126 F. Supp. 3d 110
D.D.C.2015Background
- Oceana challenged NMFS’s Biological Opinion (BiOp) that concluded Atlantic sea scallop dredge fishing would not jeopardize the Northwest Atlantic DPS of loggerhead sea turtles.
- The Court previously remanded, finding NMFS had not sufficiently explained how it monitored and estimated sea turtle interactions (takes) and how dredge hours equated to take limits.
- NMFS submitted a Revised Incidental Take Statement (Revised ITS) and supplemental administrative record after remand, including a scatterplot linking dredge hours and estimated loggerhead takes.
- Oceana submitted a response including an expert declaration from statistician George Weaver challenging the adequacy of NMFS’s explanation of the relationship between dredge hours and takes.
- NMFS moved to strike Weaver’s extra-record declaration and any arguments relying on it; Oceana argued extra-record evidence is appropriate because NMFS failed to adequately explain or consider relevant factors.
- The Court denied the motion to strike, concluding extra-record evidence was permissible here because NMFS had not adequately explained its grounds; the Court allowed NMFS to file its own expert declaration and ordered the parties to propose a revised briefing schedule.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court may consider Oceana’s expert declaration (extra-record evidence) | Weaver shows the Revised ITS lacks necessary data/analysis to establish a positive linear relationship between dredge hours and takes, so extra-record evidence should be considered | APA review is confined to the administrative record; extra-record evidence is the exception and should be excluded | Court allowed the declaration because NMFS failed to adequately explain its analysis (one of the recognized exceptions) |
| Whether NMFS adequately explained the statistical link between dredge hours and loggerhead takes | NMFS’s scatterplot and accompanying materials omit key information; explanation insufficient for judicial review | The scatterplot is not a model but a graph; supplemental record suffices to evaluate NMFS’s conclusion | Court found the agency’s explanation deficient for reviewability and accepted Weaver’s critique as pointing out gaps |
| Proper remedy for any informational gaps in the Revised ITS | Remand or consideration of additional evidence to test NMFS’s monitoring surrogate | Strike extra-record evidence; require NMFS to supplement administrative record | Court denied striking Weaver, ordered NMFS may file its own expert declaration to address gaps |
| Whether parties should get further briefing on adequacy of Revised ITS after allowing extra-record submissions | Oceana sought further judicial consideration and potential second remand | NMFS asserted supplemental record was sufficient and extra-record should be excluded | Court vacated prior briefing schedule and directed parties to meet and propose a revised schedule allowing agency expert reply |
Key Cases Cited
- Walter O. Boswell Mem’l Hosp. v. Heckler, 749 F.2d 788 (D.C. Cir. 1984) (judicial review should generally be limited to the administrative record)
- IMS, P.C. v. Alvarez, 129 F.3d 618 (D.C. Cir. 1997) (permissible categories for considering extra-record evidence)
- American Wildlands v. Kempthorne, 530 F.3d 991 (D.C. Cir. 2008) (discussing supplementation and extra-record evidence exceptions)
- Theodore Roosevelt Conservation P’ship v. Salazar, 616 F.3d 497 (D.C. Cir. 2010) (extra-record evidence is the exception, not the rule)
- Oceana, Inc. v. Locke, 674 F. Supp. 2d 39 (D.D.C. 2009) (distinguishing supplementation from extra-record evidence and identifying when such evidence may be considered)
- Esch v. Yeutter, 876 F.2d 976 (D.C. Cir. 1989) (value of public comment and extra-record submissions to make agency decisionmaking reviewable)