American Wild Horse Preservation Campaign v. Salazar
2012 U.S. Dist. LEXIS 64734
| D.D.C. | 2012Background
- Plaintiffs challenge BLM decisions in 2008 and 2011 affecting Pancake Complex wild horses in central Nevada, including rounding up, gelding males, and returning them to the range.
- Plaintiffs allege WHA, NEPA, APA, and BLM regulations were violated in analysis and decision-making for these actions.
- Plaintiffs moved for summary judgment on March 16, 2012, relying in part on four Expert Declarations about the gelding approach.
- Defendants moved to strike the Expert Declarations as not part of the Administrative Record (AR) and for failure to supplement the AR under the scheduling order.
- AWHPC submitted timely comments (including references to the Expert Declarations) during the Pancake Complex Decision public comment period.
- BLM later lodged a 10,972-page AR; Plaintiffs asserted the Expert Declarations were before the agency and should be part of the AR.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are the Expert Declarations part of the AR? | Declarations were before the agency and cited in timely comments. | Declarations were not received by end of comment period and not in AR. | Yes; declarations are part of AR and may be considered. |
| May the AR be supplemented with the Expert Declarations despite late submission? | Declarations were before the agency and adverse to its decision; must be considered. | Supplementation is inappropriate because late and not in AR. | Yes; exceptional circumstances allow supplementation. |
| Did Plaintiffs need court leave to supplement the AR under the scheduling order? | Schedule compliance should be excused given volume and prior notice. | Plaintiffs should have sought leave; failure to do so bars supplementation. | No; AR supplementation permitted without prior leave under these circumstances. |
Key Cases Cited
- Pac. Shores Subdiv. v. U.S. Army Corps of Eng’rs, 448 F. Supp. 2d 1 (D.D.C. 2006) (strong presumption of regularity; record must include materials that influenced agency decision)
- County of San Miguel v. Kempthorne, 587 F. Supp. 2d 64 (D.D.C. 2008) (to supplement AR, show information known to agency that influenced decision)
- Marcum v. Salazar, 751 F. Supp. 2d 74 (D.D.C. 2010) (late or external materials not automatically excluded; court considers context)
- Cape Hatteras Access Preservation Alliance v. United States DOI, 667 F. Supp. 2d 111 (D.D.C. 2009) (limits on supplementation; yet allowed where appropriate to review)
- Ad Hoc Metals Coalition v. Whitman, 227 F. Supp. 2d 134 (D.D.C. 2002) (extra-record evidence may be considered under specific conditions)
- Esch v. Yeutter, 876 F.2d 976 (D.C. Cir. 1989) (guides consideration of extra-record evidence in certain contexts)
- Fla. Power & Light Co. v. Lorion, 470 U.S. 729 (Supreme Court 1985) (remedial remand when record inadequate for review)
- In re Delta Smelt Consol. Cases, 2010 WL 2520946 (E.D. Cal. 2010) (considered references to documents not attached to comments; not included due to lack of official reporter)