KANE, District Judge.
The Preble's meadow jumping mouse (Zapus hudsonius preblei) ("Preble's") is a small rodent endemic to the foothills of southeastern Wyoming and the eastern edge of the Front Range in Colorado. This subspecies of meadow jumping mouse has a very long tail, large hind feet adapted for jumping, and a dark stripe running down its back of otherwise gray to orangebrown fur. Though not a particularly charismatic mammal, of popular interest is Preble's acrobatic ability to jump up to a foot and a half in the air. Of biological significance is the subspecies's nocturnality, slow rate of reproduction, and evolutionary history since stranded in the region at the end of the last ice age.
In 1998, finding that the Preble's was a subspecies
Unlike FWS's review of the 1999 petitions, FWS concluded that the 2003 petitions presented substantial information that potentially warranted de-listing of the Preble's. Accordingly, FWS commenced a status review under 16 U.S.C. § 1533(b)(3)(B); see 12-Month Finding on a Petition to Delist the Preble's Meadow Jumping Mouse (Zapus hudsonius preblei) and Proposed Delisting of the Preble's Meadow Jumping Mouse, 70 Fed.Reg. 5,404 (Feb. 2, 2005). Pursuant to this status review, FWS, relying in large part on unpublished taxonomic studies indicating that the Preble's was not a discrete taxonomic entity, issued a proposed rule to remove the Preble's from the ESA's list of threatened and endangered species. Following the issuance of this proposed rule, FWS solicited comments and peer reviews; reviewed a contradictory genetic analysis of the Preble's from the U.S. Geological Survey; and convened a panel of experts to weigh in on competing scientific data. See AR G 1-1 at 010456. On January 4, 2007, the state of Wyoming sued FWS for failure to publish a final de-listing determination. AR G 1-1 at 010456. FWS settled with Wyoming, agreeing to either withdraw the 2005 proposed de-listing or propose a new rule concerning the status of the Preble's. Id.
Just two months later, however, on March 16, 2007, the Solicitor of the United States Department of the Interior ("Solicitor") issued a legal opinion that further impacted FWS's discordant status determinations. Memorandum re: The Meaning of "In Danger of Extinction Throughout All or a Significant Portion of its Range" (Mar. 16, 2007), Doc. 34-2. The memorandum opinion set forth a novel interpretation of the meaning of the statutory phrase "in danger of extinction throughout all or a significant portion of [a species'] range" which is located in the definitions of both "endangered species" and "threatened species" in the ESA.
The FWS did, however, solicit comments on the memorandum opinion and its application to the Preble's when it published its
On July 10, 2008, FWS published its Final Rule, amending the listing determination for the Preble's to remove legal protections for the mouse in Wyoming. After filing a 60-day notice of intent to sue for violations of the ESA on September 4, 2008, Petitioners now challenge FWS' (1) de-listing of the Preble's in Wyoming and (2) listing of the Preble's as threatened instead of endangered in Colorado. This controversy reaches beyond the grasslands of Wyoming and Eastern Colorado, as Petitioners also challenge (3) the DOI's interpretation of the ESA phrase "significant portion of its range," asserting that this interpretation is contrary to the statutory purpose of the ESA and that in its formulation and adoption of this policy DOI failed to comply with the procedural requirements of the ESA.
In their Motion to Supplement the Administrative Record, Doc. 32, Petitioners allege that FWS failed to provide the complete Administrative Record including all materials directly or indirectly considered by FWS decision makers in the decision to amend the Preble's listing. Petitioners seek to complete and/or supplement
Petitioners challenge Respondents' actions under the Endangered Species Act, 16 U.S.C. § 1531 et seq. ("ESA"). As this statute fails to define or specify the standard of review to be used in examining Respondents' actions, the Administrative Procedures Act ("APA"), 5 U.S.C. § 500, et seq., provides the framework for this appeal. Accordingly, I must apply the standards articulated in the APA in considering
Under the APA, I review Respondents' informal rulemaking to determine if it was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). As the Supreme Court held in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), "the generally applicable standards of § 706 require the reviewing court to engage in a substantial inquiry." Id. at 415, 91 S.Ct. 814. At the same time, the Supreme Court acknowledged "the Secretary's decision is entitled to a presumption of regularity." Id. The Court emphasized, however, that the "presumption is not to shield [the Secretary's] action from a thorough, probing, in-depth review." Id. The tension inherent in these mandates is revealed by the Court's own declaration that though "this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency." Id. at 416, 91 S.Ct. 814.
