The opinion of the court was delivered by: Hon. Gonzalo P. Curiel United States District Judge
ORDER DENYING PLAINTIFF'S MOTION TO SUPPLEMENT THE ADMINISTRATIVE RECORD
AND REQUEST FOR JUDICIAL UNITED STATES DEPARTMENT OF THE NOTICE
[Dkt. Nos. 81, 82.]
On September 24, 2012, simultaneously with filing its motion for summary judgment, Plaintiff filed a request for judicial notice, or in the alternative, motion to supplement the administrative record. (Dkt. Nos. 81, 82.) On October 15, 2012, Federal Defendants and Defendant-Intervenor Ocotillo filed an opposition to the motion to supplement the record. (Dkt. Nos. 90, 91.) On October 26, 2012, Federal Defendants and Ocotillo filed an opposition to the request for judicial notice. (Dkt. Nos. 92, 94.) No reply has been filed. Based on the reasoning below, the Court DENIES Plaintiff's motion to supplement the administrative record and request for judicial notice.
On May 14, 2012, Plaintiff filed a complaint against Federal Defendants challenging the May 11, 2012 Record of Decision ("ROD") approving the Ocotillo Wind Energy Facility Project ("OWEF"), a utility-scale wind power project in the Sonoran Desert in Imperial County, California. (Dkt. No. 1.) On May 15, 2012, the Court granted Ocotillo Express LLC's motion to intervene. (Dkt. No. 25.) On May 22, 2012, the Court denied without prejudice Plaintiff's ex parte motion for temporary restraining order and order to show cause why preliminary injunction should not issue. (Dkt. No. 48.) On September 7, 2012, Federal Defendants filed a notice of filing a copy of the administrative record. (Dkt. No. 73.)
On August 31, 2012, Plaintiff filed a first amended complaint which added causes of action concerning events subsequent to the ROD. (Dkt. No. 70.) On September 24, 2012, Plaintiff filed a motion for summary judgment. (Dkt. No. 80.) Simultaneously, Plaintiff also filed a request for judicial notice, or in the alternative, a motion to supplement the administrative record as to the same documents. (Dkt. No. 82.) The Court deems it appropriate to consider the documents under Plaintiff's motion to supplement the record, not a request for judicial notice.
Plaintiff moves to supplement the record with Exhibits 1-9 of the Declaration of Thane D. Somerville (Dkt. No. 80-3); Exhibits 1-7 of the Declaration of John Bathke (Dkt No. 80-4); and the Declaration of John Bathke (Dkt. No. 80-4). Federal Defendants and Defendant-Intervenor oppose both motions on the merits. Federal Defendants also assert that the motion to supplement as to the post-ROD documents is premature as they are in the process of compiling a post-ROD implementation record to address the post-ROD claims in the first amended complaint. Therefore, since some of the documents Plaintiff seeks to add may be in the Defendants' record, the motion to supplement may become moot.
Generally, judicial review of an agency action is limited to a review of the administrative record in existence at the time of the agency's decision. Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985); Friends of the Clearwater v. Dombeck, 222 F.3d 552, 560 (9th Cir. 2000). "[T]he focal point of judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court." Camp v. Pitts, 411 U.S. 138, 142 (1973). Parties may not use "post-decision information as a new rationalization either for sustaining or attacking the Agency's decision." Ctr. For Biological Diversity v. U.S. Fish & Wildlife Serv., 450 F.3d 930, 942 (9th Cir. 2006) (citation omitted).
The Ninth Circuit recognizes certain narrow exceptions to this general rule. "In limited circumstances, district courts are permitted to admit extra-record evidence: (1) if admission is necessary to determine 'whether the agency has considered all relevant factors and has explained its decision,' (2) if 'the agency has relied on documents not in the record,' (3) 'when supplementing the record is necessary to explain technical terms or complex subject matter,' or (4) 'when plaintiffs make a showing of agency bad faith.'" Lands Council v. Powell, 395 F.3d 1019, 1030 (9th Cir. 2005) (quotation omitted). "Though widely accepted, these exceptions are narrowly construed and applied." Id. The moving party has the burden of demonstrating that an exception applies. See Animal Defense Council v. Hodel, 840 F.2d 1432, 1436-38 (9th Cir. 1988).
The Ninth Circuit "normally refuse[s] to consider evidence that was not before the agency because 'it inevitably leads the reviewing court to substitute its judgment for that of the agency.'" Ctr. for Biological Diversity, 450 F.3d at 943. " When an agency's inquiry is inadequate, we generally 'remand the matter to the agency for further consideration." Id.
A court may consider evidence outside the administrative record as necessary to explain agency action. Asarco, Inc. v. United States E.P.A., 616 F.2d 1153, 1159 (9th Cir. 1980). When there is "such a failure to explain administrative action as to frustrate effective judicial review," the court may "obtain from the agency, either through affidavits or testimony, such additional explanations of the reasons for the agency decision as may prove necessary." Public Power Council v. Johnson, 674 F.2d 791, 793--94 (9th Cir. 1982) (citation omitted). The district court has discretion as to whether to admit extra-record evidence. Friends of the Payette v. Horseshoe Bend Hydroelectric Co., 988 F.2d 989, 997 (9th Cir. 1993).
Exhibit 1 contain excerpts from the Department of the Interior's ("Interior") Draft EIS and CDCA Plan Amendment from the Ocotillo Solar Project in April 2012. (Dkt. No. 80-3.) Plaintiff argues that the exhibit is admissible to show that Interior arbitrarily failed to apply the Class III Visual Resource Management Classification ("VRM") to the OWEF Project and the Class L lands that are within the project area. In opposition, Ocotillo argues that the excerpts are from a draft EIS from a wholly different Project and does not show that the BLM did not consider relevant factors. Federal Defendants also assert that Plaintiff is ...