San Luis & Delta-Mendota Water Authority et al v. Jewell et al

Filing 88

MEMORANDUM DECISION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO COMPLETE THE ADMINISTRATIVE RECORD (Doc. 75) signed by Chief Judge Lawrence J. O'Neill on June 23, 2016. (Munoz, I)

1
2
3
4
5
6
7
8
9

UNITED STATES DISTRICT COURT

10

FOR THE EASTERN DISTRICT OF CALIFORNIA

11
12 SAN LUIS & DELTA-MENDOTA WATER
AUTHORITY and WESTLANDS WATER
DISTRICT,
13
Plaintiffs,
14
v.
15
SALLY JEWELL, et al.,
16
Defendants,

CASE NO. 1:15-CV-01290-LJO-GSA
MEMORANDUM DECISION AND
ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFFS’
MOTION TO COMPLETE THE
ADMINISTRATIVE RECORD (Doc.
75)

17
THE HOOPA VALLEY TRIBE; THE YUROK
18 TRIBE; PACIFIC COAST FEDERATION OF
FISHERMEN’S ASSOCIATIONS; and
19 INSTITUTE FOR FISHERIES RESOURCES,
20

Defendant-Intervenors.

21
22
I. INTRODUCTION
23
24
25

This case concerns the U.S. Bureau of Reclamation’s (“Reclamation” or “the Bureau”) decision
to make certain “Flow Augmentation” releases (“FARs”) of water in August 2014 (“2014 FARs”) and
2015 (“2015 FARs”) from Lewiston Dam, a feature of the Trinity River Division (“TRD”) of the

26
1

1

Central Valley Project (“CVP”). Doc. 1. The stated purpose of FARs is to “reduce the risk of an adult

2

fish kill in the lower Klamath River.” Environmental Assessment, 2015 Lower Klamath River Late-

3

Summer Flow Augmentation from Lewiston Dam, EA-15-04-NCAO (August 2015) (“2015 EA”),

4

Administrative Record (“AR”) 1189; AR 5170 (Decision Memorandum Re 2014 FARs). Plaintiffs, the

5

San Luis & Delta Mendota Water Authority (“Authority”) and Westlands Water District (“Westlands”),

6

allege that by approving and implementing the 2014 and 2015 FARs, Reclamation and its parent agency,

7

the U.S. Department of the Interior (“Interior”)1 (collectively, “Federal Defendants”), acted in excess of

8

existing statutory authorities; violated reclamation law by delivering water as part of the 2015 FARs

9

pursuant to the second proviso of Section 2 of the Act of August 12, 1955, Pub. L. No. 84-386, 69 Stat.

10 719 (“1955 Act”), without first entering into a contract for delivery of that water that meets the requirements
11 of reclamation law and policy; violated the National Environmental Policy Act (“NEPA”), 42 U.S.C. §
12 4321 et seq., by, among other things, approving and implementing the 2014 and 2015 FARs without first
13 preparing an Environmental Impact Statement (“EIS”); and violated the Endangered Species Act
14 (“ESA”), 16 U.S.C. §§ 1531 et seq., and the Magnuson-Stevens Fishery Conservation and Management
15 Act of 1976 (“MSA”), 16 U.S.C. §§ 1801 et seq., by implementing the 2015 FARs without first
16 engaging in required consultation with relevant federal wildlife agencies. Doc. 1.
17

Plaintiffs filed suit in this Court on August 21, 2015. Id. The AR was lodged March 11, 2016.

18 Doc. 71. Plaintiff moved to complete the AR, seeking inclusion of 82 documents. Doc. 75. Defendant
19 Intervenors do not oppose the motion. Doc. 84. Federal Defendants have agreed to add a number of the
20 documents to the record and point out that certain other documents are already in the record, but oppose
21 inclusion of the remainder. Docs. 85 & 85-1. Plaintiffs replied. Doc. 87. Having reviewed the briefing in
22 light of the entire record, the Court concludes that the matter is suitable for decision on the papers
23 pursuant to Local Rule 230(g).
24
25
26

1

The Complaint also names as Defendants in their official capacities: Sally Jewell, the Secretary of the U.S. Department of
the Interior; Estevan Lopez, Commissioner of the Bureau; and David Murrillo, Regional Director of the Bureau’s Mid-Pacific
Region. Doc. 1.

2

1
2

II. STANDARD OF DECISION
In an APA case, the scope of judicial review is limited to “the administrative record already in

3

existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142

4

(1973). The administrative record is “not necessarily those documents that the agency has compiled and

5

submitted as ‘the’ administrative record.” Thompson v. U.S. Dept. of Labor, 885 F.2d 551, 555 (9th Cir.

6

1989) (internal citation omitted). Rather, “‘[t]he whole record’ includes everything that was before the

7

agency pertaining to the merits of the decision.” Portland Audubon Soc’y v. Endangered Species

8

Comm., 984 F.2d 1534, 1548 (9th Cir. 1993)(internal citation omitted). “The ‘whole’ administrative

9

record, therefore, consists of all documents and materials directly or indirectly considered by agency

10 decision-makers and includes evidence contrary to the agency's position.” Thompson, 885 F.3d at 555
11 (emphasis added).
12
13
14
15
16
17
18
19
20
21
22
23
24
25

An incomplete record must be viewed as a fictional account of the actual
decisionmaking process. When it appears the agency has relied on
documents or materials not included in the record, supplementation is
appropriate.
Portland Audubon, 984 F.2d at 1548 (internal quotations and citations omitted). “A satisfactory
explanation of agency action is essential for adequate judicial review, because the focus of judicial
review is not on the wisdom of the agency’s decision, but on whether the process employed by the
agency to reach its decision took into consideration all the relevant facts.” Asarco, Inc. v. U.S.
Environmental Protection Agency, 616 F.2d 1153, 1160 (9th Cir. 1980). “
However, the record does not include “every scrap of paper that could or might have been
created” on a subject. TOMAC v. Norton, 193 F. Supp. 2d 182, 195 (D.D.C. 2002).
A broad application of the phrase “before the agency” would undermine
the value of judicial review: Interpreting the word “before” so broadly as
to encompass any potentially relevant document existing within the
agency or in the hands of a third party would render judicial review
meaningless. Thus, to ensure fair review of an agency decision, a
reviewing court should have before it neither more nor less information
than did the agency when it made its decision.

26
3

1

Pac. Sh ores Subdivision v. U.S. Army Corps of Eng’rs, 448 F. Supp. 2d 1, 5 (D.D.C. 2006) (internal

2

citations and quotations omitted). The record certainly need not include documents that became

3

available after the agency’s decision had already been made (“post-decisional” documents). See

4

Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 555 (1978) (judicial review is “limited []

5

by the time at which the decision was made....”).

6

An agency’s designation and certification of the administrative record is entitled to a

7

“presumption of administrative regularity.” McCrary v. Gutierrez, 495 F. Supp. 2d 1038, 1041 (N.D.

8

Cal. 2007). This presumption requires courts to presume that public officials have properly discharged

9

their official duties. Id. It is the burden of the party seeking to supplement the record to overcome this

10 presumption by producing clear evidence to the contrary. Bar MK Ranches v. Yuetter, 994 F.2d 735, 740
11 (10th Cir. 1993); McCrary, 495 F. Supp. 2d at 1041.
12

III. DISCUSSION

13 A.
14

Plaintiffs’ Requests to Order Reclamation to Include Specific Documents in the AR.
Plaintiffs request inclusion of 82 documents in the AR. Federal Defendants have agreed to the

15 addition of some of those documents, have pointed out that others already are in the AR, and dispute
16 inclusion of the remainder. Plaintiffs attempt to group the disputed documents into various categories,
17 and the Parties’ briefing largely follows these groupings. However, because some of the documents fall
18 into multiple groups, the Court has evaluated each document in turn in the following table, noting the
19 nature of the document, the Parties’ arguments for and against inclusion, and providing a relevant ruling,
20 cross-referencing rulings wherever appropriate.
21

#

22
1.
2.
3.

23
24

Document2

Plaintiffs’
Federal
Argument
Defendants’
for Inclusion Response
Reclamation will add this document to the record.
Reclamation will add this document to the record.
December 2014
Cited in
This document
Draft Long-Term
Reclamation’ was not
Plan for
s decision
considered by

Court’s Ruling

Plaintiffs argue that this document, a draft of a long term
plan for protecting salmonids in the Lower Klamath
River, should be included in the AR because it was cited

25
2

26

The documents in dispute are presented as attachments to the Electronic Case File Documents (“Doc.”) 82 and 83.

