Nat. Res. Def. Council, Inc. v. Doremus
| Decision Date | 07 June 2021 |
| Docket Number | Case No. 20-cv-1150 (CRC) |
| Parties | NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Plaintiffs, v. PAUL DOREMUS, in his official capacity as Acting Assistant Administrator for Fisheries, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Pursuant to its duties under the Endangered Species Act ("ESA") and a previous court order, the National Marine Fisheries Service ("NMFS") recently undertook a status review of two species of river herring and determined that listing the species as endangered or threatened was not warranted. Natural Resources Defense Council, Inc. and other plaintiffs brought this action under the Administrative Procedure Act ("APA") and the ESA, challenging that listing decision. To facilitate the Court's review, NMFS compiled an administrative record consisting of materials the agency considered in deciding not to list the species.
Plaintiffs now move to compel the NMFS to add four categories of documents to the administrative record. The Court agrees with plaintiffs that one document—the Supporting Information section of a scientific paper by Dr. Jonathan Hare and others—should be included in the administrative record because it was substantively cited in the agency's status review report, a key document on which the listing decision relied. As to the other documents at issue, plaintiffs have not carried their burden to compel completion or supplementation of the administrative record.
In 2013, NMFS decided not to list two fish species, the blueback herring and the alewife, as threatened or endangered. Endangered and Threatened Wildlife and Plants, 78 Fed. Reg. 48,944 (Aug. 12, 2013). Another court in this district vacated and remanded that decision in 2017. Nat. Res. Def. Council, Inc. v. Rauch, 244 F. Supp. 3d 66, 68 (D.D.C. 2017).
Following the remand, the NMFS re-initiated a status review of the two fish species. 82 Fed. Reg. 38,672, 38,673 (Aug. 15, 2017). To do so, NMFS formed a status review team ("SRT") composed of scientific experts from NMFS and other federal and state agencies. See Endangered Species Act Listing Determination for Alewife and Blueback Herring, 84 Fed. Reg. 28,630, 28,631 (June 19, 2019) ("2019 Listing Determination"). The SRT "considered a variety of scientific information from the literature, unpublished documents, and direct communications with researchers working on alewife and blueback herring, as well as technical information submitted to NMFS," and prepared a status review report based on its work. Id. at 28,631. The status review report underwent independent review and was then finalized. Id. NMFS then considered the status review report as part of its decision-making process and concluded that listing either fish species was not warranted. See id. at 28,631, 28,655-66.
Plaintiffs filed this lawsuit challenging the listing decision in May 2020.1 In August 2020, the government filed the index to the administrative record and served a copy of the administrative record on plaintiffs. See Notice of Filing Certified List of the AdministrativeRecord, ECF No. 20; Index to Administrative Record, ECF No. 20-1. Plaintiffs followed with the present motion, which is now fully briefed.
When reviewing agency action under the APA, the Court must review "the whole record." 5 U.S.C. § 706. The whole record consists of "all documents and materials that the agency directly or indirectly considered, no more and no less." Oceana, Inc. v. Ross, 290 F. Supp. 3d 73, 77 (D.D.C. 2018) ("Oceana I") (Cooper, J.) (quoting Maritel, Inc. v. Collins, 422 F. Supp. 2d 188, 196 (D.D.C. 2006)). The agency is responsible for compiling the administrative record and is entitled to a "strong presumption of regularity in having done so." Marcum v. Salazar, 751 F. Supp. 2d 74, 78 (D.D.C. 2010).
That said, an agency "may not skew the record in its favor by excluding pertinent but unfavorable information." Fund for Animals v. Williams, 391 F. Supp. 2d 191, 197 (D.D.C. 2005). Nor may an agency exclude information that it considered on the grounds that the information was not relied upon in its final decision. Ad Hoc Metals Coal. v. Whitman, 227 F. Supp. 2d 134, 139 (D.D.C. 2002). "A complete administrative record should include all materials that might have influenced the agency's decision, and not merely those on which the agency relied in its final decision." Amfac Resorts, L.L.C. v. U.S. Dep't of the Interior, 143 F. Supp. 2d 7, 12 (D.D.C. 2001) (internal quotation marks omitted). "[I]f the agency decisionmaker based his decision on the work and recommendations of subordinates, those materials should be included as well." Id.; see also Miami Nation of Indians of Ind. v. Babbitt, 979 F. Supp. 771, 777 (N.D. Ind. 1996) ("[A] document need not literally pass before the eyes of the final agency decision maker to be considered part of the administrative record." (quoting Clairton Sportsmen's Club v. Pa. Turnpike Comm'n, 882 F. Supp. 455, 465 (W.D. Pa. 1995)).
