"No Surprises"








No. 1:98CV01873(EGS)
Judge Emmett Sullivan


Plaintiffs hereby move for expedited supplementation of the administrative record in this case. As explained below, this motion is necessary because, in defending the regulation under review, the federal defendants and the intervenors have sought to rely on an entirely new rule, which was not published in the Federal Register until after the parties’ cross-motions for summary judgment were fully briefed. See Defendants’ June 18, 1999 Notice of Publication of 1999 Regulation. However, with the exception of one agency memorandum that was filed with the Court on May 14, 1999, defendants have not furnished the Court or plaintiffs with any of the Administrative Record materials that underlie, or explain the purpose of, the post hoc rule change on which defendants are now relying, or its relationship with the current rule under review. Accordingly, because the Court has rescheduled the hearing on this matter for July 23, plaintiffs respectfully request an expedited Order directing defendants to file the full administrative record underlying the rule change, so that the Court and all of the parties may have access to these materials prior to the hearing.(1)

As described further below, by letter faxed to defendants on June 30, 1999, plaintiffs requested that defendants supplement the administrative record as promptly as possible. By letter dated July 2, defendants refused plaintiffs’ request, thus necessitating the filing of this motion. So that the Court can place plaintiffs’ request for relief in context, plaintiffs will first set forth the pertinent background, and then explain why defendants cannot rely on the 1999 rule change without at least furnishing the Court and all of the parties with the full administrative record underlying that change.



In this case, plaintiffs are challenging a regulation -- called the "No Surprises" rule -- which was promulgated in February 1998 by the Departments of the Interior and Commerce. See 63 Fed. Reg. 8859-8873 (Feb. 23, 1998). Under the rule, the federal government may not require that persons who receive federal permits to kill or otherwise "take" endangered and threatened species (known as "Incidental Take Permits" or "ITPs") must do more to avoid species extinction than initially provided for in their permits, even if such measures are necessary to avoid species extinction because of new circumstances arising after the permit initially is issued.

Plaintiffs subsequently filed this lawsuit, and moved for summary judgment on February 23, 1999, arguing that the No Surprises rule is contrary to various provisions of the Endangered Species Act, 16 U.S.C. § 1531 et seq. ("ESA"), and is also arbitrary and capricious under the Administrative Procedure Act, 5 U.S.C. § 706 ("APA"). See Plaintiffs’ Memorandum in Support of their Motion for Summary Judgment, at 19-44. In advancing these arguments, plaintiffs relied on the plain language of the ESA and its legislative history, as well as the six-volume Administrative Record which had previously been filed by the government. One of plaintiffs’ arguments is that, contrary to sections 7 and 10 of the ESA, as well as the overriding purposes of the ESA, the No Surprises rule jeopardizes species with extinction by precluding necessary changes to Incidental Take Permits, and by making federal agencies -- which have historically lacked adequate resources to implement their existing duties under the ESA -- solely responsible for responding to new circumstances affecting endangered and threatened species which are affected by such a permit. Id. at 20-27, 31.

When the Federal Defendants filed their cross-motion for summary judgment on April 23, 1999, they sought to respond to plaintiffs’ arguments by relying, in part, on an entirely new regulation which the Interior Department stated it was in the process of promulgating. See Federal Defendants’ Combined Memorandum In Support of Cross-Motion for Summary Judgment and In Opposition to Plaintiffs’ Motion for Summary Judgment, at 37. In particular, in an effort to counter plaintiffs’ argument that the No Surprises rule violates the Services’ obligation to ensure that its actions do not "jeopardize the continued existence" of species, 16 U.S.C. § 1536(a)(2), defendants asserted that the defendant United States Fish and Wildlife Service ("FWS") -- which is part of the Interior Department and is one of the two federal agencies responsible for implementing the ESA -- would "amend [its] incidental take permitting regulations at 50 C.F.R. §§ 17.22(b) and 17.32(b)" by providing that the FWS may "revoke a[] permit for which there has been an unforeseen circumstance resulting in likely jeopardy to a covered species, and the agencies have been unsuccessful in first remedying the situation through other means." Id. Along with their memorandum, defendants filed a post hoc Declaration of Assistant Interior Department Secretary Donald J. Barry, which stated that he had signed the "final rule" on March 22, 1999 -- a month after plaintiffs had moved for summary judgment -- but that it "has not yet been published, because it is awaiting clearance by the Office of Management and Budget . . .." April 21, 1999 Declaration of Donald J. Barry at ¶ 4 (Exhibit B to Defendants’ Motion for Summary Judgment).(2)

