United States District Court, E.D. California
SAN LUIS & DELTA-MENDOTA WATER AUTHORITY and WESTLANDS WATER DISTRICT, Plaintiffs,
SALLY JEWELL, et al., Defendants, THE HOOPA VALLEY TRIBE; THE YUROK TRIBE; PACIFIC COAST FEDERATION OF FISHERMEN'S ASSOCIATIONS; and INSTITUTE FOR FISHERIES RESOURCES, Defendant-Intervenors.
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
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") (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.
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).
STANDARD OF DECISION
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
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
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....").
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.
Plaintiffs' Requests to Order Reclamation to Include