The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION AND ORDER RE MOTION TO SUPPLEMENT THE ADMINISTRATIVE RECORD (DOC. 170).
COALITIeONt aFOlR A SUSTAINABLE
Plaintiffs San Luis & Delta-Mendota Water Authority, Westlands Water District, State Water Contractors, Coalition for a Sustainable Delta, Kern County Water Agency, and Metropolitan Water District of Southern California (collectively, "Plaintiffs") move to supplement the administrative record. Doc. 170; see also Doc. 331-2 (listing documents in dispute and the parties respective positions concerning supplementation).
A November 18, 2009 order reduced to writing the district court's oral rulings as to the vast majority of the documents in dispute. Doc. 406. As to certain "influential scientific reports and articles published prior to December 15, 2008, regarding the delta smelt and/or its habitat" (Documents 215-221, 223, 226-227, 233-235, 241-242, 245, 254-255, 258-264), the district court tentatively denied Plaintiffs' motion, but allowed Plaintiffs to supplement their briefing to present further "foundation," reasoning that Plaintiffs' "should have shown ... that ... the data and information" in these documents is not already "considered by existing record information." Doc. 406 at ¶8; Transcript of 11/19/09 hearing, Doc. 392, at 37-43. Plaintiffs filed a supplemental brief on November 6, 2009. Doc. 385. Federal Defendants opposed on November 20, 2009. Doc. 412.
The APA limits the scope of judicial review to the administrative record. 5 U.S.C. § 706 (directing the court to "review the whole record or those parts of it cited by a party."). The administrative record is "not necessarily those documents that the agency has compiled and submitted as 'the' administrative record." Thompson v. U.S. Dept. of Labor, 885 F.2d 551, 555 (9th Cir. 1989). Rather, "'[t]he whole record' includes everything that was before the agency pertaining to the merits of the decision." Portland Audubon Soc'y v. Endangered Species Comm., 984 F.2d 1534, 1548 (9th Cir. 1993). "The 'whole' administrative record, therefore, consists of all documents and materials directly or indirectly considered by agency decision-makers and includes evidence contrary to the agency's position." Thompson, 885 F.3d at 555 (emphasis added).
An incomplete record must be viewed as a fictional account of the actual decisionmaking process. When it appears the agency has relied on documents or materials not included in the record, supplementation is appropriate.
Portland Audubon, 984 F.2d 1534 (internal quotations and citations omitted); see also Asarco, Inc. v. U.S. Environmental Protection Agency, 616 F.2d 1153, 1160 (9th Cir. 1980) ("A satisfactory explanation of agency action is essential for adequate judicial review, because the focus of judicial review is not on the wisdom of the agency's decision, but on whether the process employed by the agency to reach its decision took into consideration all the relevant facts.").
However, the record does not include "every scrap of paper that could or might have been created" on a subject. TOMAC v. Norton, 193 F. Supp. 2d 182, 195 (D.D.C. 2002).
A broad application of the phrase "before the agency" would undermine the value of judicial review: Interpreting the word "before" so broadly as to encompass any potentially relevant document existing within the agency or in the hands of a third party would render judicial review meaningless. Thus, to ensure fair review of an agency decision, a reviewing court should have before it neither more nor less information than did the agency when it made its decision.
Pac. Shores Subdivision v. U.S. Army Corps of Eng'rs, 448 F. Supp. 2d 1, 5 (D.D.C. 2006) (internal citations and quotations omitted). The record certainly need not include documents that became available after the agency's decision had already been made ("postdecisional" documents). See Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 555 (1978)(judicial review is "limited  by the time at which the decision was made...."); Karuk tribe v. U.S. Forest Serv., 379 F. Supp. 2d 1071, 1090 (N.D. Cal. 2005)(court "may not consider information created during the litigation that was not available at the time the [agency] made its decision")(citations omitted).
Here, Plaintiffs point out that the ESA consultation regulations require FWS to "(1) Review all relevant information provided by the Federal agency or otherwise available....; (2) [e]valuate the current status of the listed species or critical habitat....; and (3) [e]valuate the effects of the action and cumulative effects on the listed species or critical habitat." 50 C.F.R. § 402.14(g)(1)-(3). The Consultation Handbook explains that a biological opinion should include a description of the proposed action, the status of the species and its critical habitat, the environmental baseline, the effects of the action, any cumulative effects, a conclusion, and any reasonable and prudent alternatives. U.S. Fish and Wildlife Service and National Marine Fisheries Service, Endangered Species Consultation Handbook at 4-13 (March 1998).*fn1
In addition to permitting supplementation with documents that were part of the "whole record" but were excluded from the AR, the district court may also consider extra-record materials in an APA case under four narrow exceptions:
(1) when it needs to determine whether the agency has considered all relevant factors and has explained its decision; (2) when the agency has relied upon documents or materials not included in the record; (3) when it is necessary to explain technical terms or complex matters; and (4) when a plaintiff makes a showing of agency bad faith.
Southwest Center for Biological Diversity v. United States Forest Service, 100 F.3d 1443, 1450 (9th Cir. 1996). However, before extra-record material may be considered under any of these exceptions, a plaintiff must first make a showing that the record is inadequate. Animal Defense Council v. Hodel, 840 F.2d 1432, 1437 (9th Cir. 1988) ("The [plaintiff] makes no showing that the district court needed to go outside the administrative record to determine whether the [agency] ignored information").
B. Influential Scientific Reports and Articles Published Prior to December 15, 2008, Regarding the Delta Smelt and/or its Habitat
Plaintiffs seek to supplement the record with certain "influential scientific reports and articles" (Documents 215-221, 223, 226-227, 233-235, 241-242, 245, 254-255, 258-264). The documents can be generally grouped into the following categories:
(1) Documents pertaining to climate change and the future of the Delta; (2) Documents synthesizing issues affecting the Delta; (3) Documents concerning the effect(s) of ammonia on the delta smelt; (4) Documents concerning the effect(s) of pesticides on the delta smelt; (5) Documents related to the food web of the Delta. (6) Documents pertaining to invasive species and habitat restoration.
Plaintiffs argue that these documents should be admitted as supplements to the record because they are "necessary to determine whether FWS considered all relevant factors and explained its decision," Doc. 385 at 2, an invocation of the second exception to the prohibition against consideration of extra-record evidence. Southwest Center, 100 F.3d at 1450. Plaintiffs maintain that the data and analyses presented in each of these documents are not otherwise available in the AR.
1. The Future of the Delta
Documents pertaining to Cl imate Change and Plaintiffs argue that the record should be supplemented to include each of the following reports on climate change: * Document 218, Louise Bedworth & Ellen Hanak, Pub. Policy Inst. of Cal., Preparing California for a Changing Climate (2008).
* Document 220, Ellen Hanak & Jay Lund, Pub. Policy Inst. of Cal., Adapting California's Water Management to Climate Change (2008).
* Document 258, Michael D. Dettinger et al., Simulated Hydrological Responses to Climate Variations and Changes in the Merced, Carson, and American River Basins, Sierra Nevada, California, 1900-2099, 62 Climatic Change 283 (2004).
* Document 259, Peter H. Gleick & Elizabeth L. Chalecki, The Impacts of Climate Changes for Water Resources of the Colorado and Sacramento San-Joaquin River Basins, 35 J. Am. Water Resources Ass'n 1429 (1999).
* Document 260, Katharine Hayhoe et al., Emissions Pathways, Climate Change, and Impacts on California, 101 Proceedings Nat'l ...