OCEANA, INC., Plaintiff, v. Penny PRITZKER, United States Secretary of Commerce, et al., Defendants, and Fisheries Survival Fund, Defendant-Intervenor.
Civil Action No. 08-1881 (PLF)
United States District Court, District of Columbia.
Signed September 4, 2015
121 F. Supp. 3d 110
V. CONCLUSION
Because Plaintiff has provided evidence in the form of affidavits and documentation substantiating all of its claims, Plaintiff‘s Motion for Default Judgment is GRANTED. An order consistent with this Memorаndum Opinion is separately and contemporaneously issued.
clusion and the appended proposed judgment—$234,192.46, which would be consistent with the Court‘s result but for the three discrepancies explained abovе. To the extent that Plaintiff‘s supplemental brief requests $300,511.49, the Court construes this figure as an inadvertent misstatement. See Pl.‘s Supplemental Br. and Mot., ECF No. 9 at 12.
Kristen Byrnes Floom, U.S. Department of Justice, Washington, DC, for Defendants.
David Earl Frulla, Kelley, Drye & Warren, LLP, Shaun Michael Gehan, Law Office of Shaun M. Gehan, PLLC, Washington, DC, for Defendant-Intervenor.
MEMORANDUM OPINION AND ORDER
PAUL L. FRIEDMAN, United States District Judge
This case involves a сhallenge to a Biological Opinion issued by the National Marine Fisheries Service (“NMFS“), in which NMFS determined that the operation of the Atlantic Sea Scallop Fishery would not jeopardize the continued existеnce of the Northwest Atlantic Distinct Population Segment of loggerhead sea turtles. In December of 2014, the Court granted in part and denied in part motions for summary judgment filed by NMFS, plaintiff Oceana, Inc., and defendant-intervenor Fisheries Survival Fund. Oceana, Inc. v. Pritzker, 75 F.Supp.3d 469 (D.D.C.2014). In that Opinion, the Court concluded that NMFS had not sufficiently explained its methods for monitoring the number of interactions between loggerheads and fishing gear, and the Court remanded the matter so that the agency could more thoroughly explain its choices, or, if unable to do so, reach different conclusions. Id. at 494-99.
NMFS now contends that it has completed its task upon remand by offering a more thorough explanation of its monitoring methods. See NMFS’ Notice of Completion of Remand [Dkt. No. 113]. The agency has submitted a revised Incidental Take Statement (“ITS“)—the section of the Biological Opinion that sets forth those methods—which, NMFS maintains, аddresses the Court‘s concerns and satisfies the legal standard under the Administrative Procedure Act. See Revised Incidental Take Statement (“Revised ITS“) [Dkt. No. 113-1]. Oceana has filed a response in which it argues that NMFS still has failed to demonstrate that its monitoring methods are not arbitrary and capricious. See Oceana Response [Dkt. No. 116]. Oceana therefore maintains that a second remand is required. Id. at 9.
I.
This matter is presently before the Court on NMFS’ motion to strike an ex-
According to Dr. Weaver, however, the Revised ITS and the accompanying Supplemental Administrative Record “do not providе enough or the right kind of information to determine whether dredge hours have a positive linear relationship to estimated sea turtle takes.” Weaver Dec. ¶ 15. NMFS argues that Dr. Weaver‘s declaration must be stricken and that Oceana should be ordered to file a new response memorandum that does not rely on the declaration. NMFS Mot. to Strike at 7. Oceana opposes NMFS’ motion, maintaining that it is appropriatе in these circumstances to consider the extra-record declaration and Oceana‘s arguments made in reliance upon it. See Oceana Opp. to Mot. to Strike [Dkt. No. 122].