4

1

Protecting Late
Summer Adult
Salmon in the
Lower Klamath
River

2
3

document(s).

the
decisionmaker
or relied on for
the 2014/2015
FARs.

April 2015 Draft
Long- Term Plan
for Protecting
Late Summer
Adult Salmon in
the Lower
Klamath River
July 14, 2015
Reclamation’s
Notice of Intent to
Prepare EIS for
Long-Term Plan
July 14, 2015
Reclamation’s
Notice of Intent to
Prepare notice for
EIS for Long
Term Plan

Cited in
Reclamation’
s decision
document(s).

This document
was not
considered by
the
decisionmaker
or relied on for
the 2014/2015
FARs.

4
5
6
7
8
4.

9
10
11
12
13
14

5.

15
16
17
18
19
20
21
22
23

6.
7.

Cited in
Reclamation’
s decision
document(s).

This document
was not
considered by
the
decisionmaker
or relied on for
the 2014/2015
FARs.
Reclamation will add this document to the record.
Evidence of
Cited in
There is no
consultation under Reclamation’ “evidence of
the Magnusons decision
consultation” to
Stevens Act for
document(s).
add. The text in
the Sacramento
the EA and
River species in
Finding of No
the 2009
Significant
Biological
Impact
Opinion
(“FONSI”) is
self-explanatory
and any related
documents are
already in the
AR.

24
25
26
5

in at least one Reclamation decision document. While
this document is mentioned in the EA, this is not
dispositive. Mere “references” to documents in the AR,
even in the decision document, do not indicate they were
necessarily considered by the decisionmaker. See
Pinnacle Armor, Inc. v. United States, 923 F. Supp. 2d
1226, 1240-41 (E.D. Cal. 2013) (distinguishing between
“citations” to documents and mere references thereto).
Here, the EA merely references the existence of a parallel
long-term planning process, see AR 1310, 1345, and does
not cite to any long-term planning document for any
factual proposition material to the relevant decision.
Therefore, Plaintiffs have not “identif[ied] reasonable,
non-speculative grounds for [their] belief that the
documents were considered by the decision makers.”
Pinnacle Armor, 923 F. Supp. 2d at 1239 (internal
citation and quotation omitted). The motion is DENIED
as to this document.
Like Document #3, this document is also a draft of a
long-term plan to protect salmonids in the Lower
Klamath. For the same reasons set forth above for
Document #3, the motion is DENIED as to this
document.

Like Document #3 and #4, this document concerns longterm planning for protection of salmonids in theLower
Klamath. For the same reasons set forth above for
Document #3, the motion is DENIED as to this
document.

Plaintiffs’ assertion that “evidence of consultation under
the Magnuson Stevens Act” should be added to the
record is grounded in the following text in the EA and
FONSI for the 2015 FARs:
Reclamation consulted under the Magnuson-Stevens
Act (MSA) for the Sacramento River species in the
2009 Biological Opinion (BiOp) and since there was
a determination, concurred with by NMFS, that
because the proposed action is contemplated within
the drought exception procedures as described in the
2009 NMFS BiOp it will not result in violation of the
incidental take limit in the NMFS 2009 BiOp, nor
jeopardize the continued existence of the listed
species or destroy or adversely modify their
designated critical habitats no further consultation
under the MSA is needed. As to the coho, the MSA
will be conducted as part of the ongoing consultation
on the coho. Additionally, as determined in the EA,
Reclamation did not identify any adverse effects
from the proposed action on essential fish habitat.

1
AR 1348; AR 1358.

2

This paragraph indicates that MSA consultation is not
required, in part because NMFS concurred that the
proposed action will not result in a violation of the
incidental take limit set forth under an ESA biological
opinion prepared by NMFS in 2009 addressing impacts
of the CVP and State Water Project (“SWP”) on
salmonids and other species. While it is unclear from this
motion to what extent ESA concurrence letters are or
should be included in the record, Plaintiffs do not request
inclusion of the ESA concurrence letters. Rather, they
request MSA consultation documentation. The
EA/FONSI suggest that no such documents exist and
Plaintiffs present no evidence to the contrary. The agency
cannot include in the record non-existent documents.

3
4
5
6
7
8
9

8.

Evidence of plan
for consultation
under the
MagnusonStevens Act for
Trinity River
species

Cited in
Reclamation’
s decision
document(s).

9.

Aug. 21, 2003
Federal
Defendants’
Notice Regarding
Decision to
Release
Supplemental
Water

Document
regarding
prior FARs;
Document
relevant to
claimed
authority for
the 2015
FARs.

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

There is no
“evidence of
consultation” to
add. The text in
the EA and
FONSI is selfexplanatory and
any related
documents are
already in the
AR.
This document
was not
considered by
the
decisionmaker
or relied on for
the 2014/2015
FARs.

Includes two
exhibits:
(1) Memorandum
regarding
“Release of up to
50,000 acre- feet
of water from the
Trinity River
Division for
fishery purposes”
dated Aug. 15,
2003; and
(2) the final
“Environmental
Assessment for
Late- Summer
2003 Preventative
Trinity River
Flow Releases for

6

The motion is DENIED as to this request.
For the same reasons set forth above for Document #7,
the motion is DENIED as to this request.

This document is a notice related to FARs implemented
in 2013.
Ruling 9A: As to the first ground for inclusion – that this
is a “document regarding prior FARs” – Plaintiffs
maintain that inclusion in the AR of this document
regarding pre-2014 FARs is required by a Department of
Interior Guidance document regarding the preparation of
administrative records. Plaintiffs point out that the
Guidance, issued June 27, 2006, suggests inclusion of
“relevant, supporting, documents” and provides as an
example of such “[d]ocuments contained in previous ARs
that were relied upon or considered in the decisionmaking process.” Doc. 82 at 11 (citing Declaration of
Rebecca Akroyd (“Akroyd Decl.”), Ex. 9 (Doc. 78) at 67). Plaintiffs argue that because the 2015 EA and 2015
FONSI describe the pre-2014 releases and “appear to
have been informed by analysis and information
contained in the prior environmental documents,” this
document must be included in the AR. Doc. 82 at 12.
This ignores the suggestion in the June 27, 2006
Guidance that documents in previous ARs be included
only if they were “relied upon or considered in the
decision-making process.” Even assuming the 2015 EA
and FONSI were “informed” by analyses and information
in the prior environmental documents, Plaintiffs fail to
identify reasonable, non-speculative grounds for their
belief that the documents were actually considered
(directly or indirectly) by the decision makers. Plaintiffs
do not specify the nature of how the documents inform

1

Protection of Fall
Run Chinook
Salmon” dated
Aug. 20, 2003

2

one another nor whether the AR lacks independent
documents upon which the same or similar conclusions
could have been formed. The motion to add this
document on this ground is DENIED.

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

10.

Aug. 20, 2004
Federal
Defendants’
Notice of
Supplemental
Flows Includes
two exhibits: (1)
the Finding of No
Significant Impact
/ Environmental
Assessment for
the Purchase of
Water from the
Sacramento River
Water Contractors
Association and
Supplemental Fall
2004 Releases to
the Trinity River,
dated Aug. 19,
2004; and
(2) the final
Environmental
Assessment for
Purchase of Water
from the
Sacramento River
Water Contractors
Association and

Document
regarding
prior FARs;
Document
relevant to
claimed
authority for
the 2015
FARs.

This document
was not
considered by
the
decisionmaker
or relied on for
the 2014/2015
FARs.

7

Ruling 9B: As to the second ground for inclusion – that
this document is relevant to the claimed authority for the
2015 FARs – Plaintiffs argue that the AR does not
contain documents regarding certain sources of authority
for the 2014 and 2015 FARs cited in the 2015 EA. See
Doc. 82 at 12-13. Plaintiffs further argue that “[i]f
Reclamation is indeed relying on these statutes as
authority for the 2015 FARS, then information regarding
Reclamation’s consultation under, implementation of
programs regarding, or interpretation of the statutes as
they apply to FARs should be in the record.” Id. at 13.
Plaintiffs request that the Court order Federal Defendant
to complete the record with relevant documents regarding
the claimed sources of authority. The Court agrees with
Federal Defendants that Plaintiffs have offered “no
evidence that Reclamation decision-makers []
independently consider and reconsider whether there is
legal authority to release water with each subsequent
release, including the relevant releases here, rather than
being advised by counsel when necessary.” Doc. 85 at
10. To the extent Plaintiffs seek documents that provide
advice of counsel, such documents would be privileged.
Plaintiffs have failed to demonstrate that relevant, nonprivileged documents considered by the decisionmaker
exist within this category. The motion to add this
document on this ground is DENIED.
This is an environmental document pertaining to FARs
implemented in 2004. For the same reasons set forth
above for Document #9 in Ruling 9A and Ruling 9B, the
motion is DENIED as to this document.

