Center for Biological Diversity v. Ross ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CENTER FOR BIOLOGICAL
DIVERSITY, et al.,
Plaintiffs,
v. Civil Action Nos. 18-112 (JEB)
WILBUR ROSS, et al., 18-283 (JEB)
Defendants.
MEMORANDUM OPINION
Alarmed by the continued decline in the population of the North Atlantic right whale,
four environmental and conservation groups have brought these two consolidated cases seeking
to reverse that trend. They do so by challenging the National Marine Fisheries Service’s
oversight and authorization of the American lobster fishery, an industry Plaintiffs contend
contributes heavily to the whale’s demise. Specifically, Plaintiffs bring suit against the Secretary
of Commerce, NMFS, and the Assistant Administrator for Fisheries at the National Oceanic and
Atmospheric Administration, alleging that these Defendants have violated the Administrative
Procedure Act, the Marine Mammal Protection Act, and the Endangered Species Act.
Plaintiffs currently seek discovery and the admission of extra-record evidence pursuant to
their two ESA counts. Defendants counter that such materials should not be considered by the
Court, contending that all of Plaintiffs’ claims must be examined solely on the basis of the
current administrative record. The Court attempted to assist the parties in reaching a
compromise on this issue, but apparently to no avail, as they continue to hold fast to their
respective positions. See ECF No. 40 (Status Report).
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Thus forced to address the merits of the discovery dispute, the Court concludes that while
Plaintiffs’ two APA-based counts are confined to the record, evaluation of the two ESA counts
may be based on evidence beyond that scope. It will, accordingly, grant Plaintiffs’ Motion for
Discovery.
I. Background
Many of the facts underlying this case have been described in depth in this Court’s prior
Opinion, see Ctr. for Biological Diversity v. Ross, 310 F. Supp. 3d 119 (D.D.C. 2018), and most
are not relevant to the discovery question presented here. A brief stage-setting is all that is
required.
Two statutes — the Endangered Species Act, 16 U.S.C. § 1531 et seq., and the Marine
Mammal Protection Act, 16 U.S.C. § 1361 et seq. — seek to protect species in danger of
extinction, such as the right whale. The Secretary of Commerce is responsible for administering
and enforcing the statutes. For most marine species, including the right whale, the Secretary has
delegated this responsibility to the National Marine Fisheries Service, a line office within the
National Oceanic and Atmospheric Administration, which itself sits in the Department of
Commerce. See 50 C.F.R. § 402.01(b).
In order to determine the effects of the American lobster fishery on threatened and
endangered species, NMFS must prepare biological opinions (BiOps) stating whether the
proposed action is likely to jeopardize listed species or their habitat. See 16 U.S.C. § 1536(b);
50 C.F.R. § 402.14; CBD Compl., ¶¶ 90-91. In 2014, the Agency issued a BiOp to analyze the
effects on the North Atlantic right whale. Id., ¶ 98. The opinion estimated that right-whale
entanglements from the lobster fishery would be unlikely to increase above 3.25 per year and
concluded that the fishery does not threaten the survival of the whale. Id., ¶¶ 102-04.
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In January 2018, the Center for Biological Diversity, Defenders of Wildlife, and the
Humane Society of the United States brought suit, alleging that agency actions, including the
2014 BiOp, do not comply with the ESA, the MMPA, or the Administrative Procedure Act. Id.,
¶ 1. The following month, the Conservation Law Foundation followed suit by filing a Complaint
with substantially similar claims and requests for relief. See CLF Compl. Together, Plaintiffs
set forth four causes of action alleging that Defendants are falling short in their duties to protect
the right whale. See Mot. at 1. Their first and fourth counts arise under the APA, alleging that
the 2014 BiOp regarding the authorization and management of the lobster fishery and its
continued authorization under the MMPA are arbitrary, capricious, and not in accordance with
the law. See CBD Compl., ¶¶ 117-125, 135-39; CLF Compl., ¶¶ 118-126, 140-48.
