Pacificans for a Scenic Coast et al v. Federal Highway Administration et al
ORDER granting in part and denying in part 86 87 motion to supplement the administrative record. (vclc3S, COURT STAFF) (Filed on 4/25/2016)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
PACIFICANS FOR A SCENIC COAST, et
CALIFORNIA DEPARTMENT OF
TRANSPORTATION, et al.,
Case No. 15-cv-02090-VC
ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO
SUPPLEMENT THE RECORD
Re: Dkt. Nos. 86, 87
Claims 1, 2, and 3
These are Endangered Species Act claims against Caltrans. Endangered Species Act
claims are not subject to the Administrative Procedure Act's limitations on the scope of the
record, because those claims "arise under the ESA citizen suit provision, and not the APA."
Washington Toxics Coal. v. Envtl. Prot. Agency, 413 F.3d 1024, 1034 (9th Cir. 2005). Thus, the
Court "may consider evidence outside the administrative record for the limited purposes of
reviewing Plaintiffs' ESA claim[s]." W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 497
(9th Cir. 2011). Both Washington Toxics and Kraayenbrink seem to remain good law on this
point. See Ellis v. Housenger, No. 13-cv-1266-MMC, 2015 WL 3660079, at *3-4 (N.D. Cal.
June 12, 2015); Nw. Coal. for Alternatives to Pesticides v. Envtl. Prot. Agency, 920 F. Supp. 2d
1168, 1173-74 (W.D. Wash. 2013).
Accordingly, the record for Claims 1-3 will include Exhibits 1-16. On their face, these
exhibits seem at least somewhat relevant to the plaintiffs' Endangered Species Act claims, and
Caltrans has not lodged any other evidentiary objection to them.
This is an APA claim against Caltrans, based on an alleged violation of NEPA. As the
plaintiffs agreed at the hearing, it's a challenge to final agency action under 5 U.S.C. § 706(2).
Thus, the Court "must limit its review to the administrative record," unless the plaintiffs bear
their burden to establish that an exception to this rule applies. San Luis & Delta-Mendota Water
Auth. v. Locke, 776 F.3d 971, 992 (9th Cir. 2014). Such exceptions "are to be narrowly
construed." Id. at 992-93.
The only exception relevant here concerns whether the extra-record evidence is
"necessary to determine whether the agency has considered all relevant factors and has explained
its decision." Id. at 992. "Reviewing courts may admit evidence under this exception only to
help the court understand whether the agency complied with the APA's requirement that the
agency's decision be neither arbitrary nor capricious"; they "may not look to this evidence as a
basis for questioning the agency's scientific analyses or conclusions." Id. at 993.
With this in mind, the Court considers the plaintiffs' supplemental evidence:
Exhibits 1-2: This is correspondence from 1989 and 1990 about the presence of San
Francisco garter snakes in or near the project area. The plaintiffs seek to include it on the ground
that it "is relevant to whether the agencies considered all relevant evidence in determining the
environmental baseline." But they don't identify any "factors" or issues (as opposed to specific
evidence) that Caltrans didn't consider. Exhibits 1 and 2 might (or might not) be better evidence
of the extent to which listed species have relied on habitat in or near the project area, but
Caltrans clearly considered that issue in considerable detail. These exhibits might be helpful as
additional background, but they aren't "necessary to determine whether the agency has
considered all relevant factors and has explained its decision." Locke, 776 F.3d at 992; cf. Sw.
Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1451 (9th Cir. 1996). Thus,
Exhibits 1 and 2 will not be part of the record with respect to Claim 4.
Exhibits 3-12 and 16: Exhibit 3 is a 1995 California Coastal Commission document
ordering the restoration of ponds (which, it notes, were important habitat for the San Francisco
garter snake and red-legged frog) on property adjacent to the project area. The same document
notes that "[t]he City of Pacifica is currently negotiating with the [owners] over the purchase of a
portion of the subject property as a possible site for a wastewater treatment project." Exhibits 4
through 7 concern the City of Pacifica's application for a California Coastal Commission to build
that wastewater treatment facility; as part of that process, the City pledged to restore a creek and
wetlands and preserve land associated with those wetlands. Exhibits 8 through 12 are more
recent documents concerning this property and the City's obligations towards it. Exhibit 16 is
FWS's 1996 biological opinion concerning the same wastewater treatment plant project.