1
2
3

11.

4
5
6

Supplemental Fall
2004 Releases to
the Trinity River,
dated Aug. 19,
2004
Aug. 2012 Final
Environmental
Assessment, 2012
Lower Klamath
River Late
Summer Flow
Augmentation;
and
Aug. 10, 2012
Finding of No
Significant
Impact, 2012
Lower Klamath
River Late
Summer Flow
Augmentation

7
8
9
10

Document
regarding
prior FARs;
Document
relevant to
claimed
authority for
the 2015
FARs; Source
document
directly or
indirectly
relied upon as
basis for
2013, and
then 2015
Environmenta
l Assessment.

This document
was not
considered by
the
decisionmaker
or relied on for
the 2014/2015
FARs.

11

13
14
15
16
17
18
19
20
21
22
23
24
25
26

13.

Aug. 2013
Environmental
Assessment, 2013
Lower Klamath
River LateSummer Flow
Augmentation
from Lewiston
Dam
Aug. 6, 2013
Finding of No
Significant
Impact, 2013
Lower Klamath
River LateSummer Flow
Augmentation
from Lewiston
Dam
Jan. 30, 1995

Ruling 11: As to the third ground for inclusion – that
this is a “[s]ource document directly or indirectly relied
upon as basis for 2013, and then 2015 Environmental
Assessment” – Plaintiffs point to High Sierra Hikers
Association v. U.S. Department of the Interior, No. C-094621 JCS, 2011 WL 2531138 (N.D. Cal. 2011). In that
case, the agency defendant agreed that summaries of
monthly stock use reports were properly part of the AR in
that case, but refused to include underlying documents,
arguing they were duplicative. Id. at *1. The district court
ordered the underlying “source documents” included in
the record because “at a minimum” they were “indirectly
relied upon” and contained detailed information that was
not in the summaries.” Id. at *6.
Plaintiffs here maintain that Document # 11 (and related
documents) should be included in the AR because “in
many instances” they contain language identical to the
language in the 2015 EA and FONSI. Even assuming this
is true, this does not present circumstances analogous to
those in High Sierra Hikers, where the agency admitted
to relying on underlying documents to create a summary
that was part of the AR. If the commonality of language
between the 2015 EA and FONSI and prior documents is
somehow legally relevant to the merits of this case,
Plaintiffs may offer the prior documents for consideration
on judicial notice for appropriate purposes (i.e., not for
the truth of the matters asserted therein). The motion is
DENIED as to this document on this ground.
This document concerns FARs implemented in 2013. For
the same reasons set forth above for Document #9 in
Ruling 9A and Ruling 9B and for Document #11 in
Ruling 11, the motion is DENIED as to this document on
all three grounds offered.

12

12.

This document concerns FARs implemented in 2012. For
the same reasons set forth above for Document #9 in
Ruling 9A and Ruling 9B, the motion is DENIED as to
this document on the first two grounds offered.

Document
regarding
prior FARs;
Document
relevant to
claimed
authority for
the 2015
FARs; Source
document
directly or
indirectly
relied upon as
basis for 2015
Environmenta
l
Assessment.

Document

This document relates to one of the claimed legal

8

1

Letter from the
Bureau of
Reclamation to
the Trinity County
Board of
Supervisors re:
50,000
Acre-Feet

2
3
4
5
6
7
8

relevant to
claimed
authority for
the 2015
FARs; Source
document
directly or
indirectly
relied upon as
basis for 2015
Environmenta
l Assessment;
Other
document
directly or
indirectly
considered by
the agency.

authorities for implementing FARs. For the same reasons
set forth above for Document #9 in Ruling 9B and for
Document #11 in Ruling 11, the motion is DENIED as to
this document on the first two grounds offered.
As to Plaintiffs’ contention that this document should
otherwise be included in the AR because it was “directly
or indirectly considered by Reclamation,” the only basis
offered by Plaintiffs’ for including this specific document
under this rationale is that it was produced to Plaintiffs as
part of a Freedom of Information Act (“FOIA”) response
that requested “all records regarding emergency NEPA
consultation on the flow augmentation releases made in
2014.” See Doc. 82 at 14. But, a FOIA production is an
“entirely discrete legal concept that bears no relation to
the [preparation of] an administrative record [] for a
court’s review under the APA.” State of Del. Dep’t of
Natural Resources and Envtl. Control v. U.S. Army
Corps of Eng’rs, 722 F. Supp. 2d 535, 544 (D. Del.
2010). Absent clear evidence to the contrary, an agency’s
production of documents under FOIA does not
necessarily mean they were “considered” for purposes of
compiling an administrative record. See Fund for
Animals v. Williams, 245 F. Supp. 2d 49, 55-57 (D.D.C.
2003), vacated on other grounds sub nom. Fund For
Animals, Inc. v. Hogan, 428 F.3d 1059 (D.C. Cir. 2005)
(where plaintiffs sought inclusion in the record of
numerous documents secured by way of a FOIA request,
it is the agency that is in the best position to determine
which documents it considered and enjoys a presumption
that it properly designated the record absent clear
evidence to the contrary). Plaintiffs have made no clear
showing that would warrant this Court disregarding the
presumption of proper designation of the AR. The motion
is DENIED as to this document on this ground.

9
10
11
12
13
14
15
16

14.
15.

17
18
19
20
21

Reclamation will add this document to the record.
Sept. 13, 2014
Other
This email is
Yurok
document
actually dated
Fisheries
directly or
September 24,
Program
indirectly
2014, which
Technical
considered
post- dates the
Memorandum re:
by the
decision. This is
Ich
agency.
an update to an
earlier version
of the same
document that is
already in the
record at AR
65, 68.

Defendants argue that the document should not be
included in the AR because it postdates the decision to
release the additional water. Although this document
bears the date September 13, 2014, it contains data about
fish disease prevalence in the Lower Klamath that runs up
through and including September 29, 2014, which post
dates Federal Defendants’ formal announcement on
September 16, 2014, that Reclamation would release
additional water (above and beyond the level of releases
announced in late August, see AR 5177-5181) to target a
flow rate of approximately 5,000 cfs in the lower Klamath
River for seven days. See AR 5250-53.
Plaintiffs suggest that Document # 153 should
nevertheless be part of the record because, while it postdates the start of the 2014 FARs, it pre-dates the start of
the 2015 FARs. Doc. 87 at 7. This, of course, would be
true of any document produced in the aftermath of the
2014 FARs. Presumably, due to its inclusion of

22
23
24
25
3

26

Plaintiffs appear to mis-label Document # 15 as Document # 14 on page 7 of their Reply.

9

1
2
3
4
5
6
7
8
16.

June 18, 2015
Joint
Announcem
ent re:
Shasta
Temperatur
e
Managemen
t Plan

Other
document
directly or
indirectly
considered
by the
agency.

This document
was not
considered by
the decisionmaker or relied
on for the
2014/2015
FARs. The
relevant data
was considered
separately and
is in the AR.

17.

July 1, 2015 Letter
from
National
Marine
Fisheries
Service to
Reclamation
and California
Department of
Water
Resources re:
2015 Contingency
Plan
July 7, 2015 Letter
from
State Water
Resources
Control Board to
Ron Milligan re:

Other
document
directly or
indirectly
considered
by the
agency.

This document
was not
considered by
the decisionmaker or relied
on for the
2014/2015
FARs. The
relevant data
was considered
separately and
is in the AR.

Other
document
directly or
indirectly
considered by
the agency.

This document
was not
considered by
the decisionmaker or relied
on for the

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

18.

