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State v. National Marine Fisheries Service

United States District Court, D. Oregon

February 2, 2015

NATIONAL WILDLIFE FEDERATION, et al., Plaintiffs, and STATE OF OREGON, Intervenor-Plaintiff,


MICHAEL H. SIMON, District Judge.

Before the Court are Plaintiff National Wildlife Federation's ("NWF") motion to admit extra-record materials (Dkt. 1983) and Intervenor-Plaintiff State of Oregon's similar motion (Dkt. 1987). NWF seeks to admit the declaration of Frederick E. Olney and attached exhibits and the declaration of Dr. Brendan M. Connors. The State of Oregon seeks to admit the declaration of Anthony Nigro and attached appendices. Defendants National Marine Fisheries Service ("NOAA Fisheries")[1], U.S., Army Corps of Engineers, and U.S. Bureau of Reclamation, and Intervenor-Defendants State of Washington, State of Idaho, State of Montana, and Northwest River Partners filed objections to the admission of the extra-record materials, to which Intervenor-Defendants Inland Ports & Navigation Group, Kootenai Tribe of Idaho, and Confederated Salish and Kootenai Tribes joined (collectively, the "Objecting Defendants"). For the following reasons, NWF and Oregon's motions are GRANTED.


The parties are familiar with the factual and procedural history of this case and it need not be recited in detail here. The Court provides only summary background information relevant to the consideration of the pending motions relating to the admission of extra-record materials.

This case involves challenges to a biological opinion ("2014 BiOp") issued by NOAA Fisheries in its latest effort to comply with its obligation under Section 7 of the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1536(a)(2) et seq., to ensure that operation of the Federal Columbia River Power System ("FCRPS") is not likely to jeopardize the continued existence of threatened or endangered salmon and steelhead or adversely modify the species' designated critical habitat. Plaintiffs and Intervenor-Plaintiff contend that the 2014 BiOp, like the four BiOps before it, violates the ESA and its implementing regulations and merely "recycles and updates the analyses of the earlier, failed 2008 and 2010 BiOps." Plaintiffs and Intervenor-Plaintiff Oregon assert claims under the ESA, the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq., and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq. and have filed motions for summary judgment on their claims.

NWF and Oregon seek to admit approximately 226 pages of expert declarations and attached exhibits in support of their motions for summary judgment.[2] The Objecting Defendants object to the admission of these declarations as impermissible extra-record material that does not fall with any exception to the requirement that the Court's review be limited to the administrative record. The Objecting Defendants further request that each of the memorandum of law filed by NWF and Oregon in support of their summary judgment motions be stricken and they be required to file new memoranda that do not reference the inappropriate extra-record material.


A. Legal Standard

Generally, "a court reviewing agency action under the APA must limit its review to the administrative record." San Luis & Delta-Mendota Water Authority v. Locke, ___ F.3d ___, 2014 WL 7240003, at *9 (9th Cir. Dec. 22, 2014). The purpose of this rule is to ensure that the reviewing court affords the agency sufficient deference. Id. Under the APA, an agency has substantial discretion "to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive." Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378 (1989). The concern with a reviewing court considering evidence that was not before agency is that "it inevitably leads the reviewing court to substitute its judgment for that of the agency." Asarco, Inc. v. E.P.A., 616 F.2d 1153, 1160 (9th Cir. 1980) (quoted with approval in Locke, 2014 WL 7240003, at *9). A reviewing court may not perform a de novo review of the agency's action and must "limit[] itself to the deferential procedural review that the APA's arbitrary or capricious standard permits." Locke, 2014 WL 7240003, at *9.

Nevertheless, the deference a reviewing court owes to an agency is not unlimited. Id. at *11. As recently explained by the U.S. Court of Appeals for the Ninth Circuit,

[A court] may not automatically defer to an agency's conclusions, even when those conclusions are scientific. Rather, [a court's] review must be sufficiently probing to ensure that the agency has not "relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view of the product of agency expertise." A different approach "would not simply render judicial review generally meaningless, but would be contrary to the demand that courts ensure that agency decisions are founded on a reasoned evaluation of the relevant factors."

Id. (quoting Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); Marsh, 490 U.S. at 378) (internal citations omitted).

Considering this standard of review, there are several recognized exceptions to the rule limiting a reviewing court to the administrative record. Id. at *9. The exceptions allowing extra-record materials are now known as the " Lands Council " exceptions because, although longstanding in the Ninth Circuit in various iterations, they were fully articulated in Lands Council v. Powell, 395 F.3d 1019, 1030 (9th Cir. 2004). These exceptions were described in Locke:

Under Lands Council, a reviewing court may consider extra-record evidence where admission of that evidence (1) is necessary to determine whether the agency has considered all relevant factors and has explained its decision, (2) is necessary to determine whether 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. Locke, 2014 WL 7240003, at *9 (quotation marks omitted). The Lands Council exceptions are to be ...

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