Summary of a Recent
Judicial Development in
Environmental Law

Successful Challenge to Department of Interior's Failure to
List Sage-Grouse as Endangered

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In County of San Miguel v. Kempthorne, 587 F. Supp. 2d 64, 2008 WL 4839673 (D.D.C. 2008), the United States District Court for the District of Columbia held that the United States Fish and Wildlife Service (FWS) waived protection from disclosure regarding its draft proposals for critical habitat, and the court ruled that critical habitat records and public outreach records were part of an administrative record. The county and non-profit conservation organization (collectively "plaintiffs") brought the instant action to compel the FWS to list the Gunnison sage-grouse as endangered under the Endangered Species Act (ESA), and to challenge the FWS's final determination that concluded that listing the Gunnison sage-grouse as endangered was not warranted.

Background

On January 25, 2000, the plaintiffs petitioned the Secretary of Interior to request that the Secretary list the Gunnison sage-grouse as an endangered species under ESA. Id. at *2. The Secretary assigned the petition to one of the agency's regional offices in Colorado. Id. Shortly thereafter, the plaintiffs brought suit when the FWS did not publish a 90-day finding in the Federal Register pursuant to 16 U.S.C. § 1533(b)(5)(A), or otherwise respond to the plaintiffs' petition. Id. On December 28, 2000, the FWS published a "Notice of Candidate Designation" in the Federal Register. Id. The notice stated that listing the sage-grouse was warranted under the ESA. Id. However, during the next few years, the FWS reversed course, and ultimately, on April 18, 2006, it issued a final determination concluding that listing the sage-grouse as endangered was not warranted. Id. at *3. The non-listing decision stated that the threats to the sage-grouse were "neither imminent or of such magnitude that they threaten or endanger the existence of the species." Id. The plaintiffs challenged the reliability of the information sources used by the FWS in compiling the report and the agency's decision-making process generally. Id.

Arguments

In the plaintiffs' motion, they sought to supplement the record submitted by the FWS on April 16, 2007, because they alleged that it was incomplete and contained unwarranted omissions based on the FWS's claims of attorney-client privilege. Id. The plaintiffs also challenged the defendants' certification of the record. Id. They requested the court to order the FWS to file a new certification that detailed which types of documents were omitted and the guidelines defendants used to compile the record. Id. Finally, the plaintiffs asked the court to take judicial notice of an investigative report by the Inspector General concerning the improper influence of the former Deputy Assistant Secretary for the FWS in the designation process of the sage-grouse. Id.

The defendants opposed the motion on the grounds that the FWS properly designated and excluded certain records as non-disclosable under the attorney-client privilege; the court could not take judicial notice of an Inspector General's report; and the law presumes that the FWS properly compiled, designated, and certified the record, and the plaintiffs did not overcome that presumption. Id. at *4.

Analysis and Holdings

When an agency decision is challenged, the agency must compile and designate the administrative record that was before it and which it either directly or indirectly considered during the decision-making process. Id. at *5. The law affords an agency a rebuttable presumption that it properly designated an accurate and complete administrative record. Id. If clear evidence to the contrary is presented, a court may supplement the administrative record. Id. Upon a substantial showing that the agency has not filed the entire administrative record with the court, the court may allow a party to supplement the record. Id. However, the party must show that the agency knew of the information when the decision was made, the information must directly relate to the decision, and the information must be adverse to the agency's decision. Id.

In the instant case, the court applied the doctrine of judicial estoppel because "the presumption that the Record [was] accurate and complete [was] rebutted by the defendants' predecessors' stipulated statement that the omitted documents [were] properly part of the record." Id. at *6. By applying the doctrine of judicial estoppel, the court held that the plaintiffs had made a substantial showing that the FWS did not file an accurate and complete record. Id. Therefore, the court allowed the plaintiffs to supplement the record with two of the omitted documents. Id.

The court then addressed the remaining twenty-eight documents that the plaintiffs offered to supplement the record. Id. at *7. The plaintiffs needed to show that the FWS excluded documents directly relevant to the agency's final listing determination, and that the FWS knew about the documents. Id. at *8. The court held that the critical habitat documents were directly relevant to the listing determination because the ESA directs the FWS to designate a critical habitat for any listed species. Id. at *8. With respect to the public outreach documents, the court held that the FWS had a legal obligation to publicly disclose the documents and that the documents were "undoubtedly relevant." Id. at *9.

The defendants did not contest the adverse nature of the omitted documents. Id. The only other element that the plaintiffs needed to show to supplement the record was that the FWS knew about the adverse documents. Id. Because the agency actually created the adverse documents, the court held that the FWS knew the documents existed. Id. Therefore, the FWS was required to supplement the record with each of the 30 documents presented by the plaintiffs. Id. at *10.

On the judicial notice issue, the court looked to Federal Rule of Evidence 201, which governs the appropriateness of taking judicial notice. Id. at *11. A court can only take judicial notice of facts that are not subject to reasonable dispute. Id. The court held the Inspector General's report was not the type of document about which there can be no reasonable dispute. Id. Therefore, the court did not take judicial notice of the Inspector General's report. Id. at *12.

The case was decided on November 10, 2008.