Franks v. Salazar
2010 U.S. Dist. LEXIS 117573
| D.D.C. | 2010Background
- ESA and CITES permit import rules allow sport-hunted African elephant trophies only if killings enhance species survival and are not detrimental to survival.
- Plaintiffs Franks, Sellers, Brown (and Robbins, Flowers prospectively) each applied for import permits after elephant hunting in Mozambique.
- Service denied all permit applications on February 23, 2009; Brown’s Niassa Reserve permits denied September 3, 2009.
- Court denied plaintiffs’ first motion to compel supplementation on June 30, 2010 pending Service’s record supplementation.
- Defendants filed a second amended administrative record; plaintiffs filed a second motion to compel supplementation on August 13, 2010.
- Court granted in part and denied in part, allowing supplementation of certain items (notably Item 9 and part of Item 10) while denying others.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Items 1-6 should be added to the record | Safari Club materials were before the Service and relevant. | No evidence materials were before the decisionmakers; strong presumption of regularity. | Not appropriate to supplement; no concrete evidence materials were before the decisionmakers. |
| Whether Items 1-6 qualify for Esch extra-record review | Several Esch exceptions apply to include missing materials. | Exceptions are narrow; no strong showing of bad faith or bare record. | Eschewed; no applicable Esch exceptions. |
| Whether Items 7-11 should be added to the record | Certain notes/letters (Item 9-10) were before the Service and relevant; others unspecified. | Many items do not exist or were not before the decisionmakers; no basis for extra-record review. | Item 9 granted; Item 10 granted in part (National Census); Item 11 denied; Items 7-8 denied. |
| Whether the National Census of Wildlife in Mozambique belongs in the record | National Census provided by Mozambique officials was before/considered in decisionmaking. | National Census post-dates key hunting periods and lacks relevance. | National Census supplementation granted; other Reno notes denied. |
| Whether notes from Reno meeting should be added | Notes existed and would illuminate decisionmaking. | Notes do not exist or are not evidenced; no basis to add. | Notes denied. |
Key Cases Cited
- Florida Power & Light Co. v. Lorion, 470 U.S. 729 (U.S. 1985) (APA review limited to agency record absent exceptional circumstances)
- Citizens for Preserve Overton Park v. Volpe, 401 U.S. 402 (U.S. 1971) (record before agency governs judicial review)
- Eschen v. Yeutter, 876 F.2d 976 (D.C. Cir. 1989) (enumerated Esch exceptions for extra-record evidence)
- Theodore Roosevelt Conservation P'ship v. Salazar, 616 F.3d 497 (D.C. Cir. 2010) (APA review limits; strong showing needed for extra-records)
- Commercial Drapery Contractors, Inc. v. United States, 133 F.3d 1 (D.C. Cir. 1998) (strong showing of bad faith or record inadequacy required for extra-record review)