The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION RE PLAINTIFFS' MOTION TO SUPPLEMENT THE ADMINISTRATIVE RECORD (DOC. 765)
Before the court for decision is Central California Irrigation District and Firebaugh Canal Water District's ("Plaintiffs") motion to supplement the Administrative Record ("AR") with twenty-two (22) additional documents. Doc. 765. Of those, Federal Defendants have agreed to add four (listed below) to the AR, but object to the remaining eighteen (18). Doc. 793. Defendants Westlands Water District, Panoche Water District, and Panoche Drainage District ("District Defendants") object to supplementation of the record with any of the documents. Doc. 795. District Defendants also request that "the scope of the issues remaining before the Court and the scope of the AR should be clarified prior to the upcoming motions for summary judgment...." Id. Environmental Intervenors take no position on the motion. Doc. 796. Plaintiffs filed a reply. Doc. 802.
The sole remaining claim against Federal Defendants in this case concerns the Bureau of Reclamation's ("Reclamation" or the "Bureau") alleged failure to provide drainage service to the San Luis Unit pursuant to Section 1(a) of the San Luis Act. See 1:91-cv-0048 OWW DLB, Nov. 19, 2004 Mem. Dec. ("11/19/04 Decision") at 25, 28-29, 36, 42. This claim arises under Section 706(1) of the Administrative Procedure Act ("APA"), 5 USC § 706(1), which permits a reviewing court to "compel agency action unlawfully withheld or unreasonably delayed."
II. APPLICABLE LEGAL STANDARD
The APA generally 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."). "When a plaintiff challenges a final agency action, judicial review normally is limited to the administrative record in existence at the time of the agency's decision." Friends of The Clearwater v. Dombeck, 222 F.3d 552, 560 (9th Cir. 2000). Under such circumstances, the agency is only required to "justify its final action by reference to the reasons it considered at the time it acted." Id.
However, where a plaintiff invokes 5 U.S.C. § 706(1) to compel an agency to take an action mandated by law, "review is not limited to the record as it existed at any single point in time, because there is no final agency action to demarcate the limits of the record." Id. (emphasis added); see also Independence Min. Co., Inc. v Babbitt, 105 F.3d 502, 511-12 (where "court is examining an agency's actions prior to final agency decision for purpose of measuring agency delay,... there is no date certain by which to evaluate an agency's justifications for its actions."). The reason for this distinction is that, "when a court is asked to review agency inaction before the agency has made a final decision, there is often no official statement of the agency's justification for its actions or inactions." San Francisco Baykeeper v. Whitman, 297 F.3d 877, 886 (9th Cir. 2002). Friends of the Clearwater defines an exception to the record review rule for cases challenging agency delay.*fn1
The caselaw provides limited guidance on the application of this exception. Friends of the Clearwater, a case challenging the Forest Service's failure to prepare a supplemental environmental impact statement ("SEIS") under NEPA, supplemented the record with studies prepared by the Forest Service after the agency sent plaintiffs a letter refusing to prepare a SEIS. 222 F.3d at 560-61. Likewise, in San Francisco Baykeeper, the Ninth Circuit permitted consideration of an extra-record program review document describing past and ongoing agency action. 297 F.3d at 886. The district court in Consejo de Desarrollo Economico de Mexicali, AC v. United States, 438 F. Supp. 2d 1207, 1221 (D. Nev. 2006), rev'd on other grounds, 482 F.3d 1157 (9th Cir. 2007), a 706(1) action to compel agency action unlawfully withheld, applied the Friends of the Clearwater exception more broadly, refusing to limit its review to the administrative record and those documents that met one of the Lands Council exceptions, instead considering "materials submitted by Plaintiffs as they relate to the present matter."
A. The Lodged Administrative Record
Federal Defendants lodged a certified AR consisting of more than 38,700 pages on March 21, 2010. The documents concern three drainage-related decisions: (1) the 2007 Record of Decision, with a feasibility report to Congress, on the San Luis Drainage Feature Re-Evaluation ("2007 SLDFR ROD"); (2) the development, issuance, and implementation of Use Agreements for the San Luis Drain through the Grasslands Bypass Project, including a related 2009 Record of Decision ("2009 GBP ROD"); and (3) Reclamation's approval of funding agreements for local drainage projects, including projects consistent with the Westside Regional Drainage Plan. In general, the AR documents largely date to the early 1990s and later, after reclamation began to consider "in-valley" drainage treatment and disposal options following the closure of Kesterson Reservoir. A few earlier reference documents are also included.
B. Scope of the Remaining Claims in this Case
Whether it is appropriate to supplement the record with the offered documents turns, in part, on the purpose(s) for which the documents are offered. It is undisputed that only an APA Section 706(1) claim remains in this case. To prevail on a 706(1) claim, Plaintiffs must demonstrate that: (1) an agency had a non-discretionary duty to act; and (2) the agency either unreasonably delayed or unlawfully withheld an action on that duty. Timbisha Shoshone Tribe v. Salazar, 697 F. Supp. 2d 1181, 1187 (E.D. Cal. 2010) (citing Norton v. S. Utah Wilderness Alliance ("SUWA"), 542 U.S. 55, 63-64 (2004)).
