a failure to take action; 7. in cases arising under NEPA; and 8. in cases where relief is at issue, especially at the preliminary injunction stage. ITT Fed. Servs. Corp., 45 Fed. Cl. at 185. Thus, an adequate record can sometimes only be determined “by looking outside the [AR] to see what the agency may have ignored.” County of Suffolk, 562 F.2d at 1384. It is well established that “[t]he burden of proving that an agency decision was arbitrary or capricious generally rests with the party seeking to overturn the agency decision.” Van Winkle, 197 F.Supp.2d at 596 (citing Sierra Club v. Marita, 46 F.3d 606, 619 (7th Cir.1995) and N.C. Alliance for Transp. Reform v. United States DOT, 151 F.Supp.2d 661, 679 (M.D.N.C.2001)). See also Sierra Club v. Morton, 510 F.2d 813, 818 (5th Cir.1975) (<HOLDING>). In determining whether an agency’s action was
holding that plaintiffs bear the burden of showing by a preponderance of the evidence that defendants have failed to adhere to the requirements of nepa holding that appellant bears burden of establishing jurisdiction by a preponderance of the evidence holding that when congress is silent on the issue of the burden of proof applicable to a common law affirmative defense that does not negate an element of the offense we presume congress intended the defendant to bear the burden of proof of the defense by a preponderance of the evidence holding that defendants bear the burden of showing that the challenged act was objectively reasonable citation omitted holding that defendants bear the burden of proving contributory negligence by a preponderance of the evidence