BERYL A. HOWELL, District Judge.
This case involves a challenge by nonprofit groups and individual citizens to administrative decisions made by the Interior Department's Bureau of Land Management ("BLM") in 2008 and 2011, which, inter alia, authorize the rounding up, castrating, and returning of gelded (or castrated) wild horses to public land in Nevada. See Complaint ("Compl."), ECF No. 1, ¶ 1. The Plaintiffs
This case arises from a challenge to BLM's administrative decisions related to the management of wild horse populations on public lands, and particularly BLM's decision to round up horses, castrate the males, and then return the gelded (or castrated) horses ("geldings") to public land. Although the Plaintiffs' claims relate particularly to BLM's 2008 and 2011 administrative decisions affecting wild horses in an area known as Pancake Complex
In 2011, two of the Plaintiffs in this case (AWHPC and WWP) were involved in a related lawsuit against BLM, challenging BLM's plans for the management of wild horses in the White Mountain and Little Colorado HMAs in Wyoming. BLM's plans for those two HMAs in Wyoming called for the round-up and removal of female horses and the castration of male horses, which would then be returned to the range. See Am. Wild Horse Preservation Campaign v. Salazar, 800 F.Supp.2d 270,
On November 28, 2011, BLM again announced plans to "pilot" a gelding program. BLM's Egan Field Office in Ely, Nevada released the Pancake Complex Final Decision ("Pancake Complex Decision") announcing that the BLM Egan and Tonopah Field Offices in Nevada had determined that there were "excess wild horses ... present within and outside the boundaries" of the Pancake Complex, and proposing a "pilot" program involving the gelding approach to manage the horse population. See Decision Record, AR 11. BLM explained that the proposed action "is a pilot management alternative that calls for a phased-in approach [involving] gradually removing excess animals, implementing fertility control, adjusting sex ratios, and managing a portion of the herd as a non-breeding population of geldings." Id.
On December 14, 2011, following BLM's announcement about the Pancake Complex Decision, the Plaintiffs filed a Complaint challenging two decisions of BLM: (1) the 2008 Ely Resource Management Plan ("RMP"), and its accompanying Final Environmental Impact Statement ("FEIS"), in which the Plaintiffs claim that BLM authorized the removal of all wild horses in the "Jakes Wash" area of Nevada and a substantial reduction in the wild horse population in the Pancake Complex, and (2) BLM's November 28, 2011 Pancake Complex Decision, in which BLM sought to implement the Ely RMP with, inter alia, a "pilot" management program of castrating wild horses and returning these "geldings" to the range, without considering the various environmental impacts of this approach, and without preparing an Environmental Impact Statement ("EIS"). See Compl.; Pls.' Summ. J. Mem. at 1.
In their Complaint, Plaintiffs allege that BLM has (1) "violated its obligations under the WHA to `protect and manage'
The Plaintiffs have moved for Summary Judgment on their claims, relying in part on the Expert Declarations, which raise concerns about the management of wild horse populations using the method of gelding male horses. See ECF No. 18, Exs. A-D.
Before responding to the Plaintiffs' Motion for Summary Judgment, the Defendants moved to strike the Expert Declarations and any reference to them in the Plaintiffs' Motion for Summary Judgment. ECF No. 19. The Defendants claim that these Expert Declarations are not part of the AR because the comments submitted by the Plaintiffs in 2011 during the 30-day public comment period on the Preliminary Environmental Assessment ("PEA") for the Pancake Complex Decision did not include the four Expert Declarations. A brief overview of the circumstances surrounding this comment period, and leading up to the Plaintiffs' filing of their Motion for Summary Judgment, is helpful to understanding the Defendants' pending Motion, and why this Court must deny the Motion.
