record with, or allow for extra-reco rd review or judicial notice of, a Nevada state court order dismissing fraud claims against the plaintiff. Pl.’s Mot. to Compel Suppl. of A.R. or Extra-R. Review or Judicial No tice (“Pl.’s Mot.”), at 1, ECF No. 26. According to the plaintiff, this excluded order eliminat ed the underlying reason for the LLM’s determination and, consequently, is “most relevant to Defendants’ arbitrary and capricious d ecision.” Pl.’s Mem.2 Supp. Mot. to Compel Supplementation of A.R. or Extra-R. Review or J udicial Notice (“Pl.’s Mem.”), at 8, ECF No. 26-1. For the reasons set forth below, the plaintiff’s motion is denied.
I. BACKGROUND In September 2011, the City of Henderson, Nevada (“Henderson” or “the city”) nominated for sale, pursuant to the Sout hern Nevada Public Land Management Act (“SNPLMA”), an approximately 480-acre par cel of public land (“the Land”) under the administration of BLM. Id. ¶ 8. Henderson requested that BLM conduct a direct sale of the land to Las Vegas National Sports Center, LLC (“ LVNSC”), which had a Development Agreement with the city to “develop a re gional mixed use project includ ing professional sports venues on the Land” (“Development Agreement”). Id. BLM did not accede to this request but instead published, on April 4, 2012, a Notice of Realty Action for a modified competitive bidding process in accordance with BLM regulations. Id. ¶¶ 9-10. Meanwhile, in early 2012, with the consent of both Henderson and BLM, the plaintiff was substituted for LVNSC as the sale nominee. Id. ¶ 8. Both LVNSC and the plaintiff are wholly owned by Las Vegas National Sports Center (Holding) LLC. Id. Henderson identified the plaintiff to BLM as the “designated bidder, ” allowing the plaintiff to match the high bid. Id. ¶ 10. On June 4, 2012, the plaintiff submitted a bid to purchase the land for $10,560,000, which was “the fair market value as previ ously determined by the BLM under an appraisal prepared by a third party and reviewed and a pproved by the Office of Valuation Services, [DOI].” Id. ¶ 11. No other bids were submitted and, on June 12, 2012, BLM confirmed that the plaintiff was the successful bidder. Id. ¶¶ 11-12. On November 28, 2012, as a requirement of sale, the plaintiff timely deposited into an escrow the amount of $8,428,000, thereby triggering3 BLM’s obligation to issue a patent , which would give the plaintiff the title to the land, within 30 days. Id. ¶¶ 13-14. On the same day the escrow de posit was made, the plaintiff’s affiliated company, LVNSC, terminated its Development Agreement with Henderson. Id. ¶ 15. The plaintiff offers as an explanation for the te rmination that “[b]oth Henderson and LVNSC had reciprocal and unilateral rights to terminate the Development Agreement if either party believed the terms of the Development Agreemen t made the project non-viable.” Id. The plaintiff further alleges that “[t]he termination of the Developm ent Agreement affected the potential issuance by Henderson of revenue bonds for the project but it did not affect the zoning of the Land . . . [which] remains . . . zoned to be used for the development of a mixed use project with sports venues and that designation cannot be cha nged by any party other than Henderson.” Id. On November 29, 2012, the day following the plai ntiff’s payment of the escrow deposit and its affiliate’s termination of the Developm ent Agreement, Henderson sent a letter to BLM requesting that the issuance of the land patent to the plai ntiff be postponed. Id. ¶ 16. In order to facilitate its discussions with Henderson, on December 2, 2012, the plaintiff agreed to extend the date by when BLM was required to transfer the la nd patent until the first week of February 2013. Id. ¶ 17. The plaintiff agreed to a second escrow extension until March 29, 2013, after Henderson filed suit, on January 28, 2013, in Nevada state court against the plaintiff “alleging fraud related claims and contract claims.” Id. ¶ 18. Before the lapse of the second closing da te extension, the Nevada state court in City of Henderson v. Milam (“ City of Henderson ”), No. A-13-675741-B (Nev. Dist. Ct., Clark Cty), entered an order, on March 7, 2013, dismissing, w ithout prejudice, the fraud related claims against the plaintiff (“Nevada Order”). Id. ¶ 20. Shortly thereafte r, on March 14, 2013, the plaintiff and Henderson reached a settlement re garding the remaining contract claims and4 Henderson provided a copy of the settlement agreement to DOI’s Solicitor’s Office. Id. ¶ 21. In the agreement, the “parties agreed that the set tlement agreement was not to be considered an admission or acknowledgement as to liability or damages related to claims by either party.” Id. Henderson advised BLM, by a letter “sent” on Ap ril 5, 2013, that the city no longer opposed the issuance of the patent to the plaintiff. Id. ¶ 22. In view of these developments, the plaintiff agreed to a third extension of th e closing with BLM until May 13, 2013. Id. On May 10, 2013, three days before the schedule d date for the issuance of the patent, LMM issued a Decision Memorandum adop ting an earlier recommendation of BLM. See A.R. SSL00133. Specifically, in its Decision Memorandu m, the LLM asserted jurisdiction over the matter and directed BLM to: “(i) not issue the pate nt to [the plaintiff], (ii) terminate the sale process, and (iii) take the steps necessary to return the purchase deposit and bid guarantee to [the plaintiff], as expeditiously as practicable.” Id. ; Compl. ¶¶ 25-26. Consistent with these directions, BLM did not deliver th e patent to the plaintiff by the closing date. Compl. ¶ 27. The plaintiff filed an action for declaratory a nd injunctive relief against the defendant on May 15, 2013. See generally Compl. The defendants timely l odged the administrative record in this case on November 5, 2013, ECF No. 25, which r ecord the plaintiff argue s is incomplete for failing to include the Nevada Order dismissing the fraud related claims brought against the plaintiff in the City of Henderson litigation. The plaintiff’s pending motion to supplement the administrative record or allow extra-record review or judicial notice of the Nevada Order, is now fully briefed for resolution.