On May 14, 1999 -- ten days before plaintiffs were due to file their reply brief -- defendants filed a "Second Declaration of Donald J. Barry" which stated that, three days earlier, the Interior Department had submitted a new version of their Federal Register notice to OMB for review. Thus, as explained by Mr. Barry:

  • The Department of the Interior subsequently determined that the notice I signed on March 22 should be revised prior to publication in order to make a number of technical and clarifying corrections to the final rule and to add additional language to the preamble portion of the notice to provide the public with a fuller explanation of some of the provisions of the final rule. Accordingly, on May 11, 1999, I signed a new version of the final rule notice [which] . . . contain[s] a fuller discussion of the purpose and intent of the [new revocation] provision . . ..
  • May 14, 1999 Declaration of Donald J. Barry at ¶ 2 (Exhibit A to Defendants’ May 14, 1999 Notice of Filing). Along with Mr. Barry’s second declaration, defendants filed with the Court two different versions of the new Federal Register notice -- the March 22 version and the revised May 11 version -- as well as an internal agency memorandum from the Interior Department’s Assistant Solicitor to Mr. Barry. See May 11, 1999 Memorandum from Assistant Solicitor Charles P. Raynor to Assistant Secretary Donald J. Barry (Exhibit D to Defendants’ May 14, 1999 Notice of Filing). According to that memorandum, the

  • March 22 notice of the change with respect to the [] revocation criterion does not give the reader any sense of how the Service intends to implement the new revocation provision. Id. (emphasis added). The discussions of these and the other Part 13 changes in the revised notice better explain both why the Service is making the changes and how the changes will be implemented. The preamble discussion in the revised notice is also consistent with the brief the government filed on April 23, 1999, in the No Surprises rule litigation.
  • Id. at 2 (emphasis added).

    The new revocation rule was evidently reviewed and approved by OMB some time after May 14, and was published in the Federal Register on June 17, 1999 -- more than three weeks after plaintiffs filed their reply memorandum in support of their challenge to the No Surprises regulation under review. Although described by the federal defendants as a "necessary ‘safety net’ against extinction for" species covered by ITPs, Federal Defendants’ Memorandum in Support of their Cross-Motion For Summary Judgment, at 37 (emphasis added), the post hoc rule change on which defendants rely -- which, like the No Surprises rule, is contained in Part 17 of the FWS’s rules -- is hardly a model of clarity. It provides, in pertinent part, that an ITP "may not be revoked . . . unless continuation of the permitted activity would be inconsistent with the criterion set forth in 16 U.S.C. § 1539(a)(2)(B)(iv)" -- under which a permitted taking may not "appreciably reduce the likelihood of the survival and recovery of the species in the wild" -- and the "inconsistency has not been remedied in a timely fashion." See 64 Fed. Reg. 32712, quoting 50 C.F.R. § 17.22(b)(8). The new rule does not explain, among other things, how the FWS will determine when there is an "inconsistency" between an ITP and section 10(a)(2)(B)(iv) of the ESA; what kinds of efforts will be made to "remedy" any such inconsistency, and who will undertake those efforts; what is meant by "a timely fashion" for "remedying" an ITP which is jeopardizing a species with extinction; what input, if any, the ITP holder will have in the process before the Service makes a decision to revoke a permit; and what role the interested public will be permitted to play in any of these decisions.

