Oceana, Inc. v. Raimondo

Background

Oceana, Inc. challenged the National Marine Fisheries Service’s approval of Amendment 18 to the Coastal Pelagic Species Fisheries Management Plan. Amendment 18 established a rebuilding plan for the Pacific sardine, including minimum, target, and maximum rebuilding timeframes and a rebuilding target of 150,000 metric tons. Oceana brought claims under the Administrative Procedure Act, the Magnuson-Stevens Fishery Conservation and Management Act, and the National Environmental Policy Act.

The agency filed an administrative record. Oceana moved to compel completion of that record, arguing that it omitted documents and information the agency had directly or indirectly considered when approving Amendment 18. Oceana also argued that the agency improperly withheld materials labeled deliberative and alternatively asked the court to add materials as extra-record evidence.

Legal standard

Judicial review of agency action generally is limited to the administrative record—the materials before the agency when it made its decision. The whole record includes materials directly or indirectly considered by agency decision-makers, including relevant evidence contrary to the agency’s position. To obtain additions, Oceana had to identify the materials specifically and provide clear, non-speculative grounds showing that the agency considered them and omitted them.

Rulings on the requested materials

The court agreed that documents concerning the existing harvest-control rules and their underlying parameters belonged in the record. Although the agency argued that Amendment 18 did not change those rules, the court found that the rules were an integral part of the plan because the plan maintained the existing management process. The court therefore ordered the addition of specified scientific analyses, presentations, studies, council documents, and materials concerning the harvest-control rules.

The court also ordered the addition of stock assessments from 2012 through 2021. It concluded that the assessments were at least indirectly considered because Amendment 18 adopted a status-quo management approach and the assessments contained data about the performance of those management practices over time. The court also noted that the assessments included work by agency scientists.

The court denied Oceana’s request to add documents concerning alleged errors in the 2014 stock assessment. It found that Oceana had not shown an obvious connection between those documents and Amendment 18 indicating that the agency directly or indirectly considered them.

The court also denied the request for documents related to Amendment 17. Amendment 17 was not being challenged in this action, and Oceana had not overcome its burden to show that documents considered during that separate agency action were part of the record for Amendment 18.

The court denied requests for public comments and letters concerning other agency actions, including comments about annual sardine harvest specifications and catch limits. It also denied broader requests for public comments and council documents because they were not specific enough.

Deliberative materials and extra-record evidence

The court rejected the agency’s argument that materials labeled deliberative were categorically outside the administrative record. If the agency considered internal comments, draft reports, emails, memoranda, meeting notes, or similar materials, those materials could fall within the record even if the agency claimed a privilege. The court ordered the agency either to add the materials or to provide a privilege log identifying documents withheld under the deliberative-process privilege or another privilege or protection.

The court did not order any documents added as extra-record evidence at that time. It allowed Oceana to argue during the parties’ briefing on summary judgment that materials should be considered as supplementary evidence under an exception to the usual record-review rule.

Disposition

Judge Virginia K. Demarchi granted in part and denied in part Oceana’s motion to compel completion of the administrative record. The court ordered the National Marine Fisheries Service to complete the record and produce a privilege log for withheld materials, if any, by January 13, 2023. The order did not decide the merits of Oceana’s challenge to Amendment 18.