Nat'l Parks Conservation Ass'n v. United States Dep't of the Interior

• Decision Date: 09 February 2023
• Docket Number: Civil Action 20-3706 (RC)
• Parties: NATIONAL PARKS CONSERVATION ASSOCIATION, Plaintiff, v. UNITED STATES DEPARTMENT OF THE INTERIOR, et al., Defendants.
• Court: U.S. District Court — District of Columbia

NATIONAL PARKS CONSERVATION ASSOCIATION, Plaintiff,
v.
UNITED STATES DEPARTMENT OF THE INTERIOR, et al., Defendants.

Civil Action No. 20-3706 (RC)

United States District Court, District of Columbia

February 9, 2023

Re Document No.: 30

MEMORANDUM OPINION

RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE

Denying Plaintiff's Motion to Add Extra-Record Evidence or to Add Documents to the Administrative Record

I. INTRODUCTION

Plaintiff National Parks Conservation Association (“NPCA” or “Plaintiff”) alleges that the Department of the Interior, the National Park Service (“NPS”), Secretary of the Interior David Bernhardt, and Acting Director of the National Park Service Margaret Everson (collectively, “Defendants”) have violated the Administrative Procedure Act (“APA”), the National Park Service Organic Act (“Organic Act”), and 36 C.F.R. § 2.3 by unlawfully withholding or unreasonably delaying, or otherwise taking final action to not implement, the phase-out of commercial fishing and establishment of a Marine Reserve Zone (“MRZ”) in Biscayne National Park. Compl. ¶¶ 4, 70-88, ECF No. 1. After Defendants filed the certified index of the administrative record and furnished the administrative record to Plaintiff in this matter on June 2, 2021, Notice of Filing of Admin. Rec. Index at 1, ECF No. 20, Plaintiff filed the instant motion requesting that the Court either supplement the administrative record to

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include, or otherwise consider as extra-record evidence, 13 documents, see generally Pl.'s Mot. to Add Extra-Rec. Evid. or to Add Docs. to the Admin. Rec. (“Pl.'s Mot.”), ECF No. 30.^[1]

For the reasons detailed below, the Court finds that Plaintiff has not made a sufficient showing under the standards for either supplementing the record or adding extra-record evidence in APA cases and therefore denies Plaintiff's motion.

II. BACKGROUND

A. Factual Background

Biscayne National Park (the “Park”), located in Florida, is the largest marine park in the National Park System and encompasses a coral reef system, estuarine bay, and mangrove shoreline. Compl. ¶ 1. Acting through NPS, the Secretary of the Department of the Interior manages the Park. Id. For a number of years, the Park's coral reef ecosystems have been in decline due to various factors, including fishing pressure and the grounding of ships. Id. ¶ 33. Its fishery resources have likewise been stressed and in decline. Id. ¶ 34. In 2000, NPS embarked on two planning efforts: first, to develop a General Management Plan (“GMP”) for the Park; and second, in cooperation with the Florida Fish and Wildlife Conservation Commission (“FWC”), to develop a Fisheries Management Plan (“FMP”). Id. ¶ 35.

Fifteen years and over 100,000 comments later, NPS finalized the Biscayne National Park Final General Management Plan/Environmental Impact Statement (“GMP EIS”) in April 2015. Id. ¶ 37. This GMP EIS, intended to establish the Park's management over the next 15 to 20 years, id. ¶ 36, presented eight alternatives for managing the Park's resources and visitor use,

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id. ¶ 37. In August 2015, NPS signed a Record of Decision selecting one of these eight alternatives as the Park's new GMP. id. ¶ 38. This alternative included the establishment of an MRZ where recreational and commercial fishing would be prohibited. id. ¶ 40. Although NPS has previously stated that the target date for establishing the MRZ would be in 2016, the MRZ has to date yet to be implemented. id. ¶ 48.

Similarly, in May 2014, NPS issued the Final Environmental Impact Statement for the Fishery Management Plan (“FMP EIS”), which presented five alternatives for management of the Park's fisheries. id. ¶¶ 52-53. NPS then also signed the Record Decision for the GMP in July 2014. id. ¶ 52. The alternative that NPS chose included the promulgation of regulations that would phase out commercial fishing, eventually leading to no commercial fishing, in the Park. id. at ¶¶ 55, 57. But NPS has to date yet to propose for public comment or adopt a special regulation codifying the limitations on commercial fishing. id. at ¶¶ 57-58.

In August 2020, however, NPS executed a Memorandum of Understanding (“MOU”) with the FWC for a term of five years, with the possibility of extension for another five years. id. at ¶ 59. According to Plaintiff, NPS, by entering into this MOU, “agreed with FWC not to implement the marine reserve zone unless and until it could show that less restrictive management actions would suffice” and further “agreed to the regulation of commercial fishing instead of phasing it out.” id.