    Adding to the confusion, the FWS also published, on June 17, 1999, another new revocation rule which appears to reduce the protection for species affected by ITPs. That rule change, which is accomplished through a change to Part 13 of the FWS’s regulations, exempts ITPs from a general provison that all FWS permits may be revoked when "[t]he populations of the wildlife or plant that is subject of the permit declines to the extent that continuation of the permitted activity would be detrimental to maintenance or recovery of the affected population." 64 Fed. Reg. 32711, quoting 50 C.F.R. § 13.28(a)(5). Thus, the combined effect of the newly amended rules appears to be that the Services may revoke ITPs when they are "appreciably reducing the likelihood of the survival and recovery" of an entire "species in the wild," but not when they are simply deemed to be "detrimental to maintenance or recovery" of any "affected population" of an endangered species -- although there is no explicit indication in the new rules as to why ITPs are now being exempted from the far more protective revocation provision which applies to all other permits issued by the FWS, and which defendants evidently believe applied to ITPs prior to June 1999.(3)

    The preamble to the new regulations also does not shed much light on their meaning or interrelationship with the No Surprises rule, aside from making clear that they were hastily promulgated in an effort to defeat the legal arguments extensively briefed in plaintiffs’ summary judgment papers. Thus, the preamble asserts that "[i]n keeping with the ‘No Surprises’ rule," the new revocation provision would "allow the Service to revoke an HCP permit" where an "unforeseen circumstance results in likely jeopardy to a species covered by the permit and the Service has not been successful in remedying the situation through other means." 64 Fed. Reg. 32709. The preamble does not explain how this revocation provision is "in keeping with" the No Surprises rule which, as explained at length in plaintiffs’ summary judgment papers, is specifically designed to provide ITP holders with "economic and regulatory certainty" so long as they are "complying with the terms and conditions of the HCP permit in good faith." 63 Fed. Reg. 8860 (emphasis added). Nor does it elucidate the process by which the FWS will "revoke" ITPs which are deemed to be jeopardizing species with extinction, how much time the agency will endeavor to "remedy" the situation before invoking its new revocation authority, or what involvement either the ITP holder or the public will have in the process. Nor does the preamble explain why the FWS lessened its protection for species by exempting ITPs from the regulation authorizing revocation of permits whenever they are "detrimental to maintenance or recovery of the affected population" of a species -- beyond the unadorned assertion that it was "more appropriate" to subject ITPs to the new, more stringent revocation standard. 64 Fed. Reg. 32709.

    Even further compounding the confusion surrounding the new rules, neither of the new regulations delineating the circumstances under which the FWS may revoke ITPs has ever been subject to public comment in accordance with 5 U.S.C. § 553. Rather, following the filing of plaintiffs’ summary judgment motion, the FWS simply inserted these rule changes into a set of regulations on different topics which were proposed for public comment more than two years ago and have been pending ever since. See 62 Fed. Reg. 32189-32194 (June 12, 1997) (attached as Exhibit A). Neither the new revocation provision on which defendants are now relying to sustain the No Surprises rule, nor the Part 13 amendment which exempts ITPs from the more protective revocation standard, were published for public comment as part of the proposed regulations, or in any other public notice. Accordingly, there has no public comment addressing the meaning, propriety, effect, or interrelationship of either of these new rule changes.(4)

    Despite the lack of public comment and obvious confusion surrounding the meaning of the FWS’s hastily developed revocation rules, the government and the intervenors have specifically relied on these post hoc rule changes to sustain the No Surprises regulation under review and, indeed, to argue that many of plaintiffs’ challenges -- which defendants previously argued were not ripe for review -- have now somehow been rendered moot by the new regulations. See Federal Defendants’ Memorandum in Support of their Motion for Summary Judgment at 37-38 (arguing that the rules "will provide a necessary ‘safety net’ against extinctions for covered species"); Federal Defendants’ Reply Memorandum in Support of Their Motion for Summary Judgment, at 11 ("the 1999 regulation[] is now part of the implementing regulations for the ESA and, therefore, must be considered by this Court in its review of plaintiffs’ claims challenging the No Surprises rule"); Intervenor-Defendants’ Reply Brief in Support of Cross-Motion for Summary Judgment, at 13 (arguing that "the 1999 rule moots several of Plaintiffs’ claims" and that the "1999 regulation eliminates Plaintiffs’ § 7 arguments").

