Alaska Employment Law

Sedwick remands for supplemented record 

The Federal Highway Administration has decided to fund a 51-mile two-lane highway from the end of the exisiting highway in Juneau to a new ferry terminal at the Katzehin River delta.  Citizens opposed to the project have challenged various administrative decisions approving the funding and related agency actions.  They filed an action under the Administrative Procedures Act and several environmental statutes.

After the FHWA certified the administrative record, plaintiffs challenged its completeness.  Judge John Sedwick defined the necessary record as follows:

Judicial review of agency action is to be based on the whole administrative record before the agency at the time the agency made its decision. Consequently, the “critical inquiry” is whether documents were before the agency at the time of the decision. The whole administrative record is not necessarily those documents the agency has compiled and submitted as the administrative record. Rather, the whole administrative record “consists of all documents and materials directly or indirectly considered by agency decision-makers and includes evidence contrary to the agency’s position.”

(Citations omitted.)

Sedwick first rejected FHWA’s argument that “the agency’s determination of what consitutes the whole record is presumed to be correct.”  He then found that the agency had failed to include various documents it had relied on, including documents from the state DOT files that the FHWA had consulted.  Sedwick remanded for supplementation of the administrative record.

Southeast Alaska Conservation Council v. Federal Highway Administration, 2007 WL 2988013 (D.Alaska Oct. 10, 2007).

Michael Levine, Eric Jorgensen, and Katharine Glover of Earthjustice (Juneau) represent the plaintiffs.  Dean Dunsmore of the Anchorage DOJ represents the federal defendants.  Peter Putzier of the Juneau AG’s office represents intervenor State of Alaska.