The plaintiffs offer these documents to show that one of the proposed mitigation
measures was illusory, in that the project proposed preserving land that the City already had an
obligation to preserve. To mitigate the project's destruction of habitat for the red-legged frog and
San Francisco garter snake, Caltrans' August 2011 Draft Environmental Impact
Report/Environmental Assessment for the project proposed "to preserve a 5.1 acre parcel owned
by the City of Pacifica that is west of the Pacifica waste water treatment plant." AR 184. But this is
the same parcel that, according to Exhibits 3-12 and 16, the City already had some obligation to
This raises questions about whether Caltrans "considered all relevant factors" about the
project's proposed mitigation plan. Locke, 776 F.3d at 992. If the project's mitigation plan relied
on the assumption that the City's parcel was not already set aside for preservation, the plan may
have been built on a false premise. And Exhibits 3-12 and 16 seem to be the only evidence
before the Court addressing whether and how the parcel in question was, in fact, already set aside
for preservation – which means those exhibits are "necessary" to determine whether Caltrans
considered this potential problem. See id.
To be sure, Caltrans may have properly considered this problem in the end. Caltrans
cites correspondence in its record acknowledging "that preservation of Pacifica’s 5.14 acre
parcel, as previously proposed, is not an option," and recommending "enhancement" of that
parcel instead. Caltrans AR 9133. Indeed, Caltrans' Final Environmental Impact
Report/Environmental Assessment, dated August 2013, proposes "enhance[ing]" the City's
parcel where the August 2011 draft recommended "preserv[ing]" it. Caltrans AR 488. But even
if this issue is ultimately resolved in Caltrans' favor on the merits, Exhibits 3-12 and 16 are still
"necessary to determine whether the agency has considered all relevant factors and has explained
its decision." Locke, 776 F.3d at 992. Without Exhibits 3-12 and 16, the Court could not assess
the City's preexisting obligations toward that parcel, and therefore could not assess whether the
project's proposed mitigation measures duplicated those obligations.
Accordingly, with respect to Claim 4, Exhibits 3-12 and 16 will be part of the record.
Exhibit 13: The plaintiffs offer these e-mails (apparently sent between the National Park
Service, the Parks Conservancy, and members of the public – not Caltrans or FWS) to "to
determine whether the agencies used the best scientific information available in their ESA
consultation." But, as this phrasing suggests, the plaintiffs are really offering this evidence to
challenge the agencies' judgment on issues they considered – not to challenge whether they
actually considered those issues at all. These e-mails allegedly show that the agencies relied on
"incorrect information" about a range of conservation issues, but whether the agencies'
assessment of the evidence was "incorrect" isn't the point: courts "may not look to [extra-record]
evidence as a basis for questioning the agency's scientific analyses or conclusions." Locke, 776
F.3d at 993. For this reason, Exhibit 13 will not be part of the record for Claim 4.
Exhibit 14: This is a 2000 NEPA Environmental Assessment conducted by the City of
Pacifica about widening essentially the same stretch of Highway 1. The plaintiffs argue that this
document "reaches conclusions" that contradict Caltrans' Environmental Impact
Report/Environmental Assessment. As with Exhibit 13, the plaintiffs seem to be offering this
evidence not to show that Caltrans failed to consider the relevant issues, but rather to show that
Caltrans reached the wrong conclusions after considering those issues. Thus, Exhibit 14 will not
be part of the record for Claim 4.
Exhibit 15: As relevant to their APA claim based on NEPA, the plaintiffs offer this
Caltrans Wildlife Crossings Guidance Manual to show that the project will impose "barriers to
migration of Listed Species" and that it "fail[s] to mitigate road crossing impacts." Caltrans
counters that the existing record shows that it considered this issue, and indeed the document
Caltrans cites says that "[c]onsideration was given to installation of wildlife crossings under the
roadway but, due to the steep topography of the site, it was determined that no practical crossing
point existed to connect areas of natural habitat." Caltrans AR 985.
But the fact that Caltrans considered this general issue isn't the end of the matter. The
Court can supplement the record not merely to determine whether an agency has considered an
issue at all, but "to determine whether the agency has considered all relevant factors." Locke,
776 F.3d at 992. The document Caltrans cites doesn't explain what factors the agency should
have considered in concluding that wildlife crossings were impractical. The Wildlife Crossings
Guidance Manual, by contrast, discusses factors that (according to Caltrans itself) Caltrans
decisionmakers should consider in deciding whether and how to create wildlife crossings.
