Cape Hatteras Access Preservation Alliance v. United States Department of the Interior ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
§
THE CAPE HATTERAS ACCESS §
PRESERVATION ALLIANCE, et al., §
Plaintiffs, §
§
v. §
§
UNITED STATES DEPARTMENT §
OF THE INTERIOR, et al., § Civil Action No. 09-236-RCL
Defendants §
§
v. §
§
DEFENDERS OF WILDLIFE §
and THE NATIONAL AUDOBON §
SOCIETY, §
Defendant-Intervenors. §
§
MEMORANDUM AND ORDER
A court that orders an administrative agency to supplement the record of its
decision is a rare bird. Pending before the Court is the plaintiffs’ motion [16],
which asks the Court to do just that, and/or admit extra record evidence. Upon
consideration of the motion, the opposition, and the reply thereto, and the entire
record herein, the plaintiffs’ motion will be denied for the reasons set forth below.
I. Introduction
The piping plover is a small, sand colored shorebird that nests at beaches in
eastern North America, including the Outer Banks of North Carolina and portions
of the Cape Hatteras National Seashore. Since 1986, the species has been
classified as threatened in the eastern United States. CHAPA v. Dep’t of the
Interior, 344 F. Supp. 2d 108, 115 (D.D.C. 2004) (Lamberth, J.). As a result of
the piping plover’s threatened status, in 2001 the Fish and Wildlife Service
(“FWS” or “Service”) designated some 137 coastal areas as critical habitat for the
piping plover. Id. Eighteen of these critical habitats were in North Carolina. Id.This Court vacated FWS’s designation of five critical habitats in North Carolina
and remanded to the Service for further action consistent with its opinion. Id. at
137. FWS subsequently redesignated those same five areas as critical habitats,
and plaintiffs once again decided to challenge the agency action.
At issue is whether this Court should consider a report that relates to the
conservation of piping plovers, the Biological Opinion for Cape Hatteras National
Seashore’s Interim Protected Species Management Strategy and various
supplements to it (collectively “the BiOp”), either because it was actually a part of
the administrative record before the Service, though FWS did not designate it as
such, or as extra-record evidence in the event the Court finds it was not a part of
the administrative record. Neither party contests that the BiOp was a document
that was substantially relied on by the National Park Service in development the
Cape Hatteras National Seashore’s Interim Protected Species Management
Strategy (“Interim Strategy”), or that the Interim Strategy was before FWS when it
designated the critical habitats. The Service, however, contends that it did not
have the BiOp before it when making its decision to designate habitats critical to
the conservation of the piping plover.
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II. Standard of Review
As the Endangered Species Act (“ESA”) does not specify a standard of
review, judicial review of decisions made under the ESA is had under the same
standard as the Administrative Procedures Act (“APA”). Gerber v. Norton, 294
F.3d 173, 178 & n.4 (citing Cabinet Mountains Wilderness v. Peterson, 685 F.2d
678, 685 (D.C. Cir. 1982)). And in reviewing agency action, a court is generally
confined to reviewing the administrative record that was before the agency.
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420 (1971); see also
Camp v. Pitts, 411 U.S. 138, 142 (1973). Nonetheless, there are some
circumstances where the administrative record needs to be supplemented due to
some deficiency, though that is an exceptional occurrence. Motor & Equipment
Mfrs. Ass’n v. EPA, 627 F.2d. 1095, 1105 n.18 (D.C. Cir. 1979). It is likewise the
case that consideration of extra-record evidence in reviewing agency action is
extraordinary. Indeed, a court’s review should generally be confined to the same
information that was before the agency when it made its decision. Citizens to
Preserve Overton Park, 401 U.S. at 420; Walter O. Boswell Mem’l Hosp. v.
Heckley, 749 F.2d 788, 792 (D.C. Cir. 1984).
There is some confusion between the parties as to what standards of review
are appropriate in this case. Indeed, this is not the first time that such confusion
has occurred. See Pac. Shores Subdivision v. Army Corps of Engineers, 448 F.
