State of Alaska v. Bernhardt et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
STATE OF ALASKA,
Plaintiff,
vs.
RYAN ZINKE, in his official capacity as
Secretary of the U.S. Department of the
Interior, et. al.,
Federal Defendants,
And
ALASKA WILDLIFE ALLIANCE, et al.,
Intervenor-Defendants.
________________________________
SAFARI CLUB INTERNATIONAL,
Plaintiff,
vs.
RYAN ZINKE, in his official capacity as
Secretary of the U.S. Department of the
Interior, et al.,
Federal Defendants,
and
ALASKA WILDLIFE ALLIANCE, et al.,
Case No. 3:17-cv-00013-SLG
Consolidated with Case Nos.
3:17-cv-00014-SLG and
3:17-cv-00026-SLG
Case 3:17-cv-00013-SLG Document 129 Filed 02/23/18 Page 1 of 4

3:17-cv-00013-SLG, SOA, et al. v. Zinke, et al.
Order re Motion to Supplement
Page 2 of 4
ORDER RE MOTION TO SUPPLEMENT
Before the Court is the State of Alaska’s Motion to Supplement Administrative
Record, the Federal Defendants’ Opposition, Alaska Wildlife Alliance, et al.’s Joinder to
the Federal Defendants’ Opposition and the Reply.1 The State seeks to supplement the
administrative records of the National Park Service and the Fish and Wildlife Service by
adding transcripts of Alaska Board of Game hearings and other documents from the
Alaska Board of Game that relate to the taking of predators. 	The State describes the
1 Docket 110 (Mot. to Suppl.); Docket 113 (Opp.); Docket 117 (Opp.); Docket 119 (Reply).
Intervenor-Defendants.
ALASKA 	PROFESSIONAL 	HUNTERS
ASSOCIATION, et al.,
Plaintiffs,
vs.
U.S. DEPARTMENT OF THE INTERIOR,
et al.,
Federal Defendants,
and
ALASKA WILDLIFE ALLIANCE, et al.,
Intervenor-Defendants.
Case 3:17-cv-00013-SLG Document 129 Filed 02/23/18 Page 2 of 4

3:17-cv-00013-SLG, SOA, et al. v. Zinke, et al.
Order re Motion to Supplement
Page 3 of 4
other documents as “including proposals, reports, and written public comments.”2 	The
State maintains such supplementation is warranted because the federal agencies have
asserted that their regulations “were prompted by actions taken by the Alaska Board of
Game.”3 	Thus, the State maintains that the Board of Game’s records were indirectly
considered by the federal agencies and “are necessary to properly review whether the
NPS and FWS acted reasonably.”4
Supplementation of an agency record is permitted “(1) if necessary to determine
whether the agency has considered all relevant factors and has explained its decision,
(2) 	when 	the 	agency 	has 	relied 	on 	documents 	not 	in 	the 	record, 	or 	(3) 	when
supplementing the record is necessary to explain technical terms or complex subject
matter.”5 Here, the State maintains that the proposed supplementation is needed “to
explain the agency’s action” and because “it appears that the agency has relied on
documents or materials not included in the administrative record.”6
For the following reasons, the motion to supplement will be denied. A 	motion 	to
supplement the administrative record with certain items must be “supported by concrete
evidence that these items were directly or indirectly considered by the agency.”7 	The
2 Docket 111 (Memo. in Supp. Mot. to Suppl.) at 5.
3 Docket 111 at 3, 3 n.2 (quoting FWL004421).
4 Docket 119 at 3.
5 Midwater Trawlers Coop. v. Dep’t of Commerce, 393 F.3d 994, 1007 (9th Cir. 2004) (citation
omitted).
6 Docket 119 at 4, 5. The State relied on the Ninth Circuit’s decision in In re United States, 875
F.3d 1200 (9th Cir. 2017), which had held that documents considered by subordinates within an
agency should be included in an administrative record. The Circuit’s decision was vacated and
remanded by the Supreme Court on December 20, 2017. 138 S. Ct. 443 (2017).
7 California v. U.S. Dep’t of Labor, No. 2:13-CV-02069-KJM, 2014 WL 1665290, at *7 (E.D. Cal.
Case 3:17-cv-00013-SLG Document 129 Filed 02/23/18 Page 3 of 4

3:17-cv-00013-SLG, SOA, et al. v. Zinke, et al.
Order re Motion to Supplement
Page 4 of 4
State has not offered such evidence here. Rather, it asserts that the supplementation is
warranted as it will better explain the reason for the State agency’s determination. 	But
the reasons why the Board of Game took the actions it took is not before this Court on
review. 	Rather, this Court is only reviewing the federal agencies’ actions based on the
federal administrative records that each agency had.
Furthermore, the State had the opportunity to provide these materials to Federal
Defendants during the comment periods for the challenged rules, and did not do so. 	It
cannot seek to add these materials now.
For these reasons, the State’s Motion to Supplement Administrative Records, at
Docket 110, is DENIED.8 Pursuant to this Court’s order at Docket 127, the parties shall
file a proposed schedule or schedules for summary judgment briefing within 14 days of
the date of this order.
DATED this 23rd day of February, 2018 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
Apr. 24, 2014).
8 The Federal Defendants’ response indicates that the Fish and Wildlife Service is willing to
supplement that agency’s record with transcripts of certain Board of Game meetings; however, it
appears that the State objects to this proposal. See Docket 113 at 3 n.1; Docket 119 at 4. This
order 	is 	not 	intended 	to 	preclude 	the 	parties 	from 	reaching 	a 	stipulation 	regarding
supplementation.
Case 3:17-cv-00013-SLG Document 129 Filed 02/23/18 Page 4 of 4