Marcum v. Salazar
2010 U.S. Dist. LEXIS 117615
| D.D.C. | 2010Background
- ESA lists African elephant as endangered; import allowed only if actions would enhance survival and not be detrimental to the species' survival.
- Plaintiffs hunted elephants in Zambia and each applied to the Service for import permits for their trophies; permits denied on March 10, 2010.
- Plaintiffs filed suit under the Administrative Procedure Act seeking judicial review of the denials.
- Plaintiffs moved to compel supplementation of the administrative record, proposing two categories of documents; the Service opposed.
- The court denied the motion to supplement for all unresolved items, applying the strong presumption of regularity and limited extra-record review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Items 1-5 should be added to the record | Marcum et al. contend Safari Club materials were before the Service. | Service did not consider or rely on Safari Club materials; materials were withdrawn long ago. | Not appropriate to supplement; no concrete evidence Service considered the materials. |
| Whether Items 1-5 fall under Esch extra-record exceptions | Esch exceptions justify extra-record review for procedural reasons. | Exceptions are narrow; no strong showing of bad faith or record-bare review. | Unpersuasive; Esch exceptions not satisfied. |
| Whether Item 9 should be added | Acknowledgement letters should be in the record as part of decision-making context. | Letters are boilerplate, not part of the record; not considered in decisions. | Denied; letters not shown to be considered and no extra-record basis. |
| Whether Items 10 and 12 should be added | Include FOIA response and grant applications to show funding or consideration details. | FOIA response already in record; grant applications not shown to be considered. | Denied; no basis to supplement; not clearly part of decision-making. |
Key Cases Cited
- Cape Hatteras Access Pres. Alliance v. U.S. Dept. of Interior, 667 F. Supp. 2d 111 (D.D.C. 2009) (limits and governs supplementation of the administrative record)
- Florida Power & Light Co. v. Lorion, 470 U.S. 729 (Supreme Court 1985) (extra-record review is limited to exceptional cases)
- Theodore Roosevelt Conservation P'ship v. Salazar, 616 F.3d 497 (D.C. Cir. 2010) (APA review requires strong showing of bad faith or a bare record to allow extra-records)
- Es ch v. Yeutter, 876 F.2d 976 (D.C. Cir. 1989) (enumerated eight exceptions for extra-record evidence in procedural challenges)