Federal judge in D.C. refuses to supplement the record
The Cape Hatteras Access Preservation Alliance v. U.S. Department of the Interior
Civil Action No. 09-236-RCL, 2009 U.S. Dist. LEXIS 105300 (D.D.C., November 4, 2009)
BACKGROUND: At issue is whether this Court should consider a report that relates to the conservation of piping plovers, the Biological Opinion for Cape Hatteras National Seashore's Interim Protected Species Management Strategy and various supplements to it (collectively "the BiOp"), either because it was actually a part of the administrative record before the Service, though FWS did not designate it as such, or as extra-record evidence in the event the Court finds it was not a part of the administrative record.
EXCERPT: As the plaintiffs have failed to overcome the strong presumption that FWS properly designated the administrative record by demonstrating that the BiOp was before FWS when it was designating critical habitats, it is hereby ORDERED that their motion to supplement the administrative record is DENIED;
KEITHINKING: Once again, an ESA-based case addresses an oft-disputed procedural issue of administrative law; this time, discussing the denial of a supplement to the administrative record, and distinguishing the occasionally misused decision of Esch v. Yeutter, 876 F.2d 976, 991 (D.C. Cir. 1989).
The piping plover is a small, sand colored shorebird that nests at beaches in eastern North America, including the Outer Banks of North Carolina and portions of the Cape Hatteras National Seashore. Since 1986, the species has been classified as threatened in the eastern United States. CHAPA v. Dep't of the Interior, 344 F. Supp. 2d 108, 115 (D.D.C. 2004) (Lamberth, J.). As a result of the piping plover's threatened status, in 2001 the Fish and Wildlife Service ("FWS" or "Service") designated some 137 coastal areas as critical habitat for the piping plover. Eighteen of these critical habitats were in North Carolina. Photo of a piping plover on the Carolina shore, from the U.S. Army Corps, Wilmington District