Luis v. Tribe

          MEMORANDUM DECISION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO COMPLETE THE ADMINISTRATIVE RECORD (DOC. 75)

          LAWRENCE J. O'NEILL UNITED STATES CHIEF DISTRICT JUDGE

         I. INTRODUCTION

         This case concerns the U.S. Bureau of Reclamation's ("Reclamation" or "the Bureau") decision to make certain "Flow Augmentation" releases ("FARs") of water in August 2014 ("2014 FARs") and 2015 ("2015 FARs") from Lewiston Dam, a feature of the Trinity River Division ("TRD") of the Central Valley Project ("CVP"). Doc. 1. The stated purpose of FARs is to "reduce the risk of an adult fish kill in the lower Klamath River." Environmental Assessment, 2015 Lower Klamath River Late-Summer Flow Augmentation from Lewiston Dam, EA-15-04-NCAO (August 2015) ("2015 EA"), Administrative Record ("AR") 1189; AR 5170 (Decision Memorandum Re 2014 FARs). Plaintiffs, the San Luis & Delta Mendota Water Authority ("Authority") and Westlands Water District ("Westlands"), allege that by approving and implementing the 2014 and 2015 FARs, Reclamation and its parent agency, the U.S. Department of the Interior ("Interior")^[1] (collectively, "Federal Defendants"), acted in excess of existing statutory authorities; violated reclamation law by delivering water as part of the 2015 FARs pursuant to the second proviso of Section 2 of the Act of August 12, 1955, Pub. L. No. 84-386, 69 Stat. 719 ("1955 Act"), without first entering into a contract for delivery of that water that meets the requirements of reclamation law and policy; violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., by, among other things, approving and implementing the 2014 and 2015 FARs without first preparing an Environmental Impact Statement ("EIS"); and violated the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531 et seq., and the Magnuson-Stevens Fishery Conservation and Management Act of 1976 ("MSA"), 16 U.S.C. §§ 1801 et seq., by implementing the 2015 FARs without first engaging in required consultation with relevant federal wildlife agencies. Doc. 1.

         Plaintiffs filed suit in this Court on August 21, 2015. Id. The AR was lodged March 11, 2016. Doc. 71. Plaintiff moved to complete the AR, seeking inclusion of 82 documents. Doc. 75. Defendant Intervenors do not oppose the motion. Doc. 84. Federal Defendants have agreed to add a number of the documents to the record and point out that certain other documents are already in the record, but oppose inclusion of the remainder. Docs. 85 & 85-1. Plaintiffs replied. Doc. 87. Having reviewed the briefing in light of the entire record, the Court concludes that the matter is suitable for decision on the papers pursuant to Local Rule 230(g).

         II. STANDARD OF DECISION

         In an APA case, the scope of judicial review is limited to "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). 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) (internal citation omitted). 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)(internal citation omitted). "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). "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." Asarco, Inc. v. U.S. Environmental Protection Agency, 616 F.2d 1153, 1160 (9th Cir. 1980).

         " 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. Sh ores 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....").

         An agency's designation and certification of the administrative record is entitled to a "presumption of administrative regularity." McCrary v. Gutierrez, 495 F.Supp.2d 1038, 1041 (N.D. Cal. 2007). This presumption requires courts to presume that public officials have properly discharged their official duties. Id. It is the burden of the party seeking to supplement the record to overcome this presumption by producing clear evidence to the contrary. Bar MK Ranches v. Yuetter, 994 F.2d 735, 740 (10th Cir. 1993); McCrary, 495 F.Supp.2d at 1041.

         III. DISCUSSION

         A. Plaintiffs' Requests to Order Reclamation to Include ...