The opinion of the court was delivered by: Urbina, District Judge.
MEMORANDUM OPINION Granting the Plaintiffs' Motion to
Compel Production of the Administrative Record
The plaintiffs in this action are two non-profit organizations
dedicated to biodiversity and conservation in Florida, and three
private citizens of Florida. They have sued the U.S. Department
of Interior and the Fish and Wildlife Service for allegedly
failing to satisfy certain duties under the Endangered Species
Act. Specifically, the plaintiffs contend that by failing to
issue a "12-month determination" on revision of the sparrow's
"critical habitat designation," the defendants have violated the
Endangered Species Act ("ESA"), 16 U.S.C. § 1531-1544, and the
Administrative Procedure Act ("APA"), 5 U.S.C. § 555(b) and
This matter comes before the court on the plaintiffs' motion
to compel production of the administrative record. In support of
their motion, the plaintiffs argue that the court must have the
full administrative record before it to resolve the plaintiffs'
claims. The defendants oppose the plaintiffs' motion on the
ground that there is no administrative record in this case, and
that they "cannot produce that which does not exist." They also
claim that their failure to issue a "12-month determination"
does not constitute "agency action or inaction" for the purposes
of the APA because they have not made an "affirmative decision"
not to act. For the reasons stated herein, the court rejects the
defendants' claims and grants the plaintiffs' motion to compel
production of the administrative record.
A. The Endangered Species Act
An "endangered species" is one that is "in danger of
extinction throughout all or a significant portion of its
range." 16 U.S.C. § 1532(6). Under the ESA, the federal
government must take affirmative steps toward conservation and
recovery of an endangered species. These steps include
designating the species' "critical habitat," id. at §
1553(a)(3), and ensuring that federal actions are not likely to
jeopardize any listed species or harm its critical habitat,
id. at § 1536. The ESA defines "critical habitat" as "(i) the
specific areas within the geographical area occupied by the
species . . . on which are found those physical or biological
features (I) essential to the conservation of the species and
(II) which may require special management considerations or
protection; and (ii) specific areas outside the geographical
area occupied by the species at the time it is listed . . .,
upon a determination by the Secretary that such areas are
essential for the conservation of the species." Id. §
The U.S. Fish and Wildlife Service ("the Service" or "FWS")
designated the sparrow's critical habitat in 1977, "before the
full distribution of the subspecies was known." See Compl. ¶
22. In 1983, the Service acknowledged that damage to the
sparrow's critical habitat had forced the sparrow to abandon
certain areas and occupy new ones, thereby necessitating review
of the sparrow's critical habitat. See id. One of the areas
not included in the 1977 designation, but which the Service
concluded had become part of the sparrow's "essential habitat,"
was the area occupied by the western population of the sparrow.
The critical habitat, as designated, does not
adequately account for the distribution of the
present-day core subpopulations, or the areas
necessary for continued survival and recovery. An
important area west of Shark River Slough, which
until 1993 supported one of two core subpopulations
(nearly half the entire population), is not included
within the designation, and has been undergoing
detrimental changes in habitat structure as a result
of water management practices.
Id. ¶ 25 (citing MSRP at 4-348). The Service, in its MSRP,
also underscored the need to redefine the sparrow's critical
habitat, stating that the critical habitat required "significant
review and redesignation." Id.
B. The Plaintiffs' Petition to the Service for
Under section 553(e) of the ESA, any "interested person" may
petition the Service for revision of a critical habitat
designation. See 16 U.S.C. § 1533(b)(3)(A);
50 C.F.R. § 424.14. Once a petition is submitted to the Service, "to the
maximum extent practicable, within 90 days after receiving the
petition . . ., the Secretary shall make a finding as to whether
the petition presents substantial scientific information
indicating that the revision may be warranted."
16 U.S.C. § 1553(a)(3)(D)(i). If the Service determines in its "90-day
finding" that revision "may be warranted," the Service must
determine within 12 months "how [it] intends to proceed with the
requested revision." Id. at § 1553(a)(3)(D)(ii). The "12-month
determination" must be made "[w]ithin 12 months after receiving
a petition," regardless of when the Service ...