Oceana, Inc. v. Ross
290 F. Supp. 3d 73
D.C. Cir.2018Background
- NOAA Fisheries (the Service) issued Amendment 5b and a Final Environmental Impact Statement (EIS) in Feb. 2017 addressing dusky shark management; Oceana sued under the Administrative Procedure Act challenging the rulemaking and moved to compel supplementation/completion of the administrative record.
- Oceana sought four categories of materials to be added: (1) studies/reports cited in the EIS, (2) observer and vessel logbook catch data, (3) documents withheld under the deliberative process privilege (drafts, reviews, emails), and (4) extra-record bycatch/mortality data from non-HMS fisheries.
- The Service produced an administrative record, withheld certain internal documents as deliberative, and represented it used aggregated data (tables) from observer/logbook databases when preparing the EIS.
- The legal question was whether specific cited documents and datasets were “before the agency” such that they must be included in the administrative record, or instead properly withheld or excluded as extra-record or privileged material.
- The Court applied APA review principles: review the whole record before the agency; supplementation requires either showing the documents were actually before the agency or, for extra-record material, demonstrating one of the D.C. Circuit’s "unusual circumstances." The Court gave deference to the agency’s designation but required concrete, non-speculative evidence that specific items were considered.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether studies cited in the EIS must be added to the record | Cited studies were before the agency and thus belong in the record | Citation alone doesn’t prove consideration; background references need not be included | Court ordered addition of substantively-cited studies and those appearing only in chapter reference lists; denied for studies cited only as "further information" in text; excluded three SAFE reports (2008, 2011, 2012) per order |
| Whether disaggregated observer/logbook data must be added | Oceana: underlying raw/disaggregated data was available and should be in record | Service: decisionmakers relied on aggregated tables; disaggregated/raw data may have been processed by staff and not seen by decisionmakers | Denied. Oceana failed to show decisionmakers considered disaggregated/raw datasets; aggregated data in EIS sufficed for record |
| Whether documents withheld under deliberative process privilege must be produced | Oceana: privilege inapplicable for certain review documents and cannot be used to withhold broad categories | Service: withheld predecisional, deliberative reviews/drafts/emails to protect deliberations | Denied as to most withheld items. Two specific Southeast Fisheries Science Center reviews (PR25, PR26) properly withheld; broad, unspecified internal drafts/emails not shown to be considered so Court denied Oceana’s request to compel them |
| Whether extra-record bycatch/mortality data from non-HMS fisheries must be added | Oceana: data is background/possibly adverse and necessary for judicial review | Service: data was extra-record and not considered; no unusual circumstances warranting supplementation | Denied. Oceana did not show bad faith or that the data was necessary as background; one of the D.C. Circuit’s "unusual circumstances" was not satisfied |
Key Cases Cited
- Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) (review of agency action requires the full administrative record)
- City of Dania Beach v. FAA, 628 F.3d 581 (D.C. Cir. 2010) (identifies "unusual circumstances" permitting extra-record supplementation)
- American Wildlands v. Kempthorne, 530 F.3d 991 (D.C. Cir. 2008) (discusses circumstances for considering extra-record materials)
- Walter O. Boswell Memorial Hospital v. Heckler, 749 F.2d 788 (D.C. Cir. 1984) (administrative record should be neither under- nor over-inclusive)
- Ancient Coin Collectors Guild v. U.S. Dep't of State, 641 F.3d 504 (D.C. Cir. 2011) (deliberative process privilege turns on selection/organization of facts, not pure factuality)
- Department of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1 (2001) (rationale for protecting deliberative agency communications)
- District Hosp. Partners, L.P. v. Burwell, 786 F.3d 46 (D.C. Cir. 2015) (requires strong showing of bad faith for the adverse-documents exception to supplementation)