In conducting my review of Respondents' actions, I must balance these mandates. In order to afford appropriate deference, I review the administrative agency's decision as an appellate body. See Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1580 (10th Cir.1994). As a result, I apply the Federal Rules of Appellate Procedure and, generally, limit my review to the evidence relied upon by Respondents in reaching the challenged decision. Id. at 1580. In order to ensure a "substantial inquiry," however, I also apply a variety of rules and exceptions consistent with my responsibility to ensure meaningful judicial review. Most relevant to the instant controversy, I apply this general framework to the process of determining the sufficiency of the Administrative Record submitted by Respondents.
In order to determine the proper scope of the Administrative Record in this case, it is first necessary to determine the nature and scope of the decisions challenged by Petitioners. Respondents argue that Petitioners' challenge is limited to the Final Rule de-listing the Preble's throughout the Wyoming portion of its range. Petitioners counter that they are challenging both the Final Rule and the Memorandum Opinion upon which it is based.
As the 10th Circuit directed in Olenhouse, "[r]eviews of agency action in the district courts must be processed as appeals," and "a district court should govern itself by referring to the Federal Rules of Appellate Procedure." 42 F.3d at 1580. Accordingly, I must judge the sufficiency of the Petition for relief under Federal Rule of Appellate Procedure 15(a)(2)(C). Rule 15(a)(2)(C) states that a party challenging an agency decision by submitting a petition for review "must ... specify the order or part thereof to be reviewed." Failure to do so may result in dismissal. "A mistaken or inexact specification of the order to be reviewed will not be fatal to the petition, however, if the petitioner's intent to seek review of a specific order can be fairly inferred from the petition for review or from other contemporaneous filings, and the respondent is not misled by the mistake." Entravision Holdings, LLC v. Fed. Commc'ns Comm'n, 202 F.3d 311, 313 (D.C.Cir.2000).
On its face, the Petition for Review clearly articulates the "orders" for which Petitioners seek review. As both parties acknowledge, the Petition specifies both a challenge to FWS's decision to de-list the Preble's in Wyoming and the FWS' failure
Petition for Review, Doc. 1, p. 13. Unless adorned with flashing red-lights, it is unclear how Petitioners could provide Respondents with any more notice that they intended to challenge the substance of the Memorandum Opinion. In light of this language, Petitioners have met their pleading burden under Federal Rule of Appellate Procedure 15(a)(2)(C).
Respondents further argue that, even if the Petition provided notice of Petitioners' substantive challenge to the Memorandum Opinion, such a challenge is an inappropriate facial challenge. Though Respondents are correct in their articulation of the relevant law, the restriction on facial challenges does not apply in this case.
Having determined that the Administrative Record in this case properly contains documents relating to both the Final Rule de-listing the Preble's in the Wyoming portion of its range and the substance of the Memorandum Opinion upon which the decision was based, I now turn to the sufficiency of the record submitted by Respondents.
The APA directs that "the court shall review the whole record or those parts of
In accordance with my role in reviewing agency action under § 706, I begin my review of the sufficiency of the submitted Administrative Record by applying a "presumption of regularity" to the record as it is designated by the agency. In order to ensure a "probing inquiry" and a "thorough, probing, in-depth review," however, I also consider the exceptions by which Petitioners may prove the insufficiency of a record as designated by the agency and introduce additional documentation and evidence. Though courts differ in their formulation and application of these exceptions,
In the instant controversy, though their motion is described as an effort to "supplement the record," Petitioners first seek to "complete the record" with documents they assert were before the agency decision makers at the time they made the
In order to decide whether the administrative record submitted by Respondents is complete I must determine whether the record contains "all documents and materials directly or indirectly considered by the agency." Bar MK Ranches v. Yuetter, 994 F.2d 735, 739 (10th Cir.1993). Consistent with the deference owed an agency under § 706, I assume that the agency properly designated its record absent clear evidence to the contrary. Id. at 740. Therefore, the burden to rebut the presumption of a complete record initially rests with Petitioners who must show by clear evidence that the record fails to include documents or materials considered by Respondents in reaching the challenged decision.
