Defenders of Wildlife v. Dalton

Slip. Op. 00-129
UNITED STATES COURT OF INTERNATIONAL TRADE
Before: Judge Judith M. Barzilay
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DEFENDERS OF WILDLIFE, et al., :
Plaintiffs, :
Court No. 00-02-00060
v. :
PENELOPE D. DALTON, et al, :
Defendants. :
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[Plaintiffs’ Motion to Complete the Administrative Record granted in part and denied in part.]
Decided: October 12, 2000
Defenders of Wildlife (William J. Snape, III) for Plaintiffs.
David W. Ogden, Assistant Attorney General, United States Department of Justice; David M.
Cohen, Director, Commercial Litigation Branch, Civil Division (Lucius B. Lau) for Defendants.
MEMORANDUM OPINION AND ORDER
BARZILAY, JUDGE:
I. INTRODUCTION
Before the court is Plaintiffs’ Motion to Complete the Administrative Record (“Pls.’ Mot.”).
Defenders of Wildlife, et al. (“Defenders” or “Plaintiffs”), ask the court to order Penelope D. Dalton,
et al.1 (“Defendants”), to provide as part of the administrative record, three types of documents: (1)
1
By delegation, the Secretary of Commerce has given Penelope D. Dalton, in her
official capacity as the Assistant Administrator for Fisheries for the National Marine Fisheries
Service, an organization of the National Oceanic and Atmospheric Administration of the United
States Department of Commerce, the authority to render these findings. Throughout the opinion
the court refers to Defendants collectively.
Court No. 00-02-00060 Page 2
a copy of the contested Government of Mexico affirmative finding determination as required by
USCIT R. 72(a)(1) ; (2) all documents submitted by the public, interested parties, and governments
with regard to the challenged actions in accordance with USCIT R. 72(a)(3); and (3) all documents
directly or indirectly considered by the relevant decisionmakers. For the following reasons, the court
grants Plaintiffs’ motion with regard to the Government of Mexico affirmative finding
determination, the depleted finding regarding the Eastern Spinner Dolphin, and certain Inter-
American Tropical Tuna Commission (“IATTC”) documents. However, the court denies Plaintiffs’
motion with respect to the remainder of the documents that Plaintiffs seek to have included in the
administrative record, because Plaintiffs have not provided the court with evidence that the relevant
decisionmakers either directly or indirectly considered those documents in the determination.
II. BACKGROUND
Plaintiffs in this case challenge the affirmative finding by Defendants that Mexico is in
compliance with the International Dolphin Conservation Protection Act’s (“IDCPA”) requirements
and therefore, that the embargo against tuna from Mexico’s vessels in the Eastern Pacific ocean
should be lifted. See Notice of Affirmative Finding; Removal of Embargo, 65 Fed. Reg. 26585 (May
8, 2000). Plaintiffs’ amended complaint alleges four violations: (1) Commerce’s final rule is a
violation of the Marine Mammal Protection Act (“MMPA”), 16 U.S.C. § 1361 (1972); (2)
Defendants’ decision to lift the Eastern Tropical Pacific (“ETP”) yellowfin tuna embargo against
Mexico violates the plain language of the IDCPA, Pub. L. No. 105-42, 111 Stat. 1122 (1997); (3)
Defendants violated the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 (1970),
by issuing a defective environmental assessment; and (4) Defendants violated the NEPA by failing
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to prepare an environmental impact statement when instituting the new tuna/dolphin program.
Plaintiffs filed a Motion for a Temporary Restraining Order and/or a Preliminary Injunction
(“Pls.’ TRO/PI Mot.”), claiming that the ETP dolphins and Plaintiffs would suffer immediate
irreparable harm if Defendants lifted the embargo. On April 12, 2000, the court held an evidentiary
hearing upon that motion. On April 14, 2000, the court issued an order denying the motion, and on
April 18, 2000, the court issued an opinion explaining its reasons for denying the temporary
restraining order and/or preliminary injunction motion. See Defenders of Wildlife v. Dalton, 24 CIT
