Blue Ocean Institute v. Gutierrez

• Decision Date: 04 September 2007
• Docket Number: Civil Action No. 06-1869 (HHK/JMF).
• Citation: 503 F.Supp.2d 366
• Parties: BLUE OCEAN INSTITUTE, et al., Plaintiffs, v. Carlos M. GUTIERREZ, et al., Defendants.
• Court: U.S. District Court — District of Columbia

503 F.Supp.2d 366

BLUE OCEAN INSTITUTE, et al., Plaintiffs, v. Carlos M. GUTIERREZ, et al., Defendants.

Civil Action No. 06-1869 (HHK/JMF).

United States District Court, District of Columbia.

September 4, 2007.

Jennifer C. Chavez, Stephen Elston Roady, Earthjustice, Washington, DC, for Plaintiffs.

Keith William Rizzardi, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION and ORDER

FACCIOLA, United States Magistrate Judge.

This case has been referred to me for resolution of Plaintiffs' Motion to Compel Completion of the Administrative Record [# 10] ("Pls. Mot."). Plaintiffs ask that the Court enter an order directing Defendants to "complete the administrative record" with certain documents. Pls. Mot. at 1. For the reasons stated herein, Plaintiffs' motion will be denied.

I. BACKGROUND

In June 2005, plaintiff Blue Ocean Institute ("Blue Ocean"), with several other conservation groups, submitted a petition to the National Marine Fisheries Service ("NMFS") requesting that NMFS immediately stop specific longline fishing in bluefin spawning areas located in the Gulf of Mexico during spawning season in an effort to protect the declining population of the species. Memorandum in Support of Plaintiffs' Motion to Compel Completion of the Administrative Record ("Pls. Mem."). at 1-2. On October 2, 2006, NMFS issued a final rule that, inter alia,¹ announced the agency decision to reject Blue Ocean's petition. 71 Fed.Reg. 58058 (Oct. 2, 2006).

Blue Ocean has challenged that rejection in this action that seeks judicial review of the promulgation of that rule under the Administrative Procedure Act. 5 U.S.C. § 701 ("APA").² Another section of the APA, 5 U.S.C. § 706, requires the court to "review the whole record or those parts of it cited by a party." The NMFS filed the administrative record on January 12, 2007. Whether the record filed is the "whole record" is the issue that divides the parties.

Plaintiffs allege that the current administrative record "fails to document fully the facts on which it relied and also fails to disclose all the factors it considered in deciding to reject the plaintiffs' Petition." Pls. Mem. at 4. More specifically, Plaintiffs allege that NMFS reached a decision to reject the petition "by a process that involved interactions with government staffers and scientists with varying opinions about the underlying data and assumptions, and included both formal and informal communications bearing on the ultimate question of the efficacy of the spawning area closure sought by the Plaintiffs." Id. As a result of this type of process, Plaintiffs claim the materials relied upon in reaching the decision necessarily includes documents such as reports, minutes, meeting notes, emails, and records of telephone conversations. Id. The administrative record, however, allegedly omits "emails and notes of discussions among and between Fisheries Service staff or other government parties" regarding the impact of under-estimating bluefin mortality in the Gulf and of the specific closures the Petition requests and is instead "limited largely to official decision documents." Id.

Defendants assert the administrative record, consisting of over 600 documents and thousands of pages, is valid as submitted. See Federal Defendants' Response in Opposition to Motion to Compel Completion of the Administrative Record [Amended] [# 13-2] ("Defs. Opp.") at 4. According to the government, the types of documents Plaintiffs seek — namely, "notes of telephone conversations, informal notes of meetings and discussions, and emails" — are not required to be part of the administrative record under the law of this Circuit. Id. at 5-6. In any event, the types of documents described as "omitted" may be properly excluded under the deliberative process privilege. Id. at 6.

II. THE ACTUAL CONTENTS OF THE ADMINISTRATIVE RECORD

The final rule at issue is 116 pages long, and the record filed, in CD-ROM format, contains "thousands of pages." Defs. Opp. at 5. Accompanying Defendants' opposition is the declaration of Alan Risenhoover, who states that the record filed:

includes all documents and other materials that contain data summaries, scientific studies, and other fact-based information relevant to bluefin tuna and bluefin tuna closures. The record also includes all public comments, peer reviews, and other public information relevant to bluefin tuna and bluefin tuna closures. The record does not include raw data, such as raw computer data or individual logbook reports.... The record includes all materials identified [above] that the agency considered, referred to, relied upon, or used, regardless [of] whether they support or are contrary to the agency's action. No documents identified [above] were not included in the record on the basis that the agency did not consider, refer to, rely upon, or use them.

