Marcum v. Salazar

• Decision Date: 05 November 2010
• Docket Number: Civil Action No. 09–1912 (RCL).
• Citation: 751 F.Supp.2d 74
• Parties: Ralph M. MARCUM, et al., Plaintiffs,v.Ken SALAZAR, Secretary, United States Secretary of the Interior, et al., Defendants.
• Court: U.S. District Court — District of Columbia

751 F.Supp.2d 74

Ralph M. MARCUM, et al., Plaintiffs,

v.Ken SALAZAR, Secretary, United States Secretary of the Interior, et al., Defendants.

Civil Action No. 09–1912 (RCL).

United States District Court, District of Columbia.

Nov. 5, 2010.

John J. Jackson, III, Conservation Force, Metairie, LA, for Plaintiffs.Ethan Carson Eddy, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM AND ORDER

ROYCE C. LAMBERTH, Chief Judge.

Plaintiffs Ralph M. Marcum, Walt Maximuck, Earl L. Slusser, Dean Mori, and Conservation Force bring this action pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. § 702 et al., seeking judicial review of the denial of plaintiffs' elephant trophy import applications. Before the Court is plaintiffs' Second Motion to Compel Supplementation of Administrative Record [26]. Upon consideration of the motion, the opposition, the reply thereto, the applicable law, and the entire record herein, the Court will deny plaintiffs' motion as to all unresolved items. The Court's reasoning is set forth below.

I. INTRODUCTION

The Endangered Species Act (“ESA”) lists the African elephant as an endangered species. See 50 C.F.R. § 17.11(h). As is relevant to this case, African elephant populations in Zambia are included in Appendix I of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”). The ESA and CITES allow the importation of sport-hunted African elephant trophies into the United States only if certain conditions are met. These conditions include that a “determination is made that the killing of the animal whose trophy is intended for import would enhance survival of the species,” 50 C.F.R. § 17.40(e)(3)(iii)(C), and that the import is for purposes that would not be detrimental to the survival of the species, id. § 23.61.

Plaintiffs Ralph M. Marcum, Walt Maximuck, Earl L. Slusser, and Dean Mori each killed at least one elephant in Zambia for sport. Pls.' Amend. Compl. ¶¶ 7–11. Each of these plaintiffs applied to defendant, the United States Fish & Wildlife Service (“the Service”), for a permit to import his trophy into the United States. Id. The Service denied plaintiffs' permits on March 10, 2010. Id. at ¶ 5. Plaintiffs challenge these denials.

On June 30, 2010, this Court denied [19] plaintiffs' first motion to compel [13] without prejudice until the Service supplemented the administrative record in response to plaintiffs' amended complaint. On September 10, 2010, plaintiffs filed their second motion to compel supplementation of the administrative record [16]. Plaintiffs seek to add two categories of documents to the record, asserting that these documents were part of the Service's record when it denied plaintiffs' applications. Alternatively, if the Court finds that the documents were not part of the Service's record, plaintiffs request that they be included as extra-record evidence. The Service contends that it did not consider the first category of documents (Items 1–5) in deciding whether to grant plaintiffs' permit applications. The Service further argues that the documents do not fall into any exception for extra-record review. As to the second category of documents, only three items (Items 9, 10, 12) remain in issue. The Service contends that these documents either are already in the administrative record or were not relevant to the permit decisions at issue.

II. STANDARD OF REVIEW

As the ESA does not specify a standard of review, the APA governs judicial review of decisions made under the ESA. Gerber v. Norton, 294 F.3d 173, 178 & n. 4 (D.C.Cir.2002) (citing Cabinet Mountains Wilderness v. Peterson, 685 F.2d 678, 685 (D.C.Cir.1982)). A court's review of agency action is generally confined to the administrative record that was before the agency when it made its decision. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); see also Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). There are exceptional circumstances in which supplementation of the administrative record is appropriate due to some deficiency. Motor & Equipment Mfrs. Ass'n v. EPA, 627 F.2d 1095, 1105 n. 18 (D.C.Cir.1979). Likewise, it is an extraordinary case when a court considers extra-record evidence in reviewing agency action.

A. Supplementing the Record

Judicial review of agency action under the APA is generally confined to the administrative record. See 5 U.S.C. § 706. The record is comprised of those documents that were before the administrative decisionmaker. Citizens to Preserve Overton Park, 401 U.S. at 420, 91 S.Ct. 814; see also Fed. R.App. P. 16(a) (“The record consists of the order involved, any findings or reports on which that order is based, and the pleadings, evidence, and other parts of the proceedings before the agency.”). A court should consider neither more nor less than what was before the agency at the time it made its decision. IMS, P.C. v. Alvarez, 129 F.3d 618, 623 (D.C.Cir.1997). It is the agency's responsibility to compile for the court all information it considered either directly or indirectly. Amfac Resorts, L.L.C. v. Dep't of Interior, 143 F.Supp.2d 7, 12 (D.D.C.2001) (Lamberth, J.). The agency is entitled to a strong presumption of regularity in having done so. Cape Hatteras Access Pres. Alliance v. U.S. Dept. of Interior, 667 F.Supp.2d 111, 114 (D.D.C.2009) (Lamberth, J.); Sara Lee Corp. v. American Bakers Ass'n, 252 F.R.D. 31, 33 (D.D.C.2008).