Their second and third counts, by contrast, relate to Defendants’ “mandatory substantive
obligations under the ESA.” Mot. at 1. Specifically, Plaintiffs contend that Defendants are
violating their ongoing duty under ESA § 7 to ensure against jeopardy of endangered right
whales and their obligation under § 9 of the Act to prevent unauthorized “take” of the cetaceans.
See CBD Compl., ¶¶ 126-34; CLF Compl., ¶¶ 128-32, 134-39. Both of these claims are brought
pursuant to the “citizen-suit provision” of the ESA, which provides that any individual may bring
a civil suit “to enjoin any person, including the United States and any other governmental
instrumentality or agency . . . who is alleged to be in violation of any provision of this [Act] or
regulation issued under the authority thereof.” 16 U.S.C. § 1540(g)(1)(A). As relief, Plaintiffs
seek to compel the Government to comply with its substantive duties to avoid jeopardy and to
refrain from committing unauthorized take. In pursuit of these ends, they seek declaratory and
injunctive relief, including an order directing Defendants to implement mitigation measures to
protect the whales from entanglements in lobster gear. See CBD Compl. at 32; CLF Compl. at
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38-39.
On June 8, 2018, Plaintiffs filed a Joint Motion on the Scope of Review, requesting that
the court permit discovery on their two ESA claims. In an attempt to narrow or resolve the
dispute, the Court – as is its practice in non-APA cases – held a conference call and a status
hearing. See Minute Orders of July 19, 2018 & Sept. 5, 2018. Its efforts did not bear fruit. See
Status Report of Sept. 18, 2018.
II. Analysis
As both sides agree, the Court need not address Plaintiffs’ APA and MMPA claims, the
adjudication of which is confined to the administrative record. See Mot. at 3 n.2, 7. Where the
sides part ways, however, is over whether Plaintiffs are entitled to discovery on the citizen-suit
ESA counts. Because their Motion is in large part based upon the specific provisions of the ESA
under which those counts arise – namely, §§ 7 and 9 – the Court will provide a brief statutory
background before analyzing the availability of discovery.
A. Statutory Background
The ESA is “the most comprehensive legislation for the preservation of endangered
species ever enacted by any nation” and “reveals a conscious decision by Congress to give
endangered species priority over the ‘primary missions’ of federal agencies.” Tenn. Valley
Auth. v. Hill, 437 U.S. 153, 180, 185 (1978). Pursuant to that prioritization, the citizen-suit
provision of the Act, 16 U.S.C. § 1540(g)(1)(A), allows parties to file suit against actors –
including federal agencies – to “enforce the substantive provisions of the ESA.” Nat'l Ass'n of
Home Builders v. Norton, 298 F. Supp. 2d 68, 72 (D.D.C. 2003), aff'd, 415 F.3d 8 (D.C. Cir.
2005). This provision “provides a cause of action to enjoin ongoing violations or to prevent
imminent future violations,” Yurok Tribe v. United States Bureau of Reclamation, 231 F. Supp.
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3d 450, 463–64 (N.D. Cal. 2017), and is “frequently used to compel agency action.” Nw. Coal.
for Alternatives to Pesticides v. U.S. EPA, 920 F. Supp. 2d 1168, 1170 (W.D. Wash. 2013).
In pursuit of the ESA’s conservation goals, § 7(a)(2) of the Act prohibits federal agencies
from taking actions that are “likely to jeopardize the continued existence of any endangered
species.” 16 U.S.C. § 1536(a)(2). Jeopardy exists when it is reasonable to expect that an agency
action would “reduce appreciably the likelihood of both the survival and recovery of a listed
species in the wild by reducing the reproduction, numbers, or distribution of that species.” 50
C.F.R. § 402.02. To comply with this prohibition, the ESA requires agencies to consult with and
obtain the opinion of the relevant wildlife consulting agency, either the U.S. Fish and Wildlife
Service or NMFS, prior to taking any discretionary action that may affect an endangered species.
