Opinion
Case No, CV02-80-C-EJL
September 30, 2003
ORDER
Pending before the Court in the above-entitled matter arc cross motions for summary judgment and Plaintiff's' motion to supplement the record. Having fully reviewed the record, the Court finds that the facts and legal arguments arc adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not he significantly aided by oral argument, this matter shall be decided on the record before this Court without oral argument.
Factual Background
Plaintiff's are two rural Idaho counties and a rural Washington county, a national association of home builders and two forest industry trade associations. Defendants are the Secretary of Commerce, Donald Evans, the National Oceanic and Atmospheric Administration ("NOAA") and the National Marine Fisheries Service ("NMFS"). Plaintiff's allege the actions taken by the NMF'S to implement the "essential fish habitat" for Pacific Salmon are overreaching and unduly burdensome and must be set aside. Plaintiff's allege violations of the Magnuson-Stevens Fishery Conservation Management Act ("FCMA"); the Regulatory Flexibility Act ("RFA"); the National Environmental Policy Act ("NEPA"); and the Administrative Procedure Act ("APA"). Defendants maintain they have complied with all applicable statutes. In order to understand the parties' arguments, the Court needs to set forth the process that was begun by Congress and carried out by the Secretary of Commerce, or his designees.
In 1976 the FCMA was passed by Congress to develop and administer fishery management plans ("FMPs") to achieve and maintain continuing yields from each marine fishery in the U.S. Exclusive Economic Zone ("EEZ"). The EEZ extends generally from between three miles to 200 miles offshore. The FCMA established eight regional fishery management councils to regulate offshore fisheries in the EEZ. In the case at bar, the Pacific Fishery Management Council ("Pacific Council") is responsible for developing a FMP that is approved and implemented by the NMFS. Pacific Council is responsible for the states of California, Oregon, Washington and Idaho and exercises authority over the fisheries in the Pacific Ocean off the west coast of the United Slates. 16 U.S.C. § 1852(a)(1)(F),
In 1996, the FCMA was amended to require the councils to propose and the Secretary of Commerce to review and approve FMP amendments to describe and identify essential fish habitats ("EFHs"). 16 U.S.C. § 1853(a)(7), 1854(a). The FCMA defines EFH to mean "those waters and substrate necessary to fish for spawning, breeding, feeding or growth to maturity." 16 U.S.C. § 1802(10). The 1996 amendments also declared a new purpose for the FCMA, to promote "the protection of [EFH] in the review of projects conducted under Federal permits, licenses, other authorities that affect or have the potential to affect such habitat." 16 U.S.C. § 1801(b). The amendments also require federal agencies to consult with NMFS with respect to their action that may adversely affect the EFH identified in a FMP. 16 U.S.C. § 1855(b)(2).
In January 2002, NMFS issued a Final Rule designed to implement the requirements of the amendments to the FCMA. The Final Rule sets forth the process to identify and describe EFH for fishery, to minimize to the extent practicable adverse effects of fishing on that EFH and to identify other actions for conservation and enhancement of the EFH. The Final Rule contains detailed requirements and formal procedures for EFH designation and consultation. 67 Fed. Reg. at. 2344. The NMFS provided notice and an opportunity to comment on an interim final rule issued in December 1997.
In 1978, the Pacific Council developed a comprehensive salmon FMP and Environmental Impact Statement ("EIS") to initiate ocean fishery management. After the 1996 amendments to the FCMA, the Pacific Council determined the applicable EFH for Pacific Salmon and other fish. The Pacific Council's EFH designation for Pacific Salmon is contained in Amendment 14 to the Pacific Salmon Fishery Management Plan ("Amendment 14"). Amendment 14 was approved by the NMFS in September, 2000, Amendment 14 addresses eight issues and the issue objected to by Plaintiff's is the issue of the description of the EFH. Amendment 14 states that Pacific salmon EFH includes "all those streams, lakes, ponds, wetlands and other currently viable water bodies and most of the habitat historically accessible in salmon" in California, Idaho, Oregon and Washington. AR B,8 at A-2. Plaintiff alleges "[t]he net effect of this designation is to subject all manner of upland, nonfishing activities in most of Washington and Oregon, and major portions of Alaska, California and Idaho to EFH consultation."
Plaintiff's Memorandum in Support of Summary Judgment, Docket No. 35, p. 22.
