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Northwest Environmental Advocates v. United States Fish and Wildlife Service

United States District Court, D. Oregon, Portland Division

December 20, 2019

NORTHWEST ENVIRONMENTAL ADVOCATES, a non-profit organization, Plaintiff,
UNITED STATES FISH AND WILDLIFE SERVICE, a United States Government Agency; UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, a United States Government Agency, Defendants.




         Plaintiff Northwest Environmental Advocates ("NEA"), brings this action against the U.S. Fish and Wildlife Service ("FWS") and the U.S. Environmental Protection Agency ("EPA") (collectively, "Defendants") under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., and the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq., challenging a biological opinion ("BiOp") issued by FWS in 2012, and the EPA's subsequent approval of Oregon's revised water quality criteria for toxic pollutants. NEA contends the EPA's approval of water quality criteria for arsenic, selenium, and zinc was based on the 2012 BiOp, which incorrectly concluded the proposed criteria would not cause jeopardy to the Bull Trout, a threatened species, or result in the adverse modification of its critical habitat. (Compl. for Declaratory and Injunctive Relief, ECF No. 1 ("Compl"), ¶¶ 3, 4.) Currently before the court is NEA's Motion to Complete and Supplement FWS's Administrative Record ("Motion"). (Mot. to Complete and Suppl. the U.S. Fish and Wildlife Service's Administrative R., ECF No. 20 ("Mot.").) For the reasons that follow, NEA's Motion is DENIED.


         I. The ESA

         The ESA was enacted as a means to conserve and protect endangered and threatened species and their habitats. 16 U.S.C. § 1531 (b), (c). In pursuit of this purpose, the ESA includes both substantive and procedural provisions, such as those set forth under Section 7, which "prescribes the steps that federal agencies must take to ensure that their actions do not jeopardize endangered wildlife and flora." Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 652 (2007). Specifically, Section 7(a)(2) requires federal agencies to affirmatively "insure that any action authorized, funded or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction of adverse modification of habitat of such species which is determined ... to be critical[.]" 16 U.S.C. § 1536(a)(2). If an agency concludes its anticipated action may adversely affect a protected species or its habitat, it must formally consult with FWS, as delegate for the Secretary of the Interior. Id. Following consultation, FWS must provide the consulting agency with a BiOp explaining how the proposed action will impact protected species or habitat, and providing "reasonable and prudent alternatives" that will allow the project to proceed without placing protected species or critical habitat in jeopardy. 16 U.S.C. § 1536(b)(3)(A).

         In formulating a BiOp, FWS must use "the best scientific and commercial data available." 16 U.S.C. § 1536 (a)(2); 50 C.F.C. 402.14(g)(8). Failure to do so violates the APA. San Luis & Delta-Mendota Water Auth. v. Locke, 116 F.3d 971, 995 (9th Cir. 2014). This is not to say that FWS must "conduct new tests or make decisions on data that does not yet exist." Id. (citing Am. Wildlands v. Kempthorne, 530 F.3d 991, 998-99 (D.C. Cir. 2008)). Rather, the "best available science" standard is met "so long as [FWS] does not ignore available studies, even if it disagrees with or discredits them." Id. Indeed, reliance on weak data, if such data is the only data available, "does not render the agency's determination 'arbitrary and capricious.'" Id. What may constitute the best scientific data available, however, is "a scientific determination deserving of deference," and the Ninth Circuit has cautioned that "[a] court should be especially wary of overturning such a determination on review." Id. (first citing Miccosukee Tribe of Indians of Fla. V. United States, 566 F.3d 1257, 1265 (11th Cir. 2009); then citing In re Consol. Salmonid Cases, 791 F.Supp.2d 802, 821 (E.D. Cal. 2011)).

         II. The Instant Case

         This action stems from the EPA's approval of numeric water quality criteria for various toxic pollutants applicable to all surface waters in the State of Oregon. Before approving the criteria, the EPA consulted with FWS to ensure the proposed standards would not jeopardize any protected species or result in the destruction or adverse modification of any designated critical habitats. On July 30, 2012, FWS issued a BiOp for EPA's proposed approval of Oregon's water quality criteria. (Compl. ¶ 3.) As relevant here, the BiOp concluded that the proposed criteria for zinc, arsenic, and selenium would not jeopardize the Bull Trout, a threatened species, or destroy or adversely modify its critical habitat. (Id. ¶¶ 52-57.) On January 21, 2013, and April 11, 2014, respectively, EPA approved revised water quality criteria for the State of Oregon. (Id. ¶¶ 60-61.)

         On June 25, 2015, FWS issued a BiOp for revisions to the State of Idaho's water quality criteria, which included criteria for arsenic, selenium, and zinc. (Id.) "Idaho's proposed criteria for chronic arsenic, chronic selenium, and acute and chronic zinc were identical to or stricter than those considered by FWS in the Oregon BiOp," and the Bull Trout was among the species considered. (Id. ¶ 63.) Contrary to the position set forth in the Oregon BiOp, however, "FWS found in the Idaho BiOp that those same or stricter proposed criteria were likely to jeopardize the continued existence of numerous threatened or endangered species, including the Bull Trout." (Id.)

