These records have been, and still are, held by the Defendants in various locations around the country. In addition, this Court is authorized to compel an accounting of all Tonkawa assets, including non-monetary assets, under Section 706(1). It is fundamental that an adequate accounting necessarily includes an accounting of non-monetary assets.

Such a statement does not commit the agency to any course, and essentially states only that “if the law requires an update, the agency will prepare an update.” See, e.g., Alliance for Bio- Integrity v. Shalala, 116 F.Supp.2d 166, 174 (D.D.C. 2000) (holding that an agency statement “[did] not bind its decisionmaking authority” where there had been no “irreversible and irretrievable commitment of resources to an action that will affect the environment”) (internal quotations and citations omitted). Ultimately, the Complaint is deficient for purposes of Plaintiffs’ section 706(1) claim because it identifies no circumstances requiring supplementation, and thus does not show that Defendants “failed to take a discrete agency action that [they are] required to take.” SUWA, 542

The FY 2016 LTCH PPS Wage Index Is Arbitrary and Capricious Under APA § 706 Because CMS Failed to Provide Sufficient Reasons for Treating Wage Index Fluctuations Caused by the FY 2015 LTCH PPS Final Rule Differently than Similar Situations The FY 2016 LTCH PPS wage index also suffers from substantive violations of the APA because CMS did not provide sufficient reasons for treating wage index fluctuations caused by the FY 2015 LTCH PPS Final Rule differently from similar situations. In order to comply with the APA’s requirement that an agency regulation cannot be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law,” 5 U.S.C. § 706(2)(A), the agency must exhibit a “reasoned analysis” in its decision-making and “articulate a satisfactory explanation for its action.” State Farm Mut.

REMEDY The APA directs that a court “shall . . . set aside” any agency action found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2)(A), (C) (emphasis added). Consequently, both the Supreme Court and the Ninth Circuit have held that vacatur is the presumptive remedy for an APA violation.21 As set forth above, the Final Rule and the 2015 Rule violate the Magnuson Act and the APA.

Under the APA, administrative agencies have a duty to decide issues presented to them within a reasonable time, 5 U.S.C. § 555(b), and reviewing courts have a duty to “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1) …. By any measure, defendants’ 29-year delay in reviewing plaintiff’s suspended lease, and reaching a final determination, is “unreasonable delay” within the meaning of the APA.

The Court should order the Forest Service and FWS to promptly reinitiate and complete consultation on the Forest Plan. 5 U.S.C. § 706(1) (stating that the reviewing court “shall compel agency action unlawfully withheld”). Finally, once consultation on the Forest Plan has been reinitiated, the Forest Service must not make any “irreversible or irretrievable commitment of resources” during the consultation process “which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures.”

2. NMFS Provided a Reasonable Analysis of the Supply-Side Costs. During the comment period on the Proposed Rule, NMFS received numerous comments, including from Plaintiff National Fisheries Institute (NFI), AR 6609, about the possibility of 18 Plaintiffs cite this case for their argument under Section 706(2) yet their parenthetical quotes a part of the District Court’s opinion that analyzed the agency’s compliance with Section 553. Case 1:17-cv-00031-APM Document 56-1 Filed 05/09/17 Page 35 of 57 26 increased compliance costs, including concerns raised by importers about “the cost of paying harvesters and farmers for traceability data.”

By violating NEPA, the Coast Guard’s Final Rule is arbitrary and capricious, an abuse of discretion, or not otherwise in accordance with law and adopted without observance of procedure, and therefore violates the APA. 5 U.S.C. § 706(2)(A), (C). REQUEST FOR RELIEF WHEREFORE, the Commonwealth asks that this Court grant the following relief: A. A declaration that the Coast Guard and the Department of Homeland Security decision to expressly preempt sections 4 and 6 of OSPA was in excess of statutory authority and/or arbitrary and capricious, an abuse of discretion, or not otherwise in accordance with law and therefore violates the Administrative Procedure Act.

3. Third Claim for Relief, for violation of the Clean Air Act, 42 U.S.C. §7401 et seq., and the APA, on the ground that defendants’ issuance of the Secretarial Procedures is arbitrary and capricious, in excess of statutory jurisdiction, authority, or limitations, not in accordance with law, and without observance of procedure required by law (5 U.S.C. §706(2)), because defendants did not prepare a conformity determination or otherwise comply with the requirements of section 176 of the Clean Air Act, 42 U.S.C. §7506(c), in connection with the issuance of the Secretarial Procedures. 4.

In reviewing § 706 claims, courts examine whether, assuming there exists a mandatory duty for the agency to act in the case of a § 706(1) claim, the agency acted or failed to act in a way that was arbitrary or capricious. See N.A.A.C.P. v. Sec’y of Hous. & Urban Dev., 817 F.2d 149, 160 (1st Cir. 1987) (Breyer, J.) (finding unpersuasive the federal defendant’s argument that § 706(2) was inapplicable because the plaintiff did not seek to “set aside” any particular agency action). The First Circuit in N.A.A.C.P. explained that, “One can … reasonably view the NAACP’s suit as one to ‘set aside’ HUD’s practice, which practice reflects an ‘abuse’ of HUD’s ‘discretion.’