"Courts in this District have long held that materials that fall within the scope of the deliberative process privilege are not part of the administrative record." Oceana I, 290 F. Supp. 3d at 82-83. Whether the deliberative process privilege is asserted in an APA case or in the Freedom of Information Act context, the test for the privilege's applicability is the same. Id. at 83. To qualify for the privilege, a document must be both "predecisional" and "deliberative." Id. (quoting In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997)).
A party seeking to supplement the administrative record may do so in two ways. First, a party may seek to include "evidence that should have been properly a part of the administrative record but was excluded by the agency." Oceana I, 290 F. Supp. 3d at 77 (quoting Univ. of Colo. Health at Mem'l Hosp. v. Burwell, 151 F. Supp. 3d 1, 13 (D.D.C. 2015)). This pathway is available regardless of whether the agency initially excluded the materials "by design or accident." Univ. of Colo. Health v. Azar, 486 F. Supp. 3d 185, 200 (D.D.C. 2020) (quoting Marcum, 751 F. Supp. 2d at 78). To overcome the presumption of regularity, a plaintiff "must only 'put forth concrete evidence' and 'identify reasonable, non-speculative grounds for [her] belief that the documents were considered by the agency and not included in the record.'" Oceana I, 290 F. Supp. 3d at 78-79 (quoting Charleston Area Med. Ctr. v. Burwell, 216 F. Supp. 3d 18, 23 (D.D.C. 2016)).
Second, a party 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.'" Id. (quoting Univ. of Colo. Health at Mem'l Hosp., 151. F. Supp. 3d at 13). To supplement the record in this way, the plaintiff must "'demonstrate unusual circumstances justifying a departure from th[e] general rule' against considering extra-record evidence." Id. at 77 (quoting City of Dania Beach v. F.A.A., 628 F.3d 581, 590 (D.C. Cir. 2010)). The D.C.Circuit has recognized 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.'" Id. at 77-78 (quoting City of Dania Beach, 628 F.3d at 590).
Plaintiffs ask the Court to order NMFS to complete the record by including four categories of documents: (1) the complete version of a scientific paper by Dr. Jonathan Hare and others, including the paper's Supporting Information section; (2) certain materials created by the SRT in preparation of the status review report, including scoresheets prepared by individual SRT members; (3) three summaries of telephone conferences attended by SRT members and members of the Atlantic States Marine Fisheries Commission; and (4) external emails between NMFS staff and other parties relevant to the listing decision. The Court will grant plaintiffs' motion as to the first category and deny it as to the rest.
A. Supporting Information from the Hare et al. Scientific Article
Plaintiffs request that the Court compel the inclusion of the "Supporting Information" materials for the scientific paper by Hare et al. See Mem. in Supp. of Mot. to Compel at 4-7. Although the main text of the paper is already in the record, see ECF No. 22-4, plaintiffs contend that the Supporting Information was also considered by the agency and therefore must be included as well. See Reply at 8. The Court agrees.
The Court considered a similar situation in Oceana I. See 290 F. Supp. 3d at 79. In that case, the plaintiff challenged NMFS's adoption of an amendment to an NMFS fishery management plan for a species of shark. Id. at 77. The plaintiff sought to supplement theadministrative record with studies and reports that were cited in the final agency environmental impact statement ("EIS") for the amendment. Id. at 79. The Court held that documents that were cited substantively in the EIS were considered by the agency and thus belonged in the administrative record. Id. Documents that are "included in the list of references appended to the end of each EIS chapter" also belonged in the record, while sources that were cited merely as a source of further information did not need to be included. Id. at 80-81.
The status review report in this case, like the EIS in Oceana I, is an agency-generated scientific document that constitutes part of the basis for the ultimate agency decision. Thus, Oceana I's analysis of documents based on their "treatment[] in the EIS," id. at 79, provides a useful framework for deciding whether the Hare paper's Supporting Information should be included in the administrative record based on its treatment in the status review report.
The...
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