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Family Farm Alliance v. Salazar

December 18, 2009

FAMILY FARM ALLIANCE, PLAINTIFF,
v.
KENNETH LEE SALAZAR, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

MEMORANDUM DECISION RE PLAINTIFF'S MOTION TO COMPEL PRODUCTION OF ADMINISTRATIVE RECORD. (DOC. 25)

I. INTRODUCTION

Plaintiff, Family Farm Alliance ("Alliance") moves to compel Federal Defendants to "immediately file the Administrative Record in the above-captioned action." Doc. 26 at 1, filed November 9, 2009. Federal Defendants, who contend that they are only a few weeks away from completing and filing the Administrative Record ("AR"), oppose the motion to compel. Doc. 27, filed November 23, 2009. The Alliance filed a reply on November 30, 2009. Doc. 28.

II. LEGAL AND FACTUAL BACKGROUND

The Complaint, which arises under the Information Quality Act ("IQA"), guidelines promulgated pursuant to the IGA, and Section 7 of the Endangered Species Act ("ESA"), 16 U.S.C. § 1536(a)(2), challenges both the preparation and dissemination of Defendant United States Fish and Wildlife Service's ("FWS") December 15, 2008 Final Biological Opinion concerning the impact of coordinated operations of the Central Valley Project ("CVP") and State Water Project ("SWP") on the delta smelt (hypomesus transpacificus) ("BiOp" or "2008 BiOp"), as well as FWS's compliance with IQA procedures.

The Information Quality Act of 2000 directs the Office of Management and Budget ("OMB") to issue guidelines "that provide policy and procedural guidance to Federal agencies for ensuring and maximizing the quality, objectivity, utility, and integrity of information disseminated by Federal agencies ...." Pub. L. No. 105-554 § 1(1)(3) (Dec. 21, 2000) (codified at 44 U.S.C. 3516 note 4(a)). OMB was instructed to include the following provisions in its guidelines: (1) that federal agencies issue their own guidelines not more than one year after OMB issues its guidelines; (2) that agencies "establish administrative mechanisms allowing affected person to seek and obtain correction of information maintained and disseminated by the agency that does not comply with [the OMB guidelines];" and (3) that agencies periodically report to the director of OMB the nature and number of complaints and how they were handled. See 44 U.S.C. 3516 note 4(b)(2). The OMB guidelines provide:

To facilitate public review, agencies shall establish administrative mechanisms allowing affected persons to seek and obtain, where appropriate, timely correction of information maintained and disseminated by the agency that does not comply with OMB or agency guidelines. These administrative mechanisms shall be flexible, appropriate to the nature and timeliness of the disseminated information, and incorporated into agency information resources management and administrative practices. i. Agencies shall specify appropriate time periods for agency decisions on whether and how to correct the information, and agencies shall notify the affected persons of the corrections made. ii. If the person who requested the correction does not agree with the agency's decision (including the corrective action, if any), the person may file for reconsideration within the agency. The agency shall establish an administrative appeal process to review the agency's initial decision, and specify appropriate time limits in which to resolve such requests for reconsideration. 67 Fed. Reg. 8,452, 8,459 (Feb. 22, 2002).

FWS's IQA Guidelines, issued October 18, 2002, "establish FWS policy and procedures for reviewing, substantiating, and correcting the quality of information it disseminates," so that "persons affected by that information may seek and obtain, where appropriate, correction of information that they belief may be in error or otherwise not in compliance with" the IQA. 67 Fed. Reg. 64,407, FWS IQA Guidelines*fn1 at 1. Any affected member of the public may submit a "request for correction" to FWS asserting that material made public by FWS does not meet IQA standards. Id. at 7. If FWS determines "a request for correction of information [is] appropriate for consideration," the "burden of proof is on the complainant with respect to the necessity for the correction as well as with respect to the type of correction they seek." Id. at 8. As part of its analysis of the correction request, "FWS may conduct a post hoc peer review of original information from other sources when circumstances warrant." Id. at 10.

Upon finding a request for correction of information to be appropriate for consideration, FWS "will review the request and issue a decision within 90 calendar days from receipt of the challenge." Id. at 9. However, "[i]f the request requires more than 90 calendar days to resolve, the agency will inform the complainant that more time is required, indicating the resason(s) why and providing an alternative timeline for reaching a decision." Id.

If FWS approves of a correction request, it "will take corrective action, however, the time required for corrective action to be taken will depend on the circumstances of each situation." Id. Corrective measures may include "personal contacts via a letter, form letters, press releases or postings on the FWS website to correct a widely disseminated error or address a frequently raised request." Id.

If FWS denies a request for correction, a requester may administratively appeal that denial to "a panel consisting of high-level officials from the FWS and, when available, another Department of Interior agency such as the U.S. Geological Survey." Id. The appeal panel "will make a recommendation which will be forwarded to the Director of the FWS (or another senior official authorized to act on the Director's behalf)." Id. The Director or designated representative "will make the final decision on the appeal within 60 calendar days from receipt of the appeal...." Id.

"Factors such as ... statutory or court-ordered deadlines, circumstances beyond [FWS's] control, or other time and financial constraints may limit or preclude applicability of [the] guidelines...." Id. at 2. FWS's IQA Guidelines also provide that the "guidelines are intended only to improve the internal management of FWS relating to information quality" and " do not provide any right to judicial review" or "create any right or benefit, substantive or procedural, enforceable by law or equity by a party against the United States, its agencies, its offices, or another person." Id. at 6.

The First Cause of Action alleges that Federal Defendants failed to comply with the IQA, the IQA Guidelines, and ESA § 7 in preparing and disseminating the 2008 BiOp. Doc. 1 at ¶¶ 39-51. Among other things, the Alliance alleges that the 2008 BiOp failed to use the "best scientific and commercial data available" as required by the IQA, IQA Guidelines, and ESA § 7. Id. at ¶44.

The Second Cause of Action alleges that the IQA Guidelines "mandate the timeline in which the FWS is to provide appropriate responses to a request for correction and an appeal," and that FWS has not responded adequately and in a timely manner to their requests and appeals, which constitutes unlawful delay under the Administrative Procedure Act ("APA"). Id. at ΒΆΒΆ 54-55. Plaintiff seeks ...


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