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,

(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.

Eighteen of these critical habitats were in North Carolina.

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.

. 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.

2 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,

, 178 & n.4 (citing Cabinet Mountains Wilderness v. Peterson,

(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,

(1971); see also

Camp v. Pitts,

(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,

, 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,

; Walter O. Boswell Mem’l Hosp. v.

Heckley,

, 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,

, 5–6 (D.D.C. 2006) (discussing different standards for adding to

administrative record). Undoubtedly some of that confusion is caused by the use

3 of the word “supplement” in both types of cases. Compare Texas Rural Legal Aid,

Inc. v. Legal Servs. Corp.,

(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,

, 617–618 (D.C. Cir. 1989)) (emphasis added)

with Sara Lee Corp. v. American Bakers Ass’n,

(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

. Ordinarily the record is comprised of

those documents that were before the administrative decisionmaker. Citizens to

Preserve Overton Park,

; 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

4 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,

(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,

(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.

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,

. 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,

(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

5 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,

, 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,

(D.C. Cir. 2008) (quoting Texas Rural Legal Aid, Inc. v. Legal Servs. Corp.,

(D.C. Cir. 1991)). Again, there is some dispute among the

6 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,

(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.”

. The plaintiffs specifically contended that the Secretary’s

decision was procedurally defective.

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.

. Like

in this case, the Secretary there argued that review was committed to the

administrative record.

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. . . .”

The court noted,

however, that it was the procedural validity of the Secretary’s actions that

“remain[ed] in serious question.”

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

7 resort to extra-record information to enable judicial review to become effective.”

(emphasis added). Finally the court went on to list the “number of exceptions

countenancing use of extra-record evidence to that end.”

(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,

(D.D.C. 2008); Pac. Shores Subdivision,

. 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,

(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

8 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.

(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.”

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.

9 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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