Faulty Email No Excuse Not to Use Scientific Data

     WASHINGTON (CN) – The Bureau of Land Management “may not simply remain studiously ignorant of material scientific evidence” just because an email error delayed its receipt of the evidence, a federal judge has ruled.



     The decision means District Court Judge Beryl Howell, will review a motion for summary judgment filed by the American Wild Horse Preservation Campaign in a suit to block a plan by the BLM to castrate wild stallions and return them to public lands.
     The BLM proposed the initiative in 2008 and 2011. The bureau says the program is necessary to control herd populations which it says can double every four years.
     The AWHPC challenged the bureau’s plans in the D.C. district court arguing that they violated the Wild-Free Roaming Horses and Burros Act which makes it a crime to kill or harass a feral horse and burros. Earlier this year the horse groups asked Judge Howell for summary judgment in the case relying on expert declarations from four wild horse behavior experts and biologists.
     The BLM asked Judge Howell to strike any references to the expert testimony from the motion for summary judgment arguing that the testimony was not part of the administrative record that she is restricted to considering when ruling on the actions of a federal agency.
     The horse group argued, and Judge Howell agreed, that the declarations of the experts where part of the administrative record because the group had included lengthy excerpts from the expert declarations in comments it filed within the agency’s public comment period on the proposed plan.
     The BLM argued that because of an email error the agency did not actually receive copies of the expert declarations until the day after the public comment period closed, and so they should be excluded from the record. It also claimed the court was obligated to give the agency a strong presumption of regularity in its records.
     While she agreed with the presumption of regularity, Judge Howell noted that the BLM already had copies of the expert declarations from previous administrative proceedings and litigation over its castration plans.
     “While it would have been a courtesy for the Plaintiffs to include a copy of the Expert Declarations already possessed by BLM along with their comments relying on these Expert Declarations, they were not required to do so,” Howell wrote.
     As it was Howell said, “Plaintiffs have shown that they specifically directed the agency to the Expert Declarations in their timely-filed comments and later, less than two hours after the comment period ended, attempted to submit the Expert Declarations to the agency.”
     This and their repeated attempts in the days following the closing of the public comment period to make sure the declarations were part of the record “constituted evidence that BLM considered the materials at least indirectly,” the judge said.
     In conclusion, abbreviating administrative record to AR, Howell wrote,
     “The Court finds no reason to exclude the complete Expert Declarations from the AR merely because of a technical problem in forwarding copies of the Expert Declarations to the Defendants in a timely manner.”

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