Oceana, Inc. v. Ross

Background

Oceana, Inc. challenged a final rule issued by the National Marine Fisheries Service setting annual catch limits and other reference points for several coastal pelagic species. The rule set an annual catch limit of 23,573 metric tons for the central subpopulation of northern anchovy. Oceana alleged that the rule was not based on the best available science, failed to prevent overfishing and achieve optimum yield, and lacked a rational basis under the Administrative Procedure Act and the Magnuson-Stevens Fishery Conservation and Management Act.

The agency submitted an administrative record—the materials before the agency when it made its decision—to the court. Oceana moved to compel the defendants to complete that record by adding two broad categories of materials: scientific research and presentations developed or presented to agency officials, and agency scientists’ communications, analyses, and draft assessments concerning the science used in formulating the rule.

Legal Standard

The court explained that judicial review of agency action generally is limited to the administrative record. The record must include all evidence before the agency’s decision-making body, including materials directly or indirectly considered by agency decision-makers and materials contrary to the agency’s position. The agency’s designation of the record is presumed complete, but a plaintiff may rebut that presumption by specifically identifying omitted materials and providing reasonable, non-speculative grounds to believe the agency considered them. A plaintiff may also rebut the presumption by showing that the agency used the wrong standard when compiling the record.

Court’s Analysis

The court found that the agency’s certification did not identify the criteria used to search for and assemble the record. The court also found that Oceana showed the record excluded materials that the agency had directly or indirectly considered. The defendants’ later declaration stating that the record contained all directly or indirectly considered materials did not cure the problem because the attempt to amend the certification came too late.

The court held that Oceana had identified the requested materials with sufficient specificity and had provided reasonable grounds for believing that the agency considered them.

For the first category, the court ordered inclusion of six documents concerning anchovy-abundance data, estimates, and survey methodology presented at meetings of the Pacific Fishery Management Council; two documents concerning anchovy management presented at a 2019 council meeting; and two documents presented at a 2018 workshop hosted by the agency’s Southwest Fisheries Science Center. The court relied on evidence that agency representatives received or attended presentations involving the materials, that some documents were authored by agency scientists, and that Joshua Lindsay—the agency staff member responsible for preparing the rule—attended the 2018 workshop.

The court did not order inclusion of the audio recordings and transcripts associated with the six documents concerning anchovy-abundance data. It found that Oceana’s statement that those materials reflected the council’s consideration of the documents did not, by itself, provide the required reasonable and non-speculative grounds for adding them to the record.

For the second category, the court ordered inclusion of acoustic-trawl-survey data obtained before publication of the rule; analyses of that data; drafts of the final acoustic-trawl-survey reports; and related emails, correspondence, meeting notes, and memoranda that existed through May 31, 2019. The court rejected the defendants’ argument that they did not need to include every internal document generated by agency scientists. It reasoned that internal comments, draft reports, communications, revisions, memoranda, and meeting notes must be included when they informed recommendations or otherwise were before the agency concerning the merits of its decision, unless withheld on the basis of privilege.

The court also declined the defendants’ request to state that documents created after approval of the challenged fishery-management provisions could not be used in Oceana’s challenge, concluding that the request was outside the proper scope of the motion.

Disposition

The court granted in part and denied in part Oceana’s motion to compel completion of the administrative record. It ordered the defendants to complete the record within 30 days with the specified materials. If the defendants withheld any of those documents based on privilege, they were required to add the documents to a privilege log by the same deadline. This order addressed the contents of the administrative record; it did not decide the merits of Oceana’s challenge to the fishery rule.