Sierra Club et al v. U.S. Fish and Wildlife Service et al

Filing 108

ORDER granting in part 97 federal defendants' motion to limit review to the administrative record and denying as moot 101 Sierra Club's motion to expedite. The clerk is directed to strike and terminate 92 motion for summary judgment. See order for details. Signed by Magistrate Judge Nicholas P. Mizell on 9/16/2022. (BB)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
SIERRA CLUB AND ENVIRONMENTAL
CONFEDERATION OF SOUTHWEST FLORIDA,
Plaintiffs,
v.

Case No. 2:20-cv-13-SPC-NPM

U.S. FISH AND WILDLIFE SERVICE, AURELIA
SKIPWORTH, FLORIDA DEPARTMENT OF
TRANSPORTATION, KEVIN J. THIBAULT, U.S.
ARMY CORP OF ENGINEERS AND TODD T.
SEMONITE,
Defendants.
ORDER
Federal defendants request the court to limit review of Sierra Club’s motion
for summary judgment to the administrative record. (Doc. 97). Specifically, they ask
the court to strike certain exhibits to the summary judgment motion and order Sierra
Club to file a renewed motion for summary judgment without the exhibits or any
references to them. Conversely, Sierra Club argues that federal defendants have
failed to justify striking these materials and requests the court to take judicial notice
of them. (Doc. 100).
This action involves an environmental dispute over approved plans to expand
certain state roads which, incidentally, cross into Florida panther habitat. (Doc. 65
at 2-3). To achieve this expansion, the state must comply with certain federal

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statutes, including the Endangered Species Act (ESA); National Environmental
Policy Act (NEPA); and Administrative Procedure Act (APA). Accordingly, the
legal standard for administrative review cases applies.
“When directly reviewing an agency decision or regulation, the court does not
consider any evidence that was not in the record before the agency at the time that it
made the decision or promulgated the regulation.” United States v. Guthrie, 50 F.3d
936, 944 (11th Cir. 1995). Instead, “[t]he task of the reviewing court is to apply the
appropriate APA standard of review, 5 U.S.C. § 706, to the agency decision based
on the record the agency presents to the reviewing court.” Fla. Power & Light Co.
v. Lorion, 470 U.S. 729, 743-44 (1985) (citation omitted).
Although “certain circumstances may justify going beyond the administrative
record,” the court is “not generally empowered to do so.” See Preserve Endangered
Areas of Cobb’s History, Inc. v. United States Army Corps of Eng’rs (“PEACH”),
87 F.3d 1242, 1246 (11th Cir. 1996) (internal quotation marks omitted). The
Eleventh Circuit has described four such circumstances: (1) “an agency’s failure to
explain its action effectively frustrates judicial review,” (2) “it appears that the
agency relied on materials not included in the record,” (3) “technical terms or
complex subjects need to be explained,” and (4) “there is a strong showing of agency
bad faith or improper behavior.” Id.

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The court has already rejected Sierra Club’s efforts to supplement the
administrative record. (Doc. 87 at 12), aff’d, (Doc. 103). Sierra Club nevertheless
attempts to pad the administrative record with extra-record materials included as
exhibits to its motion for summary judgment. Sierra Club references those materials
throughout its motion. (See e.g., Doc. 92 at 14 (“SR 29 is one of the deadliest roads
for panthers in the state. . . .”) (citing Doc. 92-1)).
By sheer page count, the vast majority of the extra-record material cited in
Sierra Club’s summary judgment motion is attached to the declaration of Ms. Sarah
Hollenhorst (Doc. 92-1 at 1-5114). Ms. Hollenhorst’s declaration, along with nine
other such declarations submitted by Sierra Club, are provided to establish Article
III standing. (Doc. 92 at 5). And these declarations, properly limited to the issue of
standing, would be appropriate. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561
(1992). But Ms. Hollenhorst’s declaration contains charts, graphs, and 5,000 plus
pages of extra record material. Apparently, Ms. Hollenhorst is a member of Sierra
Club and seeks to preserve Florida’s wildlife—there is no reason to be long-winded
about it. (Doc. 92-1 at 1-3).
Of course, the administrative record does not include the 5,000 plus pages of
extra record material provided in Ms. Hollenhorst’s declaration. And while “certain
circumstances may justify going beyond the administrative record,” the court is “not
generally empowered to do so.” See PEACH, 87 F.3d at 1246. Sierra Club does not
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argue any exception to this principle applies. Accordingly, the exhibits to Ms.
Hollenhorst’s declaration, and references to those exhibits in the declaration, are
extra-record materials that must be stricken. The same analysis applies to the
remaining extra-record materials filed by Sierra Club. (Docs. 92-11 through 92-26).
The court’s position on this point has not changed—extra record materials proffered
by Sierra Club “should neither supplement the administrative record nor be the
subject of judicial notice.” (Doc. 87 at 12), aff’d, (Doc. 103).
Sierra Club argues defendants should challenge its request for judicial notice
in the defendants’ response to the summary judgment motion, rather than in a motion
to strike. (Doc. 100 at 8). This argument is well-received. But given the court’s prior
order regarding extra-record materials, the extent of the extra-record materials
offered, and the fact that the extra-record materials are woven into Sierra Club’s
arguments, the court finds the summary-judgment motion should be presented
without reference to them so the defense is on fair notice of that to which it must
respond.
Accordingly, federal defendants’ motion (Doc. 97) is GRANTED IN PART;
and Sierra Club’s motion to expedite (Doc. 101) is DENIED AS MOOT. Within
two weeks after the disposition of the pending motion for judgment on the pleadings,
Sierra Club may file a renewed motion for summary judgment that excludes
references to any extra-record materials. Sierra Club may refile a revised declaration
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of Ms. Hollenhorst (and the other nine declarations) without citations to extra record
materials, as an exhibit for the limited purpose of establishing Article III standing.
But the other exhibits containing extra-record material should be omitted
completely. Federal defendants will respond to any renewed motion for summary
judgment within 30 days. The clerk is directed to strike and terminate the motion for
summary judgment (Doc. 92).
ORDERED on September 16, 2022.

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