See 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(a). After such consultation, the wildlife agency
provides a biological opinion analyzing whether the proposed agency action is likely to cause
jeopardy and, if so, identifying alternatives to avoid such an outcome. See 16 U.S.C. §
1536(b)(3)(A); 50 C.F.R. §§ 402.02, 402.14(g), (h). Agencies’ obligations under § 7, however,
are not fulfilled merely by engaging in this procedural consultation process. Rather, the ESA
also imposes substantive requirements pursuant to the “no-jeopardy” provision. Under § 7, the
agency has an ongoing duty to avoid jeopardy that continues regardless of the status of
consultation, so long as the agency retains discretionary control over the action. See, e.g.,
Cottonwood Envtl. Law Ctr. v. U.S. Forest Service, 789 F.3d, 1075, 1087-88 (9th Cir. 2015).
The provision thus contains a procedural, consultative requirement and a substantive obligation
to insure against jeopardy. See Defs. of Wildlife v. Martin, 454 F. Supp. 2d 1085, 1094 (E.D.
Wash. 2006) (“Section 7(a)(2) of the ESA imposes a substantive duty in addition to its
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procedural consultation requirement.”).
Section 9 of the ESA provides additional, substantive restrictions on agency actions
affecting endangered species. The provision prohibits any person, including federal agencies,
from “tak[ing]” endangered species, defined as actions that “harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect” a listed species, as well as any “attempt to engage in any
such conduct.” 16 U.S.C. § 1538(a)(1)(B); id. § 1532(19). This take prohibition is not, however,
absolute. Instead, the relevant wildlife agency may permit a federal agency to take individual
members of a listed species, provided that the action does not jeopardize that population. Id. §
1536(b)(4), (o)(2); 50 C.F.R. § 402.14(i). Such permission typically occurs through the issuance
of an “incidental take statement,” which is attached to a biological opinion and details the
parameters of the permitted take. See 50 C.F.R. § 402.14(i).
B. Citizen-Suit Provision
As an initial matter, Plaintiffs assert that the fact that their ESA § 7 and § 9 claims are
brought pursuant to the Act’s citizen-suit provision is sufficient to entitle them to discovery. See
Mot. at 6. The Supreme Court has characterized this provision as “a means by which private
parties may enforce the substantive provisions of the ESA against regulated parties – both private
entities and Government agencies.” Bennett v. Spear, 520 U.S. 154, 173 (1997). According to
Plaintiffs, this enforcement capacity includes the opportunity to “obtain relevant evidence
through discovery without restriction.” Mot. at 8.
Plaintiffs’ reasoning is that because claims and relief sought under the citizen-suit
provision “are forward-looking,” their evaluation should not be constrained to the administrative
record. Id. They additionally note that because they bear the burden of proof, “[d]enying
discovery would effectively grant Defendants the opportunity to invent a purported record for
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these claims.” Id. at 9. Allowing discovery, conversely, would “decrease[] the likelihood that
Plaintiffs will later need to show that the self-serving ‘record’ Defendants compiled was
deficient.” Id. at 10. Defendants counter that the citizen-suit provision does not per se condone
discovery. On the contrary, they assert that “settled principles of administrative law compel the
conclusion that extra record affidavits and discovery would be entirely improper.” Resp. at 5.
To the extent that Plaintiffs assert that all citizen-suit ESA cases may involve materials
outside the administrative record, Defendants are correct that this is not so – at least in this
Circuit. In Cabinet Mountains Wilderness v. Peterson, 685 F.2d 678 (D.C. Cir. 1982), the court
addressed a citizen-suit challenge to a decision by the Forest Service approving a mineral-
exploration project. The court concluded that the appropriate level of review, in that case, was
the arbitrary-and-capricious standard provided by the APA. Id. at 686; see also Newton Cty.
Wildlife Ass'n v. Rogers, 141 F.3d 803, 808 (8th Cir. 1998) (rejecting argument that plaintiff
“should be entitled to go outside the administrative record because it has invoked the citizen-suit
provisions of the Endangered Species Act”); but see Washington Toxics Coal. v. EPA, 413 F.3d
1024, 1034 (9th Cir. 2005) (finding that because ESA citizen-suit provision “authorizes a private
right of action,” APA does not govern judicial review of plaintiffs’ § 7 claims). Concluding that
the district court had not “erred by refusing to conduct de novo review of the Forest Service’s
actions,” our Circuit resolved the case on the basis of the administrative record and the standards
of the APA. Cabinet Mountains, 685 F.2d at 684-87.