10

information that post-dates the targeting of 5,000 cfs
flows in the Lower Klamath, Document # 15 speaks to the
effectiveness (or lack thereof) of the supplemental
releases. But, this does not mean it was considered by the
decisionmaker. To the extent efficacy of the flows is an
issue in this case, Federal Defendants’ record must stand
or fall on the information included in the record or shown
to be worthy of supplementation. As to this document,
Plaintiffs have again failed to “identify reasonable, nonspeculative grounds for its belief that the documents were
considered by the decision makers.” Pinnacle Armor, 923
F. Supp. 2d at 1239. Nor is there evidence that the
decision to target flows to 5,000 cfs, see Press Release
dated September 16, 2014 (AR 5250), was contingent
upon collection of the information contained in Document
# 15, which might have justified inclusion of the
document in the record for the 2014 FARs. The motion is
DENIED as to this document on this ground.
This document announces “key components” of
Reclamation’s plan to manage temperature control issues
stemming from a “much smaller volume of cold water in
Shasta Reservoir.” Plaintiffs argue generally that this
document was “directly or indirectly considered by the
agency,” and, somewhat more specifically, that “while
the [AR] currently contains several documents regarding
Reclamation’s operation of the CVP for temperature
management in 2015, several other documents are
missing. These include letters to and from Reclamation
regarding 2015 operations, which at a minimum, where
indirectly considered relevant to the 2015 FARs.” Doc.
82 at 14. The Court is left to guess how this argument
might satisfy Plaintiffs’ burden to establish “reasonable,
non-speculative grounds for its belief that the documents
were considered by the decision makers,” particularly in
light of Federal Defendants’ undisputed assertion that the
relevant data reflected in this document was considered
separately and is already included in the AR. The mere
fact that Plaintiffs allege the FARs hampered
Reclamation’s ability to manage temperature in the
Sacramento River watershed is insufficient. The motion
is DENIED as to this document on this ground.
This document outlines a contingency plan for operations
(including Shasta temperature management) in light of
ongoing drought conditions. Plaintiffs offer the same
rationale for its inclusion in the record as they did for
Document # 16, which fails for the same reasons
articulated in the ruling for Document #16. The motion is
DENIED as to this document on this ground.

This document is the State Water Resources Control
Board’s approval of Reclamation’s revised Shasta
Reservoir Temperature Management Plan. Doc. 82-3 at
pp. 33-39 of 140 (Document #17). Plaintiffs offer the
same rationale for its inclusion in the record as they did
for Document # 16, which fails for the same reasons

1

Sacramento
River
Temperature
Management
Plan

20.

2014/2015
FARs. The
relevant data
was considered
separately and
is in the AR.
June 25, 2015
Other
This document
Reclamation
document
was not
Revised
directly or
considered by
Sacramento River indirectly
the decisionTemperature
considered by maker or relied
Management Plan the agency.
on for the
– June 2015
2014/2015
FARs. The
relevant data
was considered
separately and
is in the AR.
Reclamation will add this document to the record.

21.

Reclamation will add this document to the record.

22.

Reclamation will add this document to the record.

11

23.

Reclamation will add this document to the record.

12

24.

Reclamation will add this document to the record.

13

25.

Aug. 22, 2014
Memorandum
from B. Person to
Files re: Decision
Rationale –
Augmenting
Flows in the
Lower Klamath
River During
August and
September of
2014

26.

May 12, 2010
Memorandum
from N. Sutley,
Counsel on
Environmental
Quality (“CEQ”)
to Department
Heads re:
Emergencies and
the National
Environmental
Policy Act

27.
28.
29.

Reclamation will add this document to the record.
Reclamation will add this document to the record.
June 26, 2003
Document
This document
Memorandum
regarding
was not
from Doug
prior FARs;
considered by

2
3
19.

4
5
6
7
8

articulated in the ruling for Document #16. The motion is
DENIED as to this document on this ground.

This document articulates the Bureau’s Revised
Sacramento River Water Temperature Management Plan.
Doc. 82-3 at pp. 41-50 of 140 (Document #17). Plaintiffs
offer the same rationale for its inclusion in the record as
they did for Document # 16, which fails for the same
reasons articulated in the ruling for Document #16. The
motion is DENIED as to this document on this ground.

9
10

14
15
16
17
18
19
20
21
22
23
24
25
26

Document
generated in
the course of
an agency’s
process for
arriving at its
decision;
Other
document
directly or
indirectly
considered by
the agency.
Document
generated in
the course of
an agency’s
process for
arriving at its
decision;
Other
document
directly or
indirectly
considered by
the agency.

An identical
version of this
document is
already in the
record at AR
52.

Although in Reply Plaintiffs continue to include this in
the range of documents in dispute, see Doc. 87 at 5:2728, Plaintiffs provide no specific reply to Federal
Defendants’ undisputed assertion that an identical version
of this document is already in the AR. Therefore, the
motion is DENIED as moot as to this document.

This document
was not
considered by
the
decisionmaker
or relied on for
the 2014/2015
FARs.

This is a CEQ Guidance document cited by Federal
Defendants’ in their opposition to Plaintiffs’ motion for a
temporary restraining order regarding the 2014 FARs
filed in this case. The document outlines a “step-by-step
process for determining the appropriate path forward for
the NEPA environmental review of all actions proposed
in response to an emergency situation.” Plaintiffs offer no
evidence that Reclamation directly or indirectly
considered this document in making its decision to make
the 2014 or 2015 FARs. That Federal Defendants’
counsel relied upon the document in making their legal
arguments is not dispositive. Absent any other showing,
the motion is DENIED as to this document on the
grounds presented.

11

This document concerns FARs proposed in 2003. The
first ground offered for inclusion of this document is
addressed in Ruling 9A, which found that the mere fact

1

Schleusner,
Executive
Director, Trinity
River Restoration
Program re:
DRAFT
Implementation
Strategy, Potential
2003 Fall Flow
Releases.

2
3
4
5

Other
document
directly or
indirectly
considered by
the agency.

the decisionmaker or relied
on for the
2014/2015
FARs.

Aug. 11, 2004
Letter from M.
Ryan to I.
Lagomarsino re:
Request for
Concurrence with
a Determination of
“Not Likely to
Adversely Affect”
for Proposed
Supplemental
Water Releases to
the Trinity River
for August and
September 2004
Aug. 20, 2004
Letter from R.
McInnis to M.
Ryan re: ESA
consultation

Document
regarding
prior
FARs.

This document
was not
considered by
the decisionmaker or relied
on for the
2014/2015
FARs.

Document
regarding
prior FARs.

This document
was not
considered by
the decisionmaker or relied
on for the
2014/2015
FARs.

June 25, 2010 Email chain
beginning with email from S.
Naman to J.
Simondet, and
including related
e-mails between
NMFS and
Reclamation staff
and others re: Fall
Flow
Augmentation/Me
eting Agenda and
Materials

Document
regarding
prior FARs;
Other
document
directly or
indirectly
considered by
the agency.

This document
was not
considered by
the decisionmaker or relied
on for the
2014/2015
FARs.

Aug. 27, 2014 Email chain
beginning with email from R.
Grimes to D. Reck

Document
generated in
the course of
an agency’s
process for

6
30.

7
8
9
10
11
12
13

31.

14
15
16
17

32.

18
19
20
21
22
23
24
25
26

33.

This is a heavily
redacted email
chain regarding
CEQ discussion
and the redacted

12

that a document pertains to prior FARs is insufficient to
“identify reasonable, non-speculative grounds for its
belief that the documents were considered by the decision
makers.” Plaintiffs offer no independent, specific basis
for the inclusion of this document. See Doc. 82 at 12. The
motion to add this document on this ground is DENIED.
As to the second ground, Plaintiffs again offer no specific
basis to believe that this document was considered, either
directly or indirectly, by the agency, see Doc. 82 at 14,
and no such basis is apparent from the face of the
document. The motion to add this document on this
ground is DENIED.
This document concerns FARs proposed in 2004. The
ground offered for inclusion of this document is
addressed in Ruling 9A, which found that the mere fact
that a document pertains to prior FARs is insufficient to
“identify reasonable, non-speculative grounds for its
belief that the documents were considered by the decision
makers.” Plaintiffs offer no independent, specific basis
for the inclusion of this document, and none is apparent
from the face of the document. See Doc. 82 at 12. The
motion to add this document on this ground is DENIED.

