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)

Download PDF
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-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?