                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

_________________________________________
                                             )
OCEANA, INC.,                                )
                                             )
               Plaintiff,                    )
                                             )
       v.                                    )
                                             )
PENNY PRITZKER,                              )
United States Secretary of Commerce, et al., )                Civil Action No. 08-1881 (PLF)
                                             )
               Defendants,                   )
                                             )
       and                                   )
                                             )
FISHERIES SURVIVAL FUND                      )
                                             )
               Defendant-Intervenor.         )
                                             )
_________________________________________ )


                           MEMORANDUM OPINION AND ORDER

               This case involves a challenge to a Biological Opinion issued by the National

Marine Fisheries Service (“NMFS”), in which NMFS determined that the operation of the

Atlantic Sea Scallop Fishery would not jeopardize the continued existence of the Northwest

Atlantic Distinct Population Segment of loggerhead sea turtles. In December of 2014, the Court

granted in part and denied in part motions for summary judgment filed by NMFS, plaintiff

Oceana, Inc., and defendant-intervenor Fisheries Survival Fund. Oceana, Inc. v. Pritzker, 75 F.

Supp. 3d 469 (D.D.C. 2014). In that Opinion, the Court concluded that NMFS had not

sufficiently explained its methods for monitoring the number of interactions between

loggerheads and fishing gear, and the Court remanded the matter so that the agency could more

thoroughly explain its choices, or, if unable to do so, reach different conclusions. Id. at 494-99.
               NMFS now contends that it has completed its task upon remand by offering a

more thorough explanation of its monitoring methods. See NMFS’ Notice of Completion of

Remand [Dkt. No. 113]. The agency has submitted a revised Incidental Take Statement (“ITS”)

— the section of the Biological Opinion that sets forth those methods — which, NMFS

maintains, addresses the Court’s concerns and satisfies the legal standard under the

Administrative Procedure Act. See Revised Incidental Take Statement (“Revised ITS”) [Dkt.

No. 113-1]. Oceana has filed a response in which it argues that NMFS still has failed to

demonstrate that its monitoring methods are not arbitrary and capricious. See Oceana Response

[Dkt. No. 116]. Oceana therefore maintains that a second remand is required. Id. at 9.


                                                I.

               This matter is presently before the Court on NMFS’ motion to strike an expert

declaration submitted by Oceana as an exhibit to its response memorandum, as well as those

portions of Oceana’s memorandum that rely on the declaration. See NMFS Mot. to Strike [Dkt.

No. 119]. The declarant, George Weaver, Ph.D., is a professional statistician. See Declaration

of George Weaver (“Weaver Dec.”) (July 9, 2015) [Dkt. No. 116-1] ¶¶ 1-12. Oceana relies on

Dr. Weaver’s evaluation of a scatterplot that NMFS has presented in its Revised ITS. The

agency’s scatterplot purports to demonstrate a strong positive linear relationship between two

variables: the number of hours that vessels are out at sea using dredge fishing gear (“dredge

hours”), and the number of loggerhead sea turtles struck by that gear (loggerhead “takes”). See

Revised ITS at 10-11; SAR 13374-75. The agency has proposed using dredge hours as a

surrogate measure of loggerhead takes, making the link between these two phenomena critical to

the reasonableness of this monitoring approach. See Oceana, Inc. v. Pritzker, 75 F. Supp. 3d at




                                            2
497 (concluding that remand was required because the original ITS “simply fail[ed] to explain

how 252,323 dredge hours equals 161 [loggerhead] takes”). 1

               According to Dr. Weaver, however, the Revised ITS and the accompanying

Supplemental Administrative Record “do not provide enough or the right kind of information to

determine whether dredge hours have a positive linear relationship to estimated sea turtle takes.”

Weaver Dec. ¶ 15. NMFS argues that Dr. Weaver’s declaration must be stricken and that

Oceana should be ordered to file a new response memorandum that does not rely on the

declaration. NMFS Mot. to Strike at 7. Oceana opposes NMFS’ motion, maintaining that it is

appropriate in these circumstances to consider the extra-record declaration and Oceana’s

arguments made in reliance upon it. See Oceana Opp. to Mot. to Strike [Dkt. No. 122].

               “In cases brought under the APA, the Court’s review is confined to the

administrative record.” Ad Hoc Metals Coalition v. Whitman, 227 F. Supp. 2d 134, 136 (D.D.C.

2002). This is because “[i]f a court is to review an agency’s action fairly, it should have before it

neither more nor less information than did the agency when it made its decision.” Walter O.

Boswell Memorial Hospital v. Heckler, 749 F.2d 788, 792 (D.C. Cir. 1984). A court sometimes

may, however, permit supplementation of the administrative record or consider extra-record

evidence in reviewing agency action. See American Wildlands v. Kempthorne, 530 F.3d 991,

1002 (D.C. Cir. 2008); IMS, P.C. v. Alvarez, 129 F.3d 618, 624 (D.C. Cir. 1997); American



       1
               In the Revised ITS, the agency has explained that in the 2012 Sea Scallop
BiOp it incorrectly reported 252,323 dredge hours as its “benchmark” measure, deemed
to be equivalent to the annual loggerhead take limit of 161 turtles in dredge gear. NMFS
now states that it has “performed additional quality control checks on the dredge hour
data,” and has realized that its calculation of dredge hours for the 2007 fishing year was
erroneous. See Revised ITS at 11 n.6. The agency now reports that its dredge hour
equivalent for 161 loggerhead takes is 359,757 hours per fishing year. Id.; see also
NMFS Decision Memorandum [Dkt. No. 113-2] at 6 n.2 (same). Oceana raises no
challenge to this modification.