A public scoping session for Amendment 14 was held in October, 1996. A draft amendment and a draft supplemental EIS ("SEIS") were issued in January, 1999. Public hearings were held on the draft amendment and SE1S in February, 1999. Pacific Council adopted Amendment 14 in March, 1999 and submitted the amendment for approval to NMFS in June 2000. Notice was published and comments were received by NMFS. Amendment 14 was approved by NMFS in September, 2000. Only portions of Amendment 14 were intended to be codified into regulations and this did not include the EFH for salmon.
Jurisdiction and Venue
This Court has jurisdiction over the matter which raises claims under four federal statutes and presents a federal question. 28 U.S.C. § 1331. Plaintiff's also seek declaratory and injunctive relief under 28 U.S.C. § 2201-2202.
Venue is proper in this Court under 28 U.S.C. § 1391 (e) as many of the Plaintiff's exist or reside in the District of Idaho.
Standing
Defendants allege Plaintiff's lack standing to bring this action. The U.S. Constitution limits the jurisdiction of federal courts to "cases or controversies." U.S. const. Art. UT, § 2, cl. 1. "[T]o satisfy Article III's standing requirements, a plaintiff must show (1) it has suffered an `injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision," Lugan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). A plaintiff must demonstrate standing separately for each form of relief sought. Friends of the Earth, Inc. v. Laidlaw Environmental Services 528 U.S. 167, 185 (2000). An association has the same standing as that of its members. Hunt v. Washington State Apple Comm'n. 432 U.S. 333, 344 (1977). If one plaintiff bus standing to bring a claim, a court may reach the merits on such claims without considering whether the other plaintiff's have standing to bring the same claim. Bowsher v. Synar, 478 U.S. 714, 721 (1986).
For judicial review under the APA, a plaintiff must also satisfy the prudential standing requirement that the claimed injury arguably falls within the "zone of interest" protected or regulated by the subject statute. Bennett v. Spear, 520 U.S. 154, 175 (1997).
The burden of establishing these three elements falls upon the party asserting federal jurisdiction. Id. The elements of standing arc "not mere pleading requirements." Id. Rather, they are an "indispensable part of the plaintiff's case," and accordingly must be supported at each stage of litigation in the same manner as any other essential element of the case. Id. Thus, at the summary judgment stage the plaintiff's need not establish that they in fact have standing, but only that there is a genuine question of material feet as to the standing elements. See Steel Company v. Citizens for A Better Environment. 523 U.S. 83, 104, 118 S.Ct. 1003, 140 L.Ed. 210 (1998) (holding that because defendants moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), plaintiff's need only show that the facts alleged, it proved, would confer standing.Central Delta Water Agency v. United States. 306 F.3d 938, 947 (9th Cir. 2002)
Constitutional standing, The focus of the first part of the standing test is "injury." While Defendants argue Plaintiff's have shown no environmental injury, that is not the proper question. The question for this Court is have Plaintiff's established "injury to the Plaintiff's."Friends of the Earth at 181. Plaintiff's allege injury in the form of economic and environmental interests that are injured by the NMFS actions. Specifically, Plaintiff's claim that the broad EFH designation and consultation requirements under the Federal Rule create injury to the economic and environmental interests of the individual Plaintiff's. Defendants respond that the designation of EFH imposes a. comment process upon federal agencies and that there is no mandatory effect of the comments (i.e., that the consultation recommendations of the NMFS are not mandatory requirements for the agency taking the action). Defendants argue that the recommendations regarding EFH to another federal agency are advisory and do not create a sufficient causal nexus to establish standing for a plaintiff alleging injury from the actions of an agency that may or may not abide by the recommendations. However, any federal agency that receives recommendations regarding EFH must respond to the applicable council and the Secretary of Commerce within 30 days of receipt of such recommendation. 16 U.S.C. § 1855(b)(4)(B). The required response must either explain measures for avoiding, mitigating, or offsetting adverse impact of habitat or explain the agency's reasons for not following such recommendations. Id. The statute does not indicate a penalty or sanction for not following the recommendations.
While the consultation recommendations may not be mandatory like those under the Endangered Species Act, the consultation requirements of the Final Rule are not voluntary. The Court agrees that the consultation requirements are likely to be passed on by the federal or state agency to the party requesting the action or permit (i.e., timber harvests, building permits, etc.). Accordingly, there is an economic interest in the form of increased costs and delays that is threatened by the alleged overbroad definition of EFH. The injury is particularized; actual or imminent, and not conjectural or hypothetical; fairly traceable to the challenged action of the Defendants; and it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision by this Court.
