Romero Barcelo v. Weinberger

No. 78-323 (D.P.R. June 19, 1981)

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

[12 ELR 20374]

Torruela, J.:

Decision and Order

In its decision of January 26, 1981 in this case, the Court of Appeals vacated and remanded for further consideration "the findings and rulings with respect to § 7(a) and § 9 of the Endangered Species Act, 16 U.S.C. §§ 1536(a), 1538[.]" Slip Op. at page 54.

In our Opinion (478 F. Supp. 646) we had found that the Navy's activities in Vieques do not adversely affect the five species found there which have been designated as endangered or threatened by said Statute. Notwithstanding said finding, the Court of Appeals concluded that the Navy had not complied with the provisions of § 7(a)(2) by failing to seek a "biological opinion" from the United States Fish and Wildlife Service and the National Marine Fisheries Service,¹ as provided in 50 C.F.R. § 402.04. Id., at page 42. The Court of Appeals went on to state (Id., at 43-44)

By ignoring the statutory mandate, the Navy has sidestepped the administrative process that Congress expected would resolve many of the conflicts between agency action and the requirements of § 7. If the Navy had sought consultation within a reasonable period following the adoption of the Act, the burden of litigating Puerto Rico's claim might have been avoided. The Navy's nonfeasance also has denied the district court potentially valuable evidence. In considering the 1979 amendments to the Act, Congress found, with approval, that courts have accorded substantial weight to a sound biological opinion in determining an agency's compliance with § 7(a)(2) . . . Although the district court apparently found that the refuge effect created by the Navy's activities satisfied their obligation, see 478 F. Supp. at 689-90, a biological opinion could alter this conclusion.

(Footnotes omitted.)

The Court went on to conclude that because of the similarity of the challenge to the Navy's training activities under § 9, which prohibits the "taking" of an endangered species, and those related to the § 7 claim, "[t]he district court should have the benefit of the biological opinion in determining whether the Navy's operations respect the proscription of § 9," also. Id., at page 45.

At the time the appeal was heard, the Navy in fact already had the biological opinion from the Fish and Wildlife Service, but the Court of Appeals refused to consider it because it was not part of the record. Furthermore, the Court said, such action,

. . . would preclude the district court from considering the evidence that both this court, and Congress, deem essential to a complete decision of the issue. Moreover, the Commonwealth should have the opportunity to challenge the adequacy of the biological opinion, both in terms of its factual basis and its recommendations. . . .

(Emphasis supplied.) Id., at 44.

We are now faced with determining what is the scope and nature of the remand, as Plaintiffs seek to engage in discovery which Defendants attempt to quash.

It would appear from the above-quoted language that the Court of Appeals wanted the District Court to have the biological opinion before it for the purpose of considering it together with the other evidence presented at the trial on the issue of the alleged violation of the Endangered Species Act. That is, had the biological opinion been extant at the time of the trial, it is obvious that the Navy would have offered it into evidence as proof of compliance with that requirement of the Act. Thus, as we interpret the [12 ELR 20375] opinion of the Court of Appeals, the Commonwealth is entitled to do, vis-a-vis the biological opinion, all it could have done during actual trial and in preparation thereof.

In their opposition to Defendants' Motion for a protective order Plaintiffs interpret this to mean "conduct[ing] a limited amount of additional discovery relating to . . . the factual basis and recommendations of the biological opinions. The focus would be on those involved in the preparation of the opinions. Puerto Rico also wishes the opportunity, through use of expert testimony, to rebut the findings and recommendations of the opinions." (See page 3 of the Opposition.)

In deciding the extent of allowable discovery, and consequently the scope of the evidence to be admitted at a hearing to challenge the adequacy of administrative action (i.e., the biological opinion), we must first look to the standard of review to be used by the Court.

In determining the adequacy of the biological opinions the appropriate standard of review is the "arbitrary and capricious" standard of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 413-16 [1 ELR 20110] (1971); Environmental Defense Fund, Inc. v. Costle, 657 F.2d 275 [11 ELR 20459] (C.A.D.C. decided April 21, 1981); Sierra Club b. Froehlke, 534 F.2d 1289, 1305 [6 ELR 20448] (C.A. 8, 1976). This standard is highly defferential to agency action, presumes its validity, and forbids substitution of judicial opinion for that of the agency if a rational basis for the agency's decision is presented, even where we might otherwise disagree. Environmental Defense Fund, Inc. v. Costle, supra, at page 15 of the Slip Op. The reviewing court's task is complete when it finds out whether or not the agency has engaged in reasoned decision-making within the scope of its Congressional mandate and that it has exercised said reasoned discretion with reasons that do not deviate from or ignore the legislative intent. Id. The focus of judicial review of agency action is not on the wisdom of the agency's decision but on whether the process employed by the agency to reach its decision took into consideration all the relevant factors. Citizens to Preserve Overton Park v. Volpe, supra, at 416; ASARCO, Inc. v. EPA, 616 F.2d 1153, 1159 [10 ELR 20433] (C.A. 9, 1980); Sierra Club v. Froehlke, supra, at 1305.