                                              3
Wild Horse Preservation Campaign v. Salazar, 859 F. Supp. 2d 33, 43 n.6 (D.D.C. 2012). 2

Resort to extra-record evidence is “the exception, not the rule.” Theodore Roosevelt

Conservation Partnership v. Salazar, 616 F.3d 497, 514 (D.C. Cir. 2010). The D.C. Circuit has

identified at least four instances where extra-record evidence may be considered: “the agency

(1) acted in bad faith in reaching its decision, (2) engaged in improper behavior in reaching its

decision, (3) failed to examine all relevant factors, or (4) failed to adequately explain its grounds

for decision.” Oceana, Inc. v. Locke, 674 F. Supp. 2d 39, 45 (D.D.C. 2009) (citing IMS, P.C. v.

Alvarez, 129 F.3d at 624); see also American Wildlands v. Kempthorne, 530 F.3d at 1002

(summarizing these categories in somewhat different fashion, in reliance on James Madison Ltd.

by Hecht v. Ludwig, 82 F.3d 1085, 1095 (D.C. Cir. 1996)).

               Oceana argues that this case presents two of the circumstances in which resort to

extra-record evidence is appropriate, contending that NMFS (1) failed to adequately explain the

grounds for its conclusion that a strong positive linear relationship exists between dredge hours

and loggerhead takes; and (2) failed to consider all relevant factors in reaching that conclusion.

Oceana Opp. to Mot. to Strike at 3. The Court agrees with the first of these arguments, and it

therefore will deny NMFS’ motion to strike.




       2
                 As other judges of this Court have recognized, there is an important
distinction between “supplementing” an administrative record, on the one hand, and
considering “extra-record evidence,” on the other. See, e.g., Oceana, Inc. v. Locke, 674
F. Supp. 2d 39, 44-45 (D.D.C. 2009); The Cape Hatteras Access Preservation Alliance v.
U.S. Dep’t of Interior, 667 F. Supp. 2d 111, 113 (D.D.C. 2009). Dr. Weaver’s
declaration was not before the agency while it was developing the Revised ITS, and so it
falls into the category of extra-record evidence.


                                              4
                                                   II.

               NMFS maintains that the Supplemental Administrative Record “contains

sufficient explanation for the Court to evaluate” whether NMFS has fulfilled its obligation to

clearly demonstrate the link between dredge hours and loggerhead takes. NMFS Reply [Dkt.

No. 123] at 2. Citing the relevant case law, the agency emphasizes that “resort to extra-record

information to determine whether an administrative record is deficient, . . . is the exception, not

the rule.” Id. at 3 (quoting Theodore Roosevelt Conservation Partnership v. Salazar, 616 F.3d at

514) (internal quotation mark omitted). But the rarity with which consideration of extra-record

evidence occurs stems in part from the fact that challengers such as Oceana typically have the

opportunity to submit such evidence in conjunction with comments on proposed agency action.

That process did not occur here prior to NMFS’ creation of the Supplemental Administrative

Record and submission of the Revised ITS; there was no notice and comment period after

remand by this Court. And Dr. Weaver’s declaration features exactly the sort of commentary

that parties typically submit to an agency before its action is finalized, particularly in instances

that involve technical subject matter. See, e.g., Pharmaceutical Research & Mfrs. of America v.

FTC, 790 F.3d 198, 211 (D.C. Cir. 2015); American Wild Horse Preservation Campaign v.

Salazar, 859 F. Supp. 2d at 38. It demonstrates the value in having commenters offer informed

challenges to agency action, which can help “enable judicial review to become effective.” Esch

v. Yeutter, 876 F.2d 976, 991 (D.C. Cir. 1989).

               The Court finds Dr. Weaver’s declaration instructive with respect to the

sufficiency of NMFS’ statistical explanation of the relationship between dredge hours and

loggerhead takes. The Court is not persuaded by the contentions of NMFS’ counsel, who assert

in conclusory fashion that “the scatter plot is not a ‘model’ . . . it is a graph,” supposedly




                                               5
rendering Weaver’s comments inapposite. NMFS Reply at 6. While the Court agrees with the

agency that if there is to be “additional explanation of the Amended ITS,” it should come from

NMFS’ own scientists, rather than from Oceana’s expert, see id. at 5 (citing Oceana, Inc. v.

Locke, 674 F. Supp. 2d at 46), there is no reason to strike Dr. Weaver’s declaration. Indeed,

Dr. Weaver’s declaration only endeavors to point out gaps in the agency’s explanation and

analysis; it does not purport to fill those gaps. NMFS “is prepared to file a declaration that

further explains the agency’s analysis and addresses Oceana’s . . . argument that NMFS did not

provide the necessary information for the Court to evaluate the Amended ITS.” Id. The

appropriate remedy is not to strike Dr. Weaver’s declaration, but to permit NMFS to submit a

declaration from its own expert to fill in or otherwise address the informational gaps in its

explanation and analysis that Oceana has highlighted.

                For the foregoing reasons, it is hereby

                ORDERED that the Federal Defendants’ motion to strike [Dkt. No. 119] is

DENIED; it is

                FURTHER ORDERED that NMFS shall file and may rely upon an expert

declaration in conjunction with its reply to Oceana’s response memorandum; it is

                FURTHER ORDERED that the briefing schedule set forth in the Court’s Minute

Order of June 10, 2015, is VACATED; and it is




                                              6
               FURTHER ORDERED that the parties shall meet and confer to agree upon a

revised briefing schedule, as well as any needed changes to page limits, and they shall file a joint

status report informing the Court of their agreement on or before September 18, 2015.

               SO ORDERED.



                                                      /s/________________________
                                                      PAUL L. FRIEDMAN
DATE: September 4, 2015                               United States District Judge




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