United States District Court, D. South Carolina, Charleston Division
South Carolina Coastal Conservation League; et al., Plaintiffs,
Wilbur Ross, in his official capacity as the Secretary of Commerce; et al., Defendants.
ORDER AND OPINION
RICHARD MARK GERGEL UNITED STATES DISTRICT COURT JUDGE
matter is before the Court on the Plaintiffs' Motion to
Compel Federal Defendants to Complete the Administrative
Record (Dkt. No. 347). For the reasons below, the Court
grants in part and denies in part the motion.
December 11, 2018, two cases were filed challenging the
decision of the National Marine Fisheries Service
("NMFS") to issue incidental harassment
authorizations ("IHAs") to five companies to
conduct seismic airgun surveys for oil and gas in the coastal
waters of the Mid- and South Atlantic Ocean. As alleged in
the Complaint, once the Bureau of Ocean Energy Management
("BOEM") issues permits to the five companies, they
will be able to begin seismic airgun surveys. (Dkt. No. 1 at
¶ 99.) The Plaintiffs, nine environmental organizations
("Environmental Organization Plaintiffs"), seek
declaratory relief that the Defendants violated the Marine
Mammal Protection Act ("MMPA"), the Endangered
Species Act ("ESA"), the National Environmental
Policy Act ("NEPA") and the Administrative
Procedure Act ("APA"). Plaintiffs further request
that the Court vacate three agency actions authorizing the
surveys and enjoin Defendants from authorizing takings of
marine mammals incidental to the airgun surveys.
December 28, 2018, the Court granted a motion to consolidate
this case with a related case, City of Beaufort et al. v.
National Marine Fisheries Service, 2:18-cv-3327-RMG,
brought by sixteen South Carolina municipalities and the
South Carolina Small Business Chamber of Commerce
("Municipality Plaintiffs"). (Dkt. No. 57.) The
Court subsequently granted ten coastal states
("Intervenor States") the right to intervene as
plaintiffs, and granted seven organizations, five of whom are
the Exploratory Companies who received IHAs, the right to
intervene as defendants. (Dkt. Nos. 117, 118.) Subsequently,
all Plaintiffs moved for preliminary injunctions to enjoin
the issuance of permits and seismic testing. (Dkt. Nos. 124,
143, 146, 148.) After it became clear that the BOEM permits
were not "imminent," the Court denied without
prejudice all motions, but granted Plaintiffs leave to refile
their motions once the BOEM permits are issued or when there
is other evidence of imminent irreparable harm. (Dkt. No.
matter now comes before the Court on Plaintiffs' Motion
to Compel completion of the administrative record. (Dkt. No.
347.) Specifically, the Environmental Organization and
Municipality Plaintiffs allege that the administrative record
compiled excludes broad categories of information and
documents considered by NMFS when approving the IHAs for
seismic airgun surveys and improperly excludes any documents
determined to be predecisional or deliberative.
(Id.) The Plaintiffs also request that the Federal
Defendants be compelled to produce a privilege log for any
documents being withheld under a claim of privilege.
(Id.) The Federal Defendants oppose the motion,
arguing that all predecisional and deliberative documents
were properly excluded from the administrative record, the
administrative record as certified is entitled to a
presumption of regularity, and NMFS should not be required to
provide a privilege log. (Dkt. No. 350.) Plaintiffs filed a
reply. (Dkt. No. 351.)
Administrative Procedures Act ("APA") provides for
judicial review of a final agency action. See, e.g.
Roland v. United States Citizenship & Immigration
Servs., 850 F.3d 625, 629 n. 3 (4th Cir. 2017). Under
the APA, an agency's decision must be set aside when it
is "arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law." 5 U.S.C. §
706(2)(A). "Review under this standard is highly
deferential, with a presumption in favor of finding the
agency action valid." Ohio Valley Envtl. Coal. v.
Aracoma Coal Co., 556 F.3d 177, 192 (4th Cir. 2009)
(citations omitted). Nonetheless, the review is not a
"rubber-stamp" of agency action, and a court must
engage in a '"searching and careful' inquiry of
the record." Id.
reviewing an agency's decision, a court is instructed to
review "the whole record or those parts of it cited by a
party[.]" 5 U.S.C. § 706. The Supreme Court has
made clear that this review must be made based on the
"full administrative record that was before the [agency]
at the time [it] made [the] decision." Citizens to
Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91
S.Ct. 814, 825 (1971), abrogated on other grounds by
Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980 (1977).
See Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241,
1244 (1973) ("the focal point for judicial review should
be the administrative record already in existence, not some
new record made initially in the reviewing court."). As
explained by multiple courts, including district courts in
the Fourth Circuit, "[th]e whole administrative record
includes pertinent but unfavorable information, and an agency
may not exclude information on the ground that it did not
'rely' on that information in its final
decision." Outdoor Amusement Bus. Ass 'n, Inc.
v. Dep't of Homeland Sec, No. CV ELH-16-1015, 2017
WL 3189446, at *7 (D. Md. July 27, 2017) citing Tafas v.
Dudas, 530 F.Supp.2d 786, 793 (E.D. Va. 2008). This
means an agency must include all documents and materials
"directly or indirectly" considered by the agency.
See Bar MK Ranches v. Yuetter, 994 F.2d 735, 739
(10th Cir. 1993) (stating that "the administrative
record consists of all documents and materials directly or
indirectly considered by the agency."). See also
Thompson v. United States Dep't of Labor,
885 F.2d 551, 555 (9th Cir. 1989)("The whole
administrative record ... consists of all documents and
materials directly or indirectly considered by agency
decision-makers and includes evidence contrary to the
agency fails to produce a complete administrative record, a
party may request that the record be supplemented.
Outdoor Amusement Bus. Ass'n, Inc., 2017 WL
3189446 at *12 citing Otsuka Pharm. Co. v.
Burwell, No. GJH-15-852, 2015 WL 1579127 (D. Md. Apr. 8,
2015). An agency is "entitled to a strong presumption of
regularity that it properly designated the administrative
record," and therefore supplementation of the record is
"the exception not the rule." Id.
(citations omitted). Nonetheless, a plaintiff can overcome
this presumption if they:
(1) 'identify reasonable, non-speculative grounds for the
belief that the documents were considered by the agency and
not included in the record,' and (2) 'identify the
materials allegedly omitted from the record with sufficient
specificity, as opposed to merely proffering broad categories
of documents and data that are 'likely' to exist as a
result of other documents that are included in the
Id. Where a party is attempting to include documents
considered by the agency no showing of bad faith is required,
and a plaintiff must only present "clear evidence,"
which means a "strong, substantial or prima facie
showing that the record is incomplete." Id.
clear that Plaintiffs have, first, identified reasonable,
non-speculative grounds that documents considered by NMFS
were not included in the record and, second, properly
identified specific excluded records. Id. While the
Federal Defendants construe Plaintiffs' allegations as
speculative, Plaintiffs, with specificity, identified
documents that were considered "directly or
indirectly" by the agency. Bar MK Ranches, 994
F.2d at 739. For example, Plaintiffs identified an email from
BOEM ultimately sent to NMFS referencing an "attached
memo regarding Atlantic seismic permit applications"
that is not included in the record, a "seismic protocol
attachment" that is not included in the record, an
"appendix on vessel strike avoidance measures,"
"duke data," and an "attachment" that was
sent to a "right whale expert." (Dkt. Nos. 347-4 -
347-8.) These documents, referenced in agency communications
when discussing the creation of the IHA at issue in this
case, clearly identify other documents considered by the
agency and ...