To overcome the presumption of regularity and meet the burden of proving that the record designated by the agency is incomplete, Petitioners must clearly set forth in their motion: (1) when the documents were presented to the agency; (2) to whom; (3) and under what context. WildEarth Guardians v. Salazar, 713 F.Supp.2d 1243, 1254-55, 2010 WL 1413112, *5, 2010 U.S. Dist. LEXIS 32256, *17 (D. Colo. April 1, 2010) (citing Pacific Shores Subdivision v. U.S. Army Corps of Eng'rs, 448 F.Supp.2d 1, 7 (D.D.C.2006)). This showing is not, however, sufficient grounds for admitting the proffered documents into the Administrative Record. Petitioners must also establish that these documents were directly or indirectly considered by the relevant agency decision makers.
The rationale for limiting the record to those documents directly or indirectly considered by relevant agency decision makers is grounded in the need to afford adequate deference to agency expertise while ensuring meaningful judicial review of the full administrative record. Id. at 739. Determining whether and what documents and materials were directly considered by the relevant decision makers in the decision making process, based on clearly alleged facts, is ordinarily a straightforward proposition. See, e.g., id. at 739-40 (finding relevant decision makers to be those individuals specified in the agency's established decision making process). Substantial review must reach these materials because they clearly underlie any rational basis for the decision.
Despite Respondents' argument to the contrary, the whole record also includes documents besides those which "literally pass[ed] before the eyes of the final agency decisionmaker[s]." Clairton Sportsmen's Club v. Pa. Turnpike Comm'n, 882 F.Supp. 455, 465 (W.D.Pa. 1995); Miami Nation of Indians of Ind. v. Babbitt, 979 F.Supp. 771, 777 (N.D.Ind. 1996). If the agency decision maker based his decision on the work and recommendations of subordinates, those materials should be included in the record. WildEarth
Petitioners seek to complete the record with documents (1) relating to the formulation of the Memorandum Opinion and (2) with the Biological Assessments ("BAs") and Biological Opinions ("BiOps") associated with formal and informal consultations between various government agencies and the U.S. Fish and Wildlife Service concerning impacts of various projects in Wyoming on the Preble's.
With respect to the documents relating to the formulation of the Memorandum Opinion, Petitioners need not meet the clear evidence standard as Respondents acknowledge that they have not designated an Administrative Record for that decision. As the agency has completely failed to designate a record for this decision, it is appropriate and necessary to remand to the agency so that it may, consistent with this decision, compile the appropriate Administrative Record consisting of the documents and materials "directly and indirectly considered" by the relevant decision makers.
With respect to the relevant BAs and BiOps, however, Petitioners have failed to adequately set forth (1) when the BAs and BiOps were presented to the agency; (2) to whom; (3) and under what context. Petitioners do not meet their burden of providing clear evidence that the agency has failed to properly designate the Administrative Record "by asserting, speculatively, that documents were relevant or before the agency at the time it made its decision." WildEarth Guardians v. Salazar, 713 F.Supp.2d 1243, 1253-55, 2010 WL 1413112, *4-5, 2010 U.S. Dist. LEXIS 32256, *15 (D. Colo. April 1, 2010)(citing Pacific Shores, 448 F.Supp.2d at 6-7).
Even if I were to find that Petitioners' showing constituted "clear evidence," however, Petitioners have failed to adequately establish that the BAs or BiOps were directly
Petitioners also fail to adequately establish that these documents were indirectly considered by the relevant decision makers. As noted above, for purposes of inclusion in the record, documents are indirectly considered where they are the work and recommendations of subordinates upon which the relevant decision makers based their decision. WildEarth Guardians v. Salazar, 713 F.Supp.2d 1243, 1255-56, 2010 WL 1413112, *6, 2010 U.S. Dist. LEXIS 32256, *22 (D. Colo. April 1, 2010). Here, the relevant decision makers received summary information from the Wyoming Field Office on consultations between 1998 and 2008 relevant to the status of the Preble's. The Wyoming Field Office also sent two BiOps in their entirety which have been included in the Administrative Record. Petitioners assert that the Colorado Field Office indirectly considered the other BiOps and BAs because they considered and referenced information contained in the summary of these consultations in their final decision.
