Oceana, Inc. v. Gutierrez

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________ ) OCEANA, INC., ) ) Plaintiff, ) ) v. ) ) PENNY PRITZKER, ) 1 United States Secretary of Commerce, et al., ) Civil Action No. 08-1881 (PLF) ) Defendants, ) ) and ) ) FISHERIES SURVIVAL FUND ) ) Defendant-Intervenor. ) ) _________________________________________ )

MEMORANDUM OPINION AND ORDER

The government defendants filed a notice of supplemental authority on

May 12, 2014 [Dkt. No. 105], in which they alerted the Court to the issuance of a proposed rule

by the National Marine Fisheries Service and the U.S. Fish and Wildlife Service, published at

79 Fed. Reg. 27060 (May 12, 2014). Plaintiff Oceana has filed a motion to strike [Dkt. No. 106]

this notice of supplemental authority, which the government defendants oppose [Dkt. No. 107].

The Court has considered the defendants’ notice, Oceana’s motion to strike, and

the defendants’ opposition to the motion. The Court largely agrees with the arguments made in

numbered paragraphs 1, 2, and 3 of Oceana’s motion to strike. On the other hand, the Court

1 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the Court substitutes as defendant the current Secretary of Commerce, Penny Pritzker, for former Acting Secretary Rebecca M. Blank. acknowledges the defendants’ point that they simply have “brought the proposed rule to the

attention of the Court because it is a publicly available document published after the close of

briefing which is relevant to a disputed issue in this case.” Dkt. No. 107, at 2. The Court of

course agrees that it may take judicial notice of the fact that the Fisheries Service and Wildlife

Service have issued this proposed rule, which appears publicly in the Federal Register.

See, e.g., D.C. Professional Taxicab Drivers Ass’n v. Dist. of Columbia, 880 F. Supp. 2d 67, 72

(D.D.C. 2012). Nevertheless, in view of Oceana’s arguments, and given the Court’s skepticism

that the proposed rule is “relevant to a disputed issue in this case,” the Court will grant Oceana’s

motion to strike. Accordingly, it is hereby

ORDERED that plaintiff Oceana’s motion to strike [Dkt. No. 106] the

government defendants’ notice of supplemental authority is GRANTED.

SO ORDERED.

/s/_______________________________ PAUL L. FRIEDMAN United States District Judge DATE: August 12, 2014