“In cases brought under the APA, the Cоurt‘s review is confined to the administrative record.” Ad Hoc Metals Coalition v. Whitman, 227 F.Supp.2d 134, 136 (D.D.C.2002). This is because “[i]f a court is to review an agency‘s action fairly, it should have before it neither more nor less information than did the agency when it made its decision.” Walter O. Boswell Memorial Hospital v. Heckler, 749 F.2d 788, 792 (D.C.Cir.1984). A сourt sometimes may, however, permit supplementation of the administrative record or consider extra-record evidence in reviewing agency action. See American Wildlands v. Kempthorne, 530 F.3d 991, 1002 (D.C.Cir.2008); IMS, P.C. v. Alvarez, 129 F.3d 618, 624 (D.C.Cir.1997); American Wild Horse Preservation Campaign v. Salazar, 859 F.Supp.2d 33, 43 n.6 (D.D.C.2012).2 Resort to extra-record evidence is
Oceana argues that this case presents two of the circumstances in which resort to extra-record evidence is appropriate, contending that NMFS (1) failed to adequately explain the grounds for its conclusion that a strong positive linear relationship exists bеtween dredge hours and loggerhead takes; and (2) failed to consider all relevant factors in reaching that conclusion. Oceana Opp. to Mot. to Strike at 3. The Court agrees with the first of these arguments, and it thеrefore will deny NMFS’ motion to strike.
II.
NMFS maintains that the Supplemental Administrative Record “contains sufficient explanation for the Court to evaluate” whether NMFS has fulfilled its obligation to clearly demonstrate the link betwеen dredge hours and loggerhead takes. NMFS Reply [Dkt. No. 123] at 2. Citing the relevant case law, the agency emphasizes that “resort to extra-record information to determine whether an administrative record is deficient, ... is the exception, not the rule.” Id. at 3 (quoting Theodore Roosevelt Conservation Partnership v. Salazar, 616 F.3d at 514) (internal quotation mark omitted). But the rarity with which consideration of extra-record evidence occurs stems in part from the fact that challengers such as Oceana tyрically have the opportunity to submit such evidence in conjunction with comments on proposed agency action. That process did not occur here prior to NMFS’ creation of the Supplemеntal Administrative Record and submission of the Revised ITS; there was no notice and comment period after remand by this Court. And Dr. Weaver‘s declaration features exactly the sort of commentary that parties typically submit to an agency before its action is finalized, particularly in instances that involve technical subject matter. See, e.g., Pharmaceutical Research & Mfrs. of America v. FTC, 790 F.3d 198, 211 (D.C.Cir.2015); American Wild Horse Preservation Campaign v. Salazar, 859 F.Supp.2d at 38. It demonstrates the value in having commenters offer informed challenges to agеncy action, which can help “enable judicial review to become effective.” Esch v. Yeutter, 876 F.2d 976, 991 (D.C.Cir.1989).
The Court finds Dr. Weaver‘s declaration instructive with respect to the sufficiency of NMFS’ statistical explanation of the relationship between dredge hours and loggerhead takes. The Court is not persuaded by the contentions of NMFS’ counsel, who assert in conclusory fashion that “the scatter plot is not a ‘model’ ... it is a graph,” suppоsedly rendering Weaver‘s comments inapposite. NMFS Reply at 6. While the Court agrees with the agency that if there is to be “additional explana-
For the foregoing reasons, it is hereby
ORDERED that the Federal Defendants’ motion to strike [Dkt. No. 119] is DENIED; it is
FURTHER ORDERED that NMFS shall file and may rely upon an expert declaration in conjunction with its reply to Oceana‘s rеsponse memorandum; it is
FURTHER ORDERED that the briefing schedule set forth in the Court‘s Minute Order of June 10, 2015, is VACATED; and it is
FURTHER ORDERED that the parties shall meet and confer to agree upon a revised briefing schedule, as well as any needed changes to page limits, and they shall file a joint status report informing the Court of their agreement on or before September 18, 2015.
SO ORDERED.
CENTER FOR FOOD SAFETY, Plaintiff, v. Sylvia BURWELL, in her official capacity as Secretary of U.S. Department of Health and Human Services, et al., Defendants.
Civil Action No.: 14-00267 (RC)
United States District Court, District of Columbia.
Signed September 4, 2015