that were adequate to ameliorate the declining trend. Defendants'
Opposition 8. NMFS did, however, list two of the five candidate
ESUs — Lower Columbia River and California Central Valley. Id.
Plaintiffs brought this action under the Administrative
Procedure Act, 5 U.S.C. § 706(2), challenging NMFS's Final Rule
of 1998 as arbitrary and capricious.*fn2 Before the Court is
plaintiffs' motion for summary judgment and defendants'
cross-motion for summary judgment.
A. Summary Judgment
The Federal Rules of Civil Procedure provide for summary
adjudication when "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law." Fed.R.Civ.P. 56(c).
In a motion for summary judgment, "[if] the moving party for
summary judgment meets its initial burden of identifying for the
court those portions of the materials on file that it believes
demonstrate the absence of any genuine issues of material fact,
the burden of production then shifts so that the non-moving party
must set forth, by affidavit or as otherwise provided in Rule 56,
`specific facts showing that there is a genuine issue for
trial.'" See T.W. Elec. Service, Inc. v. Pacific Elec.
Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986)).
In judging evidence at the summary judgment stage, the Court
does not make credibility determinations or weigh conflicting
evidence, and draws all inferences in the light most favorable to
the nonmoving party. See T.W. Electric, 809 F.2d at 630-31
(citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986));
Ting v. United States, 927 F.2d 1504, 1509 (9th Cir. 1991). The
evidence presented by the parties must be admissible. Fed.
R.Civ.P. 56(e). Conclusory, speculative testimony in affidavits
and moving papers is insufficient to raise genuine issues of fact
and defeat summary judgment. See Falls Riverway Realty, Inc. v.
City of Niagara Falls, 754 F.2d 49 (2d Cir. 1985); Thornhill
Publ'g Co., Inc. v. GT & E Corp., 594 F.2d 730, 738 (9th Cir.
1979). Hearsay statements found in affidavits are inadmissible.
See, e.g., Fong v. American Airlines, Inc., 626 F.2d 759,
762-63 (9th Cir. 1980).
B. Review of Administrative Action
1. The Administrative Procedure Act Applies
This Court's review of NMFS's decision not to list the Klamath
Mountains Province ESU is governed by the Administrative
Procedure Act ("APA"), 5 U.S.C. § 706(2). Pyramid Lake Paiute
Tribe v. U.S. Dep't of the Navy, 898 F.2d 1410, 1413 (9th Cir.
1990). The Court "shall" set aside any agency decision that the
Court finds is "arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). The
APA restricts the trial court reviewing an agency action from
considering any evidence outside of the administrative record
available to the agency at the time of the challenged decision.
See 5 U.S.C. § 706(2)(E); Florida Power & Light Co. v.
Lorion, 470 U.S. 729, 743-44, 105 S.Ct. 1598, 84 L.Ed.2d 643
(1985); Havasupai Tribe v. Robertson, 943 F.2d 32, 34 (9th Cir.
1991), cert. denied, 503 U.S. 959, 112 S.Ct. 1559, 118 L.Ed.2d
The Court must determine whether the agency decision "was based
on a consideration of the relevant factors and whether there has
been a clear error of judgment." Citizens to Preserve Overton
Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136
(1971). The Supreme Court has explained that an agency action
would be arbitrary and capricious if "the agency has relied on
factors which Congress has not intended it to consider, entirely
failed to consider an important aspect of the problem, [or]
offered an explanation for its decision that runs counter to the
evidence before the agency. . . ." Motor Vehicle Mfrs. Ass'n v.
State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 103
S.Ct. 2856, 77 L.Ed.2d 443 (1983). Although the arbitrary and
capricious standard "is narrow and presumes the agency action is
valid, . . . it does not shield agency action from a `thorough,
probing, indepth review.'" Northern Spotted Owl v. Hodel,
716 F. Supp. 479, 481-82 (W.D.Wash. 1988) (citations omitted). The
Court cannot, however, substitute its judgment for that of the
agency and should not determine whether it would have decided an
issue differently. Marsh v. Oregon Natural Resources Council,
490 U.S. 360, 377, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989).
2. Applicability of Motor Vehicles Mfrs. Ass'n v. State Farm
The parties dispute to what extent Motor Vehicle Mfrs. Ass'n
is applicable to the present action. The Supreme Court in that
case found arbitrary and capricious a decision by the National
Highway Traffic Safety Administration to rescind an existing
regulation requiring air bags and passive seat restraints in
passenger automobiles. The Supreme Court held, "an agency
changing its course by rescinding a rule is obligated to supply a
reasoned analysis for the change beyond that which may be
required when an agency does not act in the first instance."
Motor Vehicle Mfrs. Ass'n, 463 U.S. at 41-42, 103 S.Ct. 2856.
Plaintiffs argue that this language should be read to mean that
an "agency's change of position can be taken as evidence of
arbitrariness unless adequately explained, and that the agency
has the burden of explaining the change." Plaintiffs' Reply and
Opposition to Defendants' Cross-Motion 8.