___, 97 F. Supp.2d 1197 (2000). Familiarity with that opinion is presumed.
On April 14, 2000, Defendants filed the first twenty volumes of the administrative record,
and on May 3, 2000, Commerce filed the administrative record with respect to its affirmative finding
for Mexico. On June 2, 2000, Defendants filed the first supplemental record volume for documents
“inadvertently omitted from the original record.” Defs.’ Mem. in Opp. To Pls.’ Mot. To Complete
the Admin. R. (“Defs.’ Opp.”) at 5. Several written and oral communications were then exchanged
between Plaintiffs and Defendants regarding potential additions to the administrative record. On
July 14, 2000, Commerce wrote a letter to Defenders’ counsel, emphasizing that Commerce would
file a supplemental record “in the near future in response to Defenders’ letters of June 14, and June
30, 2000.” Id. at 5. The second supplemental record was filed on July 24, 2000. On August 8,
2000, Plaintiffs filed the motion currently before the court.
III. STANDARD OF REVIEW
The court has jurisdiction over this matter pursuant to 28 U.S.C. § 1581(i) (1994). The
parties do not dispute that in a §1581(i) case, this court reviews the matter as provided in section
706 of Title 5. See 28 U.S.C. §2640(e)(1994). The relevant portion of 5 U.S.C. § 706 (1994)
Court No. 00-02-00060 Page 4
provides: “[i]n making the foregoing determinations, the court shall review the whole record or
those parts of it cited by a party. . . .” The scope of review is therefore limited to the
administrative record. See 28 U.S.C. § 2640(e); 5 U.S.C. § 706; USCIT R. 56.1.
In order to determine whether the administrative record is complete, the parameters of the
record must be defined. The United States Supreme Court has determined that the phrase “whole
record” within 5 U.S.C. § 706, means “the full administrative record that was before the
Secretary at the time he made his decision.” Citizens to Preserve Overton Park, Inc. v. Volpe,
401 U.S. 402, 420 (1971). The applicable rule in this case, USCIT R. 72(a), requires that in all
actions where judicial review is upon the basis of the record made before an agency, the agency
shall file the following documents:
(1) A copy of the contested determination and the findings or report upon which such
determination was based.
(2) A copy of any reported hearings or conferences conducted by the agency.
(3) Any documents, comments, or other papers filed by the public, interested parties,
or governments with respect to the agency’s action. The agency shall identify and
file under seal any document, comment, or other information obtained on a
confidential basis, including a non-confidential description of the nature of such
confidential document, comment or information.
(4) a certified list of all items specified in paragraphs (1), (2) and (3) of this
subdivision (a).
While USCIT R. 72(a) does provide a list of documents to be filed, it does not conclusively
define the contents of the administrative record. See Ammex, Inc. v. United States, 23 CIT ___,
___, 62 F. Supp. 2d 1148, 1153 (1999). “Although [the rule defines] those documents which, in
the normal course, will constitute the administrative record for a particular determination,
nothing in USCIT R. 72(a) indicates that this Rule is meant to strictly delineate, or in any way
limit, the materials that the Court should examine in reviewing agency action.” Id., 23 CIT at
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___, 62 F. Supp. 2d at 1154. Yet, “the ‘whole’ administrative record has come to be seen as ‘all
documents and materials directly or indirectly considered by agency decisionmakers and includes
evidence contrary to the agency’s position.’” Id., 23 CIT at ___, 62 F. Supp. 2d at 1156 (quoting
Thompson v. United States Dep’t of Labor, 885 F.2d 551, 555 (9th Cir. 1989)(citations omitted)).
While true that if the relevant agency decisionmakers considered directly or indirectly any
“internal guidelines, memoranda, manuals or other materials in reaching its decision,” that
material should be included within the record, “[i]n compiling an administrative record, relevant
materials that were neither directly nor indirectly considered by agency decisionmakers should
not be included.” Id.(citations omitted).
Where an agency presents a certified copy of the complete administrative record, as was
done in this case, “[t]he court assumes the agency properly designated the Administrative Record
absent clear evidence to the contrary.” Id., 23 CIT at ___, 62 F. Supp. 2d at 1156 (quoting Bar
MK Ranches v. Yuetter, 994 F. 2d. 735, 740 (10th Cir. 1993)). In a motion to complete the
administrative record, “a party must do more than simply allege that the record is incomplete.