At first glance, Petitioners' argument that the Colorado Field Office constructively considered the underlying BiOps and BAs when staff considered a summary of these consultation documents is persuasive. Upon further investigation, however, it is apparent that this argument lacks merit. The summary, cursory at best, lists in table form the names and dates of fourteen projects or actions regarding which the Wyoming Field Office consulted with other federal agencies. The column relevant to the Preble's status is that marked "Amt. Take." A typical entry in the "Amt. Take" column is that for a FHWA/WDOT project at Antelope Gap Rd.: "1 acre-temp loss, 0.33 acre-perm, loss, 215 ft riparian hbtt temp." Although the BiOps and BAs may have served as the basis for this table, it is quite a leap (even for the Preble's) to infer that anyone reading this table relied so heavily on the underlying reports that they had constructively considered the underlying consultation documents.
In effect, petitioners argue that if a document considered by the relevant agency decision maker contains references to other documents, those underlying documents must be included in the record because they were indirectly considered (often referred to as "consideration through citation"). In accordance with the majority of courts, I find that the consideration through citation argument stretches the chain of indirect causation to its breaking point and cannot be a basis for compelling completion of an Administrative Record. WildEarth Guardians v. Salazar, 2009 WL 4270039, *4 (D.Ariz.2009). Petitioners have failed to establish that a decision maker reading two to four statistics on a project has constructively considered BAs and BiOps representing in great detail the quantitative and qualitative findings for the biological and environmental impacts of a government project on the Preble's and accompanying recommendations. As Petitioners have provided no additional (or clear) evidence establishing that Colorado Field Office staff considered the BiOps and BAs, and because a party considering the summary table does not rely so heavily on the underlying consultation documents as
A party attempting to convince a reviewing court to expand the scope of its review properly bears a sizeable burden if it is to convince the court to forego the customary deference owed an agency's determination of what constitutes the record. Petitioners have failed to meet this burden, and these documents are not properly admitted as "completing the record." Whether the relevant agency decision makers should have properly considered these underlying reports in order to provide a rational basis for the decision to de-list the Preble's in Wyoming is a mouse of a different tail.
Consistent with the "presumption of regularity" noted above, I am generally reluctant to allow parties to supplement the record with evidence not considered by the agency in reaching its challenged decision. As the D.C. Circuit has noted, "To review more than the information before the Secretary at the time she made her decision risks our requiring administrators to be prescient or allowing them to take advantage of post hoc rationalizations." Walter O. Boswell Mem'l Hosp. v. Heckler, 749 F.2d 788, 792 (D.C.Cir.1984). Despite my general reluctance, however, I must consider the exceptions which allow a party to introduce extra-record evidence. Though these exceptions are grounded in the Supreme Court's ruling in Overton Park, which allowed lower courts to conduct some form of de novo review "when the action is adjudicatory in nature and the agency factfinding procedures are inadequate... [and] when issues that were not before the agency are raised in a proceeding to enforce nonadjudicatory agency action...," 401 U.S. at 415, 91 S.Ct. 814, they have taken on a life of their own.
As two commentators argued nearly fifteen years after the Court's decision in Overton Park, "courts have developed so many unwritten exceptions to the doctrine of record review, that industrious advocates now can introduce any evidence they choose in cases reviewing informal administrative action." Steven Stark and Sarah Wald, Setting No Records: The Failed Attempts to Limit the Record in Review of Administrative Action, 36 Admin. L.Rev. 333, 336 (1984). Though this proclamation is arguably overstated,
Unfortunately, lower courts have failed to articulate coherently and consistently the exceptions which justify supplementation of the record. For example, though the 10th Circuit recognized five possible exceptions in Custer County Action Ass'n v. Garvey, 256 F.3d 1024, 1028 n. 1 (2001)(quoting American Mining Cong., 772 F.2d at 626, and listing possible justifications as: (1) the agency action is not adequately explained and cannot be reviewed properly without considering the cited materials; (2) the record is deficient because the agency ignored relevant factors
It is not my province to articulate the standard governing the admission of extrarecord evidence throughout this circuit. I note this confusion, however, in hoping that the 10th Circuit will grasp the nettle and provide a clear articulation of the exceptions allowing district courts in this circuit to supplement the Administrative Record with extra-record evidence. Having noted this confusion, and entered my plea for clarity, I now turn to the exception most relevant to this case—an agency's failure to consider relevant evidence.