    In view of both defendants’ and intervenors’ heavy reliance on the June 17 rule -- which, once again, was published after the filing of plaintiffs’ reply memorandum, and will not even be effective until July 19, 1999, see 64 Fed. Reg. 32706 -- plaintiffs wrote to defendants’ counsel, by letter dated June 30, "request[ing] that the government agree immediately to file with the Court and supply to all parties the full administrative record underlying the rule revision." See Exhibit B. Plaintiffs explained that:

  • [t]he government cannot argue that the No Surprises rule should be sustained, at least in part, on the basis of the 1999 rule modification, without at least furnishing Judge Sullivan and all of the parties the "whole record" which underlies the recent rule change. This is especially so in light of the government’s own prior filing of a May 11, 1999 internal memorandum regarding the rule change from Assistant Solicitor Charles Raynor to Assistant Secretary Don Barry. Simply put, having relied on a new rule and an internal agency record describing the rule, the government cannot reasonable refuse to furnish the "whole record" which underlies and explains the rule and its relationship with the No Surprises regulation under review.
  • Id. By letter dated July 2, 1999, counsel for the federal defendants refused plaintiffs’ request because, astonishingly, "[i]t would be contrary to the fundamental tenets of administrative law and judicial review under the APA to interject into these proceedings evidence outside of that administrative record." July 2, 1999 Letter from Charles C. Carson to Eric R. Glitzenstein, at 1 (Exhibit C). The letter does not seek to reconcile this position with the obvious fact that it was defendants who "interject[ed] into these proceedings" a post hoc rule change purporting to "clarify" the No Surprises regulation under review, two affidavits signed by the Assistant Secretary of the Interior, and an internal memorandum regarding the 1999 rule. In any event, defendants’ refusal to furnish any of the records underlying the rule change on which they are relying has necessitated the filing of this motion.


    Under elementary principles of administrative law and judicial review, the Court should not rely on post hoc rule "clarifications" to sustain the No Surprises regulation under review. See Plaintiffs’ Memorandum in Opposition to Defendants’ and Defendant-Intervenors’ Motions for Summary Judgment, at 29-33. Rather, defendants’ desperate effort to amend their regulations following the filing of plaintiffs’ summary judgment motion has merely highlighted the legal deficiencies in the No Surprises rule and, at an absolute minimum, necessitates a remand so that the federal defendants can proffer some coherent explanation of their current position. Id. Hence, if, in order to respond to plaintiffs’ legal challenge here, the government must rely on a post hoc effort to "clarify" its regulations, the controlling precedent is crystal-clear that the Court should enter judgment for plaintiffs on the basis of the administrative record that was before the defendant agencies at the time the No Surprises rule was issued, and remand to the agencies for "additional investigation or explanation" -- including, if defendants so choose, reliance on the FWS’s June 1999 modification to its ITP regulations. Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985); see also Camp v. Pitts, 411 U.S. 138, 142 (1973) ("In applying [the] arbitrary and capricious standard, the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court"); Kidney Center of Hollywood v. Shalala, 133 F.3d 78, 87 (D.C. Cir. 1998) ("We reject the Secretary’s attempt in this litigation to articulate a new justification for the cap upon bad debt."); IMS, P.C. v. Alvarez, 129 F.3d 618, 623 (D.C. Cir. 1997) ("It is a widely accepted principle of administrative law that the courts base their review of an agency’s actions on the materials that were before the agency at the time its decision was made").(5)

    If, however, the Court agrees with defendants that a 1999 rule change announced after the filing of plaintiffs’ summary judgment motion should be considered in reviewing the legality of the No Surprises rule at issue, then the government should at least be compelled to furnish the plaintiffs and the Court with the administrative record underlying this rule amendment. Simply put, defendants cannot be allowed to adopt a "heads we win, tails you lose" approach to the litigation, under which defendants and intervenors may rely on post hoc rule changes which purportedly addresses some of plaintiffs’ arguments in this litigation, yet plaintiffs (and the Court) are foreclosed from obtaining access even to the most basic documents which underlie and explain these new rules.

