The opinion of the court was delivered by: Royce C. Lamberth Chief Judge United States District Court
A court that orders an administrative agency to supplement the record of its decision is a rare bird. Pending before the Court is the plaintiffs' motion , which asks the Court to do just that, and/or admit extra record evidence. Upon consideration of the motion, the opposition, and the reply thereto, and the entire record herein, the plaintiffs' motion will be denied for the reasons set forth below.
The piping plover is a small, sand colored shorebird that nests at beaches in eastern North America, including the Outer Banks of North Carolina and portions of the Cape Hatteras National Seashore. Since 1986, the species has been classified as threatened in the eastern United States. CHAPA v. Dep't of the Interior, 344 F. Supp. 2d 108, 115 (D.D.C. 2004) (Lamberth, J.). As a result of the piping plover's threatened status, in 2001 the Fish and Wildlife Service ("FWS" or "Service") designated some 137 coastal areas as critical habitat for the piping plover. Id. Eighteen of these critical habitats were in North Carolina. Id. This Court vacated FWS's designation of five critical habitats in North Carolina and remanded to the Service for further action consistent with its opinion. Id. at 137. FWS subsequently redesignated those same five areas as critical habitats, and plaintiffs once again decided to challenge the agency action.
At issue is whether this Court should consider a report that relates to the conservation of piping plovers, the Biological Opinion for Cape Hatteras National Seashore's Interim Protected Species Management Strategy and various supplements to it (collectively "the BiOp"), either because it was actually a part of the administrative record before the Service, though FWS did not designate it as such, or as extra-record evidence in the event the Court finds it was not a part of the administrative record. Neither party contests that the BiOp was a document that was substantially relied on by the National Park Service in development the Cape Hatteras National Seashore's Interim Protected Species Management Strategy ("Interim Strategy"), or that the Interim Strategy was before FWS when it designated the critical habitats. The Service, however, contends that it did not have the BiOp before it when making its decision to designate habitats critical to the conservation of the piping plover.
As the Endangered Species Act ("ESA") does not specify a standard of review, judicial review of decisions made under the ESA is had under the same standard as the Administrative Procedures Act ("APA"). Gerber v. Norton, 294 F.3d 173, 178 & n.4 (citing Cabinet Mountains Wilderness v. Peterson, 685 F.2d 678, 685 (D.C. Cir. 1982)). And in reviewing agency action, a court is generally confined to reviewing the administrative record that was before the agency. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420 (1971); see also Camp v. Pitts, 411 U.S. 138, 142 (1973). Nonetheless, there are some circumstances where the administrative record needs to be supplemented due to some deficiency, though that is an exceptional occurrence. Motor & Equipment Mfrs. Ass'n v. EPA, 627 F.2d. 1095, 1105 n.18 (D.C. Cir. 1979). It is likewise the case that consideration of extra-record evidence in reviewing agency action is extraordinary. Indeed, a court's review should generally be confined to the same information that was before the agency when it made its decision. Citizens to Preserve Overton Park, 401 U.S. at 420; Walter O. Boswell Mem'l Hosp. v. Heckley, 749 F.2d 788, 792 (D.C. Cir. 1984).
There is some confusion between the parties as to what standards of review are appropriate in this case. Indeed, this is not the first time that such confusion has occurred. See Pac. Shores Subdivision v. Army Corps of Engineers, 448 F. Supp. 2d 1, 5--6 (D.D.C. 2006) (discussing different standards for adding to administrative record). Undoubtedly some of that confusion is caused by the use of the word "supplement" in both types of cases. Compare Texas Rural Legal Aid, Inc. v. Legal Servs. Corp., 940 F.2d 685, 698 (D.C. Cir. 1991) ("Ordinarily, judicial review of informal agency rule-making is confined to the administrative record; neither party is entitled to supplement that record with litigation affidavits or other evidentiary material that was not before the agency.") (quoting Edison Elec. Inst. v. OSHA, 849 F.2d 611, 617--618 (D.C. Cir. 1989)) (emphasis added) with Sara Lee Corp. v. American Bakers Ass'n, 252 F.R.D. 31, 34 (D.D.C. 2008). While it is ultimately the province of the Court of Appeals to clarify these issues, the Court thinks that some guidance is nonetheless appropriate here.
The Court will first examine those cases where a party seeks supplementation, which is essentially a claim that some information that should have properly been included in the administrative record was not. Next the Court will examine those cases that ask for consideration of extra-record evidence, because were it not to do so, reviewing agency action would be unnecessarily difficult.
A. Supplementing the Record
Judicial review of agency action under the APA is generally confined to the administrative record. See 5 U.S.C. § 706. Ordinarily the record is comprised of those documents that were before the administrative decisionmaker. Citizens to Preserve Overton Park, 401 U.S. at 420; see also FED. R. APP. P. 16(a) ("The record consists of the order involved, any findings or reports on which that order is based, and the pleadings, evidence, and other parts of the proceedings before the agency.). A court should generally consider neither more nor less than what was before the agency at the time it made its decision. IMS, P.C. v. Alvarez, 129 F.3d 618, 623 (D.C. Cir. 1997). This means the agency must compile all the information it considered directly or indirectly. Amfac Resorts, L.L.C. v. Dep't of Interior, 143 F. Supp. 2d 7, 12 (D.D.C. 2001) (Lamberth, J.). However, it is the responsibility of the deciding agency to compile the administrative record, and the agency is presumed to have properly done so. Id.
In order for a Court to order supplementation, the plaintiff must overcome this strong presumption of regularity by putting forth concrete evidence that the documents it seeks to "add" to the record were actually before the decisionmakers. Sara Lee Corp, 252 F.R.D. at 34. There should be nothing controversial about this proposition. If for some reason, materials that were actually a part of the agency's record were not properly included, whether by design or accident, they should be included in the record for the Court's review. It is only the court's deference to the agency's compilation that counsels pause. If it can be shown that the materials sought to be included in the record before the court, were indeed before the agency, supplementation is appropriate. See, e.g., Natural Resources Defense Council v. Train, 519 F.2d 287, 291 (D.C. Cir. 1975). Here, however, that showing has not been made.
Despite that both parties agree that the BiOp was heavily relied upon in preparation of the Interim Strategy, that fact alone does not mean it was actually before the agency when it made its current decision. And despite the references to the BiOp in many documents that were contained in the administrative record, this too does not prove that it was before the agency when it made its decision. It may well have been that the Interim Strategy obviated the need to consider the BiOp independently, as much of the relevant information from the BiOp was included in the Interim Strategy. Additionally, the BiOp's acknowledgment of the proposed critical habitat designations, and the effect that would have on the Interim Strategy, does not prove that it was considered by the agency when making the critical habitat designation. Finally, the fact that some comments received during the critical habitat designation process mentioned the BiOp, does not mean that the BiOp itself was considered by FWS. Because none of these references alone ...