Center for Biological Diversity et al v. Salazar et al

Filing 56

ORDER denying 32 Motion to Supplement. Signed by Judge David G Campbell on 1/13/2014.(DGC, nvo)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Center for Biological Diversity; and
Maricopa Audubon Society,

10

Plaintiffs,

11
12
13
14
15

No. CV-12-02296-PHX-DGC
ORDER

v.
S.M.R. Jewell, in her official capacity as
Secretary of the United States Department
of the Interior; and Daniel Ashe, in his
official capacity as Director of the United
States Fish and Wildlife Service,
Defendants.

16
17

Plaintiffs have filed motions to supplement the administrative record. Docs. 32,

18

33. If the Court denies the motion, Plaintiffs request that the Court take judicial notice

19

of a report from the United States Inspector General (“IG report”). Doc. 33 at 2. The

20

motion has been fully briefed. For the following reasons, the motion will be denied.1

21

I.

Legal Standard.

22

Judicial review of agency action is generally limited to review of the

23

administrative record, and the task of the reviewing court is to apply the appropriate

24

standard of review under the Administrative Procedures Act based on the record the

25

agency presents to the reviewing court. Animal Def. Council v. Hodel, 840 F.2d 1432,

26
27
1

28

The requests for oral argument are denied because the issues have been fully
briefed and oral argument will not aid the Court’s decision. See Fed. R. Civ. P. 78(b);
Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998).

1

1436 (9th Cir. 1988), amended, 867 F.2d 1244 (9th Cir. 1989) (citing Friends of the

2

Earth v. Hintz, 800 F.2d 822, 828 (9th Cir.1986), and Florida Power & Light Co. v.

3

Lorion, 470 U.S. 729, 743-44 (1985)).

4

documents and materials directly or indirectly considered by agency decision-makers

5

and includes evidence contrary to the agency’s position.” Thompson v. U.S. Dep’t of

6

Labor, 885 F.2d 551, 555 (9th Cir. 1989) (citing Hodel, 840 F.2d at 1436). The focal

7

point for judicial review “should be the administrative record already in existence, not

8

some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138,

9

142 (1973).

10
11
12
13
14
15
16
17
18

The administrative record consists of “all

Certain circumstances justify expanding judicial review beyond the agency’s
record. Pub. Power Council v. Johnson, 674 F.2d 791, 793 (9th Cir. 1982). The
record may be supplemented (1) when necessary to determine whether the agency has
considered all relevant factors and has explained its decision, (2) when the agency has
relied on documents not in the record, (3) when necessary to explain technical terms or
complex subject matter, or (4) when the plaintiffs make a showing of agency bad faith.
Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv., 450 F.3d 930, 943 (9th Cir.
2006). “It is the plaintiffs’ burden to demonstrate that one or more of these exceptions

19

apply.” Parravano v. Babbitt, 837 F. Supp. 1034, 1039 (N.D. Cal. 1993) aff’d, 70

20

F.3d 539 (9th Cir. 1995).

21

II.

Analysis.

22

Plaintiffs seek to supplement the record with two documents: an article by David

23

Fraser from the British Columbia Ministry of Environment, Lands, and Parks which

24

discusses generally peripheral species, and an excerpt from a 2008 United States

25

Inspector General report detailing an investigation into certain policy decisions by the

26

U.S. Fish and Wildlife Service (“FWS”) related to endangered species. Doc. 33 at 2.

27

Plaintiffs argue that both documents will assist the Court in determining “whether the

28

agency has considered all relevant factors and explained its decision.” Id. at 33.

-2-

1

While this exception provides an avenue for expanding an administrative record,

2

the broad language of the exception must be applied cautiously to avoid swallowing the

3

rule. Johnson, 674 F.2d at 794. Supplementation of a record will not be allowed

4

whenever a plaintiff, in an attempt to convince a court that an agency made an unwise

5

choice, argues that the agency should have considered other information. See, e.g.,

6

Asarco Inc. v. EPA, 616 F.2d 1153, 1160 (9th Cir. 1980 (“[C]onsideration of the

7

evidence to determine the correctness or wisdom of the agency’s decision is not

8

permitted[.]”). Nor will supplementation be permitted merely to bolster the record or

9

supply background information. Hintz, 800 F.2d at 829 (“The discovery sought by the

10

appellants might have supplied a fuller record, but otherwise does not address issues

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

not already there.”). Rather, the moving party must make a viable argument that
failure to supplement the record will “effectively frustrate judicial review.” Hodel,
840 F.2d at 1436.
A.

Fraser Publication.

