Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Oceana, Inc. v. Locke

November 25, 2009

OCEANA, INC., PLAINTIFF,
v.
GARY F. LOCKE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Oceana, Inc. ("Oceana") has filed for summary judgment on its claim that defendants Secretary of Commerce Gary F. Locke, the National Oceanic and Atmospheric Administration, and the National Marine Fisheries Service ("NMFS") (collectively, "the agency") violated the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. §§ 1801-1884; the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370f; and the Administrative Procedure Act ("APA"), 5 U.S.C. § 706, through the issuance of a final rule regarding an amendment to the agency's standardized bycatch reporting methodology ("SBRM" or "the SBRM Amendment") for the thirteen federal fisheries in the northeastern United States. Exhibit 3 to plaintiff's summary judgment motion consists of a declaration and October 8, 2008 report from Dr. Murdoch McAllister. Defendants have moved to strike plaintiff's motion for summary judgment on the grounds that the materials comprising Exhibit 3 are not part of the administrative record and therefore are not properly before the Court. For the reasons set forth below, the Court grants defendants' motion.

BACKGROUND

In June 2007, defendants prepared a final draft of the proposed SBRM amendment. (See Administrative Record ["AR"] 2346-2983.)*fn1 The draft's Executive Summary explains that "[g]enerally, an SBRM can be viewed as the combination of sampling design, data collection procedures, and analyses used to estimate bycatch in multiple fisheries." (AR 2351.) The primary sources of information about fishery discards are "at-sea fishery observers" (i.e., scientists who board commercial fishing vessels to observe and record discards occurring on the trip), surveys of recreational fisheries, and reports from fishing vessel trips, which can be supplemented with information from other sources. (Id.; see also Pl.'s Mot. for Summ. J. ["Pl.'s SJ Mot."] at 7.) This information can be used to assess fishery stock and give scientific advice to fishery managers. (AR 2351.)

The SBRM was developed to "evaluat[e] the effectiveness of the allocation of fisheries observer effort across multiple fisheries to monitor a large number of species." (AR 2351.) The SBRM consists of seven principal components: mechanisms for collecting discard data; techniques for analyzing that data in order to allocate discard observers; a performance standard, known as a coefficient of variation ("CV"), for measuring the precision of the bycatch estimates; and four means of reviewing and refining the SBRM's effectiveness. (AR 2352, 2487 n.28.)

On September 24, 2007, the final day for public comment on both the proposed SBRM amendment and the proposed implementing regulations, the Lenfest Ocean Program submitted a report by Dr. McAllister that "focused primarily on the problem of bias in the SBRM's sampling design and statistical method."*fn2 (Pl.'s SJ Mot. at 9; see AR 3120-61 ("2007 McAllister Report").) McAllister's report expressed "serious reservations about the apparent low degree of scientific rigor in the determination of the SBRM." (AR 3124.) That same day, plaintiff submitted similar comments and also included a copy of the McAllister report. (AR 3186-3200 (Oceana Comments); see also AR 3188 & n.9.)

On October 18, 2007, Patricia Kurkul, the regional administrator of NMFS, received an analysis by Dr. Nancy Thompson, head of the NMFS's New England Fisheries Science Center ("Science Center"), of the 2007 McAllister Report. (See generally AR 3882-85.) Dr. Thompson concluded that although McAllister raised important issues, his criticisms did not "provide a sufficient basis to disapprove the SBRM Amendment." (AR 3882.) Thompson also stated that the Science Center would provide "a more detailed response" to the McAllister report "for inclusion in the response to public comments in the preamble to the final rule." (AR 3885.)

On October 22, 2007, the NMFS approved the SBRM amendment. (AR 3916; see also 3239-3880 (final SBRM amendment).) On December 20, Thompson presented Kurkul with her further analysis of McAllister's concerns. (See AR 3919-28.) Thompson's analysis provided "additional technical justification for the approaches" taken by the agency, summarized the additional work conducted since the first analysis, and reached similar conclusions as before. (AR 3919-20.) Thompson observed that "[i]n addition to the methods described in the SBRM" for measuring the potential biases in observer data, the agency's preferred "combined ratio" method of estimating discards was "validated" by a working paper authored by Paul Rago (and others) that was presented for peer review at an October 2007 Groundfish Assessment Review Meeting ("GARM"). (AR 3924-25; see AR 4713-49 (Rago paper).) Thompson also noted that the agency had conducted simulation studies which supported the SBRM's estimation methods, and she singled out a working paper by Chris Legault that was also presented for peer review at the GARM. (AR 3925-26; see AR 4750-61 (Legault paper).) The GARM committee characterized Dr. Legault's paper as concluding that the agency's combined ratio estimator was more "pragmatic" than the "direct estimator" advocated by McAllister, because McAllister's method relied upon data that is often unknown and whose estimates are not as "reliable" as the agency's preferred data estimates. (AR 3926.)

