Peshlakai v. Duncan

No. 78-2416 (D.D.C. February 20, 1980)

The court denies defendant-intervenors' motion to strike exhibits offered by plaintiffs in support of their motion for partial summary judgment in a suit challenging federal approval of uranium mining and milling activities in the San Juan Basin of New Mexico. The exhibits consist of documents prepared by the Department of the Interior in connection with its issuance of a "negative declaration" pursuant to the National Environmental Policy Act. Noting that the documents were generally a part of the administrative record and that they represent a contemporaneous explanation of the agency decision at issue, the court finds them admissible.

Counsel for Plaintiffs
Steve Harvey
DNA People's Legal Services, Inc.
P.O. Box 306, Window Rock AZ 86515
(602) 871-4151

Daniel S. Press
918 16th St. NW, Washington DC 20006
(202) 466-5550

Counsel for Federal Defendants
Thomas J. Riley, David C. Cannon Jr.
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2845

Counsel for Intervenor-Defendants
Daniel Joseph, Randall L. Sarosdy
Akin, Gump, Hauer & Field
Suite 400, 1333 New Hampshire Ave. NW, Washington DC 20036
(202) 457-7700

Peter J. Nickels, Patrick Norton
Covington & Burling
888 16th St. NW, Washington DC 20006
(202) 452-6000

[10 ELR 20627]

Greene, J.:

Order

This matter came before the Court upon motion of defendant-intervenors Phillips Uranium Corporation and Conoco, Inc. to strike numerous exhibits proffered by plaintiffs in support of their motion for partial summary judgment. The motion alleges that the exhibits are not properly before the Court because the plaintiffs failed to comply with FED. R. CIV. P. 56(c) in presenting the exhibits, that some of the exhibits amount to statements made without personal knowledge of the declarant, opinions without foundation, and inadmissible hearsay, and that others have not been properly authenticated.

Upon consideration of the motion, plaintiffs' opposition, the replies thereto, and the entire record herein, the Court finds that the exhibits at issue were presented to the Court in accordance with the requirements of FED. R. CIV. P. 56(c), and that such exhibits are not properly excluded. The exhibits intervenors deem objectionable are government documents prepared by government agents in the fulfillment of their duties under the National [10 ELR 20628] Environmental Policy Act, and they are admissible on a variety of grounds. FED. R. EVID. 701, 702, 801(d)(2), 803(6), (8), (24). Furthermore, they generally were a part of the administrative record and represent a contemporaneous explanation of the agencies' decisions, and they are properly before the Court on that basis. See Campv. Pitts, 411 U.S. 138 (1978). For the purposes of summary judgment on what essentially is a review of agency discretion, the Court may and will balance the weight to be given to any evidence in the record depending upon its reliability. Accordingly, it is this 20th day of February 1980,

ORDERED That defendant-intervenors Phillips Uranium Corporation and Conoco, Inc.'s motion to strike be and it is hereby denied.