Without considering the Manual, it's not clear how the Court could evaluate Caltrans' conclusion
that wildlife crossings were impractical. Thus, Exhibit 15 will be part of the record for Claim 4.
This claim advances two different theories under the APA against the Fish and Wildlife
Service. In part, the claim alleges that FWS failed to reinitiate consultation under the
Endangered Species Act after the project changed in ways that triggered a new duty to consult.
In this respect, the claim is an effort to "compel agency action unlawfully withheld or
unreasonably delayed." 5 U.S.C. § 706(1). "[W]hen a court considers a claim that an agency has
failed to act in violation of a legal obligation, review is not limited to the record as it existed at
any single point in time, because there is no final agency action to demarcate the limits of the
record." San Francisco BayKeeper v. Whitman, 297 F.3d 877, 886 (9th Cir. 2002).1
FWS notes that BayKeeper and an earlier case on which it relied, Friends of the
Clearwater v. Dombeck, 222 F.3d 552, 560-61 (9th Cir. 2000), concerned situations in which the
agency itself sought to supplement the record. FWS argues that the rule applied in BayKeeper
should be limited to that situation.
This argument has a certain appeal. In section 706(2) challenges, "the agency must
justify its final action by reference to the reasons it considered at the time it acted." Friends of
Accordingly, Exhibits 1-13 and 17-20 will be part of the record for this claim. They
seem at least somewhat relevant to the question whether FWS was required to reinitiate
consultation under the Endangered Species Act (even if, as FWS contends, the answer to that
question on the merits will ultimately be "no"), and FWS has made no other evidentiary
objection to them.
The other half of Claim 5 is an APA challenge to final agency action under section
706(2). The record on this claim is thus limited under the same rules discussed above in the
context of Claim 4. Specifically:
Exhibits 1 and 2: The plaintiffs offer these exhibits against FWS for the same reasons
that they offer them against Caltrans. Thus, these exhibits will not be part of the record for the
plaintiffs' section 706(2) claim against FWS, for the reasons already discussed under Claim 4.
Exhibits 3-12: Like Caltrans, FWS appears (during at least some stages of the project) to
have assumed that "preserv[ing]" the 5.1-acre parcel owned by the City of Pacifica could be an
effective mitigation measure. See, e.g., FWS AR 405. But, as discussed above under Claim 4,
Exhibits 3-12 cast doubt on that assumption. FWS concedes that it "did not consider these
documents directly or indirectly in the course of its decisionmaking process." And though FWS
argues that it "was aware of the City's mitigation obligations near the Project area," the
documents it cites seem to show only that it was aware that the City owned the parcel in
question, that it was aware of the physical condition of the parcel, and that it was aware that the
City had previously engaged in restoration efforts on the parcel – not that FWS was also aware
the Clearwater, 222 F.3d at 560. In section 706(1) challenges, the absence of agency action
means an agency can't be limited to the reasons it considered "at the time it acted," but it might
still be appropriate to limit review to reasons that the agency actually "considered."
On the other hand, BayKeeper's rationale does not seem to depend on the identity of the
party seeking to supplement the record. As long as the administrative record is still open, it's
unclear why the plaintiffs can't also supplement the record with new evidence relevant to
whether agency inaction is arbitrary.
In any event, BayKeeper did not limit its statement of the rule to situations in which the
agency itself seeks to supplement the record. It's not impossible that the Ninth Circuit will
narrow the rule it articulated in BayKeeper. Until it does so, however, this Court will follow that
rule in the broad way that BayKeeper articulated it.
of an ongoing, preexisting obligation to preserve the parcel. Thus, for the same reasons
previously discussed with respect to Caltrans under Claim 4, the Court will consider Exhibits 312 in connection with the plaintiffs' section 706(2) claim against FWS.
Exhibit 13: The Court will not consider Exhibit 13 in connection with the plaintiffs'
section 706(2) claim against FWS, for the same reasons previously discussed with respect to
Caltrans under Claim 4.
Exhibit 17: This is a 2009 Natural Environment Study and its 2010 addendum. The
plaintiffs seek to add them to the record on the ground that they "contain more detail" about the
project than FWS's administrative record, and that they show "that the Project would
permanently destroy more acres of Listed Species habitat" than reflected in the existing record.