On January 28, 2008, the agency issued the final rule implementing the SBRM amendment. See 73 Fed. Reg. 4,736 (Jan. 28, 2008) (codified at 50 C.F.R. pt. 648). (See also AR 3952-74 (final rule).) The rule's preamble presented the agency's responses to a variety of public comments, including the 2007 McAllister report. (AR 3962-66.) On February 25, plaintiff initiated this lawsuit. On October 8, McAllister issued a report to plaintiff's counsel that reviewed the final SBRM rule, entitled "Follow-up review of the NMFS' Standardized Bycatch Reporting Methodology: is something fundamentally wrong with the SBRM approach which is likely to result in serious error?" (See Pl.'s SJ Mot., Ex. 3 at 34-76 ("2008 McAllister Report").)

On January 5, 2009, plaintiff moved to compel the inclusion of certain documents (but not the 2008 McAllister Report) in the administrative record. See generally Oceana, Inc. v. Locke ("Oceana III"), 634 F. Supp. 2d 49 (D.D.C. 2009) (affirming magistrate judge's denial of plaintiff's motion to compel inclusion), aff'g No. 08-CV-318, 2009 WL 1491516 (D.D.C. May 28, 2009). On September 25, plaintiff filed its summary judgment motion and several supporting exhibits. Exhibit 3 to that motion consisted of the 2008 McAllister Report, an eleven-page declaration by McAllister, and his curriculum vitae (collectively, "the McAllister testimony"). (See Pl.'s SJ Mot., Ex. 3 at 1-11 ("McAllister Declaration").) In a footnote, plaintiff's motion argues that the Court may consider the McAllister testimony under Esch v. Yeutter, 876 F.2d 976 (D.C. Cir. 1989). (See Pl.'s SJ Mot. at 12 n.6.) In Esch, the D.C. Circuit observed the general rule that "judicial review of agency action is normally to be confined to the administrative record," but also observed that in eight situations, courts have departed from the general rule and permitted the introduction of extra-record information. 876 F.2d at 991 & n.166. Plaintiff contends that the McAllister testimony falls under three of the eight situations described in Esch, because (1) "it provides background information to help the court understand the complex issues before it" relating to the precision of the agency's discard estimation methods; (2) "it addresses relevant factors that the agency failed to consider" relating to statistical bias in the agency's discard estimation methods; and (3) "it highlights environmental consequences and reasonable alternatives neglected in the agency's [environmental assessment] . . . ." (Pl.'s SJ Mot. at 12 n.6 (citing Esch, 876 F.2d at 991).)

On October 15, 2009, defendant moved to strike the McAllister testimony, arguing that even if plaintiff's footnote were the proper vehicle for seeking its admission, (1) Esch's discussion of exceptions to the administrative record rule is not controlling law, and (2) even if it were, plaintiff "'must first establish that the agency acted in bad faith or otherwise behaved improperly, or that the record is so bare that it prevents effective judicial review.'" (Defs.'s Mot. to Strike at 5 (quoting County of San Miguel v. Kempthorne, 587 F. Supp. 2d 64, 79 (D.D.C. 2008)) (emphasis omitted).) Plaintiff responds that Esch correctly describes the state of the law in this Circuit, and that no showing is required before it may submit McAllister's testimony. In the alternative, plaintiff contends that the agency committed "procedural irregularities" in promulgating the SBRM rule which constitute "bad faith or improper behavior" that would justify admission of the testimony. (See Pl.'s Opp'n to Mot. ["Pl.'s Opp'n"] at 10-11 (citing Fund for Animals v. Williams, 391 F. Supp. 2d 191, 199 (D.D.C. 2005).)

ANALYSIS

I. APPLICABLE STANDARD

Judicial review of agency actions "is confined to the full administrative record before the agency at the time the decision was made." Camden County Council on Econ. Opportunity v. U.S. Dep't of Health & Human Servs., 563 F. Supp. 2d 262, 265 (D.D.C. 2008) (citing Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275, 284 (D.C. Cir. 1981)). "When reviewing that record, the Court considers 'whether the agency has considered the relevant factors and articulated a rational ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.