The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION RE CROSS MOTIONS FOR SUMMARY JUDGMENT ON CLAIMS TWO AND THREE (DOCS. 54 & 60)
Before the Court for decision are cross motions for summary judgment on two of Plaintiff's, Family Farm Alliance's ("FFA"), three claims.*fn1 The Second Claim alleges that Defendant, Kenneth Salazar, Secretary of the United States Department of the Interior, through the United States Fish and Wildlife Service ("FWS") failed to timely respond to FFA's appeal filed under the Information Quality Act ("IQA"), Pub. L. No. 106-554, § 515(a) (2000), 44 U.S.C. § 3516, and Guidelines issued by the Office of Management and Budget ("OMB") and FWS to implement the IQA. That appeal disputed FWS's IQA compliance in connection with FWS's issuance of a 2008 Biological Opinion under the Endangered Species Act ("ESA"), addressing the impact of the coordinated operations of the federal Central Valley Project ("CVP") and State Water Project ("SWP") on the threatened Delta smelt (hypomesus transpacificus) ("2008 Smelt BiOp"). The Third Claim alleges that the peer review FWS commissioned to review the 2008 Smelt BiOp violated National Academy of Sciences ("NAS") standards governing peer reviewer conflicts of interest, incorporated by reference into FWS's IQA Guidelines.
FFA moves for summary judgment, arguing: (1) its IQA claims are judicially reviewable; (2) it has standing to maintain these claims in federal court; and (3) it is entitled to judgment on the merits of its Second and Third claims. Doc. 54. Federal Defendants filed a combined cross motion/opposition, arguing: (1) Plaintiff lacks standing; (2) there is no right to judicial review of Plaintiff's IQA claims; (3) the Second Claim is moot because FWS responded to FFA's appeal; and, in the alternative, (4) Federal Defendants are entitled to summary judgment on the merits. Doc. 61. FFA filed a combined reply/opposition. Doc. 67. Federal Defendants replied. Doc. 68.
On December 14, 2008, FFA submitted to FWS a "Request for Correction" of information in the draft effects analysis of the 2008 Smelt BiOp ("Request"), which asserted that the 2008 Smelt BiOp did not comply with the IQA and the ESA and requested that the 2008 Smelt BiOp be withdrawn and corrected under the IQA. The Request contained twenty-five specific demands, including but not limited to primary requests that: (1) assumptions contained in the analysis regarding the decline in Delta smelt be replaced with actual data and analysis supporting those assumptions; (2) all statements, assumptions, and assertions which are not supported by the best available scientific data and/or are contradicted by data and analysis be removed and replaced with statements that are supported by the best available scientific data and analysis; (3) all statements which are predicated on speculation, hypothesis, or supposition, rather than data, be removed; (4) the degree of uncertainty regarding the cause of the decline of delta smelt be fully disclosed; (5) well-supported data and analysis which demonstrates that water project pumping operations have no important effects on abundance of delta smelt be acknowledged; and (6) the 2008 Smelt BiOp be appropriately peer reviewed. See Request, AR 200001-200018.
On December 23, 2008, FWS sent FFA an interim response, acknowledging receipt of the Request on December 15, 2008. AR 800195. On March 12, 2009, seventy-nine days after FWS confirmed receipt of the Request for Correction, FWS transmitted its formal Response to the FFA. AR 200019. The Response stated that no correction was needed as to any of FFA's requests. AR 200019.
On April 1, 2009, FFA appealed FWS's denial of its Request (the "Appeal") pursuant to FWS IQA Guidelines, alleging deficiencies in FWS's Response. On April 27, 2009, FWS sent an interim response letter to FFA, acknowledging receipt of the Appeal on April 1, 2009 and advising that, although the IQA Guidelines provide that the Acting Director has sixty days to respond to an Appeal, due to the "series of complex scientific and legal issues" raised in the Appeal, the final determination may not be completed within that time. AR 800361.
On May 18, 2009, FFA sent correspondence to FWS regarding the discovery by another organization that FWS did not possess certain data sets on which it relied in preparing the 2008 Biological Opinion. AR 800364. On June 8, 2009, FWS responded, indicating that the agency viewed FFA's May 18, 2009 correspondence as a supplemental request for correction, which is not provided for under the IQA, and would treat it as a revised appeal (which also is not provided for under the IQA), extending the FWS's time to decide FFA's Appeal by another 60 days. AR 800371. On June 11, 2009, FFA responded, disputing the FWS's classification of the May 18, 2009 letter as a revised appeal and offering to withdraw the letter. AR 800373.
FFA filed this lawsuit on July 10, 2009, claiming FWS:
(1) Failed to comply with the IQA, the IQA Guidelines, and the ESA in promulgating the 2008 Biological Opinion;
(2) Was unreasonably delaying responding to FFA's IQA Appeal; and
(3) Failed to conduct an adequate peer review of the 2008 Smelt BiOp, because the peer reviewers engaged by FWS to review the Biological Opinion did not meet NAS standards for independence.
On November 20, 2009, FWS sent FFA a document entitled: "U.S. Fish and Wildlife Service's Response to the Family Farm Alliance Information Quality Act (IQA) Appeal of the Draft Effects Analysis of the Biological Opinion on the Continued Long-Term Operations of the Central Valley Project (CVP) and the State Water Project (SWP) April 1, 2009" ("Appeal Response"). AR 800460. The Appeal Response contains a report entitled "Independent Expert Panel Review of the Family Farm Alliance's Information Quality Act Request for Corrections" ("Panel Review"), conducted by Post, Buckley, Shuh & Jernigan ("PBS&J").*fn2 On March 16, 2010, Deputy Secretary of the Interior, David J, Hayes, sent a letter to FFA, stating Mr. Hayes's belief that FWS "fully complied" with the IQA. See Declaration of Brenda W. Davis, Doc. 54-2, Exhibit B.
