Center For Biological Diversity v. U.S. Fish and Wildlife Service

Background

Plaintiffs Center for Biological Diversity, Waterkeeper Alliance, Inc., Waterkeepers Chesapeake, Inc., Lower Susquehanna Riverkeeper Association, and Middle Susquehanna Riverkeeper Association challenged the U.S. Fish and Wildlife Service’s April 4, 2019 finding that listing the eastern hellbender as threatened or endangered was not warranted under the Endangered Species Act. They alleged that the finding did not rely on the best available scientific and commercial data and was arbitrary, unlawful, and not in accordance with law.

The dispute addressed the contents of the administrative record—the materials that were before the agency when it made the challenged decision. The plaintiffs had submitted a Freedom of Information Act request for records related to the decision and received 1,025 records. They identified 718 records that they believed had been improperly omitted from the administrative record. The defendants agreed to include more than 500 of those documents, leaving 198 disputed documents.

Motion and Governing Standards

The plaintiffs moved to compel completion of the administrative record and production of a privilege log. The defendants described the remaining documents as predecisional and deliberative materials and maintained that the designated record already included the underlying source material, peer-review comments, expert-elicitation comments, and comments on drafts of the species status assessment.

Under the Administrative Procedure Act, a court reviews the whole record before the agency. The agency designates and certifies the administrative record, and that certification receives a presumption of regularity. A party may overcome that presumption by identifying reasonable, non-speculative grounds to believe that documents were considered by the agency but omitted from the record. The court, not the agency alone, ultimately determines what belongs in the whole record.

The court explained that not every preliminary or deliberative document belongs in the administrative record, particularly materials concerning only the mental processes of agency decision-makers. But labels such as “predecisional” and “deliberative” do not automatically exclude a document. A document might still belong in the record if it supplied facts or evidence available to the agency. The question generally must be resolved by examining the documents and other evidence themselves.

Reasoning

The court found that the plaintiffs had not submitted any of the disputed documents for the court’s review. Although both sides and the public possessed the documents, the court did not. The plaintiffs’ reliance on the agency’s statement that the record excluded predecisional and deliberative materials was insufficient because agencies may properly exclude some such materials, and accepting that argument alone would eliminate the presumption that the record was properly compiled.

The court also rejected the plaintiffs’ reliance on the titles of documents produced in response to the Freedom of Information Act request. The request covered not only documents relied on by the agency but also records mentioning or including the agency’s finding. The fact that a document mentioned the finding did not establish that it belonged in the administrative record, and the document titles did not show whether the documents contained evidence considered by the agency.

Disposition

The court denied the motion without prejudice to renewal by a formal motion made within one month of the opinion and order. The court stated that the plaintiffs could renew the request by identifying documents that should have been included and explaining why. They did not need to identify every document that belonged in the record; enough evidence to call the agency’s judgment into question could be sufficient. If the plaintiffs rebutted the presumption, the court would review each document they sought to add. The court planned to determine the record’s contents before setting a schedule for motions addressing whether the agency’s decision should be set aside.