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South Carolina Coastal Conservation League v. Ross

United States District Court, D. South Carolina, Charleston Division

January 3, 2020

South Carolina Coastal Conservation League; et al., Plaintiffs,
Wilbur Ross, in his official capacity as the Secretary of Commerce; et al., Defendants.



         This 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.

         I. Background

         On 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.

         On 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. 348.)

         This 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.)

         II. Legal Standard

         The 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.

         When 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's position").

         If an 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 administrative record[.]'

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.

         III. Discussion

         It is 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 ...

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