On September 28, 2011, less than one month after the August 8, 2011 dismissal of the lawsuit against BLM over its proposed gelding plan for two HMAs in Wyoming, BLM through its Egan Field Office announced its plans to include a gelding component in a horse roundup in the Pancake Complex. See AR 151. The Pancake Complex proposal called for the gathering of approximately 65 to 70% of the wild horses every two to three years with the goal of removing approximately 800 to 1,000 excess horses per gather for a period of six to ten years. See AR 162. The proposal said that "[a]pproximately 200 stallions would be gelded (castrated) and released back into the HMA's representing a non-reproductive component in the HMA." Id. at 163 According to BLM's proposal, the "targeted number of geldings would also be phased-in over two to three gather cycles in order to observe how the geldings are transitioning into the overall population as well as utilizing their habitat." Id. BLM's Egan Field Office announced a 30-day comment period for the PEA for the Pancake Complex Decision,
AWHPC responded to the proposal on October 28, 2011 by submitting via facsimile transmission to the Egan Field Office detailed comments opposing the proposed decision. AR 646-64. The comments emphasized that BLM included in its proposal only "anecdotal" information about the expected impact of gelding on stallions, and referenced no scientific studies or data. Id. at 652. The comments also noted that the PEA "fails entirely to consider the impacts of sterilization on stallions ... as well as their behavior and therefore impact on the herd." Id.
Of most relevance to the instant Motion, AWHPC's comments relied heavily on the Expert Declarations. The comments stated that "the impacts of sterilization on wild horses can be severe, affecting both their physiology and ability to survive, as well as their behavior and therefore impact on the herd" and requested that BLM "[p]lease see expert declarations from Drs. Allen Rutberg, Dr. Anne Perkins, Dr. Jay Kirkpatrick and Dr. Bruce Nock for details (Attachments 3-6)." Id. The comments also provided lengthy excerpts of the Expert Declarations. See id. at 652-53. The comments, for example, quoted Dr. Kirkpatrick, the Director of Science and Conservation Biology at Zoo Montana and a "foremost authority on wildlife reproductive biology" as stating that "[c]astrating horses will effectively remove the biological and physiological controls that prompt these stallions to behave like wild horses. This will negatively impact the place of the horse in the social order of the band and the herd." Id. The comments also quote Dr. Nock, a faculty member at Washington University School of Medicine, as stating, inter alia, that "[g]elding (removing a horse's testes) will have irreversible effects on both the individual horse and the herd... In my professional opinion, releasing a castrated horse into a wild herd is an inhumane management approach that certainly does not `protect' or `help preserve' wild horses in any sense of the word." Id. at 653. AWHPC's comments, relying on the Expert Declarations, are indisputably part of the AR. See AR 646-64.
The parties dispute, however, whether the Expert Declarations relied on in AWHPC's comments are part of the AR because they were not received before the end of the comment period. Although the comments included a list of "Attachments" that referenced the four Expert Declarations, see AR 664, AWHPC concedes that the Expert Declarations were not attached to the comments faxed to BLM before the comment period deadline. These declarations were only referenced and quoted in the text of the comments as well as cited in the list of references at the end of the comments. See Declaration of Deniz Bolbol, ECF No. 22, Ex. D (dated Apr. 6, 2012) ("Bolbol Decl.") ¶ 7. AWHPC points out that the Expert Declarations were, instead, sent in an email within two hours after the deadline for the comments period. The comments in the AR suggest that the attachments would be emailed separately; at the top of the comments, it is noted "Via Email (with attachments): PancakeComplex@blm.gov" and "Via Fax (without attachments): 775-289-1910." AR 646. It is unclear from the record, however, whether BLM ever received the Expert Declarations by email. While AWHPC assumed that the Expert Declarations had been received and would be considered in the agency's decision-making process, see Bolbol Decl. ¶ 14, BLM argues that it never received the Expert Declarations by email and the Expert Declarations were not considered. Fed. Defs.' Reply in Supp. of Defs.' Mot. to Strike, ECF No. 23 ("Defs.' Reply"), at 3 n. 1 (citing Declaration
The Communications Director for AWHPC, Deniz Bolbol, states that, after the comments were submitted by facsimile to BLM, she sent three emails to BLM between 1:49 A.M. and 1:57 A.M. on October 29, 2011. Bolbol Decl. ¶ 7. The first email was a "courtesy copy" of the comments that were earlier faxed to BLM on October 28, 2011. The second email contained six of the twelve attachments referenced in AWHPC's comments (including all four of the Expert Declarations), and the third email contained the remaining six attachments. Id. On Sunday, October 30, 2011, Bolbol received an "error message" from her email provider "indicating that BLM's email server did not accept" one of the three email messages, namely the second email message containing the four Expert Declarations. Id. at ¶ 9. On October 31, 2011, the first business day following the end of the comment period, Bolbol called and left a voicemail message for a BLM Ely Field Office employee (Ruth Thompson) explaining the situation and requesting a call back. Id. Bolbol then emailed two employees of BLM's Ely Field Office (Ruth Thompson and Rosemary Thomas) explaining the email error message and requesting confirmation that the email attachments had been received. Id. On Tuesday, November 1, 2011, Bolbol again emailed the same two employees of BLM's Ely Field Office and informed them that, since she had not yet heard back from them, she would re-send the emails to ensure that BLM had them. Id. at ¶ 10. Bolbol then resent the emails, along with all of the attachments. This time she sent the emails with fewer attachments, and did not receive any error messages, "leading [her] to believe that the messages had been properly received by BLM." Id.
