United States District Court, D. Oregon, Portland Division
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.
OPINION AND ORDER
V. ACOSTA UNITED STATES MAGISTRATE JUDGE
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.
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.
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)).
The Instant Case
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.)
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
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.)
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.
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).
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.
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
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
(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.
seeks an order compelling the completion of the
administrative record lodged by FWS. 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 ...