Plaintiffs claim that the Fraser publication (Doc. 32-1) will assist the Court in
determining whether Defendants considered all relevant scientific information on the
significance of peripheral populations before they decided that the desert bald eagle is not
eligible for listing consideration under FWS’s Distinct Population Segment (“DPS”)
Policy. Doc. 33 at 3-5. Plaintiffs argue that because FWS previously relied on this study
to make a DPS determination regarding marbled murrelets, the study should have been
used by FWS in its desert bald eagle determination. Id. at 4. Plaintiffs contend that FWS
did not give full consideration to the “significance” determination in its report because it
“summarily dismissed – in only two sentences – the idea that loss of desert eagles might
have a negative effect on bald eagles as whole.” Doc. 48 at 4.
The relevant factors exception applies, however, only “when Federal Defendants
fail to consider a general subject matter that is demonstrably relevant to the outcome of
the agency’s decision, not when specific hypotheses and/or conclusions are omitted from
consideration.” Pinnacle Armor, Inc. v. United States, 923 F.Supp.2d 1226, 1234 (E.D.
-3-

1

Cal. 2013) (internal quotations omitted). Plaintiffs acknowledge that FWS considered the

2

general subject matter, but argue that the nature of the consideration was perfunctory and

3

inadequate. Doc 48 at 4. As noted above, however, a party may not supplement the

4

record merely to bolster the record on the general subject matter addressed by the agency.

5

See Hintz, 800 F.2d at 829.

6

Further, Plaintiffs bear the burden of showing that failure to include this report

7

“effectively frustrates judicial review.” Hodel, 840 F.2d at 1436. Plaintiffs make no

8

argument that failure to include the Fraser publication frustrates judicial review. Instead,

9

they seem dissatisfied with the conclusions reached by Defendants and wish to

10

supplement the record with a report that could be favorable to their position.

11

B.

IG Report.

12

Plaintiffs claim that a 2008 IG report (Doc. 32-2) should be added to the record

13

because it is necessary to determine whether the agency considered all relevant factors

14

and explained its decision. Doc. 33 at 5. Plaintiffs allege that the report is “central to the

15

issue of whether or not [Defendants] properly and consistently interpreted its DPS

16

Policy” in determining that desert eagles were not eligible for listing as a DPS. Id.

17

The IG report details an investigation conducted after a 2008 ruling in which

18

Judge Murguia found Defendants’ 90-day finding regarding the desert bald eagle to be

19

“arbitrary and capricious.” Doc. 32-2 at 8. The report explains a dispute between the

20

FWS Washington office and the FWS Region 2 office which led to the mishandled 90-

21

day finding. Id. at 2. Plaintiffs contend that the IG report should be included as evidence

22

that Defendants did not consistently apply DPS Policy for purposes of its 12-month

23

finding. Doc. 48 at 6. As discussed above, however, admitting non-record evidence is

24

permissible only when the “agency entirely failed to consider a general subject matter

25

relevant to its decision making.” Pinnacle Armor, 923 F.Supp.2d at 1235. Plaintiffs

26

have not made this showing,

27

In addition, Plaintiffs bear the burden of showing that failure to include this data

28

“effectively frustrates judicial review.” Hodel, 840 F.2d at 1436. In its 12-month

-4-

1

finding, FWS clearly states that it continues consistently to apply DPS policy. 77 Fed.

2

Reg. 25808. The IG report centers on an inter-agency dispute that occurred in 2006, and

3

the Court is not persuaded that the report is necessary to determine whether FWS applied

4

the proper DPS policy in February 2010.

5

Plaintiffs also argue that the IG report is admissible under the bad faith exception.

6

Doc. 33 at 6.

Plaintiffs allege that the IG report provides evidence that improper

7

behavior occurred in the past with regard to FWS’ consideration of the desert eagle

8

petition. Id. They essentially argue that FWS’ mishandling of the 90-day finding in

9

August 2006 is proof of a culture of improper behavior within the agency and that the IG

10

report is proof of continued bad faith in this case. This argument is without merit. For

11

the bad faith exception to apply, “[n]ormally there must be a strong showing of bad faith

12

or improper behavior before the court may inquire into the thought processes of

13

administrative decision makers.” Animal Def. Council v. Hodel, 840 F.2d 1432, 1437

14

(9th Cir. 1988), amended, 867 F.2d 1244 (9th Cir. 1989) (emphasis added). The IG

15

report about 2006 events does not constitute a strong showing of bad faith in 2010.

16

C.

17

Plaintiffs ask the Court to take judicial notice of the IG report. Doc. 33 at 7. This

18

argument is best decided in the context of the parties’ summary judgment arguments.

19

The parties should address the issue of judicial notice of the IG report in their summary

20

judgment briefing.

21
22
23

Judicial Notice.

IT IS ORDERED that Plaintiffs’ motions to supplement (Docs. 32, 33) are
denied.
Dated this 13th day of January, 2014.

24
25
26
27
28

-5-