Fund for Animals v. Williams

• Decision Date: 28 September 2005
• Docket Number: Civil Action No. 03-0677 (RMU).
• Citation: 391 F.Supp.2d 191
• Parties: The FUND FOR ANIMALS et al., Plaintiffs, v. Steven WILLIAMS et al., Defendants, and The U.S. Sportsmen's Alliance Foundation et al., Defendant-Intervenors.
• Court: U.S. District Court — District of Columbia

391 F.Supp.2d 191

The FUND FOR ANIMALS et al., Plaintiffs, v. Steven WILLIAMS et al., Defendants, and The U.S. Sportsmen's Alliance Foundation et al., Defendant-Intervenors.

Civil Action No. 03-0677 (RMU).

United States District Court, District of Columbia.

September 28, 2005.

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Eric Robert Glitzenstein, Jonathan Russell Lovvorn, Meyer & Glitzenstein, Washington, DC, for Plaintiffs.

Peter Blumberg, United States Attorney's Office Civil Division, Barbara A. Miller, William P. Horn, Birch, Horton, Bittner & Cherot Washington, DC, Anna Margo Seidman, Vienna, VA, for Defendants.

MEMORANDUM OPINION

URBINA, District Judge.

GRANTING IN PART AND DENYING IN PART THE PLAINTIFFS' MOTION TO COMPEL PRODUCTION AND/OR SUPPLEMENTATION OF THE ADMINISTRATIVE RECORD

I. INTRODUCTION

This case comes before the court on the plaintiffs' motion to compel production and/or supplementation of the administrative record. The plaintiffs allege that the defendant Fish and Wildlife Service (the "FWS" or the "Service") failed to produce the administrative record pertaining to (1) the 2000-2005 Strategic Plan prepared by the FWS pursuant to the Government Performance and Results Act (the "GPRA") and (2) six final agency rules creating or expanding recreational hunting opportunities at numerous National Wildlife Refuges. Because this court has already concluded in a prior memorandum opinion that the announcement of long-term agency goals in a Strategic Plan is not a reviewable action under the Administrative Procedure Act (the "APA"), the portion of the plaintiffs' motion to compel production or supplementation of the administrative record pertaining to the Strategic Plan is moot. Because the plaintiffs are making a procedural challenge under the National Environmental Policy Act ("NEPA") and have demonstrated that the defendants excluded pertinent documents adverse to the agency's position from the record, the court grants the plaintiffs' motion to supplement the record with the four documents requested by the plaintiffs.

II. BACKGROUND

A. Factual Background

The current motion marks the latest round in the parties' battle over the legitimacy of recreational hunting in National Wildlife Refuges. In 1999, as required by the GPRA, the FWS issued its 2000-2005 Strategic Plan outlining fourteen long-term goals for the agency, including a twenty percent increase in wildlife-dependent recreational visits to refuges nationwide by 2005.¹ Defs.' and Defendant-Intervenors' Mot. for Partial Dismissal ("Defs.' Mot.") at 9. In addition, between 1997 and 2002 the FWS issued six final rules creating or expanding recreational hunting opportunities at numerous refuges. Compl. ¶ 99; Defs.' Mot. at 5-6; see also 67 Fed.Reg. 58936 (Sept. 18, 2002); 66 Fed.Reg. 46346 (Sept. 4, 2001); 65 Fed.Reg. 56396 (Sept. 18, 2000); 65 Fed.Reg. 30771 (May 12, 2000); 63 Fed.Reg. 46910, 46912 (Sept. 3, 1998); 62 Fed.Reg. 47372, 47374 (Sept. 9, 1997).

The Fund for Animals ("the Fund"), is a national nonprofit membership organization dedicated to "preserving animal and plant species in their natural habitats and ... preventing the abuse and exploitation of wild and domestic animals." Compl. ¶ 3. The plaintiffs oppose the FWS' alleged decision to initiate and expand hunting in several National Wildlife Refuges. Id. ¶ 5. The Fund and its individual members allege that, by publishing its goal to increase recreational use of National Wildlife Refuges in the Strategic Plan and by promulgating the six final rules expanding hunting opportunities, the defendants have violated the plaintiffs' procedural rights under NEPA.² Id. ¶¶ 12, 16, 19, 22, 25, 28, 31, 34, 37, 39, 42, 46, 50, 53, 57, 60, 63, 66, 70. Specifically, the plaintiffs allege that the defendants were required, pursuant to NEPA, to prepare an Environmental Impact Statement ("EIS") prior to issuing the six final rules. The defendants argue that such documentation was not required. Ans. ¶¶ 103, 105.

B. Procedural Background

After two years of failed negotiations between the parties, the plaintiffs filed the current motion to compel production and/or supplementation of the administrative record ("Pls.' Mot. to Compel"). The plaintiffs claim that the administrative record should include documents pertaining to the announcement of goals in the Strategic Plan, as well as (1) a Government Accounting Office ("GAO") report entitled National Wildlife Refuges: Continuing Problems with Incompatible Uses Call for Bold Action, (2) a draft EIS, Refuges 2003: A Plan for the Future, (3) Biological Needs Assessment: National Wildlife Refuge Division of Refuges, (4) and FWS's Strategic Plan 2000-2005. Pls.' Mot. to Compel at 2-3.