The nature of the drainage duty owed by Federal Defendants has been circumscribed by the Ninth Circuit's ruling in Firebaugh Canal Co. v. U.S., 203 F.3d 568, 574, 576 (9th Cir. 2000), which acknowledged that "the San Luis Act clearly expresses the intent of Congress to provide for the interceptor drain prior to the construction of the San Luis Unit," approved of the "district court's finding that the San Luis Act mandated the Secretary to provide the interceptor drain," and further found that the "district court properly held that [subsequent] appropriations riders, without more, failed to repeal the Secretary's duty to provide drainage under the San Luis Act." However, these findings "d[id] not end the inquiry":
The Government contends that Congress, through actions taken after the San Luis Act, has encouraged the Department of Interior to investigate and pursue drainage solutions other than the interceptor drain contemplated by the San Luis Act. Since the late 1970s, Congress has appropriated funds so that the Bureau of Reclamation could, in cooperation with the State, local water districts, and other entities, examine solutions to drainage other than the construction of the master drain.FN6 We reject the Government's contention that this action has eliminated the Bureau's duty to provide drainage; however, we do find that the subsequent Congressional action supplements the drainage solutions available to the Department of the Interior. See City of Los Angeles v. Adams, 556 F.2d 40, 50 (D.C.Cir. 1977); Skoko v. Andrus, 638 F.2d 1154, 1158 (9th Cir. 1979); District of Columbia v. Potomac Elec. Power Co., 402 A.2d 430, 435-36 (D.C. 1979). If, as the district court concluded, the interceptor drain was the only method through which the Department could meet its drainage obligations under the San Luis Act, then the alternative drainage solutions that Congress has supported for years would be superfluous. Thus, although the San Luis Act limits the drainage solution to an interceptor drain to the Contra Costa Delta, the subsequent Congressional action indicates that the Department of the Interior can meet its drainage obligations through means other than the interceptor drain. Therefore, we hold that the subsequent Congressional action has not eliminated the Department's duty to provide drainage, but that it has given the Department the authority to pursue alternative options other than the interceptor drain to satisfy its duty under the San Luis Act.
FN 6: See "Reclamation Wastewater and Groundwater Study and Facilities Act of 1992", Pub. L. No. 102-575, §§ 1601-1617, 106 Stat. 4600, 4663 (1992) (enacting 43 U.S.C. §§ 390h to 390h-15 (West Supp.1997)); "Central Valley Project Improvement Act", id. at §§ 3401-3411, 106 Stat. 4600, 4706.
Footnote 6 refers to the Reclamation Wastewater and Groundwater Study and Facilities Act of 1992, Pub. L. No. 102-575, §§ 1601-1617, 106 Stat. 4600, 4663 (1992), which generally provides the Secretary of Interior the authority: to undertake a program to investigate and identify opportunities for reclamation and reuse of municipal, industrial, domestic, and agricultural wastewater, and naturally impaired ground and surface waters, for the design and construction of demonstration and permanent facilities to reclaim and reuse wastewater, and to conduct research, including desalting, for the reclamation of wastewater and naturally impaired ground and surface water.
Id. at § 1602(a). The Secretary's ability to implement a program to reclaim impaired groundwater was limited to measures recommended in a 1990 Management Plan (otherwise known as the "Rainbow Report"):
The Secretary shall not investigate, promote or implement, pursuant to this title, any project intended to reclaim and reuse agricultural wastewater generated in the service area of the San Luis Unit of the Central Valley Project, California, except those measures recommended for action by the San Joaquin Valley Drainage Program in the report entitled A Management Plan for Agricultural Subsurface Drainage and Related Problems on the Westside San Joaquin Valley (September 1990).
Id. at § 1602(d). The Rainbow Report recommends a complex mix of "in-valley" solutions, without an interceptor drain with its terminus at the Contra Costa Delta. AR 38352-60.
In light of the Ninth Circuit's decision, the text of the Reclamation Wastewater and Groundwater Study and Facilities Act of 1992 cited therein, and the Rainbow Report, the Bureau has no obligation to construct an interceptor drain so long as the Bureau can find some other solution that works. Plaintiffs cannot be permitted to pursue a 706(1) claim that the Bureau has unlawfully delayed construction of an interceptor drain, because the Bureau has no absolute, non-discretionary obligation to construct an interceptor drain. The Bureau simply has an unavoidable obligation to implement some kind of drainage solution.
The district court has already so determined in the 11/19/04 Decision, which applied SUWA's holding that a claim under 706(1) can only proceed "where a plaintiff asserts than an agency failed to take a discrete agency action that it is required to take." 11/19/04 Decision at 25 (citing 124 S.Ct. at 2379)(emphasis added). SUWA addressed a challenge to a statute that gave discretion to agency decisionmakers in the form of broadly-worded, open-ended commands. Id. at 27. Under those circumstances, the final agency action requirement was not satisfied. Id. Plaintiffs' 706(1) claim regarding the drainage obligation was distinguished from SUWA because:
Here, Congress has given a statutory command to provide a drainage solution for the San Luis Unit. The Ninth Circuit has determined there has been a failure by the Federal Defendants to provide such a solution. Plaintiffs do not challenge the form of the drainage solution, a challenge that might be precluded under SUWA, but rather that Federal Defendants have failed to provide any drainage solution. Plaintiffs § 706 unreasonable delay claim is not barred by the final agency action doctrine.
Id. at 28-29.*fn2 Plaintiffs did not seek reconsideration of this ruling.
To the extent Plaintiffs offer these offered documents to prove that the drainage solution the Bureau plans to implement will not prevent impaired groundwater from migrating under their downslope lands, their challenge is to the form of the drainage solution, a use expressly disclaimed by the 11/19/04 Decision. Plaintiffs also suggest that the Bureau has construed its drainage obligation too narrowly, and thereby unlawfully withholds action on its drainage "obligation" (e.g., the alleged ...