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Oceana, Inc. v. Ross

United States District Court, District of Columbia

February 21, 2018

OCEANA, INC., Plaintiff,
WILBUR L. ROSS in his official capacity as Secretary of Commerce, et al., Defendants.


          CHRISTOPHER R. COOPER United States District Judge

         The National Marine Fisheries Service designs management plans to promote the sustainability of particular species of ocean fish. Plaintiff Oceana, Inc. brought suit under the Administrative Procedure Act challenging the Service's management plan for one such species: the dusky shark. But before reaching the merits of that challenge, the Court must first resolve Oceana's motion to compel the Service to complete or supplement the administrative record with four categories of documents: (1) studies and other documents cited in the final Environmental Impact Statement supporting the Service's dusky shark management plan, (2) catch-related data from fishing vessel logbooks and third-party observer reports, (3) documents withheld by the Service under the deliberative process privilege, and (4) certain other extra-record studies and data. Having considered the parties' arguments and supporting evidence, the Court will order that the record be supplemented with a subset of the materials in the first category of Oceana's request as detailed further below. The Court will deny Oceana's motion in all other respects.

         I. Background

         The National Marine Fisheries Service (“Service”) is a federal agency within the Department of Commerce's National Oceanic and Atmospheric Administration (“NOAA”).

         Under the Magnuson-Stevens Act, the Service is responsible for preparing management plans for all “highly migratory” fisheries under its jurisdiction in the Atlantic. See 16 U.S.C. § 1854(g)(1).[1] These plans contain measures which are “necessary and appropriate for the conservation and management of the fishery, to prevent overfishing and rebuild overfished stocks, and to protect, restore, and promote the long-term health and stability of the fishery.” Id. § 1853(a)(1)(A). In order to protect against overfishing, in its management plans the Service sets an optimum annual yield for each fishery and species of fish. See 50 C.F.R. § 600.310.

         In July 2016, the Service released a draft amendment-Amendment 5b-to its Highly Migratory Species Fishery Management Plan. A.R. 7080. Amendment 5b specifically addresses the overfishing and management of dusky sharks in the Atlantic. Id. Following a public comment period, the Service released a final version of Amendment 5b in February 2017. A.R. 7050. Oceana, Inc., an environmental and conservation organization, thereafter filed suit against Secretary of Commerce Wilbur Ross, NOAA, and the Service itself.

         After receiving the Service's answer, the Court set a summary judgment briefing schedule. Oceana then filed a motion to compel the Service to complete and supplement the administrative record. In light of Oceana's motion, the Court stayed summary judgment briefing and held a hearing on February 2, 2018. It will now grant Oceana's motion in part and deny it in part, as detailed below.

         II. Legal Framework

         Under the Administrative Procedure Act (“APA”), the Court is directed to “review the whole record or those parts of it cited by a party.” 5 U.S.C. § 706. Thus, review of an agency's action under the APA “is to be based on the full administrative record that was before [the agency] at the time [it] made [its] decision.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971). The administrative record consists of “all documents and materials that the agency ‘directly or indirectly considered, '” no more and no less. Maritel, Inc. v. Collins, 422 F.Supp.2d 188, 196 (D.D.C. 2006) (quoting Bar MK Ranches v. Yuetter, 994 F.2d 735, 739 (10th Cir. 1993)). An agency is “entitled to a strong presumption of regularity that it properly designated the administrative record.” Pac. Shores Subdivision, Cal. Water Dist. v. U.S. Army Corps of Eng'rs, 448 F.Supp.2d 1, 5 (D.D.C. 2006).

         There are two situations in which a plaintiff may seek to add evidence or documents to the administrative record. First, a plaintiff may seek to include “extra-judicial evidence that was not initially before the agency” but that the plaintiff “believes should nonetheless be included in the administrative record.” Univ. of Colo. Health at Memorial Hosp. v. Burwell, 151 F.Supp.3d 1, 13 (D.D.C. 2015) (citation omitted); see also The Cape Hatteras Access Pres. Alliance v. U.S. Dep't of Interior, 667 F.Supp.2d 111, 113-14 (D.D.C. 2009). Second, a plaintiff may seek to “include ‘evidence that should have been properly a part of the administrative record but was excluded by the agency.'” Univ. of Colo., 151 F.Supp. at 13 (citation omitted); see also Cape Hatteras, 667 F.Supp.2d at 114.

