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Oceana, Inc. v. Pritzker

United States District Court, N.D. California

June 21, 2017

OCEANA, INC., Plaintiff,
PENNY PRITZKER, et al., Defendants.


          SUSAN VAN KEULEN United States Magistrate Judge

         Plaintiff Oceana, Inc. challenges a final rule setting annual catch limits for the central subpopulation of the northern anchovy (the “Rule”)[1] promulgated by the National Marine Fisheries Service (“NMFS”). Oceana brings its challenge under the Administrative Procedures Act (“APA”), 5 U.S.C. § 701 et seq., and the Magnuson-Stevens Fishery Conservation and Management Act (“Magnuson Act”), 16 U.S.C. § 1801 et seq. In response to Oceana's challenge, defendants prepared and filed an Administrative Record (“AR”) with the Court on February 17, 2017. ECF 26. Before this Court is Oceana's motion to compel defendants to complete the administrative record by adding three categories of materials:

(1) Data collected through acoustic trawl sampling during summer 2015, analyses of that data, correspondence discussing or conveying such analyses, and drafts of the paper entitled “The Distribution and Biomass of the Central-Stock Northern Anchovy during Summer 2015, Estimate from Acoustic-Trawl Sampling, ” which NMFS presented to the Pacific Fishery Management Council (the “Council”) in November 2016 (the “ATS Materials”);
(2) An NMFS report entitled “Review and Re-evaluation of Minimum Stock Size Thresholds for Finfish in the Coastal Pelagic Species Fishery Management Plan for the U.S. West Coast” (August 22, 2016), prepared by the agency's Southwest Fisheries Science Center (the “SST Report”); and
(3) A study by Laura E. Koehn, et al., entitled “Developing a high taxonomic resolution food web model to assess the functional role of forage fish in the California Current ecosystem, ” which was cited in comments submitted to the Council, a body of which NMFS is a voting member, while NMFS was developing the Rule (the “Koehn Study”).

ECF 35 at 2-3. Alternatively, Oceana argues that these materials are admissible under exceptions to the record review rule. Id. at 14-16.

         Defendants oppose the motion on the grounds that these items are not properly part of the administrative record because NMFS did not consider them, either directly or indirectly, when developing the Rule. ECF 36 at 8-14. Defendants also argue that the limited exceptions for admission of extra-record evidence do not apply. Id. at 14-18. Finally, defendants argue that if the Court includes or admits the ATS Materials, additional items should be added to the administrative record to explain and give context to those materials. Id. at 18-20.

         Judge Lucy H. Koh referred this motion to the undersigned discovery referral judge. ECF 33. The Court held a hearing on June 6, 2017. Having considering the briefs, argument at the hearing, and the relevant legal authority, the Court GRANTS IN PART and DENIES IN PART Oceana's motion to compel completion of the administrative record.

          I. Background

         On November 20, 2015, defendant NMFS published a proposed rule entitled Fisheries Off West Coast States; Coastal Pelagic Species Fisheries; Multi-Year Specifications for Monitored and Prohibited Harvest Species Stock Categories in the Federal Register, requesting public comments. AR 88. The public comment period closed on December 31, 2015. Id. On September 30, 2016, NMFS approved the final Rule. AR 186. On October 26, 2016, the final Rule was published in the Federal Register. 81 Fed. Reg. 74, 309. The Rule set annual catch limits and other reference points for various species of fish, including an annual catch limit of 25, 000 metric tons for the central subpopulation of northern anchovy (“anchovy”). Id. at 74, 310. In this lawsuit, Oceana alleges that the challenged Rule is not based on the best available science, fails to articulate a rational basis for its decisions, fails to prevent overfishing, and fails to achieve optimum yield, contrary to the Magnuson Act and the APA.[2] ECF 1; ECF 30 at 2.

