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Romero-Barcelo v. Weinberger

Citation: 12 ELR 20374
No. No. 78-323 TR, 478 F. Supp. 646/18 ERC 1643/(D.P.R., 06/19/1981) On remand

The district court denies plaintiffs' request for further discovery relating to the factual basis and recommendations of the U.S. Fish and Wildlife Service's biological opinion examining the impact of defendants' activities on various threatened and endangered species. The First Circuit, 11 ELR 20391, reviewing the court's earlier decision holding that certain Navy activities are consistent with the Endangered Species Act (ESA) remanded the case after ruling that defendants' failure to obtain a biological opinion violated the ESA. Initially, the court determines that, on remand, plaintiffs must be given the same opportunity to challenge the adequacy of the biological opinions that they would have had during the actual trial and preparation thereof. Next the court rules that its review of the biological opinions is confined to a determination of whether the agency action was arbitrary and capricious. The scope of its review is limited to the administrative record before the agency at the time it rendered its decision. The court states that, in essence, plaintiffs are requesting expansion of the administrative record and de novo review of defendants' action. It rules that in light of the applicable review standards and the limited circumstances under which courts have permitted de novo review, the First Circuit did not intend such review on remand. Because plaintiffs would not have been entitled to the requested discovery had the biological opinions been produced at trial and the discovery requested would be highly unnecessary and unduly burdensome, the court denies plaintiffs' request for additional discovery and grants defendants' request for a protective order.

Counsel for Plaintiffs
Timothy L. Harker, John A. Hodges, Lewis A. Rivlin
Peabody, Rivlin, Lambert & Meyers
12th Floor, 1150 Connecticut Ave. NW, Washington DC 20036
(202) 457-1000

Miguel Gimenez-Munoz, Attorney General; Thomas L. Lincoln
Department of Justice, P.O. Box 192, San Juan PR 00902
(809) 725-8158

Gerardo A. Carlo, Special Counsel to the Governor
Edificio Banco Popular, Oficina 603, San Juan PR 00905
(809) 723-0113

Counsel for Defendants
Anne S. Almy, Sanford Sagalkin, Peter R. Steenland Jr.
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4427

Capt. Thomas E. Flynn, Lt. Cmdr. Eugene M. Pinkelmann Jr.
Office of the Judge Advocate General
Department of the Navy, Washington DC 20350
(202) 325-9870

Richard M. Cornelius, Ass't General Counsel
Department of the Navy, Washington DC 20350
(202) 695-6907