         With respect to the first situation, a party may supplement the administrative record if she can “demonstrate unusual circumstances justifying a departure from th[e] general rule” against considering extra-record evidence. City of Dania Beach v. FAA, 628 F.3d 581, 590 (D.C. Cir. 2010) (quoting Texas Rural Legal Aid v. Legal Servs. Corp., 940 F.2d 685, 698 (D.C. Cir. 1991)); see also American Wildlands v. Kempthorne, 530 F.3d 991, 1002 (D.C. Cir. 2008)). The D.C. Circuit has identified three such unusual circumstances: “(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 review so as to frustrate judicial review.'” City of Dania Beach, 628 F.3d at 590 (quoting American Wildlands, 530 F.3d at 1002).

         The appropriate standard to apply in the second situation-where a party seeks to include evidence that was allegedly before the agency but nevertheless excluded from the administrative record-has been the subject of some confusion. See Oceana, Inc. v. Pritzker, 217 F.Supp.3d 310, 317 n.7 (D.D.C. 2016); Univ. of Colo., 151 F.Supp. at 13; Cape Hatteras, 667 F.Supp.2d at 113. This confusion has arisen because the term “supplement” “has been used synonymously to refer to both a circumstance in which a party argues that the administrative record does not actually reflect the materials that the agency had before it when it made its decision, and a circumstance in which a party seeks to add extra-record or extra-judicial information to the record that was concededly not before the agency.” Univ. of Colo., 151 F.Supp. at 13 (emphasis in original); see also Oceana, 217 F.Supp.3d at 317 n.7. The upshot is that it is unclear whether a plaintiff seeking to add evidence it has demonstrated was before the agency (and thus is properly part of the administrative record) must also show one of the three “unusual circumstances” from cases such as City of Dania Beach in order to prevail.[2]

         The Court agrees with its colleagues who have not required that an “unusual circumstance” be demonstrated in such cases. After all, the administrative record properly consists of the materials before the agency and no more nor less. See Walter O. Boswell Memorial Hosp. v. Heckler, 749 F.2d 788, 792 (D.C. Cir. 1989) (“The Supreme Court's formulation in Overton Park cautions against both under- and over-inclusiveness in the administrative record before a reviewing court.”). If a plaintiff can show that a piece of evidence was before the agency at the time the decision was made-and thus that that evidence is part of the administrative record-it makes little sense to require that the plaintiff also show one of the three unusual circumstances before requiring the agency to add the properly-part-of-the-record evidence to the record. See, e.g., Univ. of Colo., 151 F.Supp. at 14. To hold otherwise would result in the Court reviewing agency action without the entire administrative record before it, contrary to what the APA directs, unless the plaintiff can make the heightened showing of an unusual circumstance.

         Consequently, for a plaintiff to prevail on a motion to complete the record-that is, to add evidence that is properly part of the record but was excluded-she must only “‘put forth concrete evidence' and ‘identity reasonable, non-speculative grounds for [her] belief that the documents were considered by the agency and not included in the record.'” Charleston Area Med. Ctr. v. Burwell, 216 F.Supp.3d 18, 23 (D.D.C. 2016) (citation omitted); see also, e.g., Univ. of Colo., 151 F.Supp. at 15; Cape Hatteras, 667 F.Supp. at 114.

         III. Analysis

         Oceana seeks to add four categories of documents to the record: (1) studies and reports cited in the final agency Environmental Impact Statement for Amendment 5b (the “EIS”); (2) documents withheld from the record as privileged; (3) catch-related data from fishing vessel logbooks and third-party observer reports; and (4) extra-record data. The Court will grant Oceana's motion as to part of the first category of documents and deny it as to the rest.

         A. Studies and reports cited in the EIS

         The first set of documents that Oceana seeks to add to the record, listed in Exhibit A of its motion, consists of studies, memoranda, and assessments that the Service cited in the EIS. See Mem. Supp. Pl.'s Mot. Compel Completion & Supplementation (“Pl.'s Mot.”) Ex. A. These documents received one of three treatments in the EIS: (1) some were cited in the body of the EIS for a substantive proposition; (2) some were cited in the body of the EIS but only as a source of additional information that readers might wish to consult; and (3) some were cited solely in a list of references and not in the body of the EIS. Oceana argues that because all of these studies were cited somewhere in the EIS, they were clearly before the Service at the time it made its decision and therefore belong in the administrative record. Pl.'s Mot. at 10-11. The Court agrees in part.

         First, there is a subset of documents listed in Oceana's Exhibit A that were cited substantively, i.e., to justify a factual statement or assertion made in the EIS.[3] If a document was substantively cited, the Service clearly considered that document. After all, to know what the document said the Service had to at least read it, and by citing the document to justify a substantive factual proposition, the Service is purporting to have relied ...

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