This document also concerns FARs implemented in
2004The ground offered for inclusion of this document is
addressed in Ruling 9A, which found that the mere fact
that a document pertains to prior FARs is insufficient to
“identify reasonable, non-speculative grounds for its
belief that the documents were considered by the decision
makers.” Plaintiffs offer no independent, specific basis
for the inclusion of this document, and none is apparent
from the face of the document. See Doc. 82 at 12. The
motion to add this document on this ground is DENIED.
This document discusses implementation FARs proposed
in 2010. The first ground offered for inclusion of this
document is addressed in Ruling 9A, which found that
the mere fact that a document pertains to prior FARs is
insufficient to “identify reasonable, non-speculative
grounds for its belief that the documents were considered
by the decision makers.” Plaintiffs offer no independent,
specific basis for the inclusion of this document. See Doc.
82 at 12. The motion to add this document on this ground
is DENIED.
As to the second ground, Plaintiffs again offer no specific
basis to believe that this document was considered, either
directly or indirectly, by the agency, see Doc. 82 at 14,
and no such basis is apparent from the face of the
document. The motion to add this document on this
ground is DENIED.
This document, as redacted, does not appear to contain
any content that is material to any claim in this case.
Plaintiffs do not argue otherwise in reply, except to
contend, generally, that Federal Defendants should be
required to produce a privilege log, an assertion that is

1

Re: Emergency
Lower Klamath
River Flow
Augmentation –
Late Summer
2014

2
3

arriving at its
decision;
Other
document
directly or
indirectly
considered by
the agency.

May 31, 2012
Memorandum
from Fall Flow
Subgroup to B.
Person re: 2012
Fall Flow Release
Reccomendation
(sic)

Document
regarding
prior FARs;
Document
generated in
the course of
an agency’s
process for
arriving at its
decision;
Source
document
directly or
indirectly
relied upon as
basis for 2015
Environmenta
l Assessment;
Other
document
directly or
indirectly
considered by
the agency.

4
5
6
34.

7
8
9
10
11
12
13
14
15
16

portions are
privileged and
thus not part of
the record. The
non- redacted
portions are not
relevant to the
2014/2015
FARs and thus
were not
considered by
the decisionmaker.
This document
was not
considered by
the decisionmaker or relied
on for the
2014/2015
FARs. This
document is
specific to the
2012 FARs
only.

addressed separately below. The motion to add this
document on the offered ground is DENIED.

This document concerns FARs recommended for 2012.
As to the first ground for inclusion – that this is a
document regarding prior FARs – Ruling 9A explained
that this rationale, standing alone, fails to “identify
reasonable, non-speculative grounds for its belief that the
documents were considered by the decision makers.”
Pinnacle Armor, 923 F. Supp. 2d at 1239 (internal
citation and quotation omitted). The motion is DENIED
as to this document on this ground.
As to the second ground – that this is a document
generated in the course of an agency’s process for
arriving at its decision – Plaintiffs offer absolutely no
explanation of why this document, dated May 31, 2012,
was generated in Reclamation’s process for arriving at its
decision on either of the FARs at issue in this case. The
motion is DENIED as to this document on this ground.
As to the third ground – that this is a source document
directly or indirectly relied upon as a basis for the 2015
EA -- as Ruling 11 explained, High Sierra Hikers stands
for the proposition that the AR should be expanded to
include “source documents” containing data used to
produce other documents in the AR. 2011 WL 2531138,
at *6. But Plaintiffs argue Document # 34 is a “source
document” simply because it includes language/criteria
that have only been slightly modified in the 2015 EA.
High Sierra Hikers is therefore not controlling.
Overlapping language between a so-called “source”
document and a decision document does not necessarily
mean the “source” document was considered, even
indirectly, by decisionmakers. The motion is DENIED as
to this document on this ground.

17
18
19
20
21

As to the fourth rationale – that this document was
otherwise directly or indirectly considered by the agency
-- Plaintiffs fail to “identify reasonable, non-speculative
grounds for its belief that the documents were considered
by the decision makers.” Pinnacle Armor, 923 F. Supp.
2d at 1239 (internal citation and quotation omitted). The
motion is DENIED as to this document on this ground.

22
23
24
35.

25
26

July 1, 1974
Memorandum
from Assistant
Regional Solicitor

Document
relevant to
claimed
authority for

This document
was not
considered by
the decision-

13

This document concerns a claimed authority for the
FARs. As to the first ground for inclusion– that this
document is relevant to the claimed authority for the
2015 FARs – as explained in Ruling 9B, Plaintiffs again

1

to Regional
Director, Bureau
of Reclamation,
Sacramento, re:
“Request for
opinion re
authority of the
Secretary of the
Interior to alter
present functions
and
accomplishments
of Trinity River
Division, “Central
Valley Project”

2
3
4
5
6
7

the 2015
FARs; Other
document
directly or
indirectly
considered
by the
agency.

maker or relied
on for the
2014/2015
FARs.

Jan. 21, 1977
Memorandum
from Regional
Solicitor to Field
Supervisor,
Division of
Ecological
Services, USFWS,
re: “Trinity River
Division, CVP—
Reconsideration
of July 1, 1974
Memorandum to
Regional Director,
Bureau of
Reclamation,
Concerning
Section 2 of the
Trinity River
Division Act”
May 18, 2015
Letter from R.
Milligan to M.
Rea re:
Contingency Plan
for Water Year
(WY) 2015
Pursuant to
Reasonable and
Prudent
Alternative (RPA)
Action 1.2.3.C of
the 2009
Coordinated
Long- term
Operation of the
Central Valley
Project (CVP) and
State Water
Project (SWP)
Biological
Opinion (NMFS

Document
relevant to
claimed
authority for
the 2015
FARs; Other
document
directly or
indirectly
considered
by the
agency.

This document
was not
considered by
the decisionmaker or relied
on for the
2014/2015
FARs.

Document
generated in
the course of
an agency’s
process for
arriving at its
decision;
Other
document
directly or
indirectly
considered by
the agency.

This document
was not
considered by
the
decisionmaker
or relied on for
the 2014/2015
FARs.

8
36.

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

37.

offer “no evidence that Reclamation decision-makers []
independently consider and reconsider whether there is
legal authority to release water with each subsequent
release, including the relevant releases here, rather than
being advised by counsel when necessary.” Doc. 85 at
10. To the extent Plaintiffs seek documents that provide
advice of counsel, such documents would be privileged.
Plaintiffs have failed to demonstrate that relevant, nonprivileged documents considered by the decisionmaker
exist within this category. The motion to add this
document on this ground is DENIED.
As to the second ground, plaintiffs again offer no specific
basis to believe that this document was considered, either
directly or indirectly, by the agency, see Doc. 82 at 14,
and no such basis is apparent from the face of the
document. The motion to add this document on this
ground is DENIED.
This document concerns a claimed authority for the
FARs. For the same reasons set forth above for Document
#35, the motion is DENIED as to this document.

This document, a request for concurrence from NMFS
that drought contingency plans are consistent with actions
set forth in NMFS’s 2009 Biological Opinion on the
Coordinated Long-Term Operation of the CVP and SWP,
is closely related to Documents ## 16-19.
As to the first ground for inclusion – that this is a
document generated in the course of an agency’s process
for arriving at its decision – Plaintiffs offer absolutely no
explanation of why this document was “generated in
Reclamation’s process for arriving at its decision on
either of the FARs at issue in this case,” when facially it
has to do with a separate ESA compliance process. The
motion is DENIED as to this document on this ground.
As to the second rationale, Plaintiffs argue generally that
this document was “directly or indirectly considered by
the agency,” but fail to offer “reasonable, non-speculative
grounds for its belief that the documents were considered
by the decision makers.” The motion is DENIED as to
this document on this ground.

14

1
2

38.
39.

3
4
5
6

2009 BiOp)
Reclamation will add this document to the record.
Information /
Document
This document
Briefing
relevant to
was not
Memorandum for claimed
considered by
the Commissioner authority for
the
of Reclamation
the 2015
decisionmaker
from Brian Person FARs; Other
or relied on for
re: Contract with
document
the 2014/2015
Humboldt County directly or
FARs.
for 50,000 acreindirectly
feet of water in
considered by
Trinity Reservoir
the agency.

7
8
9
10
11

40.

12
13
14
15
16

41.

17
18
19
20
42.

21
22
23
24
25
26

43.
44.