Rather, a party must provide the Court with reasonable, non-speculative grounds to believe that
materials considered in the decision-making process are not included in the record.” Id., 23 CIT
at ___, 62 F. Supp.2d at 1156-57 (citations omitted). The burden therefore rests on Plaintiffs to
provide evidence that the appropriate decisionmakers either directly or indirectly considered the
missing documents while making their decision.
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III. DISCUSSION
A. Defendants must complete the administrative record by including a copy of the contested
determination on the Mexican Affirmative Finding.
Plaintiffs assert that Defendants must file the final Federal Register notice for the affirmative
finding for the Government of Mexico as part of the administrative record. See Mem. in Supp. of
Pls.’ Mot. to Complete the Admin. R. (“Pls.’ Mem.”) at 7-8. As mentioned above, USCIT R. 72(a)(1)
requires that a “copy of the contested determination and the findings or report upon which such
determination is based” must be filed as part of the administrative record. Defendant argues that it
“did not include the Federal Register notice in the administrative record because of the
Government’s desire to file that record in an expeditious manner.” Defs.’ Opp. at 14. USCIT R.
72(a) does not provide a timing exception to the requirement of filing a copy of the contested
determination as part of the administrative record. As Plaintiffs do contest that determination,
Commerce will be directed to file the final Federal Register notice as part of the administrative
record.
B. Plaintiffs have not provided clear evidence that all documents submitted by the public,
interested parties, and governments with respect to the actions challenged by Plaintiffs
must be included within the administrative record.
Plaintiffs seek to have included in the administrative record “comments that were submitted
in a timely manner by the public, interested parties, and governments yet not completely reproduced
in the record,” including: (A) comments by Earth Island Institute, a plaintiff in this case, submitted
to defendants regarding the contents of this litigation; (B) comments by Defenders relating to several
Federal Register notices regarding tuna/dolphin issues; and (C) comments relating to the impending
lifting of the embargo. Pls.’ Mem. at 8. The court will address each of these groups of documents
Court No. 00-02-00060 Page 7
in turn.
(1) There has been no showing that the Earth Island Institute comments were considered
by the relevant decisionmakers.
Plaintiffs note that the letters from Earth Island Institute submitted to Defendants, as well as
an index to the attachments for the comments, are included in the record. Plaintiffs request that the
court direct Defendants to provide the attachments themselves. Other than listing the attachments
missing from the record, Defenders do nothing to indicate that these attachments are required to be
included in the record. Defendants first respond that the attachments to the March 26th letter need
not be included in the record because they do not pertain to any of the determinations challenged by
Defenders. See Defs.’ Opp. at 16. As for Earth Island Institute’s July 7 letter to Plaintiffs,
Defendants note that the letter references only two attachments, both of which were included as part
of the record filed with the court, and that no other attachments to that letter exist. Id. at 19.
The court need not delve into whether other attachments do exist, or whether the attachments
to the March 26th letter are in fact relevant to this litigation. Plaintiffs have not provided any
evidence at all, much less any clear evidence, that the missing attachments, either to the March 26th
letter or to the July 7th letter, were considered by the relevant decisionmaker at the time she made her
determination. Relevant or not, without clear evidence that these attachments were considered, the
request for their inclusion must be denied.
(2) Plaintiffs have not provided clear evidence that the comments submitted by
Defenders of Wildlife relating to the December 14, 1999 and December 29, 1999
Federal Register notices should be included in the administrative record.
Plaintiffs seek to have included in the record comments that they submitted on January 5,
2000, relating to two Federal Register notices “regarding potential yellowfin tuna over-fishing in
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the ETP and other tuna/dolphin issues.” Pls.’ Mem. at 10. In support of their request, Plaintiffs state,
“[t]hese public comments, and the issues they raise, directly relate to Plaintiffs’ challenge of lifting
the Mexican yellowfin tuna embargo because they address whether ‘such nation is meeting the
obligations of the International Dolphin Conservation Program and the obligations of membership
in the Inter-American Tropical Tuna Commission.’” Id. (quoting 16 U.S.C. § 1371(a)(2)(B)(1972)).
