JOHN JELDERKS, United States Magistrate Judge
Defendants move to strike four affidavits and pages 321 through 529 of the excerpts of record submitted by Plaintiffs.
As a general rule, judicial review of an administrative decision is limited to the administrative record. Animal Defense Council v. Hodel, 840 F.2d 1432, 1436 (9th Cir 1988), amended, 867 F.2d 1244 (9th Cir 1989). However, in limited circumstances, the court may also consider materials outside the official administrative record. Animal Defense Council, 840 F.2d at 1432, 867 F.2d 1244 (citing some examples); Public Power Council v. Johnson, 674 F.2d 791, 793-95 (9th Cir 1982) (same); Murakami v. United States, 46 Fed Cl 731, 735 (2000) (listing seven exceptions).
As a practical matter, the outcome of this case does not turn on any of the documents to which Defendants object. Most of the disputed material is either of limited relevance to the core issues in this case, or is included in documents already in the record. Nevertheless, I will briefly address Defendants' objections in order to create a clear record of the materials I have considered in deciding this case.
ER 321-31 is a privilege log prepared by Defendants listing documents that the government redacted from the official administrative record on grounds of attorney-client privilege. Plaintiffs offered that log in support of their assertion that Defendants violated procedural requirements, and not as extra-record evidence contesting the merits of the agency's decision. Ex parte communications, by definition, typically involve an extra-record communication that should have been made on the record. Therefore, proof of such communications will often require supplementation of the record. Portland Audubon Society, 984 F.2d at 1548-49.
E331-337 are published decisions by the Indian Claims Commission. The record reflects that the Secretary did consider these items. Moreover, these materials are analogous to judicial opinions, of which a court can take judicial notice.
ER 338 is a newspaper account of a speech by the Secretary, offered for the purpose of establishing bias, which can sometimes be a valid ground for supplementing the record. Because this document does not have significant probative value, I will not analyze its admissibility in greater detail.
ER 339-68 are Corps documents and manuals regarding proper stabilization techniques, which Plaintiffs have offered in connection with their site destruction claim. Presumably, the Corps was aware of, and considered, its own manuals. See Public Power Council, 674 F.2d at 794.
ER 369-70 are documents prepared by the Corps regarding the discovery site of the Kennewick remains which should have been in the official compilation of the record.
ER 371-74 are datalogger readings from the Burke Museum, which record temperature and humidity. Those documents are part of the record in this case, and also concern Plaintiffs' claim alleging improper curation, not the Secretary's decision being reviewed under the APA.
ER 375-79 are excerpts from a United States Attorney General's manual discussing ex parte contacts and interpreting the APA, offered to help establish the applicable legal standard.
ER 380-83 and 386-87 are documents from the Department of Interior offered to show that the agency has established a limited public forum or is advocating a particular point of view. Though not very probative, the documents are relevant to Plaintiffs' First Amendment claim, and there is no basis for striking them.
ER 384-85 are excerpts from the legislative history of a federal statute. Courts routinely take judicial notice of such materials.
ER 388-95 are articles describing possible voyages to America by ancient Vikings and Japanese. These articles appear to have been published after the administrative record closed, and were never presented to the agency for consideration. I grant the motion to strike those documents, to the extent they are offered to dispute the agency's decision on the merits. To the extent that the documents are related to Plaintiffs' First Amendment claim, they are not stricken.
ER 396 is an internal Corps e-mail discussing the Corps' need to make a "clear, unequivocal demonstration of its commitment to the tribes" in connection with the Kennewick matter. This document is obviously relevant, and excerpts from it were quoted in an earlier Opinion in this case. A printed version of this memo is included in the record at (COE 9471a).
ER 397-99 are also internal Corps e-mails relevant to this case that were inexplicably omitted from the official administrative record compiled by Defendants.
ER 400-01 is a letter from Plaintiffs to defense counsel that should have been included in the record compiled by Defendants.
ER 402-24 includes correspondence regarding the FOIA claim, which should be in the record compiled by Defendants regarding the FOIA claim. Some of these documents have also been offered to establish Defendants' refusal to provide Plaintiffs with information regarding the issues under consideration, even though Defendants were secretly furnishing the same information to the Tribal Claimants.
ER 425-80, 483-87, 494-508, and 514-29, are excerpts from briefs and other documents filed during the earlier phases of this case. These were considered by Defendants, and are properly part of the record.
ER 481-82 is an excerpt from a report submitted to Defendants, which is already in the official record at (COE 5815).
ER 491-93 is an excerpt from the transcript of an earlier oral argument in this case.
ER 509-13 is a joint claim for the remains filed by the tribal coalition, which is already in the record at (COE 4222-26).
The affidavit of Alan Schneider merely identifies the excerpts of record above. The affidavits of Douglas Owsley and Richard Jantz do not pertain to the merits of the challenged decision. Rather, they are offered to show that the government has allegedly created a limited public forum regarding the issues in this case, and has given preferred speakers access to data while denying access to non-preferred speakers.
The affidavit of James Chatters depicts the vegetation planted by the Corps after it buried the discovery site. To the extent that the site-burial claim is limited to an administrative record, a question I do not decide here, the Corps is aware of its own work, even if the agency did not document that information in the official administrative record. The present condition of the site is also relevant to the question of what remedy, if any, the court could order if it found in favor of the Plaintiffs on the site-burial claim.
The Chatters Affidavit also documents a conversation with Corps employees that occurred at the discovery site in December 1997. Assuming, without deciding, that the site burial claim is limited to the administrative record, the Corps had knowledge of this alleged conversation with Chatters. Therefore, the document is properly part of the record.
CONCLUSION
Defendants' motion to strike (#431) is DENIED with the exception of ER 388-95, which is stricken to the extent it is offered to dispute the agency's decision on the merits.