Mar. 21, 2011
Draft Briefing
Paper for Michael
Connor,
Commissioner re:
50,000 acre-feet
of water in 1959
Humboldt
contract

Document
This document
relevant to
was not
claimed
considered by
authority for
the
the 2015
decisionmaker
FARs; Other
or relied on for
document
the 2014/2015
directly or
FARs.
indirectly
considered by
the agency.
Jan. 22, 2013
Document
This document
Draft Briefing
relevant to
was not
Paper for David
claimed
considered by
Murillo, Regional authority for
the
Director
the 2015
decisionmaker
FARs; Other
or relied on for
document
the 2014/2015
directly or
FARs.
indirectly
considered by
the agency.
Dec. 14, 2010
Document
This document
Draft Briefing
relevant to
was not
Paper for Michael claimed
considered by
Connor,
authority for
the
Reclamation
the 2015
decisionmaker
Commissioner
FARs; Other
or relied on for
document
the 2014/2015
directly or
FARs.
indirectly
considered by
the agency.
Reclamation will add this document to the record.
Draft Policy
Document
This document
Statement Outline relevant to
was not

15

This document concerns a claimed authority for the
FARs. As to the first ground for inclusion– that this
document is relevant to the claimed authority for the
2015 FARs – as explained in Ruling 9B, Plaintiffs again
offered “no evidence that Reclamation decision-makers []
independently consider and reconsider whether there is
legal authority to release water with each subsequent
release, including the relevant releases here, rather than
being advised by counsel when necessary.” Doc. 85 at
10. Finally, to the extent Plaintiffs are seeking documents
that provide advice of counsel, such documents would be
privileged. Plaintiffs have failed to demonstrate that
relevant, non-privileged documents considered by the
decisionmaker exist within this category. The motion to
add this document on this ground is DENIED.
As to the second ground, plaintiffs again offer no specific
basis to believe that this document was considered, either
directly or indirectly, by the agency, see Doc. 82 at 14,
and no such basis is apparent from the face of the
document. The motion to add this document on this
ground is DENIED.
This document concerns a claimed authority for the
FARs. For the same reasons set forth above for
Document #39, the motion is DENIED as to this
document.

This document concerns a claimed authority for the
FARs. For the same reasons set forth above for
Document #39, the motion is DENIED as to this
document.

This document concerns a claimed authority for the
FARs. For the same reasons set forth above for
Document #39, the motion is DENIED as to this
document.

This document concerns a claimed authority for the
FARs. For the same reasons set forth above for

1

– Humboldt
County 50,000
Acre- Feet
Contract

2
3
4
5

45.
46

6
7
8
9
10
11
12
13

47.

14
15
16
17
18
19
20
21
22
23
24
25
26

48.
49.
50.
51.
52.
53.
54.
55.
56.
57.
58.
59.
60.
61.
62.
63.

claimed
considered by
authority for
the
the 2015
decisionmaker
FARs; Other
or relied on for
document
the 2014/2015
directly or
FARs.
indirectly
considered by
the agency.
Reclamation will add this document to the record.
Aug. 9, 2004
Document
This document
Letter from V.
relevant to
was not
Whitney, Division claimed
considered by
Chief, to
authority for
the
Humboldt County the 2015
decisionmaker
Board of
FARs; Other
or relied on for
Supervisors, c/o
document
the 2014/2015
Honorable Jill
directly or
FARs.
Geist, re:
indirectly
“Complaint
considered by
Against the
the agency.
Bureau of
Reclamation
Regarding the
Trinity River
Division of the
Central Valley
Project in Trinity
County
Yurok boat
E-mail in the
This document
dance_20140822_ record
was superseded
steady
identifies
by a later email
ramdown.xlsx
document as
that provided an
attachment;
update and the
attachment is email and
missing from attachment will
the record.
be added to the
record.

Document #39, the motion is DENIED as to this
document.

This document concerns a claimed authority for the
FARs. For the same reasons set forth above for
Document #35, the motion is DENIED as to this
document.

Plaintiffs’ sole argument for inclusion of this document is
that it is an attachment to an email that has been included
in the AR. Federal Defendants maintain that the
underlying email was superseded by a later email that
provided an update and that email and attachment will be
added to the record. Plaintiffs offer no specific reply.
Plaintiffs therefore fail to offer “reasonable, nonspeculative grounds for its belief that the documents were
considered by the decision makers.” The motion is
DENIED as to this document.
Reclamation asserts this document is already in the record and Plaintiffs do not dispute this assertion in Reply.
Reclamation will add this document to the record.
Reclamation asserts this document is already in the record and Plaintiffs do not dispute this assertion in Reply.
Reclamation will add this document (a missing attachment) to the record.
Reclamation will add this document (a missing attachment) to the record.
Reclamation will add this document (a missing attachment) to the record.
Reclamation asserts this document is already in the record and Plaintiffs do not dispute this assertion in Reply.
Reclamation asserts this document is already in the record and Plaintiffs do not dispute this assertion in Reply.
Reclamation will add this document (a missing attachment) to the record.
Reclamation will add this document (a missing attachment) to the record.
Reclamation will add this document (a missing attachment) to the record.
Reclamation will add this document (a missing attachment) to the record.
Reclamation will add this document (a missing attachment) to the record.
Reclamation will add this document (a missing attachment) to the record.
Reclamation will add this document (a missing attachment) to the record.
150810_NCRWQ E-mail in the
Reclamation
Plaintiffs’ sole argument for inclusion of this document is
CB_C
record
claims this is a
that it is an attachment to an email that has been included
OMMENTS_US
identifies
duplicate of AR in the AR. Federal Defendants maintain that the
BR_2015
document as
63.
underlying document is already included in the AR at AR
_Lower_Klamath
attachment;
Doc. 63 and has determined it should be removed.
_Flows.pdf
attachment is
Plaintiffs offer no specific reply. Plaintiffs therefore fail

16

1
2
3

64.
65.
66.

4
5
6
7
8

67.

9
10
11
12
13
14
15
16
17
18
19
68.

20
21
22
23
24
25
26

to offer “reasonable, non-speculative grounds for its
belief that the documents were considered by the decision
makers.” The motion is DENIED as to this document.
Reclamation will add this document (a missing attachment) to the record.
Reclamation will add this document (a missing attachment) to the record.
2015.08.20
E-mail in the
This document
Plaintiffs’ sole argument for inclusion of this document is
PC_BOR Lower
record
was not
that it is an attachment to an email that has been included
Klamath Flow
identifies
considered in
in the AR. Federal Defendants maintain that the
Augmentation
document as
regards to the
underlying document was included in the AR in error and
EIS Scoping.pdf
attachment;
2014 or 2015
has determined it should be removed. Plaintiffs offer no
attachment is FARs and will
specific reply, other than to persist in its generic
missing from be removed.
argument that attachments are missing. Doc. 87 at 6.
the record.
Plaintiffs therefore fail to offer “reasonable, nonspeculative grounds for its belief that the documents were
considered by the decision makers.” The motion is
DENIED as to this document.
Declaration of
Document
This document
This document, a Declaration produced in the context of
Donald Reck in
generated in
post-dates the
this litigation, is dated August 26, 2014, which post-dates
Support of
the course of
final agency is
the August 22, 2014 Press Release announcing the 2014
Federal
an agency’s
properly not
FARs. Plaintiffs argue that Document # 67 nevertheless
Defendants’
process for
part of the
belongs in the AR because it discusses NEPA compliance
Opposition to
arriving at its record. action
for the 2014 FARs and because Reclamation’s decisions
Plaintiffs’
decision;
and
regarding NEPA compliance continued beyond the date
Motions for
Other
the FARs began. While it is true that this document does
Temporary
document
suggest that Reclamation (1) was invoking NEPA
Restraining Order directly or
emergency procedures and (2) intended to complete
and Preliminary
indirectly
NEPA environmental review after the FARs began, there
Injunctions
considered by
is no evidence in the record suggesting the agency
the agency.
generated Document # 67 in the course of arriving at its
decision (either its initial decision to implement the FARs
or any subsequent decision to issue a related
environmental document) or considered Document # 67
either directly or indirectly. That decision-making
continued past the start of the FARs does not mean that
every document mentioning the FARs generated after
initiation of the FARs should become part of the AR.
This would eviscerate the general rule that “‘[t]he whole
record’ includes everything that was before the agency
pertaining to the merits of the decision.” Portland
Audubon, 984 F.2d at 1548. Again, Plaintiffs have failed
to articulate a non-speculative basis to believe this
document was considered, directly or indirectly, by the
agency. The motion to add this document to the AR is
therefore DENIED.
Declaration of
Document
This document
This is a Declaration filed in this litigation on August 26,
Brian Person in
generated in
post-dates the
2014. Plaintiffs concede that this document post-dates the
Support of
the course of
final agency
beginning of the 2014 FARs, put argue that because it
Federal
an agency’s
action and is
pre-dates the start of the 2015 FARs, was before
Defendants’
process for
properly not
Reclamation when it made its decision regarding the
Opposition to
arriving at its part of the
2015 FARs, and was germane to that decision, it should
Plaintiffs’
decision;
record.
be part of the AR. Again, plaintiffs fail to offer
Motions for
Other
“reasonable, non-speculative grounds for its belief that
Temporary
document
the documents were considered by the decision makers.”
Restraining Order directly or
The motion to add this document to the AR is therefore
and Preliminary
indirectly
DENIED.
Injunction
considered by
the agency.
Declaration of
Document
This document
Document # 69 is yet another Declaration filed in this
Ronald Milligan
generated in
post-dates the
litigation, dated August 26, 2014. As with Document #
in Support of
the course of
final agency
68, Plaintiffs argue that, while this document does postmissing from
the record.

