The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
DELTA SMELT CONSOLIDATED MEMORANDUM DECISION AND ORDER RE SAN LUIS PLAINTIFFS' MOTIONS TO AUGMENT (DOC. 134) AND SUPPLEMENT (DOC. 139); AND STANISLAUS RIVER PLAINTIFFS' MOTION TO AUGMENT THE ADMINISTRATIVE RECORD (145)
Before the court for decision are three motions concerning the Administrative Record (―AR‖):
San Luis & Delta-Mendota Water Authority, Westlands Water District, State Water Contractors, Metropolitan Water District of Southern California, Kern County Water Agency, Coalition for a Sustainable Delta, Oakdale Irrigation District, South San Joaquin Irrigation District and Stockton East Water District (collectively, ―South Delta Plaintiffs‖) seek to supplement the AR with 41 documents. Docket 140. South Delta Plaintiffs maintain that some of these documents were improperly excluded from the AR (including documents cited by water users in comment letters; comments, reports, and studies submitted to Federal Defendants by the Department of Water Resources (―DWR‖); and documents cited in the consultation history). South Delta Plaintiffs seek to augment the record with certain additional documents under several of the recognized exceptions to the record review rule. Federal Defendants have agreed to supplement the record with Documents 15-20 and 22 from this request, but oppose supplementation as to the remaining documents.
Stockton East Water District, Oakdale Irrigation District, and South San Joaquin Irrigation District (―Stanislaus River Plaintiffs‖) seek to supplement the AR with certain additional documents enumerated in Tables A-E attached to their motion. Docket 146. The Stanislaus River Plaintiffs incorporate the legal arguments of the South Delta Plaintiffs. Federal Defendants have agreed to augment the record with all but 7 of the Documents listed in Table E.
The South Delta Plaintiffs also seek to augment the AR with 64 documents withheld under various claims of privilege. See Docket 135. In its opposition, the National Marine Fisheries Service (―NMFS‖) withdrew its privilege claims as to Documents 24-59, but opposes augmentation as to the remaining documents.
The parties agreed to submit these motions on the papers.
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 at 1548 (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 (―post-decisional‖ 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).
2. Presumption of Regularity
An agency's designation and certification of the AR is entitled to a presumption of regularity. McCrary v. Gutierrez , 495 F. Supp. 2d 1038, 1041 (N.D. Cal. 2007)(citing Bar MK Ranches v. Yuetter , 994 F.2d 735, 740 (10th Cir. 1993)). Absent ―clear evidence to the contrary‖ a court must presume that an agency has ―properly discharged [its] official duties.‖ United States v. Chemical Foundation, Inc ., 272 U.S. 1, 14-15 (1926); see also Bar MK Ranches , 994 F.2d at 73-40 (while the agency ―may not unilaterally determine what constitutes the administrative record‖ the courts ―assume the agency properly designated the [AR] absent clear evidence to the contrary‖).
Plaintiffs bear the burden of overcoming this presumption. See id .; Glasser v. NMFS , 2008 WL 114913, *1 (W.D. Wash. Jan. 10 2008)(plaintiffs seeking to supplement the AR must present ―clear evidence sufficient to overcome the presumption of administrative regularity....‖). Specifically, Plaintiffs must present clear evidence that the existing AR is so inadequate that it will frustrate judicial review. Rybacheck v. EPA , 904 F.2d 1276, 1296 n.25 (9th Cir. 1990)(denying motion to supplement where ―original record  adequately explains the basis of [the agency's] decision and demonstrates that the [agency] considered the relevant factors‖).
Plaintiffs do not dispute the applicability of this presumption and that they bear the burden of overcoming it. See Docket 140 at 8. Instead, Plaintiffs maintain that, ―[h]ere, it is clear that the NMFS Record was not properly assembled.‖ Id . Plaintiffs observe that Federal Defendants have already submitted five versions of the NFMS record, twice because they failed to include thousands of documents. Id. Moreover, Plaintiffs assert that the index to the NMFS AR is ―riddled with inaccuracies and misnumbering...‖ Id . This, Plaintiffs suggest, is sufficient to overcome the presumption of regularity.
It is neither irregular nor particularly surprising that in this complex case, brought on an expedited basis due to the urgent nature of Plaintiffs' requests for relief, some documents that belong in the AR were inadvertently omitted. The parties have had to communicate and cooperate with each other extensively to clarify the AR's content, and some technical inaccuracies in the AR's index have been discovered. Plaintiffs have not presented evidence sufficient to overcome the presumption of regularity. It is necessary, then, to examine Plaintiffs' specific contentions in detail to determine whether they have otherwise met their burden as to specific categories of documents.