In March 2005, the defendants, instead of responding to the plaintiffs' motion to compel, filed a motion for partial dismissal pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) seeking dismissal of the challenge to the 2000-2005 Strategic Plan. See Defs' Mot. Because the court concluded that it lacked subject-matter jurisdiction to review the Strategic Plan, the court concluded that the portion of the plaintiff's motion to compel records pertaining to the Strategic Plan was moot. Mem. Op. Granting Defs.' and Defendant-Intervenors' Mot. for Partial Dismissal ("Mem.Op.") at 12-13. The resolution of the defendants' motion for partial dismissal, however, did not render the plaintiffs' motion to compel moot with respect to the four documents listed supra. Mem. Op. at 13. The court now turns to the motion to compel.³

III. ANALYSIS

A. Legal Standard for a Full Administrative Record Under Section 706 of the APA

Judicial review of agency actions under NEPA is governed by the APA. Tulare County v. Bush, 306 F.3d 1138, 1143 (D.C.Cir.2002). Section 706 of the APA directs a court evaluating an agency action to "review the whole record or those parts of it cited by a party." 5 U.S.C. § 706; Ctr. For Auto Safety v. Fed. Highway Admin., 956 F.2d 309, 314 (D.C.Cir.1992); Natural Res. Def. Council, Inc. v. Train, 519 F.2d 287, 291 (D.C.Cir.1975). The court's review must "be based on the full administrative record that was before the [agency] at the time [it] made [its] decision." Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977); Am. Bioscience, Inc. v. Thompson, 243 F.3d 579, 582 (D.C.Cir.2001).

Because the court's review is confined to the administrative record at the time of the agency's decision, it may not include "some new record made initially in the reviewing court."⁴ Ctr. for Auto Safety, 956 F.2d at 314 (citing Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973)); Texas Rural Legal Aid, Inc. v. Legal Servs. Corp., 940 F.2d 685, 698 (D.C.Cir.1991). To ensure fair review of an agency action, therefore, the court "should have before it neither more nor less information than did the agency when it made its decision." IMS, P.C. v. Alvarez, 129 F.3d 618, 623 (D.C.Cir.1997) (citing Walter O. Boswell Mem'l Hosp. v. Heckler, 749 F.2d 788, 792 (D.C.Cir.1984)). As our court of appeals put it, for a court "to review less than the full administrative record might allow a party to withhold evidence unfavorable to its case," while "to review more than the information before the [agency] at the time [of its] decision risks our requiring administrators to be prescient or allowing them to take advantage of post hoc rationalizations." Boswell, 749 F.2d at 792 (emphasis added).

To ensure that the administrative record contains "neither more nor less" information than was before the agency, courts in this circuit have directed agencies to collect those materials "that were compiled by the agency that were before the agency at the time the decision was made." James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1095 (D.C.Cir.1996); Common Sense Salmon Recovery v. Evans, 217 F.Supp.2d 17, 20 (D.D.C.2002). More specificially, the record must include all documents that the agency "directly or indirectly considered." Bar MK Ranches v. Yuetter, 994 F.2d 735, 739 (10th Cir.1993); Amfac Resorts, L.L.C. v. Dep't of Interior, 143 F.Supp.2d 7, 12 (D.D.C.2001); Novartis Pharms. v. Shalala, 2000 WL 1769589, at *2 (D.D.C. Nov.27, 2000); Alaska Excursion Cruises v. United States, 603 F.Supp. 541, 550 (D.D.C.1984); see also Pers. Watercraft Indus. Ass'n v. Dep't of Commerce, 48 F.3d 540, 546 n. 4 (D.C.Cir.1995) (noting with approval that the "whole record" contained all materials "pertaining to the [challenged] regulation").

The agency may not skew the record in its favor by excluding pertinent but unfavorable information. Envtl. Def. Fund v. Blum, 458 F.Supp. 650, 661 (D.D.C.1978). Nor may the agency exclude information on the grounds that it did not "rely" on the excluded information in its final decision. Ad Hoc Metals Coalition v. Whitman, 227 F.Supp.2d 134, 139 (D.D.C.2002); Amfac Resorts, 143 F.Supp.2d at 12. On the other hand, an agency may exclude arguably relevant information that is not contained in the agency's files but that may be available from third parties. Blum, 458 F.Supp. at 661 n. 4. In addition, an agency generally may exclude material that reflects internal deliberations. Amfac Resorts, 143 F.Supp.2d at 13 (noting that deliberative intra-agency records ordinarily are privileged); Seabulk Transmarine I, Inc. v. Dole, 645 F.Supp. 196, 201 (D.D.C.1986) (same).

Although an agency may not unilaterally determine what constitutes the administrative record, the agency enjoys a presumption that it properly designated the administrative record absent clear evidence to the contrary. Bar MK Ranches, 994 F.2d at 739-40 (stating that the administrative record enjoys the same presumption of regularity afforded to other established administrative procedures); Amfac Resorts, 143 F.Supp.2d at 12 (noting the ...