69.

17

1
2
3
4
5
6

70.
71.
72.

7
8
9
10
11
73.

12
13
14
15
16
17
18

74.

19
20
21
22
23
24
25
26

an agency’s
action and is
date the beginning of the 2014 FARs, it pre-dates the start
process for
properly not
of the 2015 FARs, was before Reclamation when it made
arriving at its part of the
its decision regarding the 2015 FARs, and was germane
decision;
record.
to that decision. Again, Plaintiffs fail to offer
Other
“reasonable, non-speculative grounds for its belief that
document
the documents were considered by the decision makers.”
directly or
The motion to add this document to the AR is therefore
indirectly
DENIED.
considered by
the agency.
Reclamation will add this document to the record.
Reclamation will add this document to the record.
July 24, 2015 EDocument
This document
This is an email pertaining to temperature control in the
mail chain
generated in
was not
upper Sacramento River. As with Document # 16 and
beginning with
the course of
considered by
related documents, the mere fact that Plaintiffs allege the
email from T.
an agency’s
the
FARs hampered Reclamation’s ability to manage
Washburn to
process for
decisionmaker
temperature in the Sacramento River watershed is
numerous
arriving at its or relied on for
insufficient to sweep all related documents into the AR in
recipients, and
decision;
the 2014/2015
this case. The motion is DENIED as to this document.
including
Other
FARs. This
attachments, re:
document
document
Additional data
directly or
concerns only
requested
indirectly
the upper
considered by Sacramento
the agency.
River.
March 20, 2015
Document
This document
This is another email pertaining to drought operations for
E-mail chain
generated in
was not
the CVP. The Court has reviewed this document in its
beginning with
the course of
considered by
entirety and agrees with Federal Defendants that nothing
email from S. Fry an agency’s
the
therein indicates it was considered directly or indirectly
to numerous
process for
decisionmaker
by the agency. The motion is DENIED as to this
recipients, and
arriving at its or relied on for
document.
including
decision;
the 2014/2015
attachment, re:
Other
FARs. The only
Final Draft ESA
document
mention of the
Project
directly or
Trinity River in
Description for
indirectly
this document is
Apr- Sept 2015
considered by a reference
drought
the agency.
regarding
operations
consultation
with the Tribes.
August 11, 2015
Document
This document
This document appears to already be in the record. See
E-mail chain
generated in
was not
AR 1095; see also Doc. 85 at 6:15-16. The motion is
beginning with
the course of
considered by
therefore moot as to this document.
email from P.
an agency’s
the
Zedonis to G. Yip process for
decisionmaker
and S. Naman,
arriving at its or relied on for
and including
decision;
the 2014/2015
attachments, re:
Other
FARs.
Fall Flow Action- document
2015 Draft Letters directly or
/Bio Review
indirectly
considered by
the agency.
Reclamation asserts this document is already in the record and Plaintiffs do not dispute this assertion in Reply
June 25, 2015 EDocument
This document
This document is an email related to a letter that is related
mail chain
generated in
was not
to Document # 37, which all concern temperature
beginning with
the course of
considered by
management in the upper Sacramento River.
email from R.
an agency’s
the
Milligan to M.
process for
decisionmaker
For the same reasons the motion for inclusion was denied
Rea, and
arriving at its or relied on for
as to Document # 37, it is DENIED as to document 76. .
Federal
Defendants’
Opposition to
Plaintiffs’ Motion
for Temporary
Restraining Order
and Preliminary
Injunction

75.
76.

18

1

including
attachments, re:
ETA on package
transmittal?

2
3
4
5

77.
78.
79.
80.

6
7
8
9
10
11
12
13
14
15
16
17

81.

decision;
the 2014/2015
Other
FARs.
document
directly or
indirectly
considered by
the agency.
Reclamation will add this document to the record.
Reclamation will add this document to the record.
Reclamation will add this document to the record.
Aug. 19, 2015 EDocument
This document
mail from P.
generated in
was not
Zedonis to NMFS the course of
considered by
staff, re: Water
an agency’s
the
Resources Fall
process for
decisionmaker
Flows 2015
arriving at its or relied on for
decision.
the 2014/2015
FARs. It
provides NMFS
information
about the
decision for use
in the future.
Sept. 4, 2015 EDocument
This document
mail chain
generated in
post-dates the
beginning with
the course of
final agency
email from P.
an agency’s
action and is
Zedonis to
process for
properly not
numerous
arriving at its part of the
recipients, re: Sept decision;
record.
4 update: Fish
Other
Abundance in the
document
lower Klamath
directly or
River
indirectly
considered by
the agency;
Document
postdating the
start of the
2015 FARs.

18
19
20
21
22
23
24
25
26
19

Federal Defendants maintain that this document does
nothing more than provide information to NMFS for
NMFS’s use in future analyses. Plaintiffs do not
specifically respond to this assertion in Reply. It is
Plaintiffs’ burden to “identify reasonable, nonspeculative grounds for its belief that the documents were
considered by the decision makers.” Pinnacle Armor, 923
F. Supp. 2d at 1239. Plaintiffs have failed to do so as to
this document. The motion to add this document to the
AR is therefore DENIED.

This document discusses Chinook migration patterns in
the lower Klamath River. Plaintiffs argue that the content
of these documents reveal that decision-making regarding
the 2015 FARs continued after the formal decision(s) to
make the 2015 FARs issued. The Court agrees. Unlike
with Document # 15, where the document itself did not
reveal that decision-making was contingent upon its
content, Document # 81 expressly states that additional
information (including, presumably, information
contained in Document # 81) would be considered in
“formulating the decision of when to implement the
preventative pulse.”
The 2015 EA explains the parameters for triggering a
preventative pulse flow:
 Due to the heightened alert for this year with the
recent and continued low level infections of Ich
observed, a 3- day pulse (including ramping up and
down) peaking at 5,000 cfs in the lower Klamath River
may be implemented when:
o
the peak of fall run migration (first or second
week of September) is identified in the lower
Klamath River as indicated by tribal harvest, and
o
low level infections of Ich (less than 30 Ich per
gill) is found on three fall-run adult salmon (of a
maximum sample size of 60) captured in the
lower Klamath River in one day during the first
or second week of September. Sampling and
confirmation would follow the methods as
described in NOAA and USFWS (2013). The
benefit of the pulse is to enhance
flushing/dilution of the river of parasites when
the bulk of fall run adults are likely to be the
lower river. This flow would also further
improve water quality and help facilitate
movements of adult salmon.

1

• If rainfall increases the flow in the lower Klamath
River to above 5,000 cfs this component would not be
implemented.
• If needed, this action may avert the need to apply the
emergency criteria.
• Implementation of a pulse flow will be within the
Proposed Action volume of 51 TAF.

2
3
4

AR 1196 (emphasis added to highlight that the peak of
fall run migration was a trigger for a 3-day pulse flow).

5
6
7
8
9
10
11
12
13

82.

14
15
16
17
18
19

Sept. 7, 2015 Email chain
beginning with
email from P.
Zedonis to
numerous
recipients, re: Sept
7 update: Fish
Abundance and
Preventative Pulse
Flow

Document
generated in
the course of
an agency’s
process for
arriving at its
decision;
Other
document
directly or
indirectly
considered by
the agency;
Document
postdating the
start of the
2015 FARs.

This document
post-dates the
final agency
action and is
properly not
part of the
record.