    Thus, the APA requires the Court to consider the "whole record" in reviewing agency actions to determine whether they are arbitrary, capricious, or contrary to law. 5 U.S.C. § 706. As the Court of Appeals has explained, "[t]he requirement of review upon ‘the whole record’ means that courts may not look only to the case presented by one party, since other evidence may weaken or even indisputably destroy that case." Walter O. Boswell Memorial Hospital v. Heckler, 749 F.2d 788, 792 (D.C. Cir. 1984), citing Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420 (1971).

    In this case, however, defendants have run roughshod over these elementary principles by arguing, in effect, that they should prevail since they have now "clarified" the rule under review, yet, at the same time, refusing to furnish the Court and plaintiffs with the "whole record" underlying the very amendment to the regulatory scheme on which they rely. Even worse, defendants have filed one self-serving internal memorandum underlying the 1999 rule change -- which asserts that the new revocation rule is "consistent with the brief the government filed on April 23, 1999" in this case, Exhibit D to Defendants’ May 14, 1999 Notice of Filing, at 2 -- yet defendants have refused to supply any agency memoranda which may take a different view. Thus, this is the paradigmatic situation in which the government is seeking impermissibly to have this Court "look only to the case presented by one party," while ignoring record evidence regarding the rule change which "may weaken or even indisputably destroy that case." Boswell Memorial Hospital, 749 F.2d at 792; see also Columbia Falls Aluminum Company v. EPA, 139 F.3d 914 (D.C. Cir. 1998) ("judicial review should be based on the full administrative record before an agency at the time of its decision").(6)

    Moreover, if the Court allows defendants to rely on their modified rule as a rationale for sustaining the No Surprises regulation, defendants’ submission of the "whole record" underlying the 1999 rule change is especially critical for several reasons. First, as suggested above, the meaning and effect of the rule change on which defendants are relying are obscure at best, and may be elucidated by administrative record materials. Second, administrative record materials should explain the relationship and intention underlying the two different revocation amendments issued in the 1999 rule, i.e., the revocation rule which defendants maintain "clarifies" the intent of the No Surprises regulation, as well as the other rule change announced on June 17 -- which defendants neglect to mention in their papers -- which evidently lessens the protection afforded endangered species that are harmed by ITPs. In particular, the administrative record may bear on the validity of the government’s representation to this Court that the new rule somehow establishes a "safety net" for species adversely affected by the No Surprises regulation, Fed. Def. Mem. at 37, when the plain terms of the rules issued on June 19 appear to further reduce the protections for endangered and threatened species which may be "taken" under ITPs.

    Third, particularly since defendants maintain that the new rule "serves to clarify" the government’s intent in issuing the No Surprises regulation, Fed. Def. Reply Mem. at 11, judicial review of the "whole record" is vital to understanding whether there is, in fact, any underlying coherence and consistency to the government’s positions. For example, administrative record documents may address the seeming incongruity between, on the one hand, a rule which is based on the premise that ITP holders need "economic and regulatory certainty" that the terms of their permits will be adhered to -- the express rationale for the No Surprises rule, see 63 Fed. Reg. 8860 (emphasis added) -- and, on the other hand, a rule change which authorizes the revocation of ITPs even where ITP holders have complied completely with the terms of their permits, but where the permits are, because of unforseen circumstances, jeopardizing species with extinction

    -- the very antithesis of affording "certainty" to permit holders. Indeed, it is impossible to imagine how the Court could assess the underlying rationale for the No Surprises rule, in conjunction with the new revocation provision, without scrutinizing all of the underlying documents explaining these seemingly incompatible agency decisions. Cf. Kidney Center of Hollywood, 133 F.3d at 87 ("We are unable confidently to evaluate the reasonableness of the Secretary’s statutory interpretation under Chevron step two, however, because the Secretary has provided an incoherent justification for her decision.").(7)

