Federal Court in “Cunundrum” Orders Interior to Refile Cowlitz Record of Decision and Dismisses Grand Ronde et al. Suit

Here is the order  and related materials in Confederated Tribes of the Grand Ronde Community of Oregon v. Salazar (D. D.C.):

DCT Order

Clark County et al Motion for Summary J

Interior Opposition to Summary J Motion

USET Amicus

City of La Center Amicus

Interior Revised Cowlitz Initial Reservation Opinion

Interior Motion to Remand

Clark County et al Opposition to Remand Motion

Clark County et al Motion to Strike

Interior Opposition to Motion to Strike

Clark County et al Reply in Support of Motion to Strike

Excerpt from Judge Rothstein’s opinion:

Nor can the Federal Defendants supplement the administrative record with the 2012 Revised Initial Reservation Decision. It is black letter law that the record to be considered by this Court “consists of the administrative record compiled by the agency in advance of litigation, not any record thereafter constructed in the reviewing court.” AT&T Info. Sys. Inc. v. Gen. Servs. Admin., 810 F.2d 1233, 1236 (D.C. Cir. 1987) (emphasis added) (rejecting agency’s attempt to submit a litigation affidavit as a post hoc rationalization of the agency’s action); see also, Center for Auto Safety v. Federal Highway Admin., 956 F.2d 309, 314 (D.C. Cir. 1992) (rejecting agency’s rationale as post hoc rationalization not included in administrative record); Am. Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 539-40 (1981) (“[P]ost hoc rationalization of the agency or the parties to this litigation cannot serve as a sufficient predicate for agency action”). Accordingly, the Federal Defendants cannot “incorporate” a 2012 explanation into a 2010 ROD by characterizing it as a “Supplemental Record of Decision.”

However, the Court is now in a conundrum. The Court notes that Plaintiffs opposed the Federal Defendants’ motion to remand, yet remand is the relief that they sought on the initial reservation determination because the agency had failed to provide a “reasoned explanation for his decision.” The Secretary has now provided such a reasoned explanation. Plaintiffs again oppose remand and ask the Court to strike the Supplemental ROD. If the Court were to grant Plaintiffs’ request, the parties would be litigating the 2010 Initial Reservation Determination, a determination that has been withdrawn and superceded. The Court will not waste its or the parties’ resources on such a fruitless endeavor. See Spencer v. Kemna, 523 U.S. 1, 18 (1998) (“[Federal courts] are not in the business of pronouncing that past actions which have no demonstrable continuing effect were right or wrong”). The Court is also cognizant of the fact that the parties have been locked in this battle for nearly eleven years. (TR at 13.). However, the APA requires that the Federal Defendants conform to its dictates, disallowing amendments to a final decision once a case has been filed in district court. Accordingly, the Court will remand this action to the agency with instructions to rescind the 2010 ROD. Since this is a case where the agency has already reconsidered and revised its final decision and since the parties represent to the Court that the agency is not required to provide public notice under IGRA (which is the only portion of the 2010 ROD being supplemented), the Court will require the agency to issue a new decision of record within sixty (60) days of the date of this order, unless good cause is shown why it cannot do so. See Fulton v. FPC, 512 F.2d 947, 955 (D.C. Cir. 1975).

News coverage here.

This entry was posted in Author: Matthew L.M. Fletcher, fee to trust, gaming, IGRA, Research and tagged , , , , , , , . Bookmark the permalink.

2 Responses to Federal Court in “Cunundrum” Orders Interior to Refile Cowlitz Record of Decision and Dismisses Grand Ronde et al. Suit

  1. Pingback: Federal Court in “Cunundrum” Orders Interior to Refile Cowlitz Record of Decision and Dismisses Grand Ronde et al. Suit | Turtle Talk | Round House Talk

  2. Frank Lawrence says:

    I think there is an internal inconsistency in the court’s opinion. It found that once the final agency action was challenged in federal court, the agency lost jurisdiction to revised its decision. So far so good. By that reasoning, however, the revised decision was issued by DOI in excess of its jurisdiction. Thus the Court’s statement that “If the Court were to grant
    Plaintiffs’ request, the parties would be litigating the 2010 Initial Reservation Determination, a determination that has been withdrawn and superceded” is wrong. The 2010 determination was not lawfully withdrawn and superceded. Thoughts?

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