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Fourth Circuit Finds NMFS’ BiOp Arbitrary and Capricious.

March 1, 2013

In Dow AgroSciences v. National Marine Fisheries, The Fourth Circuit recently reversed a district court decision, concluding that a Biological Opinion that analyzed the effects of several pesticides on Pacific salmonids was arbitrary and capricious. The BiOp, issued by the National Marine Fisheries Service (the “Fisheries Service”) to the Environmental Protection Agency, was required to comply with the Endangered Species Act as part of the pesticide reregistration process. The BiOp concluded that three pesticides would jeopardize numerous salmonid species and adversely affect their critical habitat. Upon issuance of the BiOp, the pesticide manufacturers filed this action under the Administrative Procedures Act, 5 U.S.C. § 704, alleging that the Fisheries Service’s decision was arbitrary and capricious and did not comply with the Endangered Species Act requirement to use the “best scientific and commercial data available.”

The District Court for the District of Maryland ruled in favor of the Fisheries Service’s motion for summary judgment finding that the BiOp was rationally supported by “voluminous facts and studies considered by the [Fisheries Service].” That court relied largely on an affidavit submitted by the Fisheries Service, which discussed among other things the sources of data and information that the agency considered. The district court conceded that this affidavit provided an explanation that was not given in the administrative record; however, it found the explanations did not constitute post-hoc rationalizations because they stemmed from information in the record. As a result, the district court ruled in favor of the Fisheries Service.

On appeal, the Fourth Circuit more closely scrutinized the appropriateness of the affidavit. The court noted that only under certain circumstances may litigation affidavits be considered by the court to explain agency rationalizations – where the agency has provided no administrative record from which the court may evaluate its decision. Even under these circumstances, the more typical response would be to remand to the agency for additional explanation. Here, the court found that the Fisheries Service’s lengthy BiOp provided adequate opportunity for explanation and that, as a result, consideration of the affidavit was inappropriate.

Limiting its review to the administrative record, the Fourth Circuit found that the Fisheries Service failed to: (a) explain why it relied on a 96-hour exposure period; (b) provide rationale for relying on outdated data despite having more recent data available; and (c) address why suggested buffers for spraying do not vary according to channel depth and width. As a result, the court vacated the BiOp in its present form, remanding the case to the district court with instructions to remand to the Fisheries Service.

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