    Finally, the administrative record underlying the 1999 rule would likely facilitate the Court’s consideration of whether, as defendants have asserted, the revocation provision on which defendants are relying was "the culmination of an extended rulemaking process," Federal Defendants’ Reply Memorandum, at 10, or, rather -- as appears obvious from the timing of, and other circumstances surrounding, the announced change -- whether the provision was hurriedly patched together to buttress defendants’ position in this pending litigation. Indeed, since defendants have declared point-blank to this Court that the new revocation rule was not "issued ‘in direct response to this litigation,’" id. at 10 n. 2 -- although the Interior Department’s Assistant Solicitor has stated that the recent Federal Register notice was designed to be "consistent with the brief the government filed . . . in the No Surprises rule litigation," Exhibit D to Defendants’ May 14, 1999 Notice of Filing -- the Court should at least be in a position to review the administrative records which bear on defendants’ counterintuitive assertion that it was just happenstance that the Interior Department devised and issued its revocation rule at the very same time that the parties were briefing their challenge to the No Surprises regulation.(8)

    In sum, defendants plainly cannot have it both ways. Either the Court cannot consider at all the post hoc "clarifying" regulations on which defendants and intervenors rely -- because "judicial review in this case should be limited to the administrative record underlying the particular regulation at issue," Exhibit C (defendants’ counsel’s letter refusing to supplement administrative record) -- or, if the Court considers that amendment at all, it must do so in the context of the "whole record" relating to the rule change. 5 U.S.C. § 706. But contrary to defendants’ peculiar view of administrative law, there is no half-baked form of judicial review under the APA in which defendants can seek to amend or "clarify" the challenged rule mid-litigation while, at the same time, escaping scrutiny of the full record which underlies that defense of the rule, as mandated by section 706 of the APA.(9)



    For the foregoing reasons, plaintiffs respectfully request that the Court order the federal defendants to file with the Court and serve on the parties the full administrative record underlying the pertinent June 1999 rules changes, in sufficient time for the parties to review and rely on those materials prior to the July 23 summary judgment hearing.

      Respectfully submitted,

    Eric R. Glitzenstein
    (D.C. Bar No. 358287)

    Katherine A. Meyer
    (D.C. Bar No. 244301)

    Meyer & Glitzenstein
    1601 Connecticut Avenue, N.W.
    Suite 700
    Washington, D.C. 20009
    (202) 588-5206