20
21
22

Document # 81 discusses the timing of the peak of fallrun migration in the lower Klamath and appears to
suggest that considerable discretion is involved in
determining when the “peak of fall run migration” trigger
was deemed to be present prior to implementation of the
September 2015 pulse flow. There appears to be no
dispute that Federal Defendants’ decision-makers were
involved in the back-and-forth communication
documented in these emails. This document is clearly
germane to the claims in this case, appears to have been
considered by decision-makers, and expressly reveals
what appears to be ongoing decision-making (as opposed
to rote application of purely objective factors) taking
place after the decision date. Because Federal Defendants
offer no basis for refusing to include this document in the
record other than that it “post-dates” the decision, the
motion is GRANTED as to this document.
Document # 82, an email chain dated September 7, 2015,
appears to be discussing details about and concerns with
implementation of the September 2015 pulse flow. In this
document, one concerned communicator discusses
discrepancies between planned and actual flow levels,
suggesting a “pattern of undermining the
recommendations of the best available science and short
changing the fish on the flows and water volumes.” The
Court is at a loss as to how this part of Document # 82
could possibly be relevant to the claims in this case. In
another portion of Document # 82, however, a
communicator discusses how recent fish catch increases
have triggered a process by which Reclamation
“conducted outreach to the key technical team staff to
help determine when to implement the preventative pulse
flow.” This further reveals that decision-making
continued after the relevant formal decision. Again, the
only argument Federal Defendants make against
inclusion of this document in the record is that it postdates the relevant formal decision. For the same reason
the motion was GRANTED as to Document # 81, the
motion is GRANTED as to Document # 82, although
Federal Defendants may choose to omit material that is
not relevant to the disputed decision(s).

23
24 B.

Plaintiffs’ Arguments Regarding Certification of the Record.

25

Plaintiffs argue that Federal Defendants’ certification of the administrative record “confirms the

26 inadequacy” of the AR. Doc. 82 at 16. A court may conclude that the presumption of completeness is
20

1

rebutted where an agency’s certification of the administrative record “on its face, appears to contain less

2

than all the documents and materials directly or indirectly considered by the agency in making its

3

decision.” Gill v. Dep't of Justice, No. 14-CV-03120-RS (KAW), 2015 WL 9258075, at *5 (N.D. Cal.

4

Dec. 18, 2015). In Gill, plaintiffs challenged a Department of Justice (“DOJ”) standard that defined

5

“suspicious activity” for purposes of triggering reporting such activity under a federally-funded anti-

6

terrorism information sharing initiative. Id. at *1-2. Plaintiffs argued that DOJ certified the record under

7

the wrong legal standard, certifying that the record included “information considered in the

8

development” of the suspicious activity definition, instead of certifying inclusion of “all documents and

9

materials directly or indirectly considered by the agency in making its decision.” Id. at *3. The district

10 court agreed, finding plaintiffs “sufficiently rebutted the presumption of completeness, and remanded
11 the record to the agency, requiring a new search for “all documents and materials directly or indirectly
12 considered.” Id. at *6.4
13

Plaintiffs argue that a similar finding is warranted here. The certification provided in this case

14 provides in relevant part:
15

To the best of my knowledge, the index filed with the Court in this matter
constitutes a true, correct, and complete index of the administrative record
in this action. To the best of my knowledge, this index identifies all
documents and materials directly or indirectly considered by the agency
decision-makers in relation to the development of the Finding of No
Significant Impact and Environmental Assessment, and in relation to the
action challenged in the Complaint filed in the above-captioned matter, for
2015 Lower Klamath River Late Summer Flow Augmentation from
Lewiston Dam that is mentioned in the Complaint in this matter.

16
17
18
19

20 Akroyd Decl., Ex. 1 (Doc. 76-1). Plaintiffs argue that this certification is insufficient because it makes
21 no mention of compliance with the ESA or MSA or of the 2014 FARs. While this is true, the legal
22 consequences of such a substantive omission are unclear. Gill does not control, as the record in this case
23 does not reveal application of the incorrect legal standard. Put another way, the issue in Gill was
24 whether the administrative agency applied the correct standard when searching its files for documents to
25
4

The other arguably analogous case cited by Plaintiffs, People of the State of Cal. ex rel. Lockyer v. U.S. Dept. of

26 Agriculture, No. C05-03508 EDL, 2006 WL 708914, at *3 (Mar. 16, 2006), follows a similar pattern.
21

1

include in the administrative record. The agency’s certification attested to a search only for “information

2

considered in the development” of the suspicious activity definition, instead of certifying inclusion of

3

“all documents and materials directly or indirectly considered by the agency in making its decision.”

4

Gill, 2015 WL 9258075, at *3. The district court in Gill took issue with the depth of the search

5

conducted, not the scope of the search vis-a-vis the decisions challenged.

6

Here, the certification does not raise issues of depth, as the certification in this case specifically

7

mentions the correct standard: inclusion of “all documents and materials directly or indirectly

8

considered by the agency decision-makers.” Rather, Plaintiffs’ concern is with the apparent scope of the

9

certification and whether it reveals a failure of the AR to cover all of the issues raised in the operative

10 complaint. Unlike issues of depth, which cannot easily be evaluated by way of a Court examination of
11 the AR itself for completeness, Plaintiffs’ concern over scope can be evaluated on the present record.
12 Critically, the AR produced plainly demonstrates that the agency collected documents pertaining to the
13 2014 FARs, as a separate section of the AR is dedicated wholly to that action. A further review of the
14 record reveals that ESA documents are also included in the AR. As discussed above, in connection with
15 the ruling on Document #7, no documents related to MSA consultation exist. The certification in this
16 case, while inartfully drafted, does not rebut the presumption of completeness.
17 C.

Plaintiffs’ Request for a Privilege Log.

18

Plaintiffs argue that Federal Defendants should be required to produce a privilege log identifying

19 documents withheld from the AR under claim of privilege. Doc. 82 at 17. While district courts in the
20 Northern District of California have required privilege logs in administrative record cases, see, e.g., Gill,
21 2015 WL 9258075, at *6-7, the only other district court in the Eastern District of California to address
22 the question declined to do so. See California v. U.S. Dep't of Labor, No. 2:13-CV-02069-KJM, 2014
23 WL 1665290, at *13 (E.D. Cal. Apr. 24, 2014), In that case, the district court relied on National
24 Association of Chain Drug Stores v. U.S. Dep't of Health & Human Services, in which a district court in
25 the District of Columbia reasoned:
26
22

1
2

Since deliberative documents are not part of the administrative record, an
agency that withholds these privileged documents is not required to
produce a privilege log to describe the documents that have been withheld.

3

***

4

Plaintiffs claim to seek a privilege log so that they can participate in the
process of determining what documents are and are not part of the
administrative record. However, the argument that a plaintiff and the
Court should be permitted to participate in an agency's record compilation
as a matter of course contravenes “the standard presumption that the
agency properly designated the Administrative Record.” To overcome the
assumption that the agency properly designated the record, a party must
make a “significant showing” that the agency has acted in bad faith.
Plaintiffs here have not alleged any bad faith on the part of defendants,
and absent such an allegation and showing, defendants' determination as to
which materials are and are not part of the administrative record is
conclusive.

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

631 F. Supp. 2d 23, 27-28 (D.D.C. 2009) (internal citations omitted). The Court finds this reasoning
persuasive. To require a privilege log as a matter of course in any administrative record case where a
privilege appears to have been invoked would undermine the presumption of correctness. This would
shift the record compilation process too closely toward mechanisms employed in cases subject to regular
civil discovery. The request to require the preparation of a privilege log is therefore DENIED.
D.

Plaintiffs’ “Relevant Factors” Argument.
In the alternative, Plaintiffs argue that the disputed documents should be considered because they

“demonstrate Reclamation ignored relevant factors to its decisions to make the FARs.” Doc. 87 at 8. A
reviewing court may consider information outside the record under “four narrowly construed
circumstances”:
(1) supplementation is necessary to determine if the agency has considered
all factors and explained its decision; (2) the agency relied on documents
not in the record; (3) supplementation is needed to explain technical terms
or complex subjects; or (4) plaintiffs have shown bad faith on the part of
the agency.
San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 602-03 (9th Cir. 2014). However, it is
inappropriate for the Court to address this argument, because this issue was raised for the first time in
Reply. Compare Doc. 82 with Doc. 87; Ass'n of Irritated Residents v. C & R Vanderham Dairy, 435 F.
23

1

Supp. 2d 1078, 1089 (E.D. Cal. 2006) (“It is inappropriate to consider arguments raised for the first time

2

in a reply brief.”).

3
4
5

IV. CONCLUSION AND ORDER
For the reasons set forth above, Plaintiffs’ motion is GRANTED as to Documents # 81 and 82
and DENIED in all other respects.

6
7
8
9

IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

June 23, 2016

UNITED STATES CHIEF DISTRICT JUDGE

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
24