3. South Delta Plaintiffs' Motion to Supplement
a. Documents Plaintiffs' Claim Were Improperly Excluded From the Record
(1)Scientific Reports and Peer-Reviewed Articles Cited To Federal Defendants By Water Users (Documents 1-14)
The South Delta Plaintiffs seek to supplement the AR with Documents 1-14, scientific reports and peer-reviewed articles cited to NMFS for its consideration in the course of its preparation of the 2009 BiOp. Documents 4-6, 10, 11, are reports and articles referenced by a September 24, 2008 comment letter sent by the San Luis & Delta-Mendota Water Authority (―Authority‖) and the State Water Contractors (―SWC‖) to Federal Defendants. The letter was included in the administrative record. Although some of the cited references are included in the AR, Documents 4-6, 10, and 11 were omitted.
Documents 1-3, 7-9, and 12-14 were on a reference list attached to a May 27, 2009 letter sent by the Authority and the SWC to NMFS with comments on the draft salmon biological opinion dated December 11, 2008. This comment letter was included in the administrative record, as were some of the listed references, but Documents 1-3, 7-9, and 12-14 were excluded.
Plaintiffs assert that each of these documents should be added to the record because the document was ―cited to NMFS before the 2009 BiOp was issued in comment letters that the Federal Defendants have included in the administrative record.‖ Docket 140 at 8-9.
There is ample authority supporting the proposition that the agency must consider relevant data or reports presented to it prior to completion of a biological opinion. See Natural Res. Def. Council v. Kempthorne , 506 F. Supp. 2d 322, 366-67 (E.D. Cal. 2007) (holding that the Service was required to consider species' population abundance data presented to it one week before completion of the biological opinion); see also Grand Canyon Trust v. U.S. Bureau of Reclamation , 2009 WL 941341, at *4-*5 (D. Ariz. Apr. 6, 2009) (holding agency must consider relevant report presented to it two weeks before completion of the biological opinion).
Plaintiffs' assert that Kempthorne and Grand Canyon Trust stand for the proposition that any document placed before the agency prior to the issuance of the BiOp must be included in the AR. This is not the law. For example, in Defenders of Wildlife v. Dalton , 24 C.I.T 1116, 2000 WL 1562928, at *1120-21 (C.I.T. 2000), the Court of International Trade refused to supplement the administrative record with attachments to comment letters absent evidence that those attachments were considered either directly or indirectly by the relevant decisionmakers. Plaintiffs point to no absolutely no authority that requires an agency to track down documents referenced in a comment letter but not attached thereto. This would be an unworkable rule, as it would permit a party to force into the record any number of references, regardless of relevance, simply by attaching to a comment letter a list of references on a particular subject.
Plaintiffs' request to supplement the record with Documents 1-14 on the ground that the documents were referenced in comment letters is DENIED.
(2)Documents Referenced in the Consultation History (Document 21)
Plaintiffs seek to supplement the record with Document 21, a compilation of declarations from PCFFA v. Gutierrez , 1:06-cv-245 OWW (E.D. Cal.). These declarations are referenced at page 33 of the 2009 Salmonid BiOp, in a section of the BiOp entitled ―consultation history,‖ which indicates that the declarations were considered by the agency in preparing the BiOp.
This document is NMFS' Opinion on the proposed action, in accordance with section 7 of the Endangered Species Act (ESA) of 1973, as amended (16 U.S.C. 1531 et seq.). The request for formal consultation was received on October 1, 2008. This final Opinion supersedes the 2004 CVP/SWP operations Opinion. This Opinion is based on:
(1) the reinitiation package provided by Reclamation, including the CVP/SWP operations BA, received by NMFS on October 1, 2008; (2) the supplemental analysis of effects on the proposed critical habitat of Southern DPS of green sturgeon and supplemental information regarding the EFH assessment on fall-run; (3) other supplemental information provided by Reclamation; (4) declarations submitted in court proceedings pursuant to Pacific Coast Federation of Fishermen Association (PCFFA) et al. v. Gutierrez et al. ; and (5) scientific literature and reports. A complete administrative record of this consultation is on file at the NMFS, Sacramento Area Office.
BiOp at 33 (emphasis added).
Federal Defendants nevertheless oppose supplementation of the record with these declarations:
The product of litigation, these declarations have no place in the agencies' consideration of the ―best available science.‖ The factual matters discussed in these declarations are thoroughly documented in the BiOp and the current record and Plaintiffs do not even attempt to represent to the contrary. To the extent a party seeks to rely on these declarations, they must submit a request for judicial notice as is frequently done in this ongoing litigation.