On November 3, 2011, Bolbol received an email from Ruth Thompson, replying to Bolbol's email of October 31, 2011, noting that the Ely District BLM received two emails from Bolbol. Email from Ruth Thompson to Deniz Bolbol, ECF No. 19, Ex. A (dated Nov. 3, 2011, 10:11 A.M.). Thompson noted that the second email "was not received possibly due to the attachments being too large. The total message size including attachments must not exceed 4 megabytes. If there were any attachments please send fewer attachments per message or use a compression utility to reduce the attachment size." Id. Thompson emphasized, however, that "[r]egardless of whether or not BLM received all of these messages, the fact is these messages were sent after the comment period closed. Therefore we are unable to include these comments into the EA." Id. Bolbol replied arguing that "[t]he attachments are supportive of the letter itself and it [is] unreasonable that the BLM is not willing to accept attachments to public comments sent within the public comment period." Email from Deniz Bolbol to Ruth Thompson, ECF No. 19, Ex. A (dated Nov. 3, 2011, 11:08 A.M.). Thompson replied by email again, noting that the Ely District BLM did receive the comments by fax on October 28, 2011 but noting that no "documentation" was received until after the public comment period had closed. Email from Ruth Thompson to Deniz Bolbol, ECF No. 19, Ex. A (dated Nov. 3, 2011, 1:36 P.M.)
On November 4, 2011, Bolbol emailed Thompson, stating that "we wanted to make sure that the documents referenced in our comments are properly considered as part of the administrative record for the
Email from Deniz Bolbol to Ruth Thompson, ECF No. 19, Ex. A (dated Nov. 4, 2011, 11:14 A.M.). The email further stated that "[a]lthough [the BLM] is already in possession of 11 out of 12 of the referenced documents, we wanted to provide you with another copy of these records via email. Similarly, as a courtesy, we emailed the BLM an electronic copy of the comments, which you acknowledge receiving on October 28, 2011. The emailed version of the faxed comments was received by your office one hour and 47 minutes after the comment deadline (i.e. at 1:47 a.m. on Saturday, October 29, 2011). Again, since the referenced attachments in AWHPC's comments on the Pancake Complex PEA are already in the possession of the BLM, we fully expect that these records will be considered as part of the administrative record for this EA." Id.
On February 14, 2012, BLM lodged a 10,972-page administrative record, which it provided to Plaintiffs' counsel the next day. Pls.' Mem. at 10 (citing Declaration of William S. Eubanks II, ECF No. 22, Ex. E (dated Apr. 9, 2012) ("Eubanks Decl.") ¶ 2). The Plaintiffs state that Plaintiffs' counsel confirmed that AWHPC's comments were in the AR and then, "assuming that such comments necessarily included the supporting attachments, ... devoted his scant remaining time to sifting through the balance of the record...." Pls.' Mem. at 10. The Plaintiffs explain that it only came to the attention of Plaintiffs' counsel on February 29, 2012, the day after motions for supplementation of the administrative record were due pursuant to this Court's scheduling order, that the attachments to AWHPC's comments (including the Expert Declarations), were not included in the AR. Id. (citing Eubanks Decl. ¶ 4).
After realizing that the attachments were not included in the AR, Plaintiffs' counsel "immediately contacted BLM's counsel ... request[ing] that the attachments be included with the supplemental Administrative Record filing that BLM had already agreed to file." Pls.' Mem. at 10. According to the Plaintiffs, BLM's counsel responded, however, that "[b]ecause the additional documents were submitted after the comment period had closed, BLM did not consider the documents in making the decisions challenged in this litigation, and therefore they are not part of the administrative record." Id. at 10-11 (citation omitted).