Although Cabinet Mountains stands for the proposition that simply invoking the ESA
citizen-suit provision does not entitle Plaintiffs to discovery, it does not mean that extra-record
evidence is necessarily precluded in such cases. As discussed below, the Court concludes that
Plaintiffs’ specific claims here, and the distinctions between such allegations and those at issue
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in Cabinet Mountains, counsel in favor of permitting discovery. See San Francisco BayKeeper
v. Whitman, 297 F.3d 877, 886 (9th Cir. 2002) (employing abuse-of-discretion standard for
district court's decision to consider evidence outside administrative record); Seattle Audubon
Soc'y v. Norton, 2006 WL 1518895, at *2 (W.D. Wash. May 25, 2006) (noting that “the scope of
the record to be admitted for an ESA citizen suit is a question of the district court’s discretion”).
C. Section 7 Claim
Leaving aside their assertion that they are entitled to discovery under the citizen-suit
provision writ large, Plaintiffs also argue that their § 7 claim provides a specific basis for going
beyond the administrative record. This allegation states that Defendants’ “ongoing authorization
and management of the American lobster fishery,” CLF Compl., ¶ 1, is violating their
substantive ESA Section 7 obligation to avoid jeopardy to right whales. Id., ¶¶ 127-32; CBD
Compl., ¶¶ 126-29. Plaintiffs contend that because resolving this claim requires an assessment
of the “totality of [the] circumstances with regard to Defendants’ recent and ongoing actions and
inactions related to right whales and the consequent likelihood of jeopardy to the species,” Mot.
at 16, an administrative record will not suffice. In support, they offer examples of evidence that
would be relevant to their § 7 contention but that are not contained in the administrative records
from the 2014 BiOp or the 2017 fisheries determination, such as “new scientific information
showing right whales have declined[,] . . . continue to be entangled in fishing gear, and may face
functional extinction.” Id. at 17. In light of these alleged gaps in agency records, Plaintiffs
assert that discovery is the reasonable course forward.
Defendants respond first that the cases Plaintiffs muster as support for their position “did
not consider or discuss the propriety of considering extra-record evidence or allowing
discovery.” Resp. at 10. Because the opinions did not “wrestle[] with the question presented in
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Plaintiffs’ Motion,” Defendants contend that they “do not provide persuasive authority in support
of the Motion.” Id. The agency also asserts that “[a]s a practical matter . . . there is no need for
‘expert’ witness testimony or discovery,” as “[t]he Administrative Record will contain
documents on all of the topics on which Plaintiffs seek discovery.” Resp. at 12. Relatedly,
Defendants take the position that, although Plaintiffs assert that there is “no end point for the
Administrative Record” and thus request discovery, this apparent conundrum is in fact the
product of “[t]he timing of Plaintiffs’ Complaints,” which were filed “after NMFS reinitiated
consultation and commenced the Atlantic Whale Take Reduction Team process.” Id. at 13.
The Court finds none of Defendants’ arguments ultimately convincing. Although it
appreciates the pragmatism and efficiency issues raised by the Government, such concerns do
not obviate Plaintiffs’ right to an opportunity to develop information necessary to prove their
claims. As discussed below, the Court concludes that the posture of this case and the specific
allegations at issue weigh in favor of permitting discovery to ensure Plaintiffs’ access to such
materials.
The Court begins with the implications of Cabinet Mountains with respect to the
availability of discovery in this case. The Circuit there addressed a challenge to a Forest Service
decision approving a mineral-exploration project and drilling program in Montana, which the
plaintiffs alleged violated § 7 of the ESA. As noted above, the court found that “[s]ince the ESA
does not specify a standard of review, judicial review is governed by section 706 of the [APA],”
and “the appropriate standard of review under the ESA is [thus] the arbitrary and capricious
standard provided by” that section. See 685 F.2d at 685-86. The court ultimately determined
that the Forest Service’s action did not violate § 7 as it was “reasonable and supported by the
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record,” and “[s]ufficient evidence exists to support the [agency’s] decision that the . . . proposal,
as modified, will not endanger the Cabinet Mountains grizzly bear population.” Id. at 687.