II. LEGAL STANDARD Under the APA, “the court sha ll review the whole record or those parts of it cited by a party.” 5 U.S.C. § 706. “The record consists of the order involved, any findings or reports on5 which that order is based, and ‘the pleadings, ev idence, and other parts of the proceedings before the agency.’” Am. Wildlands v. Kempthorne , 530 F.3d 991, 1002 (D.C. Cir. 2008) (quoting F ED
. R. A PP
. P. 16(a)). As the Supreme Cour t explained, “[t]he task of th e reviewing court is to apply the appropriate APA standard of review . . . to the agency decision based on the record the agency presents to the reviewing court.” Florida Power & Light Co. v. Lorion , 470 U.S. 729, 743-744 (1985). Otherwise, the re viewing court would consider de novo material not included in the agency record and “reach its own c onclusions based on such an inquiry.” Id. at 744. This is inconsistent with applying th e arbitrary and capricious standa rd, where “the focal point for judicial review should be the ad ministrative record al ready in existence, not some new record made initially in the reviewing court.” Camp v. Pitts , 411 U.S. 138, 142 (1973). Hence, “[i]t is a widely accepte d principle of administrative la w that the courts base their review of an agency’s actions on the materials that were before the agency at the time its decision was made.” IMS, P.C. v. Alvarez , 129 F.3d 618, 623 (D.C. Cir. 1997); see also Hill Dermaceuticals, Inc. v. FDA , 709 F.3d 44, 47 (D.C. Cir. 2013) (“[I]t is black-letter administrative law that in an APA case, a review ing court ‘should have before it neither more nor less information than did the agency when it made its decision.’” (quoting Walter O. Boswell Mem’l Hosp. v. Heckler , 749 F.2d 788, 792 (D.C. Cir. 1984)); Deukmejian v. Nuclear Regulatory
Comm’n , 751 F.2d 1287, 1325 (D.C. Cir. 1984) (en ba nc) (“Were courts cavalierly to supplement the record, they would be tempted to second-guess agency decisions in the belief that they were better informed than the administra tors empowered by Congress and appointed by the President.”), vacated en banc in part on other grounds ,760 F.2d 1320 (D.C. Cir. 1985). When “the record before the agency does not s upport the agency action, [] the agency has not considered all relevant factors, or [] the review ing court simply cannot ev aluate the challenged6 agency action on the basis of the record befo re it, the proper course, except in rare circumstances, is to remand to the agency fo r additional investigation or explanation.” Florida Power & Light Co. , 470 U.S. at 744. Supplementation of the administrative record is only appropriate in exceptional or “unusual” circumstances. City of Dania Beach v. FAA , 628 F.3d 581, 590 (D.C. Cir. 2010) (“[W]e do not allow parties to supplement the record ‘unless they can demonstrate unusual circumstances justifying a departure from this general rule.’” (quoting Tex. Rural Legal Aid v. Legal Servs. Corp. , 940 F.2d 685, 698 (D.C. Cir. 1991))); Am. Wildlands v. Kempthorne , 530 F.3d at 1002; see also Cape Hatteras Access Pres. Alliance v. U.S. Dep’t of Interior , 667 F. Supp. 2d 111, 112 (D.D.C. 2009) (“A court that orders an administrative ag ency to supplement the record of its decision is a rare bird.”). The D.C. Circuit has recognized three narrow instances in which supplementation of an admi nistrative record may be appropriate before reaching the merits of an APA challenge to agency action: “(1) if the agency ‘deliberately or negligently excluded documents th at may have been adverse to its decision,’ (2) if background information was needed ‘to determine whether the ag ency considered all the relevant factors,’ or (3) if the ‘agency failed to expl ain administrative action so as to frustrate judici al review.’” City of Dania Beach , 628 F.3d at 590 (quoting Am. Wildlands , 530 F.3d at 1002); see James Madison Ltd. by Hecht v. Ludwig , 82 F.3d 1085, 1095 (D.C. Cir. 1996). Underlying these exceptions, how ever, is the “strong presump tion” that an agency has properly compiled the entire r ecord of materials that it considered, either directly or indirectly, in making its decision. See Maritel, Inc. v. Collins , 422 F. Supp. 2d 188, 196 (D.D.C. 2006) (“Although