United States District Court, D. Oregon, Medford Division
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,
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
D. CLARKE, UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.
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
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.
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.
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.
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.
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.
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, ...