Amendment 14, AR B.6, p. ES-7 states:
The Council's definition and description of EFH will have no immediate direct effect on fishing or non fishing activities. However there will be indirect affects that include some additional workload for federal agencies to consult with the Secretary in any action that may adversely affect the defined EFH Part of that workload may pass through to private entities and other nonfederal governments in the form of delays or the identification of issues and concerns that lead to requests for modification of the impact analysis or project design, and the associated costs of such modifications.
For example, the National Association of Home Builders, they claim "the excessive protection for EFH through these actions limits the use of property they own and adds costs and delays to construction and development activities." See Plaintiff's' Response and Reply Memorandum, Docket No. 45, p, 4.
Prudential standing, Defendants argue that economic interests in federal timber harvests and permitting for facilities is not within the "zone of interests" of the applicable statutes. The Court respectfully disagrees. The FCMA was established to protect our fisheries from adverse impact arising from both fishing and non-fishing activities. The non-fishing activities of these Defendants arc impacted by the consultation requirements for federal and state agency action which has "any" impact on the EFH. The RFA was passed to protect small business entities and small rural local governments from being overrun by federal mandates. The Plaintiff's are clearly within zone of interests meant to be protected under the RFA.
Accordingly, the Court finds that there are genuine issues of material fact related to standing to prevent summary judgment from being granted on this basis.
Cross Motions for Summary Judgment
A. Standard of Review
Summary judgment is appropriate if there is no genuine issue of material fact and if the moving party is entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56(0). The majority of facts are presented in the administrative record. Plaintiff's seek to supplement the record and this request is addressed separately in this Order.
The standard for reversing agency action is if the Court finds the agency acted in a manner that was "arbitrary, capricious, and abuse of discretion or otherwise not in accordance with the law." 5 U.S.C. § 760(2)(A). The agency action is provided a presumption of administrative regularity. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415 (1971). The courts give great deference to agencies in. promulgating appropriate regulations to achieve the goals of a statute passed by Congress, The Court may not substitute its judgment for that of the agency absent the Court finding the agency has acted "arbitrary, capricious., and abuse of discretion or otherwise not in. accordance with the law." Finally, the Court reviews an agency's NEPA analysis under a "rule of reason." Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1356 (9th Cir. 1994).
B. Analysis
1. Final Rule
Plaintiffs challenge the Final Rule as being in violation of the FCMA, "NEPA, RFA and the APA. Plaintiffs argue that the Final Rule violates the FCMA and APA as it expanded the EEH definition beyond, the scope set by Congress when an "ecosystem approach" was adopted and there is no threshold significance test for triggering the EFH consultation as "any" impact requires consultation. In reviewing the 1996 amendments to the FCMA., it is clear Congress wanted the Secretary of Commerce to establish EFHs and that the EFH's would be broad in scope since Congress legislated they would include "those waters and substrate necessary to fish for spawning, breeding, feeding or growth to maturity." In the case of salmon, the area would include the EEZ as well as inland areas. National Standard 2 of the FCMA provides "[conservation] and management measures shall be based upon the best scientific information available." To have a EFH limited to the EEZ would not be based on the best scientific information available about the life cycles of the difference salmon species. It is within the judgment and discretion of the Secretary of Commerce to design a consultation process to maintain a sustainable fishery and create a healthy ecosystem. The Final Rule is consistent with the delegation of duties to the Secretary and docs not violate the FCMA.
The method the Secretary elected to establish the EFH for the Pacific Coast salmon is within the broad authority granted by Congress and the consultation process established for "any impact" is also within the discretion of the Secretary in carrying out the purposes of the FCMA. The agency action is provided a presumption of administrative regularity.Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415 (1971). While the Court agrees a threshold significance test for impact would be helpful in applying the Final Rule consultation process, this Court cannot substitute its judgment for the agency's. The agency's Final Rule is not "arbitrary, capricious, and abuse of discretion or otherwise not in accordance with the law." 5 U.S.C. § 760(2)(A),
While Plaintiff's raise a NEPA challenge to the Final Rule, the record clearly supports that the notice and comment process was followed. NEPA's purpose is to ensure "the agency will not act on incomplete information, only to regret the decision after it is too late to correct," Marsh v. Oregon Natural Res. Council. 490 U.S. 360, 371(1989). Plaintiff's provided comments and the non-fishing comments were adequately addressed in administrative record. Just because the agency decision-maker did not agree with Plaintiff's' comments does not create a NEPA violation.
