Sharks Sports & Entertainment LLC v. Federal Transit Administration

Background

Sharks Sports & Entertainment LLC (SSE) challenged actions by the Federal Transit Administration (FTA) and associated individual defendants concerning the BART Silicon Valley Phase II Extension Project. SSE alleged violations of the National Environmental Policy Act and the Administrative Procedure Act, focusing in part on the analysis of parking requirements at Diridon Station. The underlying case seeks to invalidate the environmental documents and vacate the agency’s Record of Decision.

This order addressed only SSE’s motion to compel completion and supplementation of the administrative record. The administrative record is the collection of materials directly or indirectly considered by an agency when making the decision under review. SSE submitted 47 documents and categories of documents that it argued should be added to the record or considered as extra-record evidence. FTA argued that it had not considered the materials and that no exception allowing extra-record evidence applied.

Legal standards

The court explained that an agency’s designation of the administrative record receives a strong presumption of completeness. A plaintiff may overcome that presumption with clear evidence and reasonable, non-speculative grounds showing that particular materials were considered by the agency but omitted. The court also explained that extra-record material may be considered in narrow circumstances, including when necessary to determine whether the agency considered all relevant factors, when the agency relied on documents outside the record, when the material is needed to explain technical or complex matters, or when there is a strong showing of bad faith.

The court found that FTA’s certification described a record containing materials on which FTA relied, including materials relied on directly or indirectly. That was too narrow because the governing standard requires inclusion of materials directly or indirectly considered, even if the agency did not rely on them. The court therefore found that the presumption of completeness had been overcome.

Rulings on the requested materials

Category 1—VTA emails. The court denied SSE’s request to add the specified VTA emails. Although FTA and VTA worked together in some respects and the environmental document was signed by officials from both agencies, SSE did not show that the particular emails were sent to FTA or otherwise presented to FTA for direct or indirect consideration. The fact that VTA possessed or produced the emails in connection with a state administrative-record process was not enough. SSE also did not establish any exception for adding extra-record evidence.

Category 2—PAB minutes and memoranda. The court denied SSE’s request to add the two sets of materials in this category. Finding one document on VTA’s website did not show that FTA considered it, and production of the other document during the state administrative-record process did not establish direct or indirect consideration by FTA. The court also did not decide whether the first document qualified for judicial notice because SSE had not asked it to do so.

Category 3—FTA Transportation Impacts document. SSE withdrew its request to include this document after determining that it was already part of the administrative record. The court recorded that withdrawal.

Category 4—policy documents and presentations. The court denied SSE’s request to add these materials. SSE showed that the documents were relevant to parking and other issues, but relevance alone was not the test. SSE did not show that FTA considered the documents directly or indirectly or that they qualified for supplementation under an extra-record exception.

Category 5—deposition testimony. The court denied SSE’s request to add deposition excerpts from FTA and VTA personnel. The testimony was not part of the record before the agency. SSE did not specifically show that the testimony was needed to evaluate the integrity of the agency’s decision-making process, explain complex subjects, or establish the strong showing of bad faith required for inquiry into administrative decision-makers’ mental processes. The court also clarified that Judge Lucy H. Koh’s earlier permission for SSE to take depositions did not itself decide that the deposition materials belonged in the administrative record; the issue was reserved for this motion.

Category 6—studies referenced in the environmental documents. The court treated this request as one to complete the record rather than supplement it with extra-record material. Based on testimony that an FTA witness examined San Jose’s parking requirements, the court ordered FTA to include the portions of the San Jose General Plan containing parking requirements. The parties were ordered to meet and confer about which specific portions should be included.

The court found the record unclear about SSE’s request concerning the 2015 VTA Travel Demand Model and related travel-demand or parking-demand model runs. It ordered the parties to meet and confer about which models, if any, should be included, along with other reports or studies within Category 6 that SSE had not specifically identified. The court stated that when the environmental document specifically cites a study or report, that citation is sufficient evidence that FTA considered the document directly or indirectly; more attenuated references require additional evidence.

Disposition

The court granted in part and denied in part SSE’s motion and required the parties to meet and confer in good faith about the remaining Category 6 issues. Any unresolved disputes were to be presented in a joint letter brief by February 7, 2020, with a possible telephonic hearing on February 10, 2020. Defendants were required to complete the administrative record with materials added through agreement or further court order by February 17, 2020. The court otherwise denied SSE’s request to include documents in the administrative record and required a privilege log by February 17, 2020, if defendants withheld materials on privilege grounds. The order did not decide the merits of SSE’s NEPA or Administrative Procedure Act claims.