In response, FFA sent Mr. Hayes a letter alleging that the Appeal Response was deficient and not in compliance with the IQA. Id., Exhibits A and C. Among other things, FFA asserted that the Appeal Response did not respond to the actual requests contained in the Request for Correction and Appeal, and instead summarizes, repurposes, and essentially rewrites FFA's requests. See id. Exhibit A; see also Request for Correction, AR 200001-200018.
Summary judgment is proper where the pleadings, discovery and affidavits show that there is "no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Summary judgment is an appropriate mechanism for resolving challenges to final agency action. See Occidental Eng' Co. v. INS, 753 F.2d 766, 770 (9th Cir. 1985).
B. Information Quality Act
The IQA provides in its entirety:
(a) IN GENERAL.--The Director of the Office of Management and Budget shall, by not later than September 30, 2001, and with public and Federal agency involvement, issue guidelines under sections 3504(d)(1) and 3516 of title 44, United States Code, that provide policy and procedural guidance to Federal agencies for ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by Federal agencies in fulfillment of the purposes and provisions of chapter 35 of title 44, United States Code, commonly referred to as the Paperwork Reduction Act.
(b) CONTENT OF GUIDELINES.--The guidelines under subsection (a) shall--
(1) apply to the sharing by Federal agencies 7 of, and access to, information disseminated by Federal agencies; and
(2) require that each Federal agency to which the guidelines apply--
(A) issue guidelines ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by the agency, by not later than 1 year after the date of issuance of the guidelines under subsection (a);
(B) establish administrative mechanisms allowing affected persons to seek and obtain correction of information maintained and disseminated by the agency that does not comply with the guidelines issued under subsection (a); and
(C) report periodically to the Director--
(i) the number and nature of complaints received by the agency regarding the accuracy of information disseminated by the agency; and
(ii) how such complaints were handled by the agency.
Pub. L. 106-554, 114 Stat 2763, 2763A-153-2763A-154 (2000)(codified at 44 U.S.C. § 3516). The IQA has no legislative history.
Subsection (a) mandates that the Office of Management and Budget ("OMB") issue, by no later than September 30, 2001, government-wide guidelines to ensure the "quality, objectivity, utility, and integrity of information" disseminated by federal agencies. See Pub. L. No. 106-554, § 515(a) (2000). The statute itself contains no substantive provisions regarding information quality, leaving the structure and design of any such requirements to OMB. Nor is there any relevant legislative history disclosing substantive Congressional intent regarding information quality.
Within one year of OMB's issuance of Guidelines, each federal agency was required to issue its own guidelines consistent with OMB's. Id. at § 515(b)(2)(A). OMB, the Department of the Interior, and FWS timely issued the required guidelines. See, e.g., Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies, 67 Fed. Reg. 8,452 (Feb. 22, 2002) ("OMB IQA Guidelines"); Information Quality Guidelines of the U.S. Department of the Interior, 67 Fed. Reg. 50,687 (Aug. 5, 2002)) ("DOI IQA Guidelines"); FWS Information Quality Guidelines ("FWS IQA Guidelines")*fn3 . The IQA specifically required agencies to "establish administrative mechanisms allowing affected persons to seek and obtain correction of information maintained and disseminated by the agency...." and to "report periodically" on "the number and nature of complaints received by the agency regarding the accuracy of information disseminated by the agency" and "how such complaints were handled by the agency."
Id. at § 515(b)(2)(B)&(C)(emphasis added).
FWS's own IQA Guidelines are specific to its activities and disseminations, including biological opinions, and state that in order to ensure objectivity of information disseminated, the information will be presented in an "accurate," "clear," "complete," and "unbiased" manner. FWS IQA Guidelines III-8. In addition, FWS' IQA Guidelines require that a "preparer of a highly influential assessment or of influential information ... document the strengths and weaknesses of the data underlying the assessment/information so that the reader will understand the context for the FWS decision." FWS IQA Guidelines § VI-10.
Federal Defendants argue that Plaintiff's claims fail for the following threshold reasons:
(1) Plaintiff's Second Cause of Action is Moot;
(2) There is no right to judicial review of either IQA claim at issue in this motion; and/or
(3) Plaintiff has not established standing to sue.
1. Second Claim for Relief is Moot
An issue is moot "when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." City of Erie v. Pap's A.M., 529 U.S. 277, 287 (2000). If the parties cannot obtain any effective relief, any opinion about the legality of a challenged action is advisory. Id. "Mootness has been described as the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness)." Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n.22 (1997) (citation and quotation omitted). "[A]n actual controversy must be extant at all stages of review, not merely at the time the complaint is filed." Id. at 67.
Here, Plaintiff's Second Claim for Relief alleges that FWS's failure to timely respond to FFA's appeal violated the IQA Guidelines' timeline for responding to such appeals and that this constitutes an "unlawful delay" under the Administrative Procedure Act ("APA"), which authorizes a reviewing court to "compel agency action unlawfully withheld or unreasonably delayed." 5 U.S.C. § 706(1). It is undisputed that FWS responded to FFA's appeal on November 20, 2009. The only relief a court may order in an unlawful delay claim is to compel the agency to act. There ...