Without seeking leave of the Court to supplement the AR with the Expert Declarations, on March 16, 2012, the Plaintiffs filed their Motion for Summary Judgment, relying on the Expert Declarations. ECF No. 18. In support of their Motion, Plaintiffs stated that "[a]lthough BLM takes the position that these expert declarations should not be considered by the Court in this case, BLM clearly had all of these declarations in its possession when it decided to use gelding in the Pancake Complex on November 28, 2011, and hence these materials were clearly before the agency when it made this decision, and therefore must be considered part of the Administrative Record." Id. at 15-16 n. 6. The Plaintiffs note that "if necessary, Plaintiffs can formally move the Court to require BLM to include them in the record." Id.
Under the APA, "the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court." Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). An agency's designation of the record "is entitled to a strong presumption of regularity." Pac. Shores Subdiv. v. U.S. Army Corps of Eng'rs, 448 F.Supp.2d 1, 6 (D.D.C.2006) (citation omitted). At the same time, "[i]f a court is to review an agency's action fairly, it should have before it neither more nor less information than did the agency when it made its decision" because "[t]o review less than the full administrative record might allow a party to withhold evidence unfavorable to its case...." Walter O. Boswell Memorial Hospital v. Heckler, 749 F.2d 788, 792 (D.C.Cir.1984). An agency "may not skew the record in its favor by excluding pertinent but unfavorable information, [n]or may the agency exclude information on the grounds that it did not `rely' on the excluded information in its final decision." Fund for Animals v. Williams, 391 F.Supp.2d 191, 197 (D.D.C.2005) (citations omitted). Instead, the "record must include all documents that the agency directly or indirectly considered." Id. at 196 (citations and quotation marks omitted). The "whole record include[s] all materials that might have influenced the agency's decision, and not merely those on which the agency relied in its final decision." County of San Miguel v. Kempthorne, 587 F.Supp.2d 64, 71 (D.D.C.2008) (citation and quotation marks omitted).
"To overcome the strong presumption of regularity to which an agency is entitled, a plaintiff must put forth concrete evidence that the documents it seeks to `add' to the record were actually before the decisionmakers." Franks v. Salazar, 751 F.Supp.2d 62,
The D.C. Circuit has explained that courts "do not allow parties to supplement the record unless they can demonstrate unusual circumstances justifying a departure from this general rule." City of Dania Beach v. FAA, 628 F.3d 581, 590 (D.C.Cir.2010). The record may be supplemented in three circumstances: "(1) if the agency deliberately or negligently excluded documents that may have been adverse to its decision, (2) if background information was needed to determine whether the agency considered all the relevant factors, or (3) if the agency failed to explain administrative action so as to frustrate judicial review...." Id. (citation and quotation marks omitted); see also County of San Miguel, 587 F.Supp.2d at 72 (explaining that "a party seeking to supplement the record must establish that the additional information was known to the agency when it made its decision, the information directly relates to the decision, and it contains information adverse to the agency's decision").
On March 30, 2012, the Defendants filed the instant Motion, moving to strike the Expert Declarations appended as exhibits to the Plaintiffs' Motion for Summary Judgment and the parts of Plaintiffs' memorandum in support of their Motion for Summary Judgment that rely on these declarations.
