South Carolina Coastal Conservation League et al v. United States Army Corps of Engineers, Charleston District et al, No. 2:2022cv02727 - Document 31 (D.S.C. 2023)

Court Description: ORDER AND OPINION: The Court's Order that the Federal Defendants produce a privilege log listing all documents withheld as predecisional and deliberative applies only to FWS. See (Dkt. No. 28 at 8). The other federal agencies are still entitled to their own presumption of regularity, which must be rebutted on the meritsnot by implication. AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 9/14/2023. (gray)

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South Carolina Coastal Conservation League et al v. United Army ... Entry Charleston District 2:22-cv-02727-RMG Date FiledStates 09/14/23 Number 31et al Page 1 of 2 Doc. 31 IN THE UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA CHARLESTON DIVISION South Carolina Coastal Conservation League, et al., Case No. 2:22-cv-02727-RMG Plaintiffs, v. ORDER AND OPINION United States Army Corps of Engineers, Charleston District, et al., Defendants. This matter is before the Court on Federal Defendants’ motion for clarification of the Court’s August 29, 2023 Order. (Dkt. No. 29). Federal Defendants “seek clarification as to whether the Court ordered only FWS to produce an index of predecisional and deliberative documents that the agency excluded from its record, or if the Corps and EPA are also required to do so.” (Dkt. No. 29 at 2). Plaintiffs oppose the motion and argue that Federal Defendants are attempting to re-litigate issues under the guise of a motion for clarification. (Dkt. No. 30). As the Court stated in its August 29, 2023 Order, “absent clear evidence to the contrary, an agency is entitled to a strong presumption of regularity, that it properly designated the administrative record.” Pac. Shores Subdivision, California Water Dist. v. U.S. Army Corps of Engineers, 448 F. Supp. 2d 1, 5 (D.D.C. 2006). Additionally, the Court stated that “[s]upplementation of the administrative record is the exception, not the rule.” Id. In the August 29, 2023 Order, the Court found that “Plaintiffs have rebutted the presumption of administrative regularity” because they specifically identified records that the Fish and Wildlife Service (“FWS”) considered but were not included in the administrative record. (Dkt. No. 28 at 6). The Court’s entire analysis focused on the documents missing from the FWS record. 1 Dockets.Justia.com 2:22-cv-02727-RMG Date Filed 09/14/23 Entry Number 31 Page 2 of 2 Accordingly, the Court’s Order that the Federal Defendants produce a privilege log listing all documents withheld as predecisional and deliberative applies only to FWS. See (Dkt. No. 28 at 8). The other federal agencies are still entitled to their own presumption of regularity, which must be rebutted on the merits—not by implication. AND IT IS SO ORDERED. _s/Richard M. Gergel Richard Mark Gergel United States District Judge September 14, 2023 Charleston, South Carolina 2

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