Federal Defendants' position, taken in the context of litigation, is directly contradicted by the text of the BiOp. For this reason, and because the declarations would be subject to judicial notice in any event, Plaintiffs' motion to supplement the AR with Document 21 is GRANTED.
b. Documents Plaintiffs Seek to Introduce Under One of the Exceptions to the Record Review Rule
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) (review of extra-record evidence inappropriate where plaintiff ―makes no showing that the district court needed to go outside the administrative record to determine whether the [agency] ignored information‖).
Plaintiffs seek to supplement the record with certain documents they contend fall within these recognized exceptions.
(1)Documents Pertaining to ―Other Stressors.‖
(a) Documents Pertaining to Predators (Documents 1, 4, 9, and 39-41)
Plaintiffs seek to supplement the record with Documents 1, 4, and 9 to ―demonstrate the failure on the part of NMFS to give appropriate consideration to the prevalence of centrarchids, particularly the largemouth bass, in the Delta, and the degree to which their predation on migrating salmon has compromised certain salmonid ESUs as a result.‖ Docket 263 at 6.
Federal Defendants maintain that Documents 1 and 9 are cumulative of the discussion that is contained in the BiOp regarding predation and nonnative species. Id . at 10-11, n. 4 (citing BiOp at 146-148, 154, 207, 215, 347-350, 374). The cited portions of the BiOp discuss, among other things, predation patterns in various habitat and geographic locations and the effect of water development activities on predation rates.
Plaintiffs offer Document 1, an article published by Lenny Grimaldo, et al., which found that marsh edge habitats supported a prominent abundance of centrarchids, a family of freshwater fish to which the largemouth bass belongs. Plaintiffs argue that ―[a]lthough the BiOp briefly mentions the fact that vegetated channels provide coverage to largemouth bass (BiOp at 374), it completely fails to consider Grimaldo's key observation regarding the prevalence of largemouth bass in these vegetated corridors and the impact of these largemouth bass on salmon migrating through these corridors.‖ Docket 263 at 6. But, Plaintiffs misapply the ―relevant factors‖ exception. Document 1 does not raise an entirely new factor that Federal Defendants failed to consider. Rather, it raises nuanced points about predation. The exceptions to the record review rule, including the ―relevant factors‖ exception, must be interpreted narrowly. See Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v. U.S. Dept. of Agric. , 499 F.3d 1108, 1117 (9th Cir. 2007). Accordingly, the ―relevant factors‖ exception only applies when Federal Defendants fail to consider a general subject matter that is demonstrably relevant to the outcome of the agency's decision, not when specific hypotheses and/or conclusions are omitted from consideration. To hold otherwise would allow Plaintiffs to drive a truck through what is supposed to be a narrow exception to the record review rule.
The same applies to Document 9, an article authored by Mike Chotowski, currently with the Bureau of Reclamation, which found that nonnative centrarchids, including largemouth bass, dominate vegetated habitats of the Delta. Plaintiffs maintain that the BiOp should have, but did not, consider the implications of largemouth bass abundance on salmon populations. Document 9 merely offers a nuanced point about predator populations; it does not offer an entirely new consideration.
Likewise, Document 4, an article prepared by William J. Kimmerer in 2001 that discusses population dynamics of the striped bass, another known predator of salmon, does not point to an entirely new ―factor‖ Federal Defendants neglected to consider. The BiOp discusses striped bass predation of salmon, BiOp at 147, 374. That there is no specific discussion of striped bass abundance does not require the conclusion that Federal Defendants entirely failed to consider a relevant factor.
The same conclusion applies to Documents 39 and 40.
Document 39 is a 1997 telemetry study by Gingras and McGee, which studied movements of striped bass through the radial gates at Clifton Court Forebay to determine the feasibility of predator removal as a method to decrease pre-screen loss of fish in CCF.
Document 40, cited in Document 39, is a 1990 study by Kano on the occurrence and abundance of predator fish in CCF, which discussed flow velocity in CCF and its effect on emigration of predators from CCF and found, among other things, predator emigration to be greater than previously assumed, resulting in overestimates of predators and their threat to listed species.
Document 41 is the final version of a draft study on quantification of pre-screen loss of juvenile steelhead in Clifton Court Forebay already in the record. AR 00112850-00113074. Plaintiffs maintain that Document 41 should have been included in the record because NMFS knew by April 17, 2009 that the final report was available. AR 00086690. Critically, the final study corrected an error in the draft report regarding how the equation for pre-screen loss was documented. Nevertheless, the relevant factors exception cannot be used to supplement the record with this document. A ...