The Court will deny the Motion to Strike because the Plaintiffs have shown that AWHPC's timely-filed comments opposing the Pancake Complex Decision clearly cite, and rely extensively on, the Expert Declarations that were already known to BLM, were directly related to and adverse to the agency's decision, and should have been considered part of the AR. See County of San Miguel, 587 F.Supp.2d at 72 (explaining that "a party seeking to supplement the record must establish that the additional information was known to the agency when it made its decision, the information directly relates to the decision, and it contains information adverse to the agency's decision"). First, BLM was in possession of the Expert Declarations when it made the Pancake Complex Decision shortly after the dismissal as moot of related litigation, in which the Expert Declarations were filed, in the District Court of the District of
Second, the Defendants' argument that the Plaintiffs' citation to the Expert Declarations in their comments does not make them part of the AR is, in this case, unavailing. The Defendants cite to In re Delta Smelt Consol. Cases, No. 09-cv-1053, 2010 WL 2520946, at *3-4 (E.D.Cal. June 21, 2010), for the proposition that mandating agencies to "track down documents referenced in, but not attached to, a comment letter" would be an "unworkable rule." Defs.' Reply at 6-7. The Court agrees with the Defendants and the In re Delta court that a general rule that "would permit a party to force into the record any number of references, regardless of relevance, simply by attaching to a comment letter a list of references on a particular subject" would indeed be an "unworkable rule." 2010 WL 2520946 at *4. The Plaintiffs here seek no such rule, however; instead, the Plaintiffs argue that the specific Expert Declarations on which they relied extensively in their timely-submitted comments, and which they requested that BLM examine, and which were already before BLM in related litigation, and the substance of which was before BLM in other administrative proceedings, are properly part of the AR. The Court agrees. This case is distinguishable from Marcum v. Salazar, 751 F.Supp.2d 74, 80 (D.D.C.2010), where the Court denied plaintiffs' Motion to supplement the record with court filings and materials related to an earlier case before the same court. In Marcum, the Court found that "neither the materials' purported relevance nor plaintiffs' references to [the earlier litigation] during the permitting process constitute concrete evidence that the [agency] considered the materials, either directly or indirectly." Id. To the contrary, in this case, the Plaintiffs have shown that they specifically directed the agency to the Expert Declarations in their timely-filed comments and later, less than two hours after the comment period ended, attempted to submit the Expert Declarations to the agency. These efforts, and AWHPC's persistent attempts to ensure that the Expert Declarations were part of the AR, as described supra 38-40, constitute evidence that BLM considered the materials at least indirectly.
This case is more analogous to Styrene Info. & Research Ctr., Inc. v. Sebelius, 851 F.Supp.2d 57 (D.D.C.2012) (Walton, J.), where the plaintiffs sought to supplement the administrative record with reports that were prepared by subgroups of an Expert Panel. While the defendants there argued that the Department of Health and Human Services' National Toxicology Program never considered the subgroup reports, because they were not included in the Expert Panel's final report, the Court disagreed, finding that the subgroup reports were "an integral part of the Expert Panel's peer review process and influenced the Expert Panel's recommendation," even though they were not "ultimately passed on to the final decisionmaker." Id. at 64, at *5. The Court found that the plaintiffs rebutted the "presumption of regularity" of the AR because, inter alia, the administrative record included several references to the subgroup reports. "These references," the Court noted, "suggest that the Expert Panel substantively considered scientific information and advice contained in the subgroup reports, and was aware of the
Indeed, to the extent that BLM argues that it was incumbent on the Plaintiffs to provide copies of the Expert Declarations on which the Plaintiffs relied heavily in their comments, the Court disagrees. BLM was on notice, and in possession, of the Expert Declarations.
Third, the Defendants' argument that supplementation of the AR is inappropriate because the Plaintiffs never moved the
Finally, the Court turns to the Defendants' request for "leave to file responsive evidence in support of their cross-motion for summary judgment as well as an appropriate adjustment of the summary judgment briefing schedule" should the Court allow consideration of the Expert Declarations. Motion to Strike at 2. Specifically, the Defendants seek to "explain why the [Expert Declarations] (i) address the particularities of the gather plan in Wyoming rather than the Pancake Complex and therefore are inapposite, and (ii) present views considered by the BLM decisionmakers who chose, based on the evidence available at the time, to take a course different than Plaintiffs' preferred alternative." Defs.' Reply at 2. Plaintiffs have noted that they "vigorously oppose this request." Pls.' Mem. at 21. The Court denies the request. If the Defendants would like to consider and respond to the Expert Declarations as part of the AR, BLM should seek a remand of its Pancake Complex Decision for reconsideration in light of the Expert Declarations. See Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985) ("If the record before the agency does not support the agency action, if the agency has not considered all relevant factors, or if the reviewing court simply cannot evaluate the challenged agency action on the basis of the record before it, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation"). The Defendants have provided no compelling reason for the Court to allow them additional time to supplement the evidence in light of the Expert Declarations that were part of the AR at the time the Pancake Complex Decision was made.
Accordingly, it is hereby