In order to determine whether an EIS needed to be completed on the Final Rule, the agency prepared an EA. NMFS prepared an EA and the EA concluded with a finding of no significant impact ("FONSI") for the EFH Final Rule. Plaintiff's object that the five alternatives evaluated in the EA not adequate. Plaintiff's allege the EA did not. adequately evaluate any alternative which would have narrowed and simplified the EFH designation and consultation. The Court respectfully disagrees.
Not all possible alternatives need to be evaluated, only "practicable" alternatives need be evaluated. Tillamook County v. U.S. Army Corps of Engineers, 28S F.3d 1140, 1144 (9th Cir. 2002). In applying the "rule of reason" test to the range of alternatives discussed in the EA, the Court finds the range of alternatives addressed by the agency in the EA were reasonable. The EA addressed five alternatives. While it is true there was not a specific alternative that narrowed the EFH definition and reduced the amount of consultation, there was a no action alternative that would evaluate a more limited EFH scope and less consultation.
Plaintiff's also allege the EA fails to adequately address the socioeconomic impact on non-fishing entities. It is undisputed that NEPA requires an evaluation of socioeconomic as well as biological and physical effects of a proposed action. American Oceans Campaign v. Daley, 183 F. Supp.2d 1, 18-19 (D.D.C. 2000), In reviewing the record as a whole, the socioeconomic effects of the Final Rule were evaluated. While the Court agrees that the evaluation could have been more complete regarding non-fishing entities, the EA did not violate NEPA.
Plaintiff's next challenge the application of the RFA to the Final Rule. The RFA imposes analysis and other requirements for a rule for which notice and comment promulgation requirements apply under the APA or other law. 5 U.S.C. § 601(2), 603, 604. The agency is to give consideration to the economic impacts of the proposed rule on small entities such as small businesses, small organizations, and small governmental jurisdictions (including counties). 5 U.S.C. § 601, If the agency "certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities" it need not conduct the RFA analysis.
In the case of the Final Rule, the NMFS certified that the rule would not; have a significant effect on a substantial number of small entities. The Court has reviewed the record and finds that this certification conclusion is not supported by the record. NMFS argues it need not comply with the RFA as the "developing EFH components" of FMPs do not "have the force of law" and since compliance with recommendations is not mandatory. The Court notes this basis for the certification was not published with the Final Rule as required by the RFA. 5 U.S.C. § 605(b). Second, as discussed in the standing portion of this Order, the effect on non-fishing entities which include small businesses, small organisations and small governmental jurisdictions is not speculative, but real and the cursory certification of compliance with the RFA by the agency docs not appear to he a good faith effort by the agency to comply with the RFA. Southern Offshore Fishing Association, et al. v. Daley, 995 F. Supp. 1411, 1437 (M.C. Fla, 1998).
However, the Defendants argue alternatively that the certification was proper as the Final Rule is exempt from RFA analysis with respect to Plaintiff's and other non-fishing entities because the Final Rule regulates federal agencies, not small businesses. Defendants cite toCement Kiln Recycling Coalition v. U.S. EPA. 255 F.3d 855, 86'9 (D.C. Cir. 2001):
This court has consistently rejected the contention that the RFA applies to small businesses indirectly affected by the regulation of other entities. Mich, v. EPA, 213 F.3d 663, 688-89 (D.C. Cir.2000); Motor Equip. Mfrs. Ass'n v. Nichols. 142 F.3d 449, 467 (D.C. Cir. 1998); Mid-Tex Elec. Coop, v. FERC, 773 F.2d 327, 342 (D.C. Cir. 1985). The language of the [RFA] limits its application to the "small entities which will he subject to the proposed regulation""that is, those "small entities to which the proposed rule will apply." Mid-Tex Elec. Coop., 773 F.2d at 342 (quoting 5 U.S.C. § 603 (b)). Congress "did not intend to require that every agency consider every indirect effect that any regulation might have on small businesses in any stratum of the national economy." Id. at 343.
Defendants argue since Plaintiff's arc not being directly "regulated," they are not entitled to the protections of the RFA in this case. The key issue to determine if the RFA certification conclusion was adequate is to ask whether the Final Rule and Amendment 14 regulate small entities. There is no "direct" regulation of small entities by the Final Rule or Amendment 14. RFA analysis is not required for indirect regulation, so the cursory certification by the NFMS appears to be allowable under § 605(b). Michigan v. U.S. E.P.A. 213 F.3d 663, 689 (D.C. Cir. 2000).