A court's review under "Section 706(2)(A) [of the APA] requires a finding that the actual choice made was not `arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.' 5 U.S.C. § 706(2)(A). To make this finding the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Overton Park, 401 U.S. at 416, 91 S.Ct. 814. The
In deciding to de-list the Preble's in Wyoming, the U.S. Fish and Wildlife Service found that the "Preble's populations in Wyoming are more widespread and threats to the subspecies less severe than those known at the time of listing." 73 Fed.Reg. 39790. As one of the BiOps cited by Petitioners states, however:
Fish and Wildlife Service, Programmatic Biological Opinion for the Wyoming Bureau of Land Management's Rawlins Resource Management Plan, Doc. 32-3, 22 (emphasis added). As Respondents argue, and Petitioners have failed to rebut, the relevant decision makers did not possess or consider, directly or indirectly, either this or any of the other consultation documents that Petitioners seek to add to the record in the context of promulgating the Final Rule. As noted above, however, it is appropriate to allow supplementation of an Administrative Record "where necessary... for determining whether the agency considered all relevant factors including evidence contrary to the agency's position." Franklin Savings Ass'n v. Office of Thrift Supervision, 934 F.2d 1127, 1137 (10th Cir.1991). Accordingly, Petitioners argue that these documents must be admitted because they "relate to the position of the agency's own experts on the question central to this case. To deny their relevance would be inconsistent with rational decisionmaking by an administrative agency." Kent County, Delaware Levy Court v. Envt'l Prot. Agency, 963 F.2d 391, 396 (D.C.Cir.1992).
Though I do not speculate as to the Respondents' motives in failing to consider these documents, it is apparent that they are relevant to the decision to de-list the Preble's in Wyoming. The BAs and BiOps contain detailed information and analysis relating to the Preble's.
I am not convinced by Respondents' attempt to distinguish between negligent and deliberate exclusion of records. As a threshold matter, it is contrary to subsequent decisions which explicitly hold that Kent County applies where "the agency deliberately or negligently excluded documents that may have been adverse to its decision." James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1095 (D.C.Cir.1996)(emphasis added); see also American Radio Relay League, Inc. v. Fed. Common's Comm'n, 524 F.3d 227, 244 (D.C.Cir.2008) (Tatel, J. concurring) ("In Kent County we ordered the agency to supplement the administrative record even though there was no indication `that the agency had purposefully excluded the documents'")(emphasis added). Furthermore, if, as Respondents suggest, an agency could exclude documents and materials from the administrative record by intentionally deciding not to review them, the agency could significantly skew the record in its favor. This is inconsistent with the meaningful judicial review required by Overton Park.
The BAs and BiOps relating to the various formal and informal consultations between various government agencies and the U.S. Fish and Wildlife Service concerning impacts of various projects in Wyoming on the Preble's are relevant to the decision to de-list the Preble's in Wyoming. As Respondents should have but failed to consider these relevant documents, they are properly admitted into the Administrative Record.
When the Administrative Record is inadequate, "the proper course, except in rare circumstances, is to remand to the agency for additional investigation or ex-planation." Sierra Club-Black Hills Group v. U.S. Forest Serv., 259 F.3d 1281, 1289 (10th Cir.2001) (quoting Fla. Power & Light Co., 470 U.S. at 744, 105 S.Ct. 1598). In a case such as this one, however, where Petitioners seek to supplement the record with a limited class of documents which should have been considered by the Respondents in reaching the challenged decision, I think it appropriate to compel supplementation of the record with those documents. Accordingly, Respondents shall include in the record the BAs and BiOps associated with formal and informal consultations between various government agencies and the U.S. Fish and Wildlife Service concerning impacts of various projects in Wyoming on the Preble's.
In conducting review of agency action under § 706 of the APA, a reviewing court may not substitute its judgment for that of the agency. Where an agency decision is not "arbitrary, capricious, or otherwise not in accordance with the law," it is entitled to deference. In some cases, however, a party challenging an agency action may overcome the presumption of regularity upon a showing that the agency has, in some manner, abused its discretion. This framework applies to all agency actions— including the agency's designation of the Administrative Record which forms the basis for judicial review.
Petitioners have met their burden in demonstrating that Respondents have failed to designate the Administrative Record for the Solicitor's Memorandum Opinion. The agency shall, consistent with this decision, compile the appropriate Administrative Record consisting of the documents and materials "directly and indirectly considered" by the relevant decision makers in the formulation of the Memorandum.
Carbajal v. Lincoln Benefit Life Co., 2007 WL 3407345, at *3, 2007 U.S. Dist. LEXIS 86753, at *8 (D.Colo. Nov. 13, 2007).