Supp. 2d 1, 5–6 (D.D.C. 2006) (discussing different standards for adding to
administrative record). Undoubtedly some of that confusion is caused by the use
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of the word “supplement” in both types of cases. Compare Texas Rural Legal Aid,
Inc. v. Legal Servs. Corp., 940 F.2d 685, 698 (D.C. Cir. 1991) (“Ordinarily,
judicial review of informal agency rule-making is confined to the administrative
record; neither party is entitled to supplement that record with litigation affidavits
or other evidentiary material that was not before the agency.”) (quoting Edison
Elec. Inst. v. OSHA, 849 F.2d 611, 617–618 (D.C. Cir. 1989)) (emphasis added)
with Sara Lee Corp. v. American Bakers Ass’n, 252 F.R.D. 31, 34 (D.D.C. 2008).
While it is ultimately the province of the Court of Appeals to clarify these issues,
the Court thinks that some guidance is nonetheless appropriate here.
The Court will first examine those cases where a party seeks
supplementation, which is essentially a claim that some information that should
have properly been included in the administrative record was not. Next the Court
will examine those cases that ask for consideration of extra-record evidence,
because were it not to do so, reviewing agency action would be unnecessarily
difficult.
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. Ordinarily the record is comprised of
those documents that were before the administrative decisionmaker. Citizens to
Preserve Overton Park, 401 U.S. at 420; 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
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agency.). A court should generally 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). This means the agency must compile all the
information it considered 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.). However, it is the
responsibility of the deciding agency to compile the administrative record, and the
agency is presumed to have properly done so. Id.In order for a Court to order supplementation, the plaintiff must overcome
this strong presumption of regularity by putting 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. There should be nothing controversial about this
proposition. If for some reason, materials that were actually a part of the agency’s
record were not properly included, whether by design or accident, they should be
included in the record for the Court’s review. It is only the court’s deference to
the agency’s compilation that counsels pause. If it can be shown that the materials
sought to be included in the record before the court, were indeed before the
agency, supplementation is appropriate. See, e.g., Natural Resources Defense
Council v. Train, 519 F.2d 287, 291 (D.C. Cir. 1975). Here, however, that
showing has not been made.
Despite that both parties agree that the BiOp was heavily relied upon in
preparation of the Interim Strategy, that fact alone does not mean it was actually
before the agency when it made its current decision. And despite the references to
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the BiOp in many documents that were contained in the administrative record, this
too does not prove that it was before the agency when it made its decision. It may
well have been that the Interim Strategy obviated the need to consider the BiOp
independently, as much of the relevant information from the BiOp was included in
the Interim Strategy. Additionally, the BiOp’s acknowledgment of the proposed
critical habitat designations, and the effect that would have on the Interim
Strategy, does not prove that it was considered by the agency when making the
critical habitat designation. Finally, the fact that some comments received during
the critical habitat designation process mentioned the BiOp, does not mean that the
BiOp itself was considered by FWS. Because none of these references alone are
enough to overcome the strong presumption that FWS properly designated the
administrative record, and the plaintiffs have not introduced any concrete evidence
that the BiOp was before the agency, the plaintiffs’ motion to supplement the
record shall be denied.
B. Going Beyond the Record
Going beyond the administrative record presented by the deciding agency
when reviewing its action is only done in exceptional cases. See Florida Power &
Light Co. v. Lorion, 470 U.S. 729, 743–44 (1985). Still, there are certain limited,
and highly exceptional, circumstances when a court may review evidence beyond
the administrative record. American Wildlands v. Kempthorne, 530 F.3d 991,
1002 (D.C. Cir. 2008) (quoting Texas Rural Legal Aid, Inc. v. Legal Servs. Corp.,
940 F.2d 685, 698 (D.C. Cir. 1991)). Again, there is some dispute among the
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parties about how many exceptions exist. The plaintiffs argue that if their case
falls into any one of the eight exceptions identified by the Court of Appeals in
Esch v. Yeutter, 876 F.2d 976, 991 (D.C. Cir. 1989), extra-record review is
warranted. The defendants, understandably, argue that the Esch exceptions are
much narrower than the plaintiffs suggest. The Court agrees with the defendants
that the Esch exceptions are not as broad as the plaintiffs, and even some cases
from the district court, suggest.
