UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

NORTHWEST BYPASS GROUP, et al.

Plaintiffs,

V.

U.S. ARMY CORPS

OF ENGINEERS, et al.

Defendants.

Civil No. 06-CV-0025 8-JAW

ORDER ON PLAINTIFFS' MOTION TO COMPLETE THE ADMINISTRATIVE

RECORD AND MOTION FOR LEAVE TO FILE A REPLY

This case involves the proper contents of the administrative record in Plaintiffs' law suit

against the United States Army Corps of Engineers (Corps), the City of Concord (City), and

Intervenors Concord Hospital and St. Paul's School, alleging violations of the Clean Water Act

(CWA), National Historic Preservation Act (NHPA), and National Environmental Policy Act

(NEPA). On November 27, 2006, Plaintiffs moved to complete the administrative record. See

Plaintiffs' Am. Mot. to Complete the Administrative Record (Docket # 72) (Pls.' Mot.). They

seek to add certain materials they claim "should have been there from the start. Id. at 1. In

particular, they request supplementation of documents - chiefly, the submissions in opposition to

the Phase II project - which were considered by the New Hampshire Department of

Environmental Services during its review process. The Corps, the City and the Intervenors

object to the motion on the ground that, with a couple of exceptions, the administrative record is

complete and, although dressed as a motion to complete the record, the Plaintiffs' motion is a

procedural guise for a motion to supplement the record. Federal Defs. ' Memo. in Opp'n to Pls. '

Am. Mot. to Complete the Administrative Record at 5 (Docket # 77) (Corps Opp'n); Def. City of

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Concord 's Objection to Pls. ' Am. Mot. to Complete the Administrative Record (Docket # 74)

( City 's Opp'n); Intervenors ' Concord Hosp. and St. Paul 's School, Objection to Pls. ' Am. Mot.

to Complete the Administrative Record (Docket # 77) (Intervenors' Opp'n).'

Judicial review of an agency action is "ordinarily limited to consideration of the decision

of the ageny ... and of the evidence on which it was based. Olsen v. United States , 414 F.3d

144, 155 (1st Cir. 2005) (quoting United States v. Carlo Bianchi & Co., 373 U. S. 709, 714-15

(1963 )). The agency' s "designation of the Administrative Record, like any established

administrative procedure , is entitled to a presumption of administrative regularity. Bar MK

Ranches v. Yuetter, 994 F . 2d 735, 740 (10th Cir. 1993 ) (noting that the court "assumes the

agency properly designated the Administrative Record absent clear evidence to the contrary. ).

The First Circuit provides few exceptions to the rule against supplementation of the record.

First, a district court may supplement the record if there is "`a strong showing of bad faith or

improper behavior ' by agency decision makers. Id. (quoting Citizens to Preserve Overton Park,

Inc. v. Volpe, 401 U. S. 402 ( 1971 )). Next, a reviewing court - in its discretion - may seek to

supplement the record in the form of "additional testimony by experts or as "an aid to

understanding highly technical , environmental matters . Valley Citizenfor Safe Environment v.

Aldridge, 886 F . 2d 458, 460 (1st Cir. 1989). In addition, supplementation may be proper when

there is "a failure to explain administrative action [so] as to frustrate effective judicial review.

Murphy v. Comm ' r ofInternal Revenue, 469 F. 3d 27, 2006 U. S. App. LEXIS 28687, at *9 (1st

Cir. 2006) (quoting Camp v. Pitts, 411 U. S. 138, 142-43 ( 1973)).

1 On December 26, 2006, Plaintiffs moved for leave to file a reply brief, attaching the same to the motion. See Mot.

for Leave to File Reply to Defs. ' Opposition to Pls. ' Mot. to Take Discovery and Am. Mot. to Complete the

Administrative Record (Docket # 79). The Plaintiffs ' motion is GRANTED. As such, the Court considered the

arguments set forth by the Plaintiffs in that brief to the extent they are relevant to this inquiry.

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The Defendants concede that some of the records should be included in the

administrative record, because they were received by the Corps during the administrative

process. Corps Opp'n at 7. Specifically, the Corps agrees to file a supplement to the

administrative record to include: (1) a January 12, 2001 letter to the Corps from Plaintiffs'

attorney; and, (2) an April 9, 2001 letter to the Corps from Sister Claudette Blais . Corps Opp'n

at 2 n.3. Based on the agency' s concession, the Court grants the Plaintiffs' motion to include

those documents in the administrative record. The Corps shall file a formal supplementation to

the record with respect to those two documents.

None of the remaining documents fits within the First Circuit's categories of exceptions

to the rule against supplementation. Accordingly, the Court GRANTS the Plaintiff's motion to

complete the administrative record to include the January 12, 2001 from Plaintiffs' attorney to

the Corps and the April 9, 2001 from Sister Blais to Corps, but DENIES the remainder of the

Plaintiffs' Amended Motion to Complete the Administrative Record (Docket # 72).

SO ORDERED.

/s/ John A. Woodcock, Jr.

JOHN A. WOODCOCK, JR.

UNITED STATES DISTRICT JUDGE

SITTING BY DESIGNATION

Dated this 5th day of January, 2007

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