Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Center for Biological Diversity v. Zinke

United States District Court, D. Alaska

November 15, 2018

CENTER FOR BIOLOGICAL DIVERSITY, Plaintiff,
v.
RYAN ZINKE, et al., Defendants.

          ORDER RE MOTION TO COMPEL COMPLETION OF THE ADMINISTRATIVE RECORD

          SHARON L. GLEASON UNITED STATES DISTRICT JUDGE

         Before the Court at Docket 17 is Plaintiff Center for Biological Diversity's (“CBD”) Motion to Compel Completion of the Administrative Record Pursuant to Local Rule 16.3. Defendants filed their Opposition at Docket 20, to which Plaintiff replied at Docket 23. Oral argument was not requested and was not necessary to the Court's determination.

         BACKGROUND

         On March 8, 2018, CBD filed a complaint “challeng[ing] the decision of the U.S. Fish and Wildlife Service [(“FWS”)] that the Pacific walrus does not warrant listing as a threatened or endangered species under the Endangered Species Act (‘ESA').”[1] On July 9, 2018, Defendants filed a Notice of Filing the Administrative Record pursuant to the Court's scheduling order.[2] On August 6, 2018, CBD filed the instant motion seeking to supplement the administrative record and require Defendants to produce a privilege log.[3]CBD's motion seeks inclusion in the administrative record of three categories of documents: (1) comments and studies submitted in advance of a previous FWS listing decision, in 2011, relating to the Pacific walrus; (2) 2017 listing decision-related documents that had previously been released under FOIA; and (3) internal and external communications relating to the listing decision.[4] Defendants noted in their opposition that they agree to supplement the record with the first category of documents-comments and studies submitted prior to the 2011 listing decision-as well as more recent studies.[5]

         LEGAL STANDARD

         I. Completeness of the Record

         When reviewing agency action under § 706 of the Administrative Procedure Act (“APA”), “the court shall review the whole record or such portions thereof as may be cited by any party . . . .”[6] “The ‘whole' administrative record, therefore, consists of all documents and materials directly or indirectly considered by agency decision-makers and includes evidence contrary to the agency's position.”[7] “‘The whole record' includes everything that was before the agency pertaining to the merits of its decision.”[8] “An incomplete record must be viewed as a ‘fictional account of the actual decisionmaking process.'”[9] “A satisfactory explanation of agency action is essential for adequate judicial review, because the focus of judicial review is not on the wisdom of the agency's decision, but on whether the process employed by the agency to reach its decision took into consideration all the relevant factors.”[10]

         “An agency's designation and certification of the administrative record is entitled to a ‘presumption of administrative regularity, '”[11] which “requires courts to presume that public officials have discharged properly their official duties.”[12] “[T]o rebut the presumption of regularity, plaintiffs ‘must put forth concrete evidence' to show that the record is incomplete.”[13] “Plaintiffs cannot meet their burden ‘simply by asserting that the documents are relevant, were before or in front of the [agency] at the time it made its decision, and were inadequately considered[.]'”[14] “[I]nstead, plaintiffs ‘must identify reasonable, non-speculative grounds for [their] belief that the documents were considered by the agency and not included in the record.'”[15]

         II. Whether Deliberative Documents Are Part of the Record

         The Ninth Circuit has “not previously addressed whether assertedly deliberative documents must be logged and examined or whether the government may exclude them from the administrative record altogether.”[16]

         A split of authority exists on this issue, including among the district courts of this Circuit. The D.C. Circuit has held that “[a]gency deliberations not part of the record are deemed immaterial.”[17] The Circuit Court reasoned “the actual subjective motivation of agency decisionmakers is immaterial as a matter of law-unless there is a showing of bad faith or improper behavior.”[18] In San Luis Obispo Mothers for Peace v. U.S. Nuclear Regulatory Commission, the D.C. Circuit rejected the plaintiffs' request “to supplement the record to consider transcripts of a closed meeting of the Nuclear Regulatory Commission.”[19] The court determined that “[j]udicial examination of these transcripts would represent an extraordinary intrusion into the realm of the agency. These transcripts record the frank deliberations of Commission members engaged in the collective mental processes of the agency.”[20]

         The D.C. District Court has elaborated on this reasoning. It held in Oceana, Inc. v. Pritzker that “[t]he presumed exemption from the administrative record of deliberative process materials makes good sense. The deliberative process privilege is aimed at ‘enhanc[ing] the quality of agency decisions by protecting open and frank discussion among those who make them within the Government.'”[21] The Oceana court also expressed its concern that requiring agencies to develop a privilege log would “transform the process of judicial review of administration decisions” and burden agencies with FOIA-like discovery.[22]

         The Central District of California in ASSE International, Inc. v. Kerry, taking note of “the great weight of cases from the D.C. Circuit honoring the Government's determination of what documents are privileged absent a rebuttal of the presumption of regularity, ” determined that “the documents over which Defendants claim privilege are not part of the administrative record and Defendants are not required to produce a privilege log for those documents.”[23]