         On July 27, 2018, NEA filed this lawsuit, alleging FWS violated the APA by failing to use the best available science in reaching its "no jeopardy" findings in the Oregon BiOp with respect to zinc, selenium, and arsenic. (Id. ¶¶ 70-73.) NEA also brings three claims against the EPA under Section 7 of the ESA for failing to ensure its approval of the water quality criteria would not jeopardize the continued existence of Bull Trout, for failing to reinitiate consultation with FWS concerning the arsenic and zinc criteria, and for failing to consult with FWS regarding its April 11, 2014 approval of revised selenium criteria. (Id. ¶¶ 74-90.)

         On February 20, 2019, FWS and EPA lodged administrative records with this court. (ECF No. 14.) On May 31, 2019, NEA filed the instant Motion, seeking to complete or supplement the record with an additional twenty-one studies which it claims were erroneously excluded from the record.

         Legal Standard A reviewing court generally must uphold agency action under the APA unless it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). Agency action should be overturned only when the agency has "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 or the product of agency expertise." Motor Vehicle Mfrs, Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). A reviewing court, therefore, must ask "whether the agency 'considered the relevant factors and articulated a rational connection between the facts found and the choice made.'" Nat. Res. Defense Council v. U.S. Dep't of the Interior, 113 F.3d 1121, 1124 (9th Cir. 1997).

         Review of agency action under the APA is generally restricted to the administrative record that was before the agency at the time of decision. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420 (1971). This rule is intended to ensure a reviewing court affords adequate deference to the agency's expertise, experience, and processes. Locke, 116 F.3d at 992. In other words, the court must defer to an agency's considerable 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. Nat. Res. Council, 490 U.S. 360, 378 (1989). The danger of considering evidence outside of the administrative record is that "it inevitably leads the reviewing court to substitute its judgment for that of the agency." Asarco, Inc. v. EPA, 616 F.2d 1153, 1160 (9th Cir. 1980). In substituting its own judgment, a court invariably abandons its obligation to "limit itself to the deferential procedural review that the APA's arbitrary and capricious standard permits" and instead conducts its review de novo. Locke, 776 F.3d at 992 (citing River Runners for Wilderness v. Martin, 593 F.3d 1064, 1070 (9th Cir. 2010)).

         Though agency decisions are entitled to a healthy measure of deference, a reviewing court must nevertheless engage in a "substantial inquiry" - a "thorough, probing, in-depth review" of the challenged action. Id. Judicial review of agency action therefore must be based on "the whole [administrative] record or those parts ... cited by a party." 5 U.S.C. § 706 (emphasis added). The "whole record" consists of '"all documents and material directly or indirectly considered by agency decision-makers, '" including material "contrary to the agency's position." Thompson v. U.S. Dep't of Labor, 885 F.2d 551, 555 (9th Cir. 1989) (quoting Exxon Corp. v. Dep't of Energy, 91 F.R.D. 26, 33 (N.D. Tex.1986)) (emphasis omitted). This does not mean '"every scrap of paper that could or might have been created'" on a particular subject must be included in the administrative record. Golden Gate Salmon Ass'n v. Ross, No. 1:17-cv-01172 LJO-EPG, 2018 WL 3129849, at *4 (E.D. Cal. June 22, 2018) (quoting TOMAC v. Norton, 193 F.Supp.2d 182, 195 (D.D.C. 2002)). Rather, "a reviewing court should have before it neither more nor less information than did the agency when it made its decision." Pac. Shores 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 Ninth Circuit has recognized, however, that it sometimes may be "unrealistic and unwise to 'straightjacket' the reviewing court with the administrative record." Asarco, 616 F.2d at 1160. Accordingly, the Ninth Circuit has identified four limited circumstances under which a reviewing court may consider extra-record evidence:

(1) if admission is necessary to determine whether the agency has considered all relevant factors and has explained its decision;
(2) if 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 bad faith

Lands Council v. Powell, 395 F.3d 1019, 1030 (9th Cir. 2005) (internal citations and quotations omitted). "These limited exceptions operate to identify and plug holes in the administrative record," and therefore must be narrowly construed and applied. Id. Indeed, routine or liberal application of the exceptions is not permitted, lest "the exception .. . undermine the general rule." Id. Put simply, the Lands Council exceptions must be administered in light of the Supreme Court's instruction that "the focal point for judicial review should be 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). Therefore, the party seeking to admit extra-record evidence must bear a heavy burden in demonstrating such actions are necessary to effectively review the agency's decision. Fence Creek Cattle Co. v. U.S. Forest Serv., 602 F.3d 1125, 1131 (9th Cir. 2010).


         NEA seeks an order compelling the completion of the administrative record lodged by FWS.[1] NEA asserts twenty-one separate documents, all of which were allegedly "available to and indirectly considered by" FWS in preparing the Oregon BiOp, were improperly excluded from the administrative record and must now be included. (Mot., at 4, 8-10.) Alternatively, if the court determines the existing record is complete, NEA requests the court go beyond FWS's administrative record to consider the extra-record documents provided. (Id. at 5, 10-14.) NEA argues the court's consideration of the proffered documents, as well as the 2015 Idaho BiOp itself, is '"necessary to determine whether the agency has considered' all factors relevant to its biological opinion." (Id.) Defendants object to each of NEA's requests, arguing it fails to establish modification of FWS's administrative record is appropriate, or that an exception applies which would permit the court to consider extra-record material. Further, Defendants request the court "limit review of all claims in this case to the agencies' administrative records, without consideration of any extra-record evidence for any claim against either Defendant agency." (Def.'s Memo in Opp'n to Mot. to Complete and Suppl. the U.S. Fish and Wildlife Service's Administrative R., ECF No. 25 ...

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