B. Procedural Background

Plaintiff filed the complaint in this matter in December 2020, alleging that Defendants have, through their action and inaction with respect to the MRZ and phase-out of commercial fishing in the Park, violated the APA, the Organic Act, and 36 C.F.R. § 2.3. First, according to Plaintiff, NPS's entry into the 2020 MOU with the FWC was arbitrary and capricious final

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agency action, in violation of APA § 706(2), whereby the agency abandoned or at least substantially delayed implementation of the two Records of Decision. Compl. ¶¶ 78, 88. Second, as evidenced by the agency's entry into the 2020 MOU, the agency has in effect unlawfully withheld or unreasonably delayed implementation of the two Records of Decision, in violation of APA § 706(1). id. Moreover, because NPS's own regulations have long prohibited commercial fishing in the Park, id. at ¶¶ 20 (citing 36 C.F.R. §§ 1.2(a)(3), 2.3(d)(4)), 82, the agency's failure to phase out commercial fishing and its allowance of commercial fishing to continue unabated is for this additional reason arbitrary and capricious agency action, id. at ¶ 87.^[2]

Defendants filed the certified index of the administrative record and furnished the administrative record to Plaintiff in June 2021. Notice of Filing of Admin. Rec. Index at 1. Plaintiff then filed the instant motion requesting that the Court either supplement the administrative record to include, or otherwise consider as extra-record evidence, 13 documents. Pl.'s Mot. at 2. All of the documents in dispute were “produced by NPS to NPCA or another environmental group pursuant to FOIA,” and some contained redactions based on NPS's assertion of deliberative process privilege under FOIA exemption 5. Pl.'s Mot. at 12; Rumsey Decl. ¶¶ 9-10, ECF No. 30-2. Defendants filed an opposition objecting to Plaintiff's request, see Defs.' Opp'n at 1, and Plaintiff submitted a reply, see generally Pl.'s Reply. Plaintiff's motion is ripe for consideration.

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III. LEGAL FRAMEWORK

Because the Organic Act does not provide “a private right of action or waiver of sovereign immunity,” Plaintiff's claim “depend[s] on the government's waiver of sovereign immunity in the APA.” Grunewald v. Jarvis, 930 F.Supp.2d 73, 81 (D.D.C. 2013), aff'd, 776 F.3d 893 (D.C. Cir. 2015). Under the APA, “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action . . . is entitled to judicial review thereof.” 5 U.S.C. § 702. Undertaking this review, a court has the power to hold unlawful and set aside agency action that the court finds “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” or “without observance of procedure required by law.” id. § 706(2)(A), (D). Though the APA generally limits causes of action to those challenging final agency action, see, e.g., Trudeau v. Fed. Trade Comm'n, 456 F.3d 178, 188 (D.C. Cir. 2006), “[o]ne exception occurs where plaintiffs claim that a governmental action was unlawfully withheld or unreasonably delayed,” Cobell v. Norton, 240 F.3d 1081, 1095 (D.C. Cir. 2001). In short, “under section 706, federal courts may review two types of claims: those seeking to compel certain required agency actions not yet taken (§ 706(1)), and those seeking to set aside arbitrary ‘agency actions' and determinations (§ 706(2)).” Ass'n of Civilian Technicians, Inc. v. United States, 601 F.Supp.2d 146, 159 (D.D.C. 2009), aff'd, 603 F.3d 989 (D.C. Cir. 2010) (citation omitted).

A. Review of the Administrative Record

“[I]t is black-letter administrative law that in an APA case, a reviewing court ‘should have before it neither more nor less information than did the agency when it made its decision.'” Hill Dermaceuticals, Inc. v. Food & Drug Admin., 709 F.3d 44, 47 (D.C. Cir. 2013) (quoting Walter O. Boswell Mem'l Hosp. v. Heckler, 749 F.2d 788, 792 (D.C. Cir. 1984)). “Exceptions to

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that rule are quite narrow and rarely invoked,” CTS Corp. v. E.P.A., 759 F.3d 52, 64 (D.C. Cir. 2014), and the “principle” that “judicial review of agency action is normally to be confined to the administrative record . . . exerts its maximum force when the substantive soundness of the agency's decision is under scrutiny,” Esch v. Yeutter, 876 F.2d 976, 991 (D.C. Cir. 1989). An agency “enjoys a presumption that it properly designated the administrative record absent clear evidence to the contrary.” Fund for Animals v. Williams, 391 F.Supp.2d 191, 197 (D.D.C. 2005); see also Amfac Resorts, L.L.C. v. U.S. Dep't of the Interior, 143 F.Supp.2d 7, 12 (D.D.C. 2001). But “in exceptional cases, this presumption of regularity may be rebutted and a court may either (1) supplement an incomplete record with materials that were before the agency and were considered directly or indirectly by the agency decisionmaker, or (2) permit the introduction of ‘extra-record evidence.'” Styrene Info. & Rsch. Ctr., Inc. v. Sebelius, 851 F.Supp.2d 57, 62 (D.D.C. 2012) (quoting Marcum v. Salazar, 751 F.Supp.2d 74, 78 (D.D.C. 2010)).

Supplementing an administrative record “involves a claim ‘that some information that should have properly been included in the administrative record was not.'” Oceana, Inc. v. Locke, 674 F.Supp.2d 39, 44 (D.D.C. 2009) (quoting The Cape Hatteras Access Pres. All. v. U.S. Dep't of Interior, 667 F.Supp.2d...