The opinion of the court was delivered by: Ricardo M. Urbina, District Judge.
DENYING THE PLAINTIFFS' MOTION TO COMPEL THE DEFENDANTS
TO FILE A COMPLETE ADMINISTRATIVE RECORD
The dispute before the court can be reduced to one question: who determines what constitutes the "full administrative record" that was "before" the agency at the time of its decision for the purposes of judicial review of an agency decision under the Administrative Procedure Act? In this case, each side claims that privilege for itself. The Fund for Animals, the Biodiversity Legal Foundation, the Utah Environmental Congress, the Humane Society of the United States, and two wildlife enthusiasts (collectively, "the plaintiffs") do not believe that the Fish and Wildlife Service ("the Service") and the Department of the Interior (collectively, "the defendants") have submitted the full administrative record for the defendants' decision to authorize a limited take of Trumpeter swans. They now petition the court to compel the defendants to produce additional materials to the plaintiffs' satisfaction. The defendants counter that they have indeed submitted the full record, and assert that the plaintiffs have not met their burden of proving otherwise. For the reasons that follow, the court denies the plaintiffs' motion to compel the defendants to file a complete administrative record.
With a wingspan of more than seven feet, the Trumpeter swan (Cygnus buccinator) is the largest native waterfowl in North America, and one of the rarest North American waterfowl species. Administrative R. ("A.R.") 3863, 5044; Am. Compl. at 15; Pls.' Mot. for Summ. J. at 5. At one time the Trumpeter swan inhabited almost every region of the country. A.R. 3695; Am. Compl. at 6; Pls.' Mot. for Summ. J. at 5. By the end of the 19th century, however, overhunting*fn1 — driven by demand for hats, powder puffs, feather boas, and quills — had reduced their number to the point of near extinction. A.R. 3695, 4076, 5056; Am. Compl. at 15; Pls.' Mot. for Summ. J. at 6. In addition, colonial expansion led to the destruction of the Trumpeter swan's breeding habitat. A.R. 4001, 4076; Pls.' Mot. for Summ. J. at 5. Other major threats to the species include lead poisoning, disease, and starvation during severe winter conditions. A.R. 3621, 5057, 5874-5939; Am. Compl. ¶ 47; Pls.' Mot. for Summ. J. at 7.
Eliminated from 99 percent of its historic range by mid-century, the only remaining indigenous wild breeding Trumpeter swan population in the contiguous United States today consists of a mostly non-migratory population in the Greater Yellowstone area of Idaho, Montana, and Wyoming (the "Tri-State" area). A.R. 5415, 5872, 5876; Am. Compl. ¶¶ 49, 53; Pls.' Mot. for Summ. J. at 6, 9. As of 2000, the Tri-State population consisted of an estimated 426-481 individual birds. A.R. 5607; 5701; Pls.' Mot. for Summ. J. at 9.
In part to protect Trumpeter swans from extinction, the Service began a winter feeding program for the Tri-State Trumpeter swan flock in the 1930s. Am. Compl. ¶ 61; Defs.' Mot. for Summ. J. at 8. Because the population does not migrate, and therefore is vulnerable to mass starvation during the severe Tri-State winters, concerns grew about the population's future existence. A.R. 4483, 5282, 5532; Am. Compl. ¶ 61; Pls.' Mot. for Summ. J. at 11-12. In 1992, after the severe winter of 1988-89 resulted in the starvation of more than 100 Trumpeter swans, the Service discontinued the feeding program. A.R. 810, 968, 5316-17; Am. Compl. ¶¶ 71, 72. To promote migration of the Tri-State flock to more suitable winter habitats, the Service began to disperse the swans through hazing and translocation programs. A.R. 5316-17; Am. Compl. ¶ 71.
As the displaced Trumpeter swans migrated, however, they began moving into traditional Tundra swan hunting areas in Utah and other states. A.R. 801, 5596; Pls.' Mot. for Summ. J. at 13-14. Tundra swans (Cygnus columbianus) are a relatively abundant migratory swan species that is smaller than but closely resembles the Trumpeter swan. A.R. 377, 2649, 5258, 5596; Am. Compl. ¶ 50; Pls.' Mot. for Summ. J. at 13. As a result, some "pioneering" Trumpeter swans that began migrating were mistaken for Tundra swans and killed. A.R. 5897; Am. Compl. ¶¶ 51, 70; Pls.' Mot. for Summ. J. at 14-15.