         Similarly, the Eastern District of California in Golden Gate Salmon Association v. Ross “declin[ed] to require [that] deliberative materials be included in an administrative record as a matter of course because doing so contravenes ‘the standard presumption that the agency properly designated the Administrative Record.'”[24] However, the Golden Gate Salmon court did grant in part plaintiffs' motion to supplement the administrative record as to those documents where the plaintiffs had provided “clear evidence” that a deliberative process privilege was not warranted.[25]

         In contrast, the Northern District of California has stated that “[t]here can be no doubt that under some circumstances, pre-decisional deliberative communications may go to the heart of the question of whether an agency action was arbitrary and capricious, an abuse of discretion or otherwise inconsistent with the law under Section 706(2) of the APA.”[26] “Therefore, the government is wrong to assert that these types of materials, as a categorical matter, should be excluded from the universe of materials directly or indirectly considered by agency decision-makers.”[27] “[T]he scope of the [deliberative process] privilege doesn't define the scope of the material directly or indirectly considered. If a privilege applies, the proper strategy isn't pretending the protected material wasn't considered, but withholding or redacting the protected material and then logging the privilege.”[28] The Districts of Montana[29] and Utah[30] have reached a similar conclusion.

         D.C. courts have held that courts should not consider those communications that were entirely within the agency.[31] The Ninth Circuit has suggested it agrees with such an approach.[32] The Court finds persuasive the D.C. Circuit's reasoning that “the actual subjective motivation of agency decisionmakers is immaterial as a matter of law-unless there is a showing of bad faith or improper behavior.”[33] “Just as a judge cannot be subjected to . . . scrutiny [over which documents the judge considers in making decisions and the weight that the judge gives each document], . . . so the integrity of the administrative process must be equally respected.”[34] The Ninth Circuit has recognized that the deliberative process privilege benefits the public insofar as it “allow[s] agencies freely to explore possibilities, engage in internal debates, or play devil's advocate without fear of public scrutiny.”[35] But the privilege extends only to those communications entirely within the particular agency. When an agency obtains and considers materials from outside of that agency, or shares the agency's documents with others outside the agency, including other governmental agencies, the deliberative process privilege does not apply. All such materials should be included within the administrative record.

         DISCUSSION

         I. Scope of the Dispute

         Plaintiff's motion refers to a number of documents that it seeks to have included in the administrative record.[36] In their opposition, Defendants indicated they had agreed to supplement the administrative record with the following documents:

• Comments from CBD to FWS on the agency's 90-day finding that listing the Pacific walrus may be warranted submitted on November 9, 2009 [Exhibit 1 (Docket 18-1 at 2-30)];
• Comments from CBD to FWS to inform its status review of the Pacific walrus submitted in 2010 [Exhibit 3 (Docket 18-3 at 2-14)];
• Comments from the Marine Mammal Commission to FWS regarding whether to list the Pacific walrus submitted on January 1, 2011 [Exhibit 6 (Docket 18-6)];
• Scientific studies and other documents referenced in the FWS's 2009 comment letter, copies of which were submitted to the agency along with the comment letter [Exhibits 1 and 1-A (Docket 18-1 at 31-41)];
• Scientific studies and other documents referenced in FWS's 2010 comment letter, copies of which were submitted to the agency along with the comment letter [Exhibit 3 (Docket 18-3 at 15-19)];
• Scientific studies and other documents referenced in FWS's comment letter submitted on December 21, 2016, copies of which were submitted to the agency along with the comment letter [Exhibit 7 (Docket 18-7); PW0000254-58];
• Studies referenced in FWS's comment letter submitted on July 28, 2017, copies of which were submitted to the agency along with the comment letter [Exhibit 8 (Docket 18-8); PW0000731]; and
• A study entitled: Taylor, Rebecca L. et al., Demography of the Pacific walrus (Odobenus rosmarus divergens) in a changing Arctic, Marie [sic] Mammal Science, first published: 02 September 2017 [Exhibit 9 (Docket 18-9)].[37]

         The following documents remain in dispute:

• Peer reviewers' comments on FWS's draft status assessment [Exhibit 10 (Docket 18-10)];
• Comments from the Marine Mammal Commission on FWS's draft status assessment [Exhibit 12 (Docket 18-12)];
• Comments from the U.S. Geological Survey on FWS's draft status assessment [Exhibit 11 (Docket 18-11)];
• Notes from meetings of the team FWS assembled to recommend whether it should list the walrus;
• Drafts of FWS's status assessment and decision documents [Exhibit 14 (Docket 18-14)]; and
• Emails and other internal and external communications relating to the listing of the Pacific walrus.[38]

         II. Analysis of Each Document or Category of Documents

         A. Exhibit 10

         Exhibit 10 is titled “PEER REVIEW: DRAFT SPECIES STATUS ASSESSMENT FOR THE PACIFIC WALRUS (Odobenus rosmarus divergens) December 2016 (Version 3.0).”[39] CBD argues that it “has done more than imply that the records at issue[, including Exhibit 10, ] were in the agency's possession; it has actually obtained them from the agency in the course of a FOIA request.”[40] However, “[a]n agency's possession of certain records, as confirmed by their disclosure in response to a FOIA request, is not ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.