    July 7, 1999 Attorneys for Plaintiffs



    1. Plaintiffs had initially intended to address this matter at the hearing scheduled for June 25. In light of the Court’s rescheduling of that hearing, however, plaintiffs are filing a written motion at this time so that any new materials disclosed may be considered by the Court at the upcoming hearing.
    2. The FWS is responsible for implementing the ESA, including the issuance of Incidental Take Permits, with regard to terrestrial species. The National Marine Fisheries Services ("NMFS") -- an agency within the Department of Commerce -- is primarily responsible for implementing the ESA, including the issuance of Incidental Take Permits, with regard to aquatic species. Although the No Surprises rule was jointly issued by the FWS and NMFS -- which is why both agencies are named as defendants in this lawsuit -- the 1999 rule change was issued only by the FWS and does not affect in any fashion NMFS’s implementation of the ESA.
    3. In addition to ITPs, the Service issues permits, for example, for scientific and research purposes. 16 U.S.C. § 1539.
    4. The June 1997 proposal primarily focused on two distinct FWS policies called the Safe Harbor Agreements and Candidate Conservation Agreements policies. See 62 Fed. Reg. 32189. In addition, the Service proposed a general amendment to Part 13 which would simply would have provided that, "in case of a conflict between general permit provisions in Part 13 and more specific terms or conditions in a HCP permit and its accompanying habitat conservation plan or implementation agreement, the more specific provisions in the HCP permit and accompanying documents would control." See 62 Fed. Reg. 32189. There is nothing in the proposal which even alludes to the criteria for revoking ITPs, let alone solicits public comment on that subject.
    5. As noted above, the National Marine Fisheries Service -- the other federal agency responsible for implementing the ESA -- has not modified or "clarified" its ITP regulations in the same manner as the FWS, so that agency obviously cannot rely, at any stage, on the new revocation rule.
    6. In their July 2, 1999 letter, defendants asserted (at n.1) that they could file the May 11, 1999 Assistant Solicitor’s Memorandum because it was "offered solely to explain the technical changes to the June 17, 1999 regulation that required its resubmission to the Assistant Secretary for signature." Plainly, however, the requirement for review on the "whole record" means that the government cannot pick and choose which materials the Court is permitted to review merely by calling particular documents "technical" and disregarding other pertinent materials which defendants would prefer, for whatever reason, that the Court not peruse. See, e.g., Natural Resources Defense Council v. Train, 519 F.2d 287, 291 (D.C. Cir. 1975) (reversing entry of summary judgment where the district court had reviewed an agency action "on the basis of a partial or truncated record").
    7. Hence, the situation before the Court is a far cry from one in which the agency has issued a rule which renders completely moot a procedural claim made by a party to an earlier agency action. See Natural Resources Defense Council v. NRC, 680 F.2d 810, 813 (D.C. Cir. 1982) (claim that NRC had issued a rule in violation of the notice and comment requirements of section 553 of the APA was moot "[i]n light of the Commission’s repromulgation of the rule after providing notice and opportunity for comment"). Here, defendants have not rescinded any part of the No Surprises rule, nor have they disavowed any of the statutory or policy analysis underlying that rule.
      Instead, one of the defendants has issued an additional rule which purports to "clarify" the No Surprises regulation, but which itself is nebulous at best, appears to lessen the protection for endangered species, and is facially contradictory with the rationale behind the rule under review -- and which, once again, is not even accompanied by an explanatory administrative record. Rather than moot any of plaintiffs’ arguments, this haphazard approach to agency decisionmaking and judicial review reinforces plaintiffs’ claims that defendants have acted in an arbitrary and capricious manner in approaching their responsibilities under the ESA. See, e.g., Rosetti v. Shalala, 12 F.3d 1216, 1233 (3d Cir. 1993) (where promulgation of new regulation did not afford plaintiffs "all[] of the relief they sought in brining this suit . . . the case is not moot"); Union of Concerned Scientists v. NRC, 711 F.2d 370, 377 (D.C. Cir. 1983) (where interim rule had "continuing vitality which ha[d] in no way been superseded by promulgation of the final rule," validity of the interim rule "remain[ed] a live issue which must be reviewable in some forum"); cf. Tallahassee Memorial Regional Medical Center v. Bowen, 815 F.2d 1435, 1452 n. 33 (11th Cir. 1987) ("The potential for abuse is real if agencies are allowed to moot claims by hurried rule making.").
    8. The administrative record underlying the rule change may also reflect why the Departments of the Interior and Commerce, after having jointly issued the No Surprises rule under review, have now taken divergent approaches to their defense of the rule -- with the Interior Department determining that it is necessary to "clarify" the No Surprises rule by issuing a new regulation regarding revocation, but with the Commerce Department making no such effort. Given their joint issuance of the No Surprise rule, the administrative record underlying the June 1999 regulation presumably contains illuminating correspondence between the Departments regarding the need for, and effect of, the new revocation provision.
    9. In their July 2 letter, defendants assert that the "June 17, 1999 regulation has not been challenged in this litigation," and "[a]ccordingly, its underlying administrative record is no more relevant to the issues before the Court than that of any other implementing regulation ‘relied upon’ by the federal defendants in this litigation." Exhibit C. Plaintiffs have no idea what "other implementing regulation" defendants are talking about, but whatever it may be, it certainly does not involve a mid-litigation amendment which purports to "clarify" the intent of the precise regulation which is the subject of a pending summary judgment motion. Under the APA and basic common sense, defendants cannot concoct a rule change in an effort to deflect plaintiffs’ arguments, yet simultaneously contend that the administrative record underlying the rule changes is somehow beyond the "scope of judicial review." Exhibit C.