an agency may not unilaterally determ ine what constitutes the administrative record, the agency enjoys a presumpti on that it properly designated th e administrative record absent7 clear evidence to the contrary.” ). To overcome that presumption, a plaintiff “must put forth concrete evidence that the documents it seeks to add to the record were actually before the decisionmakers.” Nat’l Mining Ass’n v. Jackson , 856 F. Supp. 2d 150, 156 (D.D.C. 2012) (internal quotation a nd citations omitted). In a case involving a “serious question” about “the procedural validity ” of the challenged agency action, the D.C. Circuit listed eight circum stances in which consideration of extra-record evidence may be appropriate. 1 Esch v. Yeutter , 876 F.2d 976, 991 (D.C. Cir. 1989). More recently, the D.C. Circuit has cautioned that the exceptions announced in Esch are “narrow” and that, “at most [ Esch ] may be invoked to challenge gross pr ocedural deficienci es—such as where the administrative record itself is so defi cient as to preclude effective review.” Hill Dermaceuticals, Inc. , 709 F.3d at 47 (citing Theodore Roosevelt Conser vation P’ship v. Salazar , 616 F.3d 497, 514 (D.C. Cir. 2010) (“The APA limits judicial review to the administrative record except when there has been a strong show ing of bad faith or improper behavior or when the record is so bare that it prevents effectiv e judicial review.”) (internal quotations omitted)). See also Axiom Res. Mgmt. v. United States , 564 F.3d 1374, 1380-81 (Fed. Cir. 2009) (rejecting reliance on Esch because “the eight exceptions to th e rule against extra-record evidence described in Esch originated” in a law review article that predated Florida Power & Light Company , 470 U.S. at 743-44, the Esch exceptions “are so broadly-worded as to risk being incompatible with the limited nature of arbitrar y and capricious review, pa rticularly if construed

1 The D.C. Circuit identified the following eight circumstances in Esch , 876 F.2d at 991 (quoting Steven Stark & Sarah Wald, Setting No Records: The Failed Attempts to Limit the Record in Review of Administrative Action , 36 A DMIN L. R EV . 333, 345 (1984)): “(1) wh en agency action is not adequately expl ained in the record before the court; (2) when the agency failed to consider factors which are rele vant to its final decision; (3 ) when an agency considered evidence which it failed to include in the record; (4) when a case is so complex that a court needs more evidence to enable it to understand the issues clearly; (5) in cases where evidence arising after the agency action shows whether the decision was correct or not; (6) in cases where agencies are sued for a failure to take action; (7) in cases arising under the National Environmental Policy Act; and (8) in cases wh ere relief is at issue, es pecially at the preliminary injunction stage.’”8 to allow the introduction of new evidence or theo ries not presented to th e deciding agency,” and

“ Esch’ s vitality even within the D.C. Circuit is ques tionable in light of more recent opinions by that court which demonstrate a more restrictive approach to extra-record evidence”) (internal quotations and citations omitted); Nat’l Mining Ass’n , 856 F. Supp. 2d at 156–57 (noting that the D.C. Circuit “appears to have narrowed” the Esch exceptions). In any event, “reliance on extra-record evid ence ‘is the excepti on, not the rule.’” API v.
SEC , 714 F.3d 1329, 1334 (D.C. Cir. 2013) (quoting Theodore Roosevelt Conservation Partnership , 616 F.3d at 514); see also Zemeka v. Holder , 963 F. Supp. 2d 22, 25 (D.D.C. 2013) (“Under exceptional circumstances , courts may permit a party to present ‘extra-record’ evidence — ‘evidence outside of or in addition to the administrative record that was not necessarily considered by the agency.’” (quoting Pac. Shores Subdivision, Cal. Water Dist. v. U.S. Army Corps of Eng’rs , 448 F. Supp. 2d 1, 5 (D.D.C. 2006))). Moreover, “[u]nderlying all of these exceptions is the assessment that ‘resort to ex tra-record information [is necessary] to enable judicial review to become effective.’” Calloway v. Harvey , 590 F. Supp. 2d 29, 38 (D.D.C. 2008) (quoting Esch , 876 F.2d at 991) (alterations in original).