In 1995, to reconcile Tundra swan hunting interests with Trumpeter swan restoration efforts, the Service authorized an experimental five-year program pursuant to which it established "(1) a limited, but biologically acceptable, quota on the take of Trumpeter swans, and (2) modification of the already limited take and restricted seasons on Tundra swans to enhance the likelihood that Trumpeter swans would be successful in expanding their winter range, and (3) a program to monitor the effectiveness of this action." A.R. 801; Am. Compl. ¶¶ 72, 73; Pls.' Mot. for Summ. J. at 15-16.
Based on its experience with the experimental program, in March 2000 the Service published a draft Environmental Assessment ("EA") indicating its plan to establish a modified version of the experimental program and to cease the Service's ongoing translocation efforts. A.R. 957-84; Am. Compl. ¶ 83, 87; Pls.' Mot. for Summ. J. at 17. Despite some criticism, in July 2000 the Service published a final EA ("2000 EA") establishing a permanent program in Montana and Nevada, and a three-year experimental program in Utah. A.R. 2622-54; e.g., A.R. 1043-44, 1064-65, 1108, 1169, 1185-1203; Am. Compl. ¶¶ 90-104; Pls.' Mot. for Summ. J. at 18-24. The final EA was followed by a Finding of No Significant Impact ("2000 FONSI") concluding that the program was not a major federal action that would significantly affect the quality of the human environment within the meaning of the National Environmental Policy Act ("NEPA"), and therefore did not require the preparation of an environmental impact statement ("EIS"). A.R. 2619; Am. Compl. ¶ 113; Pls.' Mot. for Summ. J. at 23-24.
Based on these events, the plaintiffs took two separate but related actions. First, in October 2000, several of the plaintiffs filed suit challenging the Service's final decision. Am. Compl. ¶ 131; Pls.' Mot. for Summ. J. at 26; Defs.' Mot. for Summ. J. at 11. After negotiations, the plaintiffs agreed to dismiss their lawsuit and the Service agreed to prepare a new NEPA analysis to address unresolved biological and legal issues associated with the swan management. Am. Compl. ¶ 132; Pls.' Mot. for Summ. J. at 26; Defs.' Mot. for Summ. J. at 11. Accordingly, in April 2001, the Service issued a revised draft EA. A.R. 1-30; Pls.' Mot. for Summ. J. at 26. After a period for public comment, the Service issued its final EA ("2001 EA") on June 15, 2001. A.R. 364-419; e.g., A.R. 116-357, 550-61, 3513-16; Am. Compl. ¶ 133; Pls.' Mot. for Summ. J. at 28. The Service issued a Finding of No Significant Impact ("2001 FONSI") that again concluded that the proposal would not significantly affect the quality of the human environment within the meaning of NEPA, and therefore did not require the preparation of an EIS. A.R. 358-63; Am. Compl. ¶¶ 135-36; Pls.' Mot. for Summ. J. at 28-29. In September 2001, the Service incorporated its decision into its annual hunting frameworks. A.R. 576-578q; Am. Compl. ¶ 142; Pls.' Mot. for Summ. J. at 31.
The second action taken by the plaintiffs occurred in in August 2000, when two of the plaintiffs ("the ESA plaintiffs") petitioned the Service to list on both an emergency and a non-emergency basis the Tri-State Trumpeter swan population as "endangered" or "threatened" under the Endangered Species Act ("ESA"). A.R. 5865-5961; Am. Compl. ¶ 118; Pls.' Mot. for Summ. J. at 24. On September 22, 2000, the Service responded with a letter concluding that emergency listing was not warranted, and indicating that the Service "would endeavor to process a finding on [the non-emergency listing] petition as quickly as possible." A.R. 5962-63; Am. Compl. ¶ 120; Pls.' Mot. for Summ. J. at 25. On February 5, 2001, the ESA plaintiffs gave the defendants notice of their intent to sue based on the defendants' failure under ESA to issue, within 90 days of the listing petition, a finding as to whether the petition indicated that action may be warranted. A.R. 6043-45; Am. Compl. ¶ 126; Pls.' Mot. for Summ. J. at 25. On April 4, 2001, the Service replied, stating that under the ESA, the agency's finding was to be made within 90 days "to the maximum extent practicable" and concluding that it was "not practicable for [the Service] to address [the] petition at this time." A.R. 6046; Am. Compl. ¶ 127; Pls.' Mot. for Summ. J. at 25. On September 6, 2001, the ESA plaintiffs ...