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Friends of Animals, Inc. v. Jewell

United States District Court, District of Columbia

May 3, 2016

FRIENDS OF ANIMALS, INC., Plaintiff,
v.
S.M.R. JEWELL, et al., Defendants.

MEMORANDUM OPINION AND ORDER

CHRISTOPHER R. COOPER, United States District Judge.

Plaintiff Friends of Animals, Inc., a non-profit animal-advocacy organization, challenges final written decisions by the U.S. Department of the Interior’s Bureau of Land Management (“BLM”) to remove 167 wild horses from contiguous sections of Colorado’s White River Resource Area.[1] Friends of Animals claims that BLM has violated the National Environmental Policy Act (“NEPA”) by omitting from its decisions a full discussion of the physical, behavioral, and social impacts on the wild horses from using helicopter drive trapping or helicopter-assisted roping to gather and remove them. Before the Court can address that issue, it must first resolve a dispute between the parties regarding the completeness of the administrative record in this case-specifically, Friends of Animals’s motion to supplement the record with a declaration by Dr. Bruce Nock, a researcher and professor at the Washington University School of Medicine, along with two internal BLM emails that it believes BLM has improperly withheld under the attorney-client privilege.

Because the Court finds that the Nock declaration is not necessary for it to assess whether BLM appropriately considered all relevant environmental factors in making its decision, the Court will deny Friends of Animals’s motion with respect to the declaration. The Court finds, however, that BLM has not adequately justified its invocation of the attorney-client privilege with respect to the two emails. The Court will therefore order BLM to produce those emails for in camera review.

I. Background

As the Court detailed in a separate opinion in a related case, see Colo. Wild Horse & Burro Coalition v. Jewell, 130 F.Supp.3d 205 (D.D.C. 2015), Congress enacted the Wild Horses Act (“WHA”) in 1971 out of solicitude for unclaimed horses and burros roaming on public lands, which it extolled as “living symbols of the historic and pioneer spirit of the West.” 16 U.S.C. § 1331. The Act (as later amended in 1978) entrusts the Secretary of the Interior-and through her, BLM-with preserving these animals in their native rangelands, while also ensuring that thriving wild-horse populations not disrupt the “natural ecological balance of all wildlife species which inhabit such lands.” Id. § 1333(a). BLM is therefore directed to set “appropriate management levels”-optimal population ranges-for horses inhabiting public lands, regularly inventory these animals to determine whether an “overpopulation” exists, and “immediately remove” such “excess animals” as necessary. Id. § 1333(b)(1)-(2).

This case centers on BLM’s management efforts in the White River Resource Area, a large swath of public land in northwest Colorado. On July 28, 2015, BLM issued records of decision stating its intent to gather and remove up to 167 wild horses from one portion of the Resource Area and the remainder (if necessary) from a nearby portion of the Resource Area. After a notice-and-comment period, the agency addressed the likely environmental impacts of its proposed gathers by issuing a Finding of No Significant Impact (“FONSI”) for both areas. BLM’s FONSI for one of the areas was accompanied by a contemporaneously produced Environmental Assessment (“EA”), and the agency relied on a prior EA from 2011 to justify the issuance of a FONSI as to the other area. See Colo. Wild Horse, 130 F.Supp.3d at 209-10.

A different set of plaintiffs filed suit on September 4, 2015 in this Court and moved for a preliminary injunction to halt the proposed gathers, which were scheduled to begin ten days later, on the grounds that BLM had violated both the WHA and NEPA. The Court denied the motion on September 15, 2015, following an evidentiary hearing. See id. at 209. In this suit, filed the same day that the Court denied the preliminary-injunction motion, Friends of Animals seeks to invalidate BLM’s records of decision on a slightly different ground: that BLM failed to consider the short- and long-term health impacts on wild horses of being subjected to these gathers. Pl.’s Mem. Supp. Mot. Supplement 5.

In support of its claim, Friends of Animals points to public comments submitted to BLM that referenced, cited, or included portions of a 2010 article written by Dr. Bruce Nock, entitled “Wild Horses, The Stress of Captivity.” Id. at 4. This article purports to “describe the intricate physiological events that take place within a wild horse subject to these roundups.” Id. at 3. It also identifies certain long-term health consequences to wild horses that may result from the stress of these events. Although the article “was submitted to the agency in public comments on [BLM’s] roundup decision” and is therefore part of the administrative record, id. at 4, Friends of Animals seeks to supplement the record with a declaration prepared by Dr. Nock that elaborates upon his 2010 article in certain respects. Considering this declaration, Friends of Animals contends, will assist the Court in determining that BLM’s environmental review improperly disregarded this consequence of the gathers.

II. Standard of Review

Judicial review of agency action is generally confined to the administrative record as designated by the agency. See Hecht ex rel. James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1095 (D.C. Cir. 1996). “The administrative record includes all materials compiled by the agency that were before [it] at the time the decision was made.” Id. And “absent clear evidence to the contrary, an agency is entitled to a strong presumption of regularity, [i.e., ] that it properly designated the administrative record.” Pac. Shores Subdivision v. U.S. Army Corps of Eng’rs, 448 F.Supp.2d 1, 5 (D.D.C. 2006). As a result, courts “do not allow parties to supplement the record ‘unless they can demonstrate unusual circumstances justifying a departure from this general rule.’” City of Dania Beach v. FAA, 628 F.3d 581, 590 (D.C. Cir. 2010) (quoting Tex. Rural Legal Aid v. Legal Servs. Corp., 940 F.2d 685, 698 (D.C. Cir. 1991)); see also Cape Hatteras Access Pres. Alliance v. U.S. Dep’t of Interior, 667 F.Supp.2d 111, 115 (D.D.C. 2009) (“[T]here are certain limited, and highly exceptional, circumstances when a court may review evidence beyond the administrative record.”). Departures from the general rule should be made “sparingly” and typically “only [in] those cases where extra-record evidence [is] necessary to make judicial review effective.” Cape Hatteras, 667 F.Supp.2d at 115.

In this Circuit,

[t]he record can be supplemented in three instances: (1) if the agency “deliberately or negligently excluded documents that may have been adverse to its decision, ” (2) if background information [is] needed “to determine whether the agency considered all the relevant factors, ” or (3) if the “agency failed to explain administrative action so as to frustrate judicial review.”

City of Dania Beach, 628 F.3d at 590 (quoting Am. Wildlands v. Kempthorne, 530 F.3d 991, ...


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