## Facts

- Environmental and conservation organizations sued federal officials and agencies responsible for regulating the American lobster fishery.
- Plaintiffs alleged the fishery’s gear causes entanglements that threaten the endangered North Atlantic right whale, whose population was alleged to be in continued decline.
- Plaintiffs challenged federal oversight and authorization of the lobster fishery under the Endangered Species Act (ESA), Marine Mammal Protection Act (MMPA), and Administrative Procedure Act (APA).
- A central challenged agency action was a 2014 biological opinion concluding the fishery was not likely to jeopardize the right whale.
- Two related lawsuits were consolidated in the U.S. District Court for the District of Columbia.
- Plaintiffs moved for discovery and admission of extra-record evidence, primarily to support their ESA claims; defendants argued review should be limited to the administrative record for all claims.
- The decision addressed only the permissible scope of evidence and discovery, not the merits of the statutory violations.

## Issues

1. Whether plaintiffs’ ESA claims may be supported by discovery and extra-record evidence rather than being limited to the administrative record.
2. Whether plaintiffs’ APA claims challenging agency action as arbitrary and capricious are limited to the administrative record.

## Decision

- The court granted plaintiffs’ motion for discovery in part.
- The court held the APA-based counts are confined to the administrative record.
- The court held the ESA-based counts may be evaluated using evidence beyond the administrative record and permitted discovery tailored to those claims.

## Legal Principles

- APA arbitrary-and-capricious review is generally limited to the administrative record compiled by the agency at the time of decision.
- ESA citizen-suit claims may, depending on the claim and context, permit consideration of extra-record evidence and related discovery.
- Discovery admitted for ESA claims should be limited to what is relevant to those claims and does not automatically expand review for separate APA counts.
- Courts may distinguish evidentiary scope by claim type within the same consolidated action, applying record review to APA claims while allowing broader proof for ESA statutory duties.

## Conclusion

The court drew a clear evidentiary boundary: APA claims would be resolved on the existing administrative record, while ESA claims could proceed with limited discovery and extra-record evidence to test compliance with the ESA’s substantive protections for listed species.


Ctr. for Biological Diversity v. Ross, 349 F. Supp. 3d 38 (D.D.C. 2018)