Volume 6, Number 48 - February 22, 2007
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Wolf spat continues in court
While attention remains focused on the U.S. Fish and Wildlife Service’s wolf delisting proposal and the federal agency’s rejection of Wyoming Governor Dave Freudenthal’s demands relating to wolves and wildlife, the state’s lawsuit against FWS over its failure to delist wolves continues, with bickering occurring even in the court.
After the state petitioned FWS to delist wolves, which FWS denied, state officials filed a lawsuit in federal court in Cheyenne over the matter last October. That started the time clock ticking on FWS to file the administrative record with the court. In early December, FWS requested an extension of time to file the record, citing “staffing limitations, the need for key personnel to take personal leave, a 30-day detail by the person with primary responsibility for compiling the record, and the holidays” as the reasons for the extension. Although such extensions are routinely granted, the state opposed the motion and the court agreed, ordering FWS to stick to the schedule.
FWS complied with the deadline, but in filing the record FWS Wolf Recovery Coordinator Ed Bangs declared that the record he submitted included all the “primary decision and supporting documents that I determined, within the amount of time provided me, to pertain to the challenges in this case.”
The result of the state’s review of the record revealed that FWS had improperly withheld documents that should be part of the record, including the state’s petition to delist and correspondence from Wyoming Attorney General Pat Crank to FWS, which included 34 attachments. Although the attachments were in the record, the letter was not.
Citing the sloppy work of FWS in preparing the administrative record, state officials have now requested that the court allow them to depose Bangs “to determine what other documents may have been improperly omitted from the record.” The request from the State of Wyoming also requests an accounting of just how many hours were spent by FWS in preparing the record.
In administrative record review cases, the preparation of the administrative record is vital since it is supposed to include all information considered by the agency in making its decision. In making its decision as to the validity of the federal action, a court is only to consider the administrative record and nothing outside the record. No testimony is allowed.
The state wants to push the issue. In its motion filed last week, the state noted that courts have ruled, “When a showing is made that the administrative record may not be complete, limited discovery is appropriate to resolve that question.”
The state motion noted, “If Mr. Bangs believed that he had done a thorough job in compiling the administrative record, he would not have qualified the statement in his declaration with the phrase ‘within the time provided to me.’”
The state also complained at what it called the “woeful state of the index to the administrative record,” which included a statement identifying 479 pages covering a three-year period as addressing the “state plans” and described as “various emails” to and from “various people,” rather than identifying each document, as is the norm.
The state’s motion noted: “Given the lack of specific information in the index, it is reasonable to assume that Mr. Bangs had little or no idea of what documents specifically were included in the administrative record. If Mr. Bangs did not know specifically what documents were included in the administrative record, he had no basis for evaluating whether all of the pertinent documents were included.”
The state’s motion also cited a letter from FWS counsel noting that the state’s petition to delist had been inadvertently omitted from the record “because the record was assembled in haste.”
The state has asked the court for up to seven hours to question Bangs about any other documents that may have been improperly omitted from the record.
FWS counsel had already asked the state not to file it motion. A Feb. 2 letter from Jimmy A. Rodriguez of the U.S. Department of Justice to the Wyoming Attorney General’s Office about the matter concluded, “Finally, because of our willingness to work with you to resolve this matter and our commitment to file a supplement to the record, we urge you not to file a motion asking the court to add the above-discussed documents to the record, which would be a waste of judicial resources, or to seek discovery regarding this matter, which we would oppose.”
The state filed its motion four days later. The court has yet to decide the issue.
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