The Court acknowledges that the language in Cabinet Mountains is fairly sweeping and,
at first glance, may seem to stand for the principle that all ESA suits must be considered under
the APA standards for review. A closer analysis of the case, however, reveals that it is not quite
so broad a holding. First, as Plaintiffs note, the district court in Cabinet Mountains in fact
specifically did not address whether it could consider documents plaintiffs in that case wanted to
introduce because the materials were “cumulative of evidence that was considered in the
administrative proceedings” and were therefore already in the record. See Cabinet Mountains
Wilderness v. Peterson, 510 F. Supp. 1186, 1189 n.2 (D.D.C. 1981). As this determination
indicates, the case did not squarely present the issue of the availability of discovery (or lack
thereof) on appeal. Rather, the Circuit was concerned with the appropriate standard of review to
be applied – a concept distinct from the question of the permissible scope of the record before
the district court. See, e.g., W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 497–98 (9th
Cir. 2011) (relying on expert reports submitted by plaintiffs to determine whether federal agency
considered relevant factors in evaluating ESA citizen-suit claim alleging violation of § 7(a)(2)
under arbitrary-and-capricious standard); Or. Natural Desert Ass’n v. Tidwell, 716 F. Supp. 2d
982, 987–88 (D. Or. 2010) (same).
Second, there are meaningful distinctions between the claims presented in Cabinet
Mountains and those raised in this case. As discussed in more depth below, the plaintiffs in
Cabinet Mountains, unlike those here, did not bring a claim under § 9 of the ESA. In addition,
the agency actions involved are very different. Here, Plaintiffs claim that the agency is
“violating [its] ongoing obligation under ESA Section 7(a)(2), after the issuance of the 2014
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biological opinion and after the 2017 authorization of the fishery under the MMPA, by
continuing to allow lobster fishing in a manner that is jeopardizing critically endangered right
whales.” Reply at 21. As Plaintiffs note, “By definition, the administrative record related to
those 2014 and 2017 decisions cannot include post-decisional evidence of harm to right whales
from the lobster fishery, because that evidence did not exist at the time of the decisions and could
not have been considered by Defendants in making those decisions.” Id. Unlike in Cabinet
Mountains, the allegation at issue here does not revolve around the jeopardy caused by a prior
agency determination but, instead, an assertion that regardless of the reasonableness of the 2014
and 2017 actions, defendants are now violating § 7 of the ESA. This temporal distinction
matters in terms of the appropriate scope of review. While the evidence necessary to adjudicate
a Cabinet Mountains-type claim may well be contained in the administrative record or
proceedings before the agency, the relevant information needed to determine whether there is
ongoing and future jeopardy is far more likely to require discovery. As Plaintiffs put it, “In
effect, there can be no administrative record for incidents of unlawful take, as they do not
constitute a final agency decision but instead subsequently flow from a decision’s
implementation.” Reply at 15-16. The Court agrees that, in a § 7 case alleging ongoing and
prospective violations of the ESA, the administrative record may well be insufficient to resolve
the relevant claims.
There is, additionally, a distinction to be made between the form of relief sought here
versus that pursued in Cabinet Mountains. In that case, the plaintiffs alleged that the agency’s
approval of the drilling project violated the ESA and moved for summary judgment on that
claim. There is no indication in the opinion that they sought an injunction of any ongoing
agency action, as they were instead challenging the Government’s approval of the drilling plan.