Based on the standard of review for administrative actions, the Court finds the Plaintiffs have foiled lo establish genuine issues of material fact regarding their FCMA, NEPA, APA, and RFA challenges to the Final Rule and summary judgment should be granted in favor of Defendants.
2. Amendment 14
In determining whether Amendment 14 violated the FCMA, NEPA and the APA, the Court must first determine if the broadening of the EFH definition was a "rule" for purposes of the notice and comment process. The notice of proposed rule to implement Amendment 14 excluded the EFH designation. In comments on the proposed rule, one of Plaintiff's informed NMFS of the need to follow FCMA and APA rulemaking procedures to implement the EFH designation. NMFS did not comply with Plaintiff's request.
Plaintiff's argue the EFH designation in Amendment 14 is a substantive rule or regulation within the meaning of the FCMA and APA. Plaintiff's submit the EFH designation establishes and implements policy regarding which areas will be subject to the extensive consultation requirements in the EFh regulations. Defendants maintain the EFH designation was only a description with no regulatory effect, so no implementing regulation was required. Alternatively, Defendants claim Amendment 14 received full notice and comment pursuant to the FCMA.
The APA defines "rule" very broadly to include "an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy," 5 U.S.C. § 551(4). Thus the Secretary's actions approving in full and approving in part the EFH Amendments in this case constitute "rules" under the APA, because the Secretary can only approve EFH Amendments after he has determined they are in compliance with, the FCMA, This determination of compliance requires an interpretation of the FCMA, and thus is an action reviewable by this Court. Furthermore, the EFH Amendments apply generally to many fisheries, have future effect, are designed to interpret and prescribe law and policy, and thus fall under the definition of "rule" as that term is defined in the APA.American. Oceans Campaign v. Daley, 183 F. Supp.2d 1, 11 (D.D.C. 2000).
This Court finds the EFH description included in the amendment was a rule or regulation. The EFH designation has a significant effect in determining when consultation is required and a future effect designed to interpret the consultation policy. If the act of approving EFH amendments constitutes a rule, it seems consistent that the act of creating the EFH designation would also be a rule under the APA. While it is true Plaintiffs received some notice and opportunity to comment on the EFH designation, they were entitled by law to a further opportunity to comment and participate in the regulation setting forth the EFH designation.
As to the portions of Amendment 14 that were codified, the Court finds the NEP A notice and comment process was satisfied. There has been no showing the Secretary did not comply with the FCMA in approving the codified portions of Amendment 14 and the Secretary is entitled to the presumption of regularity as to his approval of the codified portions. Concerning the EFH description in Amendment 14, such is a rule or regulation and the Secretary needs to follow the normal rule-making process for that portion Amendment 14. The action by the Secretary in failing to follow the rulemaking process was "arbitrary, capricious, and abuse of discretion or otherwise not in accordance with the law." 5 U.S.C. § 760(2)(A). The Secretary's decision not to codify the EFH description as a regulation but still have some notice and comment period docs not rectify the procedural error that has occurred. Amendment 14 dealing with the Pacific Salmon EFH designation is remanded to the Secretary to complete the normal rulemaking process. Plaintiff's motion for summary judgment on Amendment 14's EFH designation is granted.
Plaintiff's Motion to Supplement the Record
Plaintiff's seek to supplement the administrative record with documentation of EFH consultation and statements by NMFS, documentation showing NMFS failed to consider or ignored flaws in the Endangered Species Act critical habitat designations which cause the EFH designation for salmon to be excessive and overbroad, documents considered by the agency and included within the index but withheld based privileges asserted, and two documents inadvertently omitted by NM1;S. Defendants agree the two omitted documents should be supplemented, but the other requested documents should be denied.