Plaintiffs have again failed to indicate how the comments they seek to have included were considered
either directly or indirectly by the relevant decisionmakers. That the comments might be relevant
to the tuna embargo does not dictate that they must be included in the administrative record.
Therefore, the court cannot require Defendants to include the comments within the record.
(3) Plaintiffs have not shown the court that comments relating to the lifting of the
Mexican embargo on April 12, 2000 must be included within the Administrative
Record.
Plaintiffs state that they are aware of three comment letters filed after publication of the
interim final rule on December 21, 1999, but before the decision to lift the Mexican embargo: (1)
a letter from the United States Customs Service dated April 10, 2000; (2) a letter from Defenders
dated April 3, 2000, with attachments; and (3) a letter from Earth Island Institute, with attachments.
See Pls.’ Mem. at 11. Plaintiffs claim that these and any other documents “filed pursuant to the
interim final rule and directed towards the lifting of the Mexican embargo” should be included as
part of the administrative record. Id. Defendants counter that Plaintiffs’ argument for inclusion of
their comments within the record fails because the determination challenged in this litigation is the
interim final rule, not any subsequently-made modifications, and Defenders’ comments concern
subsequent Federal Register notices.
The court agrees with Defendants that the comments referenced by Plaintiffs need not be
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included within the record. In this litigation, Defenders contest the interim final rule, and according
to USCIT R.72 (a)(2) may seek to have included within the record only “[a] copy of the contested
determination and the findings or report upon which such determination was based.” (emphasis
added). All materials must have been considered by the decisionmaker “at the time he made his
decision.” Overton Park, 401 U.S. at 420. Here, Defenders seek to have included within the record
materials considered following publication of the contested determination, rather than materials upon
which the determination was based. Moreover, as the letters referenced by Defenders were
submitted in April 2000, while the interim final rule was issued on December 21, 1999, the letters
could not have been considered by the decisionmaker at the time of the decisionmaking. Hence,
Plaintiffs’ request to have the comments related to the lifting of the Mexican embargo on April 12,
2000 included in the administrative record is denied.
C. Plaintiffs have not provided the court with clear evidence that the relevant decisionmakers
directly or indirectly considered memoranda, manuals, guidelines and other materials
allegedly before the decisionmakers at the time the challenged determination was made, with
the exceptions of the depleted finding for the Eastern Spinner Dolphin, and the mentioned
group of IATTC documents.
(1) Defenders’ claim that Defendants must submit a “complete version” of all
documents in the administrative record fails; the court will not require Defendants
to include such materials in the administrative record.
Defenders first provide the court with a list of documents that Plaintiffs believe “are tacitly
acknowledged . . . to have been considered by agency decisionmakers since they were included in
some form in the original administrative record.” Pls.’ Mem. at 12. These documents are: (1) a 1950
proclamation by President Truman and an exchange of letters between the United States and Costa
Rica on IATTC funding allocations; (2) questions from Senator Barbara Boxer and responses from
Assistant Secretary of State David Sandalow regarding IATTC policy, funding obligations, and
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related issues; (3) an email from Judson Feder, NOAA General Counsel, regarding sample language
for affirmative findings, and (4) other instances where the certified list of documents is listed
incorrectly in the index or does not specify the documents under the particular heading.
The standard for determining whether a document was considered by the relevant
decisionmaker is not whether the document was included in some form in the original administrative
record. As mentioned, “a party must provide the Court with reasonable, non-speculative grounds
to believe that materials considered in the decision-making process are not included in the record.”
Ammex, 23 CIT at ___, 62 F. Supp.2d at 1156-57 (citations omitted). Plaintiffs’ claim that
Defendants tacitly acknowledge that they considered these documents because they were included
in some form in the original record, but “as a result of photocopying problems, malfunctions, or
oversight. . . were incomplete in the original administrative record submission,” is utterly speculative
and therefore not clear evidence that the documents were considered by the relevant decisionmakers.