Since what is being tested is the reasonableness of the Agency's action, the relevant standard against which the action should normally be measured is the administrative record before the agency at the time the decision was made. Camp v. Pitts, 411 U.S. 138, 142 (1973); Citizens to Preserve Overton Park v. Volpe, supra, at 420; Environmental Defense Fund, Inc. v. Costle, supra, at page 18 of the Slip Opinion; Bradley v. Weinberger, 483 F.2d 410, 414-15 (C.A. 1 1973). The focal point for judicial review should be the administrative record already in existence, not some new record completed initially in the reviewing court. Id. If the agency action is not sustainable on that record, the proper judicial approach is to vacate the administrative action, remand it back to the agency for further consideration, and take whatever corrective measures are required as regards any matters that have relied upon the remanded administrative action. Camp v. Pitts, supra, at page 143; Environmental Defense Fund, Inc. v. Costle, supra, Slip Op. at 19.

There is no distinction in the above rules of reivew between direct attacks to agency action such as "citizen" suits challenging agency action or appeals from the same, and collateral attacks such as may be involved in the present case.

The District Court for the District of Columbia in Cabinet Mountains Wilderness/Scotchman's Peak Grizzly Bears v. Peterson, 510 F. Supp. 1186 [11 ELR 20812] (D.D.C. decided April 15, 1981) stated the problem rather well:

It is important to keep this case in perspective. This case is but one of an increasing number of challenges in which sincere groups seek to protect the environment. . . . Equally sincere groups oppose these challenges. . . . The disputes between these groups are partly political, partly philosophical, and go to the core of decisions on how this nation can best achieve a continuing vitality. But as this debate rages, the courts are confined to a very minor role.

In this case, for example, a federal judge sitting in Washington, D.C., is asked to speculate on whether there are any grizzly bears in a portion of Montana and whether holes drilled into a mountainside will frighten those bears away. That is not a task judges are equipped to perform, and, in any event, it is not a task they should perform. Congress has established agencies and prescribed procedures for resolving these questions, and all that a court can do is to make certain that the agencies take their responsibilities seriously and perform them conscientiously. The courts cannot make substantive value judgments. . . .

(Footnotes ommitted.)

The clear import of Plaintiffs' position, although artfully worded, seems to be embarcation upon a de novo review of agency action. Considering the previously-discussed law and the limited circumstances under which de novo review has been permitted by the courts, we think it highly unlikely that this is what the Court of Appeals had in mind when it remanded the case on this issue. De novo review is only allowed, (1) where agency action is adjudicatory in nature and the fact-finding procedures are inadequate, or (2) where issues which were not before the agency are raised in a proceeding to enforce non-adjudicatory agency action. Camp v. Pitts, supra, at 142; Environmental Defense Fund v. Costle, supra, at 18-19; ASARCO, Inc. v. EPA, supra, at 1158. Neither of these circumstances is applicable to the present situation.

Under exceptional limited circumstances, not present here, the administrative record may be supplemented, as where there is no record discussion of the considerations made in reaching a non-adjudicatory administrative determination. Citizens to Preserve Overton Park v. Volpe, supra, at 420. But to have that situation, the absence of contemporaneous explanation by the agency is critical. Id., Camp v. Pitts, supra. If it exists, the district court may only admit new materials which are "explanatory" of the record before the court but which contain no new rationalizations. Bunker Hill v. EPA, 572 F.2d 1286, 1292 [7 ELR 20681] (C.A. 9, 1977).In Environmental Defense Fund, Inc. v. Costle, supra, at 20-22, where the Court deemed the administrative record to afford enough explanation to indicate whether the agency considered all relevant factors, the court refused to allow expert affidavits which challenged the propriety of informal agency action.