Affidavit of Alan Risenhoover, ¶¶ 4-5.

Risenhoover also explains what the administrative record does not contain:

The agency has not identified in its official records any notes of any telephone conversations or informal notes of meetings and discussions with non-agency personnel relevant to bluefin tuna or bluefin tuna closures. Notes of telephone conversations, informal notes of meetings and discussions, and emails, and other documents that reflect internal staff deliberations or policy recommendations were not included in the administrative record.

Id. ¶ 6.

Blue Ocean indicates that the exclusion described in Paragraph 6 means that NMFS did not fulfill its responsibility to file the "whole record" because the record filed is "limited largely to official decision documents." Pls. Mem. at 4. Blue Ocean argues that:

Records of agency communications, notes, and emails play a fundamental role in understanding what happened during the two years it took to develop, propose, and finalize the HMS FMP and its implementing regulations, yet these documents are largely missing from the record in this case. To the extent that records exist of staff discussion, analysis of crucial factual and technical issues, and evaluations of the likelihood that recommended management measures would succeed in protecting bluefin, they go to the heart of the inquiry into whether the decision is arbitrary, capricious, or contrary to law.

Id. at 9.

NMFS for its part insists that it is under no obligation to produce raw data and pre-decisional documents generated during the process that led up to the promulgation of a final rule. Defs. Opp. at 9, 16. NMFS further argues that Blue Ocean is not permitted to probe the mental processes of the staff that were involved in the promulgation of the final rule. Id. at 16-19. Indeed, documents that reflect such processes are not subject to disclosure by the privilege that attends documents that were created during and reflect a deliberative process. Id. at 18. Instead, the validity of the final rule will rise or fall on a consideration of the materials that were before the decision maker, and the existing administrative record contains all of those materials.

III. CONTROLLING LEGAL PRINCIPLES

The parties do not differ about the most fundamental legal principles that apply to their controversy that were so well articulated by Judge Urbina in Fund fax Animals v. Williams, 391 F.Supp.2d 191, 196-97 (D.D.C.2005). As the judge stated in that case, the agency enjoys a presumption that it properly designated the administrative record and may exclude materials that reflect internal deliberations. Id. at 197. The agency may not skew the record by excluding unfavorable information but must produce the full record that was before the agency at the time the decision was made. Id.

Moreover, under Rule 301 of the Federal Rules of Evidence, "a presumption imposes on the party against whom it is directed the burden of going forward with evidence to meet or rebut the presumption." Fed.R.Evid. 301. Thus, the question before the Court is whether Blue Ocean presents sufficient evidence to rebut the presumption that NMFS has produced the complete administrative record.

IV. BLUE OCEAN'S DEMANDS

Blue Ocean largely seeks unspecified documents that are likely to exist, it argues, as a result of other documents that are included in the administrative record. See Pls. Mem. at 9. However, Blue Ocean's evidence of these additional documents is circumstantial in the truest sense of the word, i.e. "[e]vidence of some collateral fact, from which the existence or non-existence of some fact in question may be inferred as a probable consequence." William P. Richardson, The Law of Evidence § 111 at 68 (3d ed.1928), quoted in Black's Law Dictionary (8th ed.2004). Blue Ocean is not indicating specific, known additional documents that it insists should be included in the administrative record. Instead, it reasons that because there are certain documents in the administrative record, it follows that there must have been discussions and analyses of the issues raised by those documents. Those analyses and the notes of those discussions, whether occurring in person or through email or by phone, must also exist and be placed in the administrative record to make the record "whole" as the APA requires. See Pls. Mem. at 9-10.

More specifically, Blue Ocean avers there was a "robust debate" among scientists, NMFS staff, and outside reviewers concerning what Blue Ocean characterizes as "the assumptions that underlie the ultimate conclusion of the Fisheries Service to reject a closure [of the fishing area] of the type sought in the plaintiffs' Petition." Id. at 9. Blue Ocean then points to two, documents in the administrative record, AR Doc. D70, containing comments that were critical of NMFS closure analysis and a second, AR Doc. D67, an outside peer review that certain assumptions NMFS made about the redistribution of fishing had to be rigorously tested. Id. On the basis of the existence of those documents, Blue Ocean protests that ...