In Esch, a group of family farmers sued the Secretary of Agriculture for an
injunction against the “arbitrary and capricious denial of subsidy payments to
them.” Id. at 984. The plaintiffs specifically contended that the Secretary’s
decision was procedurally defective. Id. In finding for the plaintiffs, the district
court considered extra-record evidence, something the court of appeals upheld.
However, it did so because it was the procedure by which the Secretary reached
his decision that was being challenged, rather than its substance. Id. at 991. Like
in this case, the Secretary there argued that review was committed to the
administrative record. Id. The Esch Court agreed that was the normal rule, and
stated that the rule applied with “its maximum force when the substantive
soundness of the agency’s decision is under scrutiny. . . .” Id. The court noted,
however, that it was the procedural validity of the Secretary’s actions that
“remain[ed] in serious question.” Id. While not completely foreclosing use of
extra-record evidence in reviewing substantive decisions, the court said that
“[p]articularly in the [procedural] context, it may sometimes be appropriate to
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resort to extra-record information to enable judicial review to become effective.”
Id. (emphasis added). Finally the court went on to list the “number of exceptions
countenancing use of extra-record evidence to that end.” Id. (emphasis added).
Read in context, this Court thinks that the Esch exceptions are generally
more appropriately applied in actions contesting the procedural validity of agency
decisions, but even if they are not so limited, it is clear that they were to be
sparingly applied to only those cases where extra-record evidence was necessary
to make judicial review effective. See Calloway v. Harvey, 590 F. Supp. 2d 29, 38
(D.D.C. 2008); Pac. Shores Subdivision, 448 F. Supp. 2d at 6. This is not such a
case.
As the Court sees it, the incorporation of the BiOp into the Interim
Strategy, which has been included in the already the substantial administrative
record, makes it unclear how judicial review could be any more effectual were the
Court to consider the BiOp. Still, the proper inquiry is whether judicial review can
be had without the BiOp, and the plaintiffs have not demonstrated that to be the
case by showing the Court how the current record is inadequate to review the
Service’s designation of the critical habitats.
Additionally, there are many other cases that seem to suggest that the Esch
exceptions are not as widely accepted as the plaintiffs contend. See generally
Axiom Resource Mgmt. v. United States, 564 F.3d 1374, 1380 (Fed. Cir. 2009)
(discussing viability of Esch in light of later D.C. Circuit cases); see also Amfac
Resorts, 149 F. Supp. 2d at 12 (“In this Circuit, four separate exceptions are well
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established.”). For example, in IMS, P.C. v. Alvarez, the Court of Appeals only
identified four instances in which accepting the plaintiffs’ extra-record evidence
would be appropriate. 129 F.3d 618, 624 (D.C. Cir. 1997). Those were “when the
agency failed to examine all relevant factors or to adequately explain its grounds
for decision, or that the agency acted in bad faith or engaged in improper behavior
in reaching its decision.” Id.The plaintiffs do not argue that the agency acted in bad faith, that they
engaged in improper behavior in reaching their result, or that they have failed to
explain their decision. They do, however, argue that the BiOp report may be
useful for the Court to determine whether or not FWS considered all the relevant
factors it needed to makes its decision in designating the critical habitats.
However, given that the plaintiffs concede the Interim Strategy draws much of its
information from the BiOP, at this time the Court does not see how reviewing the
BiOP in addition to the Interim Strategy will further add to its understanding of the
case. Nor do the plaintiffs explain in their reply how reviewing the BiOP will
assist the Court in determining whether FWS considered all the relevant factors in
designating the critical habitats. They have not identified any particular factors
FWS failed to consider, or how the BiOp demonstrates what factors FWS needed
to consider in designating critical habitats. Accordingly, the Court will not
consider the BiOp as extra-record evidence and the plaintiffs’ motion will be
denied.
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III. CONCLUSION
As the plaintiffs have failed to overcome the strong presumption that FWS
properly designated the administrative record by demonstrating that the BiOp was
before FWS when it was designating critical habitats, it is hereby ORDERED that
their motion to supplement the administrative record is DENIED; and it is further
ORDERED
That the plaintiffs’ motion to consider the BiOp as extra-record evidence is
DENIED as they have failed to demonstrate that any exception allowing the Court
to do so applies.
SO ORDERED this 4th day of November 2009.
/s/
ROYCE C. LAMBERTH
Chief Judge
United States District Court
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