Almost without exception, the courts have held that discovery is inappropriate under these circumstances. National Petroleum Refiners Association v. FTC, 392 F. Supp. 1052, 1054 (D.D.C. 1974); Gables by the Sea, Inc. v. Lee, 365 F. Supp. 826, 829 (S.D. Fla., 1973), aff'd, 498 F.2d 1340 (C.A. 5, 1974), cert. den. 419 U.S. 1105 (1975); Philadelphia Council of Neighborhood Organizations v. Coleman, 437 F. Supp. 1341, 1348-1350 (E.D. Pa., 1977), aff'd without opinion, 578 F.2d 1345 (C.A. 3, 1978); Doraiswamy v. Sec. of Labor, 555 F.2d 832, 836, 838-839 (C.A.D.C., 1976). Even where discovery has been allowed it has been strictly limited to ascertaining the materials relied on or considered by the agency and the reason for the decision-maker's decision. Smith v. FTC, 403 F. Supp. 1000, 1009, 1012-1013 (D.C. Del., 1974); Petrolane, Inc. v. U.S. Dept. of Energy, 79 F.R.D. 115, 119 (D.C. Cal., 1978).The probing of either intra-agency deliberations or the mental process of an agency decision-maker is beyond judicial reach and consequently ultra-discovery. Cf. Citizens to Preserve Overton Park v. Volpe, supra; United States v. Morgan, 313 U.S. 409, 422 (1941).

As regards the biological opinion of the Fish and Wildlife Service, it appears as an uncontradicted fact that Plaintiffs have been provided a copy of the full administrative record. We note that this record appears to be extensive and includes the reports of expect witnesses who testified for both Plaintiffs and Defendants at trial (ex., Diana Magor, Bill Rainey, Ralph Schriber, William Rueling, Roy Lewis, Bruce Sorrie, David Belitsky and Tom Carr), and who were subjected to extensive and thorough examination at the time by all the parties. It is assumed that Defendants will make a similar disclosure when the opinion of the Marine Fisheries agencies is issued. Considering all of this, even leaving aside the legal niceties of the situation, and keeping in mind that discovery in this case was as extensive, as time-consuming, and probably as costly, as can be carried out in this type of proceeding [12 ELR 20376] it would seem that the requests of Plaintiffs are highly unnecessary and unduly burdensome to Defendants. Further discovery is therefore DENIED and the protective order sought by Defendants is hereby GRANTED.

The above is not intended, nor should it result, in placing Plaintiffs in any different position then they would have been if the "biological opinions" had been produced at the trial. Plaintiffs would not have been entitled to the discovery they have indicated. They would have, however, been allowed to rebut through evidence the conclusions of these opinions, and this they will be allowed to do to the extent that it is not repetitious of evidence already on the record. It would be preferable if this were done by way of affidavits in support of cross-motions for summary judgment, but in view of our disposition of this matter, our decision of that particular issue is held in abeyance.

Wherefore, it is ORDERED that:

(1) Defendants shall serve Plaintiffs with a copy of the biological opinion of the National Fisheries Service, together with the supporting record, no later than by July 1, 1981;

(2) Within 20 days from the receipt of the items in (1) above, Plaintiffs shall file a Motion indicating whether they wish to supplement the record with evidence related to the subject matter of the biological opinions, shall specify in detail the nature of said evidence, and shall certify to the Court that said presentation is not cumulative of evidence already in the record.

(3) Within 10 days from the receipt of the information indicated in (2) above, Defendants shall file a Motion with information similar to that required in (2) above.

The Court shall thereafter decide whether an evidentiary hearing is required.

Leave is hereby granted to any party desiring to file an immediate interlocutory appeal of this Order pursuant to 28 U.S.C. 1292(b), provided however, that no stay is hereby allowed of the present Order.

IT IS SO ORDERED.

1. We must confess to having been somewhat disconcerted by this ruling. To our knowledge, in the case before us Plaintiffs had never relied on this allegation as the basis for their challenge to the Navy's actions. Although the allegations against the Navy were numerous and the record below is mountainous, we have searched in vain for even a mention of the term "biological opinion." Plaintiffs' case, and consequently Defendants' defense, was based on substantive contentions to the effect that endangered and threatened species were being affected by the Navy's activities in Vieques, i.e., proof of the existence of these species in Vieques, evidence of the activities of the Navy there and expert testimony regarding how the species were affected by these mattors. The procedural violation of the Endangered Species Act was not part of the case presented to us at the trial. In fact the closest we have been able to find to any reference to the term "biological opinion" in any of the records before us, is in footnote 16 at page 93 of Plaintiffs' Post Trial Brief, where the term "biological assessment" is used in connection with a review board provided by the Act (16 U.S.C. § 1536(g)), when the agency requests an exemption, a situation not relevant to the present case. The term "biological assessment" did not form part of the 1973 statute, but came into existence in the November 10, 1978 amendment to the Endangered Species Act (92 Stat. 3752), six months after the filing of the complaint in this case. It is not known by us whether Plaintiffs' failure to raise this procedural issue before the District Court was called to the attention of the Court of Appeals.