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Oceana, Inc. v. Guitterez

May 28, 2009


The opinion of the court was delivered by: Alan Kay United States Magistrate Judge


Pending before the Court is Plaintiff's Motion to Compel Completion of the Record ("Motion") [17]; Federal Defendants' opposition to the Motion ("Opposition") [18] and the Plaintiff's reply to the Opposition ("Reply") [19]. This Court held a hearing on the Motion on February 23, 2009. Upon consideration of the Motion, the memoranda in support thereof, the Opposition thereto and the record in this case, for the reasons set forth below, Plaintiff's Motion is denied. An appropriate order accompanies this Memorandum Opinion.

I. Background

The underlying case involves "a rule implementing approved management measures contained in the Standardized Bycatch Reporting Methodology ("SBRM") Omnibus Amendment to the fishery management plans for the Northeast Region, as required by the Magnuson-Stevens Fishery Conservation and Management Act ("Magnuson-Stevens Act"), 16 US.C. §§1801-1833." (Opposition at 2.)

The measures include: Bycatch reporting and monitoring mechanisms; analytical techniques and allocation of at-sea fisheries observers; an SBRM performance standard; a review and reporting process; framework adjustment and annual specification provisions; a prioritization process; and provisions for industry-funded observers and observer set-aside programs.

73 Fed. Reg. 4,736 (Jan. 28, 2008); Administrative Record 003952.*fn1

In adopting this rule, "the National Marine Fisheries Service ("NMFS" or the "Agency") undertook a decisionmaking and rulemaking process prescribed by the Magnuson-Stevens Act and the Administrative Procedures Act ("APA")." (Opposition at 2.) According to the Federal Defendants,

[T]he administrative record directly or indirectly considered by the NMFS decisionmaker included all documents provided to the New England and Mid-Atlantic Councils and the public regarding the SBRM Omnibus Amendment, public comments, peer reviews, and internal agency documents such as decision memoranda and briefing documents that were considered or that reflect the final decision on the approval and interpretation of the Amendment. (Id.)

Plaintiff Oceana,"a nonprofit international advocacy organization dedicated to protecting and restoring the world's oceans" (Amended Complaint [13] ¶18) seeks judicial review of the Agency determination and requests declaratory and injunctive relief. The Administrative Record was filed with this Court on May 30, 2008 (see [15]) and the Federal Defendants subsequently agreed to add some documents to the Administrative Record, pursuant to the Plaintiff's request. Plaintiff now moves this Court to compel the inclusion in the Record of "two classes of documents: (1) documents for which the agency has claimed the deliberative-process privilege and (2) documents for which the agency has claimed the attorney-client and attorney-work-product privilege." (Motion at 4.) A discussion relating to the inclusion of deliberative documents is contained below. The documents for which the Federal Defendants assert attorney- client privilege or work product protection have been reviewed by this Court in camera and privilege determinations are also set forth below.

II. Legal Standard

The appropriate standard for review of final agency decisions under the Magnuson-Stevens Act is contained in the Administrative Procedures Act, 5 U.S.C. §706. NMFS's final decision must be upheld unless it is found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C.§706(2)(A). The court's "only task is to determine whether the [agency] has considered the relevant factors and articulated a rational connection between the facts found and the choice made." Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 105 (1983).

Section 706 directs a court reviewing an agency decision to "review 'the whole record or those parts of it cited by a party.'" American Wildlands v. Kempthorne, 530 F.3d 991, 1002 (D.C. Cir. 2008) (quoting 5 U.S.C. §706); Pacific Shores Subdivision, California Water District v. United States Army Corps of Engineers, 448 F.Supp.2d 1, 4 (D.D.C. 2006). Review of the "whole record" under this Section "is to be based on the full administrative record that was before the [agency decisionmakers] at the time [they] made [their] decision." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971). The "whole record" has been interpreted to include documents and materials directly and indirectly considered by the agency. Pacific Shores, 448 F.Supp.2d at 4.

The "focal point for judicial review [of agency action] should be the administrative record already in existence, not some new record made initially in the reviewing court." Camp v. Pitts, 411 U.S. 138, 142 (1973). "The reviewing court is not generally empowered to conduct a de novo inquiry into the matter being reviewed and to reach its own conclusions based on such an inquiry." Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985). Rather, the court is charged with "apply[ing] the appropriate APA standard of review to the agency decision based on the record the agency presents to the reviewing court." Safe Extensions, Inc. v. FAA, 509 F.3d 593, 599 (D.C. Cir. 2007).

An agency's administrative record is presumed to be properly designated. See Sara Lee Corp. v. American Bakers Ass'n, 252 F.R.D. 31, 34 (D.D.C. 2008) (citing San Luis Obispo Mothers for Peace v. Nuclear Regulatory Comm'n, 751 F.2d 1287, 1329 (D.C. Cir. 1984)). Plaintiff bears the burden of "identify[ing] reasonable, non-speculative grounds for its belief that the documents were considered ...

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