Generally, judicial review of agency action is limited to review of the administrative record. Friends of the Earth v. Hintz, 800 F.2d 822, 828 (9th Cir. 1986). In Florida Power Light Co. v. Lorion. 470 U.S. 729, 105 S.Ct. 1598, 84 L, Ed.2d 643 (1985), the Supreme Court emphasized that when reviewing administrative decisions: "[T]he focal point for judicial review should be the administrative record already in existence, not some new record "made initially in the reviewing court." The task of the reviewing court is to apply the appropriate APA standard of review, 5 U.S.C. § 706, to the agency decision based on the record the agency presents to the reviewing court. Id. at 743-44, 105 S.Ct. at 1607 (quoting Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973)). This standard is applicable to review of agency action under NEPA. Hintz, 800 F.2d at 829. However, certain circumstances may justify expanding review beyond the record or permitting discovery. See, e.g., Public Power Council v. Johnson. 674 F.2d 791, 793 (9th Cir. 1982), The district court may inquire outside the administrative record when necessary to explain the agency's action. Id. at 793-94. When such a failure to explain agency action effectively frustrates judicial review, the court may "obtain from the agency, either through affidavits or testimony, such additional explanation of the reasons for the agency decision as may prove necessary." Camp v. Pitts, 411 U.S. 138, 143, 93 S.Ct. 1241, 1244, 36 1, Ed.2d 106 (1973). The court's inquiry outside the record is limited to determining whether the agency has considered all relevant factors or has explained its course of conduct or grounds of decision, Hintz, 800 F.2d at 829. The district court may also inquire outside of the administrative record "when it appears the agency has relied on documents or materials not included in the record," Id. In addition, discovery may be permitted i (`supplementation of the record is necessary to explain technical terms or complex subject matter involved in the agency action, Id.Animal Defense Council v. Model. 840 F.2d 1432, 1435 (9th Cir. 1988), A court may also allow supplementation if bad faith on the part of the agency is established, but such has not been alleged in this case.
The agency is not required to include every piece of paper peripherally related, but not material to the decision at issue. The agency needs to provide an administrative record to establish the decision-making process and permit judicial review under the APA. A presumption of regularity attaches to the official certification of an administrative record. See Citizens to Preserve Overton Park v. Volpe. 401 U.S. 402, 415 (1971).
In this case, the Court finds the requested supplementation regarding the EFII consultation process is necessary to allow the Plaintiff's to explain their arguments in relation to the agency's action and to respond to the lack of standing argument raised by Defendants, The agency admits it did not include all EFH consultations as part of the administrative record based on the nature of Plaintiff's' challenges. Instead, the agency summarized the agency's experience with EFH consultations. The Plaintiff's' arguments focus on the allegedly excessive consultation requirements and the proposed supplemental consultations (while admittedly cherry-picked to support Plaintiff's' arguments) help to more fully explain their argument. It is not disputed that all of the cited consultations existed in the records relied upon by agency decision maker, Further the Court will allow the NMFS press announcement regarding Amendment 14 and its impact on non-fishing activities to supplement the record in this matter for standing purposes.
As to the privileged documents, the Court finds the agency has carried its burden in establishing that such documents are privileged and need not be disclosed to the reviewing Court. As to the two inadvertently omitted documents which are referenced in the administrative record, but which were not initially included, supplementation is allowed. As to the e-mail by Ms. Darm, dated August 17, 1998, the Court finds that the document does not fit within the exceptions. The document does make references to the Endangered Species Act, but the e-mail does not directly discuss EFH, The e-mail references a research paper Ms. Darm has reviewed and the paper is not part of the email. The subject matter relevance of a document which has not been relied upon by an agency does not make the document a proper addition to the administrative record.James Madison. Ltd. V. Ludwig, 82 F.3d 1085, 1095 (D.C. Cir. 1996). Therefore, the e-mail should not be added to the administrative record.
Plaintiffs also request to supplement the record with the Memorandum Decision in National Association of Home Builders v. Evans. Civil No. 00-2799 (D.D.C. 2002). The Court will take judicial notice of this decision, but will not add the decision to the administrative record. For all other requested supplementation, the motion is denied as the documents do not fall into the limited exceptions which allow supplementation.
In the Memorandum Order the D.C. District Court adopted a consent decree which vacated critical habitat regulations and remanded the matter to NMFS for new rulemaking. In adopting the consent decree, the Court cited to New Mexico Cattle Growers Ass'n v. U.S. Fish Wildlife Service, 248 F.3d 1277 (10th Cir. 2001) (analysis of economic impact required in designating critical habitat under the ESA).
ORDER
Being fully advised in the premises, the Court hereby orders:
1) Plaintiff's' Motion to Supplement the Administrative Record (Docket No. 16) is GRANTED IN PART AND DENIED IN PART consistent with this Order.
2) Plaintiff's' Motion for Summary Judgment (Docket No. 26) is GRANTED IN PART AND DENIED IN PART consistent with this Order. Amendment 14's EFH Pacific Salmon designation is remanded to the Secretary to comply with normal rulemaking procedures in the FCMA and APA in order to codify the Pacific Salmon EFH designation.
3) Defendants' Motion for Summary Judgment (Docket No. 40) is GRANTED IN PART AND DENIED IN PART consistent with this Order. The Final Rule docs not violate FCMA, NEPA, the APA or the RI'A.