Pls.’ Mem. at 12. Defenders has done nothing more than list these documents; it has certainly not
provided any clear evidence that they were considered by the relevant decisionmaker. Without any
clear evidence of consideration, the court must deny Defenders’ request that these documents be
included in the record.2
Second, Plaintiffs contend that certain documents which were not submitted as part of the
record, but which were referenced by documents that were filed as part of the administrative record,
2
Although unnecessary to its determination not to include these documents in the record,
the court agrees with Defendants that “the fact that the Assistant Administrator for Fisheries
directly or indirectly considered one document does not logically lead to the conclusion that she
directly or indirectly considered another document.” Defs.’ Opp. at 24. The court also notes that
Plaintiffs are incorrect that the email from Judson Feder to Irma Lagomarsino is absent from the
record; the email is indeed included in the supplemental record filed on July 24, 2000. See
Supplemental Administrative Record at 23.
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are required as part of the record in order to understand the filed documents. Plaintiffs argue that
an email contained within the record which references monthly conversations had between
Commerce Department official Will Martin and the State Department regarding implementation of
the IDCPA confirms that Martin wanted monthly “progress reports” and was therefore an active
participant in the tuna/dolphin decision. See Pls.’ Mem. at 13. Plaintiffs assert that because Martin
was involved in the tuna/dolphin decision, Defendants are required to complete the record by
including the monthly progress reports, “as well as any other correspondence to or from Martin that
is relevant to the counts in this case.” Id. at 14. Defendants respond that because Martin was not
the relevant decisionmaker for any of the determinations at issue in this case, and because the fact
that the monthly reports may be relevant to the determinations is insufficient for inclusion in the
administrative record, Plaintiffs’ argument must fail. Defendants are correct.
The Ammex opinion considers who meets the definition of “relevant decisionmaker” within
the determination of what constitutes the whole record, noting that “‘the focus of the inquiry into
record definition is how the agency actually functions in its decisionmaking. . . .’” 23 CIT ___, 62
F. Supp. 2d at1162 (quoting Exxon Corp. v. Dep’t of Energy, 91 FRD 26, 37 (N.D. Tex. 1981)).
Ammex involved a challenge to a United States Customs Service ruling; this court determined that
certain officials were not the relevant decisionmakers, because the evidence did not “indicate that
the officials involved synthesized the relevant record documents. . ., formulated Customs’
institutional position on this issue, drafted any part of this Headquarters Ruling, or otherwise acted
as an agency decisionmaker.” 23 CIT at ___, 62 F. Supp.2d at 1163.
Plaintiffs have given the court no reason to believe that Martin was a relevant decisionmaker
in the promulgation of the interim final rule; they have only indicated that Martin was somehow
Court No. 00-02-00060 Page 12
involved in the tuna/dolphin decision. See Pls.’ Br. at 13-14. Plaintiffs have provided the court with
no evidence indicating that Martin synthesized relevant documents, formulated Customs’ position
on the determination to lift the Mexican embargo, or in any other way acted as an agency
decisionmaker. Moreover, Defendants counter that in his capacity as Deputy Assistant Secretary for
International Affairs, Martin did not possess the authority to promulgate the contested determination,
and therefore was not the decisionmaker for the challenged determinations. See Defs.’ Br. at 27. .
Therefore, the court will not require Defendants to include the monthly reports received by Martin
within the administrative record. The court further notes that again, simply because the purported
monthly reports may have been relevant to the contested determination does not warrant their
inclusion in the administrative record. Relevance is insufficient; the reports must have been directly
or indirectly considered in the decision-making process.
(2) Plaintiffs have demonstrated by clear evidence that the depleted finding for the
Eastern Spinner Dolphin and the IATTC documents were otherwise considered by
relevant decisionmakers and should therefore be included in the Administrative
Record; Plaintiffs have not shown that other additional documents should be
included within the record.