         II. Evaluation of Completeness of the Administrative Record

         “Generally, judicial review of an agency action is limited to review of the record on which the administrative decision was based.” Thompson v. U.S. Dep't of Labor, 885 F.2d 551, 555 (9th Cir. 1989). Courts, however, may grant a motion to complete the administrative record where the agency has not submitted the “whole” record.” See 5 U.S.C. § 706 (“the court shall review the whole record or those parts of it cited by a party”). The “whole” record “consists of all documents and materials directly or indirectly considered by agency decision-makers and includes evidence contrary to the agency's position.” Thompson, 885 F.2d at 555 (citation omitted); see also Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.402, 420 (1971) (holding that courts must review “the full administrative record that was before the [agency] at the time [it] made [the] decision”)). An agency may not exclude information it considered on the grounds that it did not rely on that information. People ex rel. Lockyer v. U.S. Dep't of Ag., No. C05-03508 EDL, 2006 U.S. Dist. LEXIS 15761, at *9-10 (N.D. Cal. Mar. 16, 2006).

         The agency's designation of the record is accorded a strong presumption of regularity and completeness, which the plaintiff must overcome with “clear evidence.” Gill v. Dep't of Justice, No. 14-cv-03120-RS (KAW), 2015 U.S. Dist. LEXIS 170347, at *15 (N.D. Cal. Dec. 18, 2015). To meet this standard, the plaintiff must identify the allegedly omitted materials with sufficient specificity and “identify reasonable, non-speculative grounds for the belief that the documents were considered by the agency and not included in the record.” Id. at *16-17 (internal quotation marks and citations omitted). The plaintiff can also rebut the presumption of completeness by showing that the agency applied the wrong standard in compiling the record. See, e.g., Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., No. CV01-640-RE, 2005 U.S. Dist. LEXIS 16655, at *10 (D. Or. March 3, 2005) (holding presumption of completeness overcome where agency excluded documents because they did not “form the basis” for the agency's determination). The plaintiff need not show bad faith or improper motive to rebut the presumption. Lockyer, 2006 U.S. Dist. LEXIS 15761, at *9.

         III. Discussion

         A. Administrative Record Prepared by NMFS

         Although the agency bears the initial responsibility to assemble the administrative record, the record “is not necessarily those documents that the agency has compiled and submitted as ‘the' administrative record.” Thompson, 885 F.2d at 555 (emphasis in original) (internal quotation marks and citation omitted). Similarly, although an agency's certification of the administrative record is entitled to a strong presumption of regularity, a certification that does not make clear that the record includes all documents and materials directly or indirectly considered by the agency in making its decision “suggests noncompliance with the standard according to which an administrative record should be compiled.” Gill, 2015 U.S. Dist. LEXIS 170347, at *19-20 (holding presumption of completeness rebutted where agency certified that the record contained all information “considered in the development” of the agency action but did not state that all materials directly or indirectly considered by the agency were included).

         Here, NMFS assembled the administrative record and filed it with the Court along with a certification signed by Joshua Lindsay. ECF 26-2. Mr. Lindsay is a NMFS Fishery Policy Analyst who was the lead NMFS staff member who prepared both the proposed and final versions of the Rule, as well as all supporting documents. ECF 36-1 at ¶ 4. In the certification, Mr. Lindsay states that he is “the custodian of NMFS documents relating to the final rule challenged by Plaintiff in this case” and that “[r]ecords comprising the administrative record for the Rule are located in the NMFS West Coast Region office in Long Beach, California.” ECF 26-2 at ¶¶ 3-4. Mr. Lindsay states that under his “direction and supervision, NMFS staff in the Long Beach Office conducted a diligent search for an assembled the documents for the administrative record for the Rule.” Id. at ¶ 5. Mr. Lindsay also certifies that the record filed with the Court constitutes “a true, correct, and complete copy of the administrative record for the Rule.” Id. at ¶ 6.

         The certification fails to explain what standard was used by Mr. Lindsay and his staff in identifying what materials should be included in the administrative record. The agency's inadequate certification overcomes the presumption of completeness, particularly where, as discussed below, Oceana has demonstrated that the record prepared by NMFS does not ...

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