As this Court has noted, “A court that orders an administrative agency to supplement the record of its decision is a rare bird.” Cape Hatteras, 667 F.Supp.2d at 112. To overcome the strong presumption of regularity to which an agency is entitled, a plaintiff must put forth concrete evidence that the documents it seeks to “add” to the record were actually before the decisionmakers. Sara Lee Corp., 252 F.R.D. at 34. If an agency did not include materials that were part of its record, whether by design or accident, then supplementation is appropriate. See, e.g., Natural Res. Def. Council v. Train, 519 F.2d 287, 291 (D.C.Cir.1975). A plaintiff cannot merely assert, however, that materials were relevant or were before an agency when it made its decision. Sara Lee Corp., 252 F.R.D. at 34; Pac. Shores Subdivision Cal. Water Dist. v. U.S. Army Corps of Eng'rs, 448 F.Supp.2d 1, 6 (D.D.C.2006) (“Pacific Shores cannot meet its burden simply by asserting that the documents are relevant, were before or in front of the Corps at the time it made its decision, and were inadequately considered.”). Instead, the plaintiff “must identify reasonable, non-speculative grounds for its belief that the documents were considered by the agency and not included in the record.” Pac. Shores, 448 F.Supp.2d at 6 (emphasis added) (citing Novartis Pharms. Corp. v. Shalala, No. 99–323, 2000 WL 1769589, at *1, *4 (D.D.C. Nov. 27, 2000)).

B. Extra–Record Evidence

When reviewing an agency decision, a court will go beyond the agency's record only in exceptional cases. See Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743–44, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985). As this Court has explained, the exceptions permitting extra-record review are limited. Cape Hatteras, 667 F.Supp.2d at 115. Plaintiffs cite Esch v. Yeutter, 876 F.2d 976, 991 (D.C.Cir.1989), in which the Court of Appeals identified eight such exceptions. The Service disputes the extent to which these exceptions apply in this case.

Esch involved a challenge to the procedural validity of the Secretary of Agriculture's denial of subsidy payments. Id. at 984. The Court of Appeals noted that the rule that review of agency action is normally confined to the record “exerts its maximum force when the substantive soundness of the agency's decision is under scrutiny.” Id. at 991. In Esch, however, the procedural validity of the Secretary's actions “remain[ed] in serious question.” Id. While not foreclosing the use of extra-record evidence in reviewing substantive decisions, the Court explained that “[p]articularly in the [procedural] context, it may sometimes be appropriate to resort to extra-record information to enable judicial review to become effective.” Id. (emphasis added). The Court then enumerated “exceptions countenancing use of extra-record evidence to that end.” Id. (emphasis added).

Thus, the Esch exceptions are more appropriately applied in actions contesting the procedural validity of agency decisions. See Cape Hatteras, 667 F.Supp.2d at 115. But even in such cases, the Esch exceptions are “to be sparingly applied to only those cases where extra-record evidence was necessary to make judicial review effective.” Id.; see Calloway v. Harvey, 590 F.Supp.2d 29, 38 (D.D.C.2008). Indeed, the Court of Appeals recently stated that “[t]he APA limits judicial review to the administrative record ‘except when there has been a strong showing of bad faith or improper behavior or when the record is so bare that it prevents effective judicial review.’ ” Theodore Roosevelt Conservation P'ship v. Salazar, 616 F.3d 497, 514–15 (D.C.Cir.2010) (quoting Commercial Drapery Contractors, Inc. v. United States, 133 F.3d 1, 7 (D.C.Cir.1998)).

III. DISCUSSION

A. Items 1–5

1. Supplementation of the record with the materials requested in Items 1–5 is not appropriate.

The first category of documents that plaintiffs seek to add to the record (Items 1–5) consists of court filings and materials related to a case previously before this Court, Safari Club International v. Babbitt, No. 91–2523, 1994 U.S. Dist. LEXIS 18183 (D.D.C. Dec. 14, 1994). In that case, Safari Club International (“SCI”) challenged the Service's internal guidelines regarding elephant trophy imports. Id. at *5. Several of SCI's claims arose from the fact that the guidelines had not undergone public notice and comment. Id. After the Service submitted the guidelines to the Federal Register for public comment, the Court dismissed those claims as...