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Audubon Society of Portland v. Zinke

United States District Court, D. Oregon, Medford Division

December 12, 2017

AUDUBON SOCIETY OF PORTLAND, an Oregon non-profit Corporation; OREGON WILD, an Oregon non-profit corporation; and WATERWATCH OF OREGON, an Oregon non-profit corporation, Plaintiffs,
v.
RYAN ZINKE, in his official capacity as Secretary of the Interior; GREG SHEEHAN, in his official capacity as Acting Director of the U.S. Fish and Wildlife Service; and UNITED STATES FISH AND WILDLIFE SERVICE, a federal agency of the U.S. Department of the Interior, Defendants, TULELAKE IRRIGATION DISTRICT; KLAMATH WATER USERS ASSOCIATION; TULELAKE GROWERS ASSOCIATION; TALLY HO FARMS PARTNERSHIP dba WALKER BROTHERS; FOUR H ORGANICS, LLC; and WOODHOUSE FARMING AND SEED COMPANY, Intervenor-Defendants.

          OPINION & ORDER

          MARK D. CLARKE, UNITED STATES MAGISTRATE JUDGE.

         Audubon Society of Portland, Oregon Wild, and WaterWatch of Oregon (collectively, Audubon) move to compel completion of the administrative record or, in the alternative, to compel supplementation of the administrative record (#58). Tulelake Irrigation District, Klamath Water Users Association, Tulelake Growers Association, Tally Ho Farms Partnership, Four H Organics, LLC, Woodhouse Farming and Seed Company, and Michael Byrne (collectively, TID) separately move to compel completion of the administrative record or, in the alternative, to compel supplementation of the administrative record (#60). For the reasons below, both motions are denied.

         BACKGROUND

         Audubon originally filed this action on January 17, 2017. Audubon challenges the Record of Decision, Final Comprehensive Conservation Plan, and Final Environmental Impact Statement (collectively, the "Plan") prepared by the Secretary of the Interior and the U.S. Fish and Wildlife Service ("FWS") (collectively, "Federal Defendants"). TID subsequently, and successfully, moved to intervene in this and two sister suits and also filed its own action against Federal Defendants on April 3, 2017, in which they also challenge the Plan prepared by Federal Defendants. Audubon moved for, and was granted, intervention in TID's separately filed lawsuit. On April 17, 2017, the four cases were consolidated.

         Audubon and TID contend, inter alia, that Federal Defendants misinterpreted the Kuchel Act, a federal statutory scheme that seeks to manage Lower Klamath, Upper Klamath, Tule Lake, and Clear Lake National Wildlife Refuges. The act seeks "to preserve intact the necessary existing habitat for migratory waterfowl, " while at the same time considering "optimum agricultural use that is consistent" with "the major purpose of waterfowl management[.]" 16 U.S.C. §§ 695k-l.

         On May 31, 2017, Federal Defendants first lodged the administrative record. The parties subsequently worked privately to address Audubon's and TID's concerns regarding the administrative record's completeness. This led Federal Defendants to file a Corrected Administrative Record on September 11, 2017. Nevertheless, both Audubon and TID continue to maintain that the administrative record as it currently stands is insufficient and must be completed or supplemented.

         I. Audubon's Motion

         Audubon seeks four Solicitor's Opinions from the years 1976, 1987, 1994, and 1997 "discussing [both] the United States Department of the Interior's interpretation of the Kuchel Act at various points in history" and the Secretary of the Interior's and FWS's legal obligations under the Kuchel Act. Audubon's Mot. to Compel, at 3, 11. In June 2016, while the public comment process for the draft version of the Plan was ongoing, Audubon attempted to obtain these opinions, as well as an opinion from 1995, through the Freedom of Information Act ("FOIA") in an attempt to include the opinions in the administrative record. Audubon received the 1995 opinion from a third party but did not receive the other four opinions before the public comment period closed.

         Despite not being in possession of the four Solicitor's Opinions, Audubon, in public comments to the draft version of the Plan, did discuss the opinions' relevance, mentioned the outstanding FOIA request, and asked that Federal Defendants "include those referenced Solicitor's Opinions in the record for the Final Plan." Audubon's Mot. to Compel, at 5 (citing AR 002519-002525). Federal Defendants included the 1995 Solicitor's Opinion in a list of references for the Plan but did not include the 1976, 1987, 1994, and 1997 opinions.

         On November 17, 2017, after this motion was fully briefed, Audubon received the four opinions. While Federal Defendants turned over the opinions pursuant to Audubon's FOIA request, Federal Defendants maintain that the opinions are not part of the record and should not supplement the record.

         By contrast, Audubon contends that this Court should compel Federal Defendants to include the 1976, 1987, 1994, and 1997 opinions in the record because the documents undeniably exist and "were-at a minimum-before the agency and indirectly considered by the agency in developing its interpretation of the Kuchel Act, " rendering them part of the administrative record. Audubon's Mot. to Compel, at 11. Alternatively, Audubon argues the Court should order Federal Defendants to supplement the record with the four opinions because the opinions are required in order to determine whether Federal Defendants considered all relevant factors and properly explained its interpretation of the Kuchel Act. As stated, Federal Defendants object, arguing Audubon has not carried its burden in showing (1) that the relevant decision-makers directly or indirectly considered the four opinions, and (2) that the record is not currently sufficient to provide for meaningful review.

         II. TID's Motion

         TID seeks the inclusion of an April 30, 1956, memorandum from the Commissioner of Reclamation to the Secretary of the Interior. Prior to enactment of the Kuchel Act, Oregon and California ceded the land at issue to the Federal Government pursuant to two 1905 cession acts, one enacted by the Oregon legislature and one by the California legislature. TID asserts that the memorandum includes agency interpretation regarding the effect of the two cession acts, and "[i]t is not apparent . . . that this relevant legal issue was considered in the final [Plan]." TID's Reply, at 3. Moreover, TID argues, the memorandum "also presents the agency perspective supportive of homesteading the lease lands, further informing the federal intent underlying the Kuchel Act, " and, "[o]nce again, it is not apparent that this perspective was considered in the final [Plan]." TID's Reply, at 3. Because this memorandum includes factors that should have been considered by the relevant decision-makers in developing their interpretation of the Kuchel Act, TID asks that the Court order Federal Defendants to add the memorandum to the record or produce the memorandum for record supplementation. Federal Defendants object, maintaining (1) the document was never considered by relevant decision-makers and was not required to be considered, and (2) TID has not shown the record as it currently stands is insufficient for judicial review.[1]

         STANDARD

         When reviewing agency action under the Administrative Procedure Act ("APA"), the court "will reverse the agency action only if the action is arbitrary, capricious, an abuse of discretion, or otherwise contrary to law." Lands Council v. Powell, 395 F.3d 1019, 1026 (9th Cir. 2005) (citing 5 U.S.C. § 706(2)). An action is arbitrary and capricious if

the agency fails to consider an important aspect of a problem, if the agency offers an explanation for the decision that is contrary to the evidence, if the agency's decision is so implausible that it could not be ascribed to a difference in view or be the product of agency expertise, ...

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