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Oceana, Inc. v. Locke

October 8, 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") [16]; Federal Defendants' opposition to the Motion ("Opposition") [17] and the Plaintiff's reply to the Opposition ("Reply") [21]. In the instant case, Plaintiff Oceana, Inc. ("Plaintiff" or "Oceana") moves to compel the inclusion into the Administrative Record of seventeen documents that have been withheld by Federal Defendants National Marine Fisheries Service; Gary Locke, Secretary of the United States Department of Commerce; and the National Oceanic and Atmospheric Administration (hereinafter, collectively "NMFS" or the "Agency"). Nine documents are withheld by NMFS pursuant to the confidentiality provisions of the Magnuson-Stevens Fishery and Conservation Act ("MSA"). Eight documents are withheld based on NMFS's assertion of deliberative process privilege and of those eight, NMFS has also asserted attorney-client privilege and work-product protection regarding four documents. On August 7, 2009, this Court issued a Minute Order directing the Defendants to provide a copy of the documents that are being withheld on grounds of privilege or protection, so that this Court could conduct an in camera review of those documents. On August 12, 2009, Defendants provided the contested documents for an in camera review and the Court has now completed its review, applying the legal principles set forth herein. This Court's privilege rulings are explained herein and are also noted in the accompanying Order.

I. Background*fn1

A. Requirements of the Endangered Species Act

The underlying civil case involves NMFS's authorization of a sea scallop fishery under the Atlantic Sea Scallop Fishery Management Plan, developed pursuant to the Magnuson Act by the New England Fishery Management Council. (Opposition at 6-7; see 50 C.F.R. §§648.50-648.63.)*fn2 Under Section 7(a)(2) of the Endangered Species Act ("ESA"), 16 U.S.C. §1536(a)(2), a federal agency must, in consultation with either the NMFS or the United States Fish and Wildlife Service ("FWS"), insure that "any action authorized, funded, or carried out by such agency" is unlikely to jeopardize the continued existence of an endangered or threatened species or result in the "destruction or adverse modification" of the designated "critical habitat" of the species. See 16 U.S.C.§§ 1536(a)(2). ESA Section 7 and the implementing regulations thereto set out a "detailed consultation process for determining the biological impacts of a proposed activity." (Opposition at 2-3, referencing 16 U.S.C. §1536; 50 C.F.R. Part 402.)

An agency proposing an action must first determine whether the action "may affect" listed species or critical habitat. 50 C.F.R. §402.14. If an affirmative determination is made, the action agency [herein NMFS] must pursue consultation (informal or formal, as defined by the ESA's implementing regluations) with FWS or NMFS, depending on the species. (Opposition at 3.) As part of the formal consultation, NMFS issues a "Biological Opinion" ("BiOp") detailing its biological conclusions as to how the proposed action will affect the species at issue, including a conclusion as to whether the proposed action is likely to jeopardize the continued existence of a listed species or result in destruction or adverse modification of critical habitat. (Opposition at 3, referencing 16 U.S.C. §1536(b)(3)(A).) The jeopardy analysis synthesizes the effect of the action, in the action area, upon the status of the species as a whole. (Opposition at 3-4, referencing 50 C.F.R. §402.02.) If the action results in the incidental "taking" of members of the species, NMFS provides an "incidental take statement" ("ITS") along with the BiOp. (Oppostion at 4, see 16 U.S.C. §§1536(b)(4)(c)(i)-(iii).) The ITS discusses the impact of the incidental taking on the species and sets forth reasonable and prudent measures ("RPMs") that NMFS considers "necessary or appropriate to minimize such impact." (Opposition at 4, citing 6 U.S.C. §1536(b)(4)(C)(ii).) ESA regulations provide that RPMs in an incidental take statement, and the terms and conditions implementing them, "cannot alter the basic design, location, scope, duration, or timing of the action and may involve only minor changes." (Opposition at 4, citing 50 C.F.R. §402.14(i)(2).)

B. Biological Opinion

NMFS engaged in intra-agency consultations concerning the effects of its fishery authorization upon four Endangered Species Act ("ESA")-listed species of sea turtles, and on March 14, 2008, NMFS issued its BiOp regarding such effects. (Opposition at 6.)*fn3 In its BiOp, NMFS concluded that continued authorization of the scallop fishery "would not appreciably reduce the likelihood of survival or recovery of Atlantic loggerheads" (Opposition at 8; see BiOp at 89) nor would it "jeopardize the continued existence of the species." (Id.) NMFS did however determine that "take" would result and accordingly, it issued an incidental take statement in the BiOp. (Opposition at 8, see BiOp at 100-104.) To minimize the amount of take, NMFS "put in place five [reasonable and prudent measures ("RPMs")] and five terms and conditions to implement the RPMs, to guide continued management of the Atlantic scallop fishery." (Opposition at 8; see BiOp at 101-03.)

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 BiOp 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). This standard of review is "narrow" and requires only that the agency "examine the relevant data and articulate a satisfactory explanation for its action." FCC v. Fox Television Stations, Inc., 129 S.Ct.1800, 1804 (2009) (quoting Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (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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