Defenders contend that there are at least five sets of documents “that Plaintiffs know to have
been in possession of Defendants at the time of their decisions, and that either had to be considered
by the decision makers as a matter of law to make their final agency actions or were obviously
considered given the nature of the present record.” Pls.’ Br. at 14. Plaintiffs correctly note that clear
evidence indicating that certain documents not present in the administrative record but considered
by the relevant decisionmakers includes “reasonable, non-speculative grounds” to believe that
materials not in the record were still considered by the relevant decisionmaker. Id. at 15 (quoting
Ammex, 23 CIT at ___, 62 F.2d at 1156). Plaintiffs claim that these reasonable and non-speculative
Court No. 00-02-00060 Page 13
grounds are present because Plaintiffs either possess the documents or possess materials indicating
the documents’ existence, and “[u]nder CIT case law, ‘reasonable bases’ for adding materials
considered by the agency include specifically identifying documents that were left out of the record
or demonstrating incompleteness evident from the record itself.” Id. Plaintiffs identify the
documents considered by the relevant decisionmakers but not included within the administrative
record as: (1) the depleted finding for the Eastern Spinner Dolphin; (2) Centrally relevant IATTC
documents; (3) United States GATT Submissions and Documents on Tuna/Dolphin; (4) United
States Dolphin Mortality Limits Procedures and Permits; and (5) Commerce Department Press
Release on the Final Rule. See Pls.’ Br. at 14-25.
First, Defenders assert that the depleted finding for the Eastern Spinner dolphin must be
included within the administrative record, because “it is consistent with Defendant’s practice to
include depleted findings for other cetaceans,” and because inclusion of the finding would be
consistent with the analysis of this dolphin stock present in the record. Id. at 16. Commerce is
correct that the administrative record need not consist of those documents merely related to one
another; moreover, mere mention of the Eastern Spinner dolphin in the record is not clear evidence
that the depleted finding itself was considered. However, Plaintiffs have shown that the depleted
finding for the Eastern Spinner dolphin was not merely mentioned in the administrative record, but
analyzed in several sections of the record. See Pls.’ Br. at 16 (citing Administrative Record (“AR”)
I-7, AR III-44, AR VIII-115, AR VIII-123, AR XIII-399, AR XVI-597, AR X-151). The focus in
the record on the Eastern Spinner dolphin is clear evidence that the depleted finding was directly or
indirectly considered by the relevant decisionmakers. Therefore, the court will require Defendants
to include the finding in the administrative record.
Court No. 00-02-00060 Page 14
Second, Defenders list several IATTC documents that it contends must be included in the
record. Again, Defenders’ argument is that it is Defendants’ usual practice to include these
documents in the record, and that “there are numerous correspondences in the record that explicitly
reference IATTC documents.” Id. at 17. Plaintiffs further explain that these documents should be
included in the record because they are very similar to documents in the record, and they address
issues that are central to the merits of this action. Plaintiffs have shown sufficient evidence that the
specific documents listed were considered in the decisionmaking process: the documents were
explicitly referenced in the record, are similar to documents already contained within the record, and
are relevant to the issues in this litigation. As such, the court will require inclusion of the documents
within the administrative record.
By contrast, Plaintiffs have not demonstrated that the United States’ submissions on the two
GATT Arbitral Dispute Panels, documents related to the process for issuing Dolphin Morality Limit
permits in the United States under the IDCPA, and the Commerce News press release relating to the
IDCPA regulations were considered, either directly or indirectly, by the relevant decisionmakers.
The court will therefore not demand that these documents be included within the administrative
record.
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IV. CONCLUSION
Upon consideration of Plaintiffs’ Motion to Complete the Administrative Record, Defendants’
response thereto, and all other papers and proceedings therein, it is hereby
ORDERED that Plaintiffs’ motion is granted with respect to the contested determination in
the Mexico Affirmative Finding, 65 Fed. Reg. 26585 (May 8, 2000), the depleted finding of the
Eastern Spinner Dolphin, and the mentioned IATTC documents; and it is further
ORDERED that Plaintiffs’ motion is denied in all other respects; and it is further
ORDERED that Defendants are required to add the Mexican Affirmative Finding, the
depleted finding of the Eastern Spinner Dolphin, and the IATTC documents to the administrative
record within 30 days of the issuance of this Memorandum Opinion and Order.
Dated: ___________________ ___________________________
New York, NY Judith M. Barzilay
Judge