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Here, Plaintiffs seek injunctive relief under § 7(a)(2) of the ESA, which provides that the
remedies for a substantive violation of the Act can include an injunction pending compliance. In
order to show that they are entitled to such a remedy, Plaintiffs must “make a showing that a
violation of the ESA is at least likely in the future.” Nat'l Wildlife Fed'n v. Burlington N.R.R.,
Inc., 23 F.3d 1508, 1511 (9th Cir. 1994) (considering preliminary injunction). The relevant
inquiry for the Court, subsequently, is whether there is a “definitive threat” to the right whale
under Defendants’ current administration of their agency policies and past actions. Id. at 1512
n.8. Unlike in Cabinet Mountains, therefore, the relief at issue is not the propriety of a prior
government act, but the enjoining or modification of the agency’s ongoing administration of its
oversight with respect to an endangered species. Again, the Court finds that confining the record
to past agency determinations is far less appropriate when plaintiffs seek an injunction based on
present-day agency actions and the risk of future harm. See Or. Nat. Desert Ass'n v. Kimbell,
593 F. Supp. 2d 1217, 1219 (D. Or. 2009) (finding that magistrate judge did not err in holding
that plaintiffs’ § 7 claim supported “introduc[ing] evidence obtained after administrative
decisions were issued,” as “extra-record evidence is necessary for plaintiffs to meet the burden of
proof required for obtaining injunctive relief pursuant to the ESA citizen-suit provision”).
D. Section 9 Claim
In addition to asserting that they are entitled to discovery based on their § 7 claim,
Plaintiffs also argue that their § 9 count requires the submission of extra-record evidence. Their
allegations under this provision are predicated on the assertion that Defendants have long
acknowledged that the lobster fishery takes right whales by entanglement, but that, in
contravention of the ESA, there is no incidental-take statement or permit authorizing any such
take. See Mot. at 10. Plaintiffs seek to hold NMFS liable for this alleged violation, as it is the
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federal agency responsible for authorizing and managing the ongoing operations of the fishery.
Id. In doing so, they make clear that they are not holding the agency to account for any
“particular decision,” but instead bringing suit to remedy its ongoing failure to prevent the
unauthorized incidental take of right whales. Id. at 11. Plaintiffs assert that because they are
seeking to enjoin ongoing and future actions resulting in such harm, there is no relevant
administrative record upon which their § 9 claim can be decided and that they are thus entitled to
discovery. In response, Defendants raise the same arguments as they levy against discovery
under the § 7 claim – namely, that Cabinet Mountains precludes such extra-record evidence –
that the cases cited by Plaintiffs are inapposite, and that judicial efficiency counsels in favor of
relying on the administrative record.
The Court finds that Plaintiffs again have the better of this issue. First, it can easily
dispose of Defendants’ reliance upon Cabinet Mountains, as that case included no claim under §
9. In the years since that decision, moreover, at least one court in this district has permitted
discovery on an ESA § 9 claim – a fact that is difficult to square with Defendants’ argument that
Cabinet Mountains precludes discovery in § 9 suits. In Am. Soc. for Prevention of Cruelty to
Animals v. Feld Entm't, Inc., 677 F. Supp. 2d 55 (D.D.C. 2009), aff'd, 659 F.3d 13 (D.C. Cir.
2011), the court, in addressing a § 9 claim regarding the “taking” of Asian elephants, issued an
order stating that “Plaintiffs are entitled to take discovery regarding all of defendants’ practices
that plaintiffs allege violate the Endangered Species Act and that statute’s implementing
regulations, including past, present and on-going practices.” Order, Case No. 03-2006
(November 25, 2003). There is no indication in the record that either the district court or the
court of appeals found this discovery improper in light of Cabinet Mountains. Instead, the
district court explicitly noted that it had decided an earlier motion for summary judgment
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“following several years of extensive discovery,” and that it had then granted “additional
discovery.” Feld Entm’t, 677 F. Supp. 2d at 61-62; see also Am. Soc. for Prevention of Cruelty
to Animals v. Feld Entm't, Inc., 659 F.3d 13, 18 (D.C. Cir. 2011) (noting that district court “held
a six-week bench trial, heard testimony from approximately thirty witnesses, [and] reviewed
hundreds of documents entered into the evidentiary record”). To the extent that Defendants
argue that discovery is precluded in all § 9 citizen-suit claims, they are thus mistaken.
Second, although the Government is correct that there is no case in this Circuit directly
addressing the availability of discovery under § 9, there are a number of opinions in other courts
finding that such evidentiary proceedings are appropriate. Indeed, courts have repeatedly held
that the consideration of extra-record evidence is available – and necessary – to determine
whether there is an ongoing, impermissible “take” of a species. In Or. Nat. Desert Ass'n, 593 F.