III. DISCUSSION In support of its motion to supplement the administrative record or allow extra-record review or judicial notice of the Nevada Order, the plaintiff makes five arguments. The plaintiff argues that supplementation of th e administrative record with th e Nevada Order is necessary because: (1) the defendants “deliberately or neg ligently excluded” this Order “that may have been adverse to its decision,” Pl.’s Mem. at 8; (2) the Order constitute s “background information . . . needed to determine whether the agen cy considered all the relevant factors,” id . at 11; and (3) failure to consider the Nevada Order would “frustrate judicial review,” id . at 12. The plaintiff9 also contends that extra-record review of th e Order is appropriate b ecause “the procedural validity of an agency’s action is in question.” Pl.’s Mem. at 13. Finally, the plaintiff posits that if the Court declines to supplement the administrative record or grant extra-record review, “[i]t is beyond dispute that judicial notice of the [Nevada] Order is appropr iate” as “the [Nevada] Order is the type of official governme nt document frequently accorded j udicial notice.” Pl.’s Mem. at 14. The Court finds all of the pl aintiff’s arguments unavailing for the reasons explained below.

A. SUPPLEMENTATION OF THE ADMIN ISTRATIVE RECORD IS NOT WARRANTED The gravamen of the plaintiff’s argument for supplementation of the administrative record is that “[g]iven the dire ct relevance of Henderson’s fraud alle gations against [the plaintiff] to Defendants’ rationale for the challenged d ecisions, it was unreasonable and negligent for Defendants to fail to review significant devel opments in that proceeding, including the court order dismissing the fraud cl aims.” Pl.’s Mem. at 10. The plaintiff’s criticism that exclusion of the Nevada Order renders that defendants’ decision substantively unsound cautions against granting the pending motion since “the familiar rule that judicial review of agency action is normally to be confined to the administrative record . . . exerts its maximum force when the substantive soundness of the agency ’s decision is under scrutiny.” Esch , 876 F.2d at 991. Indeed, the relevant inquiry here is not what the plaintiff believes the agency should have considered prior to making its decision. As the defendants aptly explain, “the issue of what the Interior should have considered may ultimately bear on whether the agency action at issue was arbitrary and capricious [and] that is a merits argument that is wholly irrelevant to what the agency actually did consider during the time period at issue. ” Defs.’ Opp’n Pl.’s Mem, (“Defs.’ Opp’n”), at 9, ECF No. 27 (citing Safari Club Int’l v. Jewell , 960 F. Supp. 2d 17, 71 (D.D.C. 2013)) (emphasis in original). See also Midcoast Fishermen’s Ass’n v. Gutierrez , 592 F. Supp.10 2d 40, 44 (D.D.C. 2008) (recognizing that whether defe ndants’ failure to consider additional data rendered the agency decision arbitrary and capri cious was a “merits argument in a discovery motion” and, consequently, “[t]he Court [was ] not prepared to express an opinion on the propriety of the defendant’s se lection of data” during a motion to supplement the administrative record). Rather than argue about what the agency should have considered in reaching the challenged decision, to establish a basis for suppl ementation of the administrative record, the plaintiff must show that the Nevada Order (1) was “deliberately or negligently excluded” because it was “adverse” to the challenged deci sion; (2) constitutes “background information” necessary “to determine whether the agency cons idered all the relevant factors;” or (3) is necessary “to explain administrative action” such that exclusion “frustrate [s] judicial review.”
See City of Dania Beach , 628 F.3d at 590. The plaintiff’s arguments as to each of these circumstances are addressed in turn. 1. The Defendants Did Not Deliberately or Negligently Exclude an Adverse Document The plaintiff argues, first, that supplementa tion of the administrativ e record is required because the defendants “deliberately or neglig ently excluded documents that may have been adverse to its decision.” Pl.’ s Mem. at 8. This argument is premised on the plaintiff’s assumptions that (1) the defenda nts withdrew the land patent as a result of the fraud claims asserted against the plaintiff in the City of Henderson litigation; and (2) the defendants must have reviewed and considered the Ne vada Order dismissing these fra ud claims without prejudice. See Pl.’s Mem. at 1 (“the law does not permit [the de fendants] to base the decision [to revoke the land patent] on alleged fraud claims against [the pl aintiff], but keep out of the record the Order11 that dismissed those same claims more than two months before [the defendants] made the challenged decision.”). The defendants challeng e the validity of both of these assumptions. First, the defendants aver that “the driving factors underlying [their] decision to terminate the land sale” were “the lack of a Development Agreement [with the plaintiff’s affiliate LVNSC] and public interest benefits” derived from the sale, not the fraud allegations ag ainst the plaintiff.” Defs.’ Opp’n at 9-10. While the defendants “r ecognized as an issue the state court fraud allegations,” as part of the c onfluence of events surrounding the dissolution of the Development Agreement, the significant matter for BLM was the termination of the agreement, not the underlying reasons for the termination. The plai ntiff disputes that th e termination of the Development Agreement was the reason for the challenged agency decision, characterizing this justification as “demonstrably false.” Pl.’s Reply at 2. Even if the plaintiff’s characterization is correct, a motion to supplement the record is not the appropriate procedural mechanism to determine the precise reasons for the agency’s decision. Ascertaini ng the reasons for the challenged agency action and evaluating the reas onableness of the action necessarily focuses on consideration of the merits of the plaintiff’s claim. In any event, the plaintiff’s assumption in support of the pending motion that the primary reason for the challenged agency action was Hende rson’s assertion of fraud claims against the plaintiff—and that the defendant s, therefore, should or must have considered the Nevada Order—is not persuasive for at least three reasons. First, the defendants’ proffered rationale for withdrawal of the land patent due to the termin ation of the Development Agreement shows, at a minimum, that reasons other than the fraud claims may be underlying the challenged agency action.12 Second, and related to the firs t reason, the defendants’ proffered rational for revoking the land patent is bolstered by the allegations set out in the plaintiff’s own Complaint. Specifically, the Complaint alleges that Henderson initially desi red to convey the land by direct sale to the plaintiff’s affiliate, LVNSC, with whom the city had a Development Agreement. Compl. ¶ 8. Pursuant to this Agreement, LVNSC was to “develop a regional mixed use project including professional sports venues on the Land” at issue. Id. The BLM rejected the city’s initial direct sale proposal because “the Project did not rise to the level of a ‘public project’ required by the BLM regulations to suppor t” such a transaction, id . ¶ 9, corroborating the defendants proffered rationale that the public benefits of any transaction were a si gnificant consideration for BLM. Instead, BLM notified the city “that a modified competitive bidding process was appropriate.” Id. The plaintiff, having been substituted as th e sole nominee and being the only bidder in the modified sale process, was quickly deemed the successful bidder. Id. ¶¶ 8, 12. The rationale for both adopting a modified competitive bidding process and issuing the land patent to the plaintiff was immediately undercut, however, when on the exact same day that th e plaintiff made the necessary deposit for the land, L VNSC terminated the Development Agreement with Henderson. Id. ¶¶ 14-15. The chronology of events outlined in the Co mplaint lends credence to the defendants’ assertion that the primary reason fo r not issuing the patent to the plaintiff was the loss of both the Development Agreement with LVNSC and the co ncomitant public benefits that would have derived from that agreement. Notably, if the fra ud claims against the plai ntiff were not the basis for the defendants’ decision, a state court Order di smissing those claims is obviously not adverse, but merely irrelevant, to the challenged agency action.13 Third, even if the fraud claims alleged in th e state court proceeding were the basis for the challenged decision, the plaintiff’s ar gument that the Nevada Order is “adverse” still falls short. The Nevada Order did not address the merits of the fraud allegations against the plaintiff since the Order merely dismissed those allegations without prejudice . Thus, the plaintiff’s assertion that the allegations of fraud can “provide no basis for the ultimate decision reached by Defendants,” is not so clear when the merits of th ose allegations were not reached. Pl.’s Mem. at
10. Even assuming arguendo that the challenged decision was based on the fraud claims, rendering the Nevada Order somehow adverse to th e withdrawal of the la nd patent, the plaintiff has failed to provide concrete evidence to prov e its second assumption—that the defendants were actually aware of the Order prior to their decision. The defendants aver that “[t]he Nevada Order was not before [the agency] when it made its deci sion to terminate the land sale.” Defs.’ Opp’n, at 6. “Common sense dictates that the ag ency determines what constitutes the whole administrative record because it is the agency that did the consider ing, and that therefore is in a position to indicate initially which of the materi als were before it—namely, were directly or indirectly considered.” Pac. Shores Subdivision, Cal. Water Dist. , 448 F. Supp. 2d at 5 (citation and quotation marks omitted). While this “c ommon sense” presumption may be rebutted, the defendants correctly point out th at the plaintiff “has fallen sh ort of carrying its burden of producing . . . concrete evidence that the Nevada Order was considered, either directly or indirectly, by agency decisionmak ers.” Defs.’ Opp’n at 7-8. Rather than providing concrete evidence, the plaintiff postulates that the defendants must have known about and considered the Nevada Order before making the challenged decision because the Administrative Record contains references to the fraud claims against the plaintiff.14 Pl.’s Mem. at 8-10. In particular, the plainti ff cites such references contained in: (1) BLM’s Memorandum, dated May 10, 2013 (“Recommendation Memorandum”), recommending that LLM direct BLM not to issue the la nd patent to the plaintiff, A. R. SSL00003-8; (2) news articles and the settlement agreement filed after the March 7, 2013 date of the Nevada Order, A.R. SSL00197-214, 229-232, 566-567, 666-676, 838-839, 907-908, 1159-1131,1578-1580; (3) contacts between Henderson and DOI officials about developments in the state court litigation, A.R. SSL00142; and (4) the Nevada state court’s public docket, Pl .’s Mem. at 10. Given these record references to the fraud claims, the plai ntiff expresses incredulity that the “Defendants were unaware that Henderson’s fraud claims were dismissed,” stating the vi ew that this “notion ... is simply implausible,” Pl.’s Mem. at 9. Yet, the fact that the defendants had notice of the fraud claims simply does not establish knowledge of the Nevada Order. As the defendants explain, “while the administrative record incl udes some documents from the City of Henderson proceedings, it includes only those documents that th e BLM considered direc tly or indirectly in making the decision to terminate the sale . . . [a nd] [t]hese documents were considered because they were provided to the BLM by th e parties to the state court litigation.” De fs.’ Opp’n at 11. While the plaintiff is correct that documents need not “be physically transmitted to an agency for the documents to be included in an administrative record,” Pl.’s Mem. at 11, this argument misses the mark. None of the references to the fraud claims in the record contravenes the defendants’ denial of considering the Ne vada Order when making the challenged decision nor the defendants’ explanation that the only documents included in the administrative record were those that Henderson disclo sed through its alleged “close cont act” with the defendants. Thus, neither the documents in the administrativ e record from the stat e court proceeding nor15 Henderson’s contact with the defendants amounts to the requisite concrete evidence that the defendants knew of the Nevada Order. The plaintiff’s contention that the defendants must have known of the Nevada Order because “a cursory review of th e Nevada District Court’s public docket would have revealed” it, Pl.’s Mem. at 10, fares no better. The plainti ff’s settlement agreement with Henderson, which agreement was indisputably known to the defend ants and is included in the administrative record, made clear that “both parties agreed that the settlement agreement was not to be considered an admission or acknowledgement as to liability or damages related to claims by either party.” Compl. ¶ 21. In short, this se ttlement agreement terminated the fraud claims without a resolution of the merits of those allegations. As a cons equence, there was no need for the defendants to review the state court’s publi c docket, as the settlement agreement provided sufficient notification that the claims in the Henderson litigation settled. In other words, knowledge of the settlement agreement rendere d “[t]he Nevada Order dismissing the fraud allegations without prejudice” an “extra procedural note” and provided notice that the fraud allegations, whatever their merit, were no longer the subject of legal proceedings. See Defs.’ Opp’n at 10-11. In sum, there is simply no concrete evidence offered by the plaintiff to overcome the strong presumption that the record was properl y designated. In fact , even the plaintiff acknowledges that “conspicuously absent from the record are a ny articles about the Court’s dismissal of the City of Henderson’s fr aud claims [i.e., the Nevada Order].” See Pl.’s Mem. at 9. As the defendants could not delibe rately or negligently exclude documents of which they were not aware, the plaintiff has not proven that the record should be supplemented on this basis.16 2. The Nevada Order Is Not Necessary Background Information The plaintiff’s second argument is that s upplementation is required because the Nevada Order provides background information “clearly essential to the ch allenged decisions” by “establishing that Henderson’s fra ud claims were baseless.” Pl.’ s Mem. at 11-12. In support of this contention, the plaintiff relies upon American Wild Horse Preservation Campaign, but that

case is inapposite. The plaintiff in that case treated as part of the administrative record certain expert declarations, which the agency admittedly possessed, were referenced in timely-filed comments, were directly related to and adverse to the agency’s decision and were undisputedly properly before the agency in cl osely related prior litigation. See Am. Wild Horse Pres. Campaign v. Salazar , 859 F. Supp. 2d at 43-44. In those ci rcumstances, this Court denied the agency’s motion to strike the expert declarations and considered the declarations an appropriate part of the record. By contrast, as discussed at length above, the defendants in this case aver that, prior to making the challenged decision, they were never aware of or in possession of the Nevada Order and the plaintiff has offered no concrete evidence to the contrary. The plaintiff argues further that the Nevada Order is necessary background information because the document “should have informed Defe ndants’ decision, and must be included in the administrative record.” Pl.’s Mem. at 12. 2 As noted, whether the Ne vada Order reflects events or matters that “should” have been considered ve ers into the merits of the plaintiff’s underlying claim and is inappropriate for consideration on the pending motion. In any event, despite the plaintiff’s vigorous arguments about the necessity of including the Nevada Order in the record,

2 The plaintiff’s citation to Natural Resources Defense Council, Inc. v. Train , 519 F.2d 287, 292 (D.C. Cir. 1975), does not help the plaintiff’s position. Pl.’s Mem. at 12. In that case, the D.C. Circuit concluded that remand was necessary where the agency conceded that the entire administrative record had not been filed before the district court and that several documents “properly part of the administrative record” had been omitted. Id . Those circumstances are far different from the instant case wh ere the defendants aver that the Nevada Order was never considered or part of the record before the agency wh en the challenged decision was made.17 this two-page Order states merely th at the fraud claims were dismissed without prejudice. The Order provides no explanation or reason whatsoev er for the dismissal and therefore sheds no light on the underlying merits of th e fraud claims. Moreover, to the extent that information about the status of fraud claims is, in the plaint iff’s view, important background information, the settlement agreement, which is already part of the Administrative Reco rd, sufficiently provides notice of that status. See Defs.’ Opp’n at 10-11. 