United States District Court, D. Oregon
OPINION AND ORDER
Michael J. McShane, United States District Judge
Willamette Riverkeeper and Conservation Angler, bring this
action against the U.S. Army Corps of Engineers and Aaron
Dorf for alleged violations of Sections 7 and 9 of the
Endangered Species Act. On December 4, 2017, Plaintiffs moved
for an order allowing discovery beyond the administrative
record. Defendants subsequently filed a cross-motion to
prevent extra-record discovery. The motions are now before
this Court. Because Plaintiffs' action is pursuant to the
citizen-suit provision of the Endangered Species Act, the
Court's review is not confined to the administrative
record and limited discovery is appropriate. Plaintiffs'
motion is therefore GRANTED. Defendants' motion is
operate fish hatcheries in Oregon's Willamette River
basin. Am. Compl. ¶ 38. These hatcheries release
non-native summer steelhead and rainbow trout into the basin.
Am. Compl. ¶¶ 33, 36. In 2008, after concluding
that operation of the hatcheries “may affect”
endangered winter steelhead trout and spring Chinook salmon,
the Corps properly initiated a formal consultation with the
National Marine Fisheries Service (“NMFS”) and
obtained a Biological Opinion. Am. Compl. ¶ 38.
Plaintiffs now contend that Defendants have violated the
Endangered Species Act (“ESA”) by failing to
reinitiate consultation with NMFS and by causing
“take” of endangered winter steelhead trout and
spring Chinook salmon. Am. Compl. ¶¶ 47-49.
parties agree that the case will be resolved on cross-motions
for summary judgment, but disagree as to the record on which
that decision should be based. Parties' Rule 16 Conference
Report 3. At issue is whether actions pursuant to the
ESA's citizen-suit provision are governed by the limited
scope of review contained in Section 706 of the
Administrative Procedure Act (“APA”) or are
amenable to the default rules of open discovery. Plaintiffs,
citing a string a Ninth Circuit and lower court precedent,
argue that the APA is inapplicable to private ESA lawsuits
and that the Court should allow discovery beyond the
administrative record. Pls.' Mot. Re: Discovery 4-6.
Defendants point to the established use of other APA
provisions in ESA citizen suits, such as the “arbitrary
and capricious” standard of review, and argue that
foundational principles of administrative law make
extra-record discovery unavailable. Defs.' Resp. 2-10.
Because the Ninth Circuit has expressly rejected application
of the APA's scope of review provision to ESA citizen
suits, Plaintiffs' motion is GRANTED.
contend that Plaintiffs' ESA claims are subject to the
APA's discovery restrictions. The APA provides a right to
judicial review of “final agency action for which there
is no other adequate remedy in a court.” 5 U.S.C.
§ 704. Under the APA, judicial review of agency action
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); 5 U.S.C. § 706 (“[T]he court shall
review the whole record or those parts of it cited by a
party.”). Although the Ninth Circuit has recognized
four “narrow exceptions” to the APA's general
prohibition on extra-record discovery, the statute creates a
strong presumption against supplementing an administrative
record. See Lands Council v. Powell, 395 F.3d 1019,
1030 (9th Cir. 2005).
Court agrees with Plaintiffs that the APA does not govern
suits arising under the citizen-suit provision of the ESA. In
Washington Toxics Coalition v. EPA, 413 F.3d 1024
(9th Cir. 2005), plaintiffs brought a citizen suit alleging
failure to consult under Section 7 of the ESA. As here,
defendants argued that the case was “governed by the
[APA's] principles of judicial review” and that
courts are limited to “reviewing the administrative
record pursuant to a cause of action established by the
APA.” 413 F.3d at 1029. The Ninth Circuit rejected this
argument, explaining that “the ESA citizen suit
provision creates an express, adequate remedy.”
Id. at 1034; cf. 5 U.S.C. § 704
(providing judicial review for “final agency action for
which there is no other adequate remedy in a court”).
The court concluded that, because the ESA
“independently authorizes a private right of action,
the APA does not govern [citizen-suit claims].”
confusion about the significance of Washington
Toxics with respect to the issue of extra-record
discovery was dispelled in Western Watersheds Project v.
Kraayenbrink, 632 F.3d 472 (9th Cir. 2011). In
Kraayenbrink, plaintiffs brought a failure to
consult action pursuant to the ESA citizen-suit provision.
632 F.3d at 476. Defendants again contended that courts
“may not look to extra-record material in conducting a
review under the ESA.” 632 F.3d at 497. The Ninth
Circuit, this time citing Washington Toxics,
repeated its position that “the APA applies only where
there is no other adequate remedy in a court.”
Id. (citation and quotation marks omitted). Since
the “ESA provides a citizen suit remedy, ” it
reiterated, “the APA does not apply in such
actions.” Id. The court then went one step
further, plainly spelling out that, “under
Washington Toxics Coalition[, ] we may consider
evidence outside of the administrative record for the limited
purposes of reviewing [citizen-suit] ESA claim[s].”
Id. (citation omitted).
Court is bound by the holdings in Washington Toxics
and Kraayenbrink. Defendants' argument that
Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d
1006 (9th Cir. 2012) (en banc) abrogated both cases is
unavailing. Defs.' Resp. 9-10. In Karuk Tribe,
another failure to consult case, the Ninth Circuit offered
the unremarkable observation that its review was “based
on upon . . . the administrative record.” 681 F.3d at
1017. That statement, far from “plainly”
abrogating the holdings in Washington Toxics and
Kraayenbrink, was unceremoniously buried in the
opinion's “Standard of Review” section and is
descriptive, not prescriptive. Id. Subsequent
portions of the opinion neither cite nor discuss either case
and, as other district courts have convincingly argued, did
not “silently overrule[ ]” their clear holdings.
Yurok Tribe v. U.S. Bureau of Reclamation, 231
F.Supp.3d 405, 468-69 (N.D. Cal. 2017); see also
Northwest Coal. for Alternatives to Pesticides v. EPA,
920 F.Supp.2d 1168, 1174 (W.D. Wash. 2013); Ellis v.
Housenger, No. C-13-1266-MMC, 2015 WL 360079, at *3
(N.D. Cal. June 12, 2015). It is therefore appropriate for
the parties to supplement the administrative record with
materials which are relevant to the Court's
“arbitrary and capricious” review.
foregoing reasons, Plaintiffs' Motion for Discovery is
GRANTED. Defendants' Cross-Motion to Limit Review to the
Administrative Record is DENIED. Consistent with the
parties' stipulation, Defendants' response to
Plaintiffs' first set of discovery requests is due by
March 12, 2018. All future discovery requests must be
approved by the Court.