Supp. 2d 1217, for instance, the court found that it was appropriate to allow plaintiffs to develop
“[w]hatever evidence [they] can develop to prove that unlawful take has occurred.” Id. at 1220
(citation omitted). In doing so, the court distinguished between the § 9 claims, which it found
“[did] not challenge specific administrative decisions . . . [but] [i]nstead . . . advance[d] an
enforcement action and require[d] proof of harm,” and claims “challenging the propriety of a
consulting agency [action].” Id. at 1220-21. The former – viz., claims “based upon events
occurring in the aftermath of agency decisions” – the court found were “not limited by the APA
scope of review.” Id. The court in Red Wolf Coal. v. U.S. Fish and Wildlife Service, 210 F.
Supp. 3d 796 (E.D.N.C. 2016), reached a similar conclusion. In addressing the plaintiff’s § 9
claim, it found that discovery was appropriate “[w]here, as here, a Section 9 claim seeks
injunctive relief, such relief is forward looking, and thus limitation to an administrative record
may not provide a sufficient basis upon which a court can consider the propriety of the
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defendant’s actions.” Id. at 802 (citing Or. Nat. Desert Ass’n, 593 F. Supp. 2d at 1220); see also
Nw. Coal. for Alternatives to Pesticides v. U.S. EPA, 920 F. Supp. 2d 1168, 1173, 1176 (W.D.
Wash. 2013) (finding that “extra-record evidence is permissible and appropriate” when plaintiffs
brought ESA § 9 and § 7 claims asserting “ongoing” agency failure to protected endangered
species); Wild Fish Conservancy v. Nat’l Park Service, 2012 WL 5384896, at *1 (W.D. Wash.
2012) (denying agencies’ motion to limit scope of review to administrative record and stating
that “[e]ven if confusion exists regarding discovery in ESA citizen suit cases, the Court finds that
a completely developed record is the best solution, at trial and on appeal, for the just, speedy, and
inexpensive determination of Plaintiffs’ claims”) (citation omitted); Aransas Project v. Shaw,
775 F.3d 641, 653–63 (5th Cir. 2014) (reviewing bench-trial ruling addressing ESA § 9 claim);
Hill v. Coggins, 867 F.3d 499, 504 (4th Cir. 2017) (noting lower court “considered the
conflicting evidence, weighed the credibility of witnesses, [and] assessed the relevant discovery
history” in ESA § 9 case regarding grizzly bears).
The Court finds that the logic of these cases is sound in light of the intent behind § 9 – to
prevent the take of endangered species without proper agency authorization. In bringing their
claim, Plaintiffs do not seek this Court’s review of a past agency action or specific
determination, but rather are attempting to enjoin ongoing or future unlawful incidental take.
The question is therefore whether NMFS is currently authorizing and is likely to continue
authorizing activities that result in such harms. It is hard to imagine how such an inquiry could
be resolved on the basis of an administrative record underlying a past agency action, as such
records are unlikely to include evidence showing ongoing take or reflecting future potential
harm. See Nw. Coal., 920 F. Supp. 2d at 1173 (permitting discovery on ESA § 7 and § 9 claims
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and noting that “there is no final agency action and therefore no closed administrative record for
the Court to review”).
* * *
In sum, the Court concludes that Plaintiffs are entitled to discovery on their ESA counts.
This result reflects the intent of the Act to ensure the ongoing conservation of endangered
species and to ensure that agencies charged with safeguarding such species fulfill their role as
stewards. Permitting discovery will also best serve the interests of the Court in adjudicating the
§ 7 and § 9 claims, as Plaintiffs ask it to evaluate both the current and future risk Defendants’
actions pose to the right whale. In order to accurately assess the alleged crisis of these cetaceans,
the Court will benefit from a record that reflects the actual, ongoing effects of the lobster fishery
on the species.
III. Conclusion
For these reasons, the Court will grant Plaintiffs’ Motion for Discovery. A separate Order
so stating will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: October 4, 2018
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