But those aren't sufficient reasons to supplement the record. At most, this evidence might be
used to show that FWS's conclusions on these issues were wrong – not that the FWS's failed to
consider these issues, or that its decisionmaking process with respect to these issues was
otherwise arbitrary and capricious. Thus, Exhibit 17 will not be part of the record with respect to
the plaintiffs' section 706(2) claim.
Exhibits 18-19: Each of these two exhibits is a collection of e-mails about the project.
None of the e-mails were sent to FWS, but the plaintiffs want to add the e-mails to FWS's record
on the ground that they discuss "important information about Caltrans' proposed conservation
measures " that Caltrans failed to disclose to FWS, and that FWS thus failed to consider.
The plaintiffs' arguments for including these exhibits are very vague, and for that reason
alone the plaintiffs probably haven't met their burden. Additionally, based on the Court's own
review, there doesn't seem to be any indication that these e-mails raise serious potential obstacles
to the project's proposed conservation measures that FWS failed to consider. Some of the
potential obstacles that the plaintiffs identify – submitting proposed mitigation efforts to an FWS
biologist for approval and getting confirmation from FWS that the proposed mitigation measures
are acceptable – were under the control of FWS itself, so it doesn't make sense to assert that
FWS didn't consider them. And though the e-mails do also discuss whether to ask the City of
Pacifica to re-confirm that it would be willing to donate its 5.1-acre parcel for mitigation, there's
no indication that this issue raised a significant obstacle to the project's proposed mitigation
measures. On the contrary, the e-mails show that the City had already expressed its willingness
to donate the parcel in the past, and there's no evidence that the City's position had changed.
For these reasons, Exhibits 18-19 will not be part of the record with respect to the
plaintiffs' section 706(2) claim.
Exhibit 20: Because the plaintiffs offer this exhibit only "to prove FWS failure to
reinitiate consultation" in connection with their section 706(1) claim, and the Court has already
ruled that the plaintiffs' section 706(1) claim is not limited to the existing administrative record,
there appears to be no need to rule separately on this exhibit. If the Court is mistaken, the parties
may file an administrative motion requesting a ruling on this exhibit.
This is an Administrative Procedure Act claim against Caltrans, based on an alleged
violation of the Federal Transportation Act. The Federal Transportation Act forbids the "use" of
publicly owned parkland unless "(1) there is no prudent and feasible alternative to using that
land; and, and (2) the program or project includes all possible planning to minimize harm to" the
parkland. 49 U.S.C. § 303(c). The plaintiffs allege that the project will "use" public parkland by
further dividing two National Park Service sites (Mori Point and Sweeney Ridge) on either side
of Highway 1, and that the project does not comply with this provision in the Federal
Transportation Act. As the plaintiffs agreed at the hearing, this claim is a challenge to final
agency action under 5 U.S.C. § 706(2).
Exhibits 1-12 and 16 don't seem relevant to this claim. The e-mails in Exhibit 13 are
relevant to the claim, in that they discuss the project's impact on connectivity between Mori
Point and Sweeney Ridge, but the plaintiffs haven't shown that those e-mails are "necessary to
determine whether the agency has considered all relevant factors and has explained its decision."
Locke, 776 F.3d at 992. On the contrary, Caltrans' record already contains the National Park
Service's own commentary on the project, which addresses this same issue. See Caltrans AR
1611-15. And though some of the discussion in the 2000 NEPA Environmental Assessment in
Exhibit 14 seems relevant to the ways in which widening Highway 1 would affect connectivity
between Mori Point and Sweeney Ridge, the plaintiffs haven't explained how that exhibit is
"necessary" to determine whether Caltrans has overlooked a significant issue, either.
That leaves Exhibit 15, the Caltrans Wildlife Crossings Guidance Manual. The argument
for considering Exhibit 15 with respect to Claim 7 seems to be basically the same as the
argument for considering that exhibit with respect to Claim 4: the project will impose "barriers to
migration of Listed Species" and "fail[s] to mitigate road crossing impacts." In this way, the
plaintiffs' theory seems to go, the project will not only might adversely affect listed species
(which implicates NEPA) but also might constructively "use" National Park Service land by
dividing Mori Point and Sweeney Ridge (which implicates the Federal Transportation Act).
Thus, though Claim 4 and Claim 7 implicate different statutes, Exhibit 15 will be part of the
record for Claim 7 for the same reasons that it will be part of the record for Claim 4.
IT IS SO ORDERED.
Dated: April 25, 2016
United States District Judge
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