3. The Nevada Order Is Not Necessary For Adequate Judicial Review Finally, the plaintiff’s thir d ground for supplementation of the Administrative Record— that the Nevada Order is necessary or else judicial revi ew will be frustrated, Pl.’s Mem. at 12—is similarly unavailing. The plainti ff contends that “[a]bsent consid eration of the order dismissing the fraud claims, the Court could not meaningfu lly review,” the plaintiff’s challenge to the defendants’ withdrawal of the land patent. Id. This argument significantly overstates the significance of the Nevada Order. Documents may be added to the administ rative record where denying the documents’ relevance “would be inconsistent with rational decisionmaking by an administrative agency.” Am. Radio Relay League, Inc. v. FCC , 524 F.3d 227, 244 (D.C. Cir. 2008) (quoting Kent County, Del. Levy Court v. EPA , 963 F.2d 391, 396 (D.C. Cir. 1992)). In this case, however, the Nevada Order is not particularly re levant or probative. A two- page Order dismissing claims without prejudice at an early stage of litigation before discovery, suggests only that the heightened pleading standard for fraud was not met. In a ddition, it bears repeati ng that the settlement agreement from the state court proceedings is in the Administrative Record and sufficiently reflects that the merits of the fraud claims were left unresolved, with no admission or acknowledgement of liability by the plaintiff. Should the fraud cl aims against the plaintiff be18 deemed critical to the ch allenged decision, the defendants bear the risk that any strong reliance on settled fraud claims may undermine the reasonable ness of the challenged decision. In short, effective review of the merits of the challeng ed agency action does not appear contingent on consideration of the contents of the two-page Nevada Order. For all of the reasons stated above, the plaintiff’s motion to supplement the administrative record is denied.

B. EXTRA-RECORD REVIEW OF THE NEVADA ORDER IS NOT WARRANTED The plaintiff seeks extra-record review of the Nevada Order on grounds that “the procedural validity of [the defe ndants’] action is in question.” Pl.’s Mem. at 13. Extra-record review is reserved for situations where th ere are “gross procedur al deficiencies.” Hill Dermaceuticals, Inc. , 709 F.3d at 47. The “gross procedur al deficiencies” identified by the plaintiff are that the defendants failed: (1) “to comply with the mechanisms set forth in the governing statute and regulations” for revoking the land patent; and (2) to provide notice and an opportunity to be heard prior to issuing their decision. See Pl.’s Mem. at 1-2. According to the plaintiff, the defendants “were proceeding on a purely extra-statutory and therefore unauthorized basis when they acted to deny [the plaintiff] its patent in land,” id. at 14, because the defendants revoked the issuance of the land patent more than 30-days after the plaintiff was entitled to the land. In support of this aspect of the procedural deficiency argument, the plaintiff asserts the same alle gations put forward in the First Claim For Relief, namely, that: The BLM’s authority to withdraw any tract from sale is limited by both statute and regulation to 30 days af ter receipt of the purchaser’s o ffer. The sale here occurred on June 4, 2012, when the BLM declared [the plai ntiff] to be the purchaser as the high bidder. Thus, the 30-day sale withdraw al authority expired on July 3, 2012.19 Compl. ¶ 32; see id. ¶ 31 (citing Section 203(g) of the Federal Land Policy and Management Act (“FLPMA”), 43 U.S.C. § 1713 (g), and 43 C.F.R. § 2711.3-1 (f)). Clearly, the plaintiff’s argument for extra-record review due to the de fendants’ alleged proced ural violation of the agency’s authority to revoke the land patent under FLPMA a nd its implementing regulation, s ee Pl.’s Mem. at 13-14, directly implicat es the merits of this claim. The plaintiff’s effort to resolve this claim in the guise of finding a procedural fault by the defendants sufficient to warrant extrarecord review of the Nevada Or der is plain. In this regard, the statute expressly allows a purchaser to waive the right to a decision within the thirty-day period cited by the plaintiff. See 43 U.S.C.A. § 1713 (g) (“The Secretary shall accept or reject, in writing, any offer to purchase made through competitive bidding at his invitation no later than thirty days after the receipt of such offer . . . unless the offeror waives hi s right to a decision within such thirty-day period .”). The statute further provides that, prior to the ex piration of the thirty-day period or any extended period, the DOI Secretary may refuse to accept any offer or may withdraw the land from sale “when he determines that consummation of the sa le would not be consistent with this Act or other applicable law.” Id. The plaintiff’s agreement three times to extend the closing date may turn out, when the merits are reached, to constitute a waiver of the right to a decision within the statutory thirty-day period. For purposes of the pending motion, the plaintiff’s agreement to three extensions of the closing date is sufficient to undercut an y claim of a gross procedural irregularity warranting extra-record review of the Nevada Order. The plaintiff further argues that extra-record review is necessary because the defendants failed to provide notice and a hearing opportuni ty, particularly when the defendants “were proceeding on a purely statutory and therefore unauthorized basis.” See Pl.’s Mem. at 14. Had the agency notified the plaintiff that the agency intended to take jurisdiction over the matter, the20 plaintiff would have been able to bring the Nevada Order to the ag ency’s attention. Yet, as the defendants point out, nothing in the statute or implementing regulation cited by the plaintiff suggests an entitlement to procedural safegua rds nor “require[s] the BLM to offer a predecisional appeal.” See Defs.’ Opp’n at 13. While it may have been courteous to give the plaintiff such notice, failure to extend a courtesy is not the type of “gro ss procedural deficiency” that warrants extra-record review.

