Plaintiffs appreciate the :"warm feelings" expressed by the federal defendants in their Valentines Day Notice of Filing (at 1), which informs the Court and the parties that defendants are engaging in a belated, after-the-fact solicitation of public comment on the Permit Revocation Rule -- which, as the Court knows from earlier filings, was hurriedly issued by defendants, without any public input, to buttress the governments defense of the No Surprises rule in this litigation, and which is specifically challenged on notice and comment grounds (among several others) in plaintiffs Second Amended Complaint. Nonetheless, plaintiffs strongly object to defendants accompanying "suggestion" that the Court indefinitely "stay further consideration of the pending Second Amended Complaint" while the United States Fish and Wildlife Service "decides whether to retain, modify, or withdraw" the Permit Revocation Rule, Notice of Filing at 2 (emphasis added) -- which, according to the Federal Register notice accompanying defendants Notice, will "remain in full force and effect" while defendants take an unspecified amount of time deciding whether to alter the regulations under review in this case. 65 Fed. Reg. 6916 (Feb. 11, 2000) (emphasis added).
Defendants suggestion that this case languish indefinitely on this Courts docket while they engage in open-ended "ongoing administrative proceedings" in direct response to the legal violations pinpointed in plaintiffs Amended Complaint, Notice of Filing at 2, completely contradicts defendants other recent representation to the Court that "we really are very anxious to get the no-surprises rule and its validity decided." Transcript of November 12, 1999 Status Hearing, at 5 (Attachment 1). Instead, defendants latest filing makes crystal clear that the time has arrived when the Court should vacate the interrelated rules under review, and remand the matter to defendants so that they may engage in the "administrative proceedings," including providing a meaningful opportunity for public comment, which should have been pursued before defendants adopted, in final form, significant changes to their standards for revoking Incidental Take Permits.
Indeed, this Court previously contemplated such a course of action even before defendants voluntarily reopened comment on the revocation rules. See July 15, 1999 Transcript of Motion Hearing, at 22 (attached as Exhibit B to Plaintiffs October 18, 1999 Motion to Compel Disclosure of Materials Withheld from Supplemental Administrative Record) ("The government just told me its relying upon a rule that was not present when the rule thats being challenged was promulgated. Why shouldnt the Court remand and give the administrative agency an opportunity to make a determination with appropriate public comment as to the impact of the new rule on the No-Surprises rule?") (emphasis added). Now that federal defendants themselves have seen fit to reopen the administrative proceedings and belatedly solicit public comment on the new Revocation rule -- which, in turn, has been expressly relied on by defendants to defend the No Surprises rule -- the need for a remand is inescapable. See, e.g., Camp v. Pitts, 411 U.S. 138, 142-43 (1973) (if an agency action "is not sustainable [under § 706(2)(A) of the APA] on the administrative record made, then the [agencys] decision must be vacated and the matter remanded . . . for further consideration") (emphasis added); Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985) ("if the reviewing court simply cannot evaluate the challenged agency action on the basis of the record before it, the proper course of action, except in rare circumstances, is to remand to the agency for addi-tional investiga-tion or explana-tion"); see also Petroleum Communications, Inc. v. FCC, 22 F.3d 1164, 1172 (D.C. Cir. 1994) ("Where the agency has failed to provide a reasoned explanation, or where the record belies the agencys conclusion, we must undo its action.").
On the other hand, defendants "suggested" course of action, i.e., that the Court "stay" the case indefinitely -- while the rules at issue remain in full force and effect and defendants remain free to make the very No Surprises guarantees plaintiffs have challenged here, and while defendants engage in an after-the-fact solicitation of public comment on rule changes previously announced -- makes no legal or logical sense. Indeed, this approach appears designed merely to allow defendants to generate the kind of "post hoc rationalizations" for their preexisting final decisions which courts have denounced time and again. See, e.g., Walter O. Boswell Hospital v. Heckler, 749 F.2d 788, 792 (D.C. Cir. 1984) ("To review more than the information before the Secretary at the time she made her decision risks our requiring administrators to be prescient or allowing them to take advantage of post hoc rationalizations"); see also Motor Vehicle Manufacturers Assn v. State Farm Mutual Insurance Co., 463 U.S. 29, 43 (1983).
In any event, in light of the defendants announcement of new "administrative proceedings" -- which both plaintiffs and the government evidently agree has important consequences for how this case should now be handled -- plaintiffs respectfully request that the Court schedule a status hearing so that the parties and the Court can address the significance and implications of defendants announcement.