C. THE COURT WILL NOT TAKE JUDI CIAL NOTICE OF THE NEVADA ORDER Finally, the plaintiff urges that judicial notice of the Nevada Order is appropriate because “the Order is the type of official government document frequently accorded judicial notice.” Pl.’s Mem. at 14. In support, the plaintiff cites Koretoff v. Vilsack , 841 F. Supp. 2d 1, 17 n.21 (D.D.C. 2012), in which the court took judicial notice of a Federal Register notice. As the defendants point out, however, th at case is easily dis tinguishable because statutory authority expressly provides for judicial notice of “[t]he contents of the Federal Register.” 44 U.S.C. § 1507; Defs.’ Opp’n at 14. The plaintiff also relies on County of San Miguel v. Kempthorne , 587 F. Supp. 2d 64, 72- 73 (D.D.C. 2008), but that case under cuts rather than supports th e plaintiff’s argument. In County of San Miguel , the plaintiff sought to supplement the administrative record with multiple documents. The court took judicial notice of a stipulation, which had been entered in prior litigation involving th e same parties and same subject matter, that two documents were properly part of the administrative record, and concluded that the stipulation j udicially estopped the defendants from arguing the documents were properly omitted from the record. Id . at 72-73. By contrast, here, the Nevada Order has not been th e subject of any stipulat ion between the parties and the defendants were not parties to the City of Henderson litigation, so judicial estoppel21 simply does not apply. Notably, the County of San Miguel court rejected the plaintiff’s request to take judicial notice of an Inspector General report since th e plaintiffs “offered nothing more than mere speculation and conjec ture” that the document had applicability to the challenged decision. Id. at 79. That circumstance more closely re sembles the instant case and the ruling in County of San Miguel counsels against taking judicial notice of the Nevada Order as an end-run around the standards for supplementing the administrative record. The plaintiff also cites Federal Rule of Ev idence 201(b), which permits judicial notice of “an adjudicative fact.” Pl.’s Mem. at 15. The defe ndants object that this evidentiary rule “is not designed to circumvent the standa rds applicable to administrative record review cases.” Defs.’ Opp’n at 13-14. Judicial notice is “typically an inadequate mechanism” for a court to consider extra-record evidence in revi ewing an agency action. Dist. Hosp. Partners, L.P. v. Sebelius , 971 F. Supp. 2d 15, 32 n.14 (D.D.C. 2013). “Instead, a court may only consider an adjudicative fact subject to judicial notice that is not part of the administrative record if it qualifies for supplementation as extr a-record evidence under Esch .” Id. (citing Cnty. of San Miguel v. Kempthorne , 587 F. Supp. 2d at 78-79) (emphasis in orig inal). As the Nevada Order does not qualify for supplementation of the administrative record or extra- record review, for the reasons set forth above, the plaintiff’s request for judici al notice of the Nevada Order is also denied.
IV. CONCLUSION The plaintiff has failed to meet its burden of overcoming the strong presumption that the defendants accurately designated th e Administrative Record. Acco rdingly, the plaintiff’s motion to supplement the administrative record, grant extr a-record review, or take judicial notice of an Order issued by a Nevada state court is denied. 3

3 In the event that the Court granted the plaintiff’s motion, the defendants requested inclusion in the record of both the Nevada Order as well as the related transcript of proceedings in the state court proceedings. Defs.’ Opp’n at 15-22 An Order consistent with this Memorandum Opinion will be contemporaneously entered.

Date: July 24, 2014

__________________________ BERYL A. HOWELL United States District Judge

16; see id. , Ex. A. Since the plaintiff’s motion is denied, the defendants’ request for inclusion of the transcript of the state court proceedings is moot.