Mickelsen Farms, LLC et al v. Animal and Plant Health Inspection Service (APHIS) et al

Filing 69

ORDER granting in part and denying in part 52 Plaintiffs' Motion to resolve administrative record disputes. The Federal Agency Defendants must either provide a privilege log to the Plaintiffs or lodge the 30 documents withheld as privileged with the Court for in camera review on or before June 2, 2017. Signed by Judge Candy W. Dale. (klw)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

MICKELSEN FARMS, LLC, et al.,
Case No. 1:15-cv-00143-EJL-CWD
Plaintiffs,
MEMORANDUM DECISION AND
ORDER

v.
ANIMAL AND PLANT HEALTH
INSPECTION SERVICE, et al.,
Defendants.

INTRODUCTION
Plaintiffs, who are potato farmers in Eastern Idaho, seek declaratory and injunctive
relief against the Federal Agency Defendants and individuals charged with administering
the Pale Cyst Nematodes’ quarantine program. Plaintiffs’ claims arise under the Plant
Protection Act; the Administrative Procedure Act; the National Environmental Policy
Act; the Federal Advisory Committee Act; the Declaratory Judgment Act; and the Tenth
Amendment to the United States Constitution.
The Federal Agency Defendants were required to compile the administrative
record, and the parties were ordered to meet and confer about any disputes that arose
once the record was filed. (Dkt. 43.) If disputes remained, the Court contemplated
MEMORANDUM DECISION AND ORDER - 1

addressing them upon timely motion. Before the Court is Plaintiffs’ motion to resolve the
administrative record disputes. (Dkt. 52.) The Plaintiffs’ motion seeks the following:
(1) Supplementation of the Administrative Record (AR) with nine documents that
APHIS omitted from the AR and that Plaintiffs claim are necessary to provide the Court
with a complete record on which to consider the validity of the Farmers’ complaint and
APHIS’s defenses;
(2) A Court order addressing APHIS’s refusal to submit to the Farmers a privilege
log justifying APHIS’s claim of deliberative process privilege claimed to approximately
thirty documents and any other privileges APHIS may be asserting over other documents
it has withheld; and
(3) Supplementation of the AR with ten documents that support the Farmers’
Tenth Amendment claim.
The Court conducted a hearing on April 24, 2017, at which the parties appeared
and presented oral argument. Thereafter, the Court took the matter under advisement.
Based upon the parties’ arguments and relevant authority, the Court will grant Plaintiffs’
motion in part, and deny it in part, as explained below.
ANALYSIS
1.

Supplementation of the Administrative Record
When reviewing agency decisions, the Court is limited to reviewing the closed

administrative record, with few exceptions. Ctr. for Biological Diversity v. U.S. Fish &
Wildlife Serv., 450 F.3d 930, 943 (9th Cir. 2006). Parties may not use “post-decision
information as a new rationalization either for sustaining or attacking the Agency's
MEMORANDUM DECISION AND ORDER - 2

decision.” Ass'n of Pac. Fisheries v. EPA, 615 F.2d 794, 811–12 (9th Cir. 1980). The four
instances where extra-record materials will be considered include:
(1) if necessary to determine whether the agency has considered all
relevant factors and has explained its decision,
(2) when the agency has relied on documents not in the record, or
(3) when supplementing the record is necessary to explain technical
terms or complex subject matter, [or] ...
(4) when plaintiffs make a showing of agency bad faith.
Ctr. for Biological Diversity v. United States Forest Serv., 100 F.3d 1443, 1450 (9th Cir.
1996) (internal citations omitted). Plaintiffs bear the burden of establishing that the extra
record evidence falls within at least one of the four exceptions. City of Las Vegas, Nev. v.
F.A.A., 570 F.3d 1109, 1116 (9th Cir. 2009).
The reviewing court can go outside the administrative record but should consider
such evidence relevant to the substantive merits of the agency decision only for the
limited purpose of background information or to determine whether the agency
considered all pertinent factors. Thompson v. U.S. Dept. of Labor, 885 F.2d 551, 555 (9th
Cir. 1989). The whole administrative record “is not necessarily those documents that the
agency has compiled and submitted as ‘the’ administrative record.” Thompson, 885 F.2d
at 555 (quoting Exxon Corp. v. Dept. of Energy, 91 F.R.D. 26, 32 (N.D. Tex.1981)
(emphasis in original)). “The ‘whole’ administrative record, therefore, consists of all
documents and materials directly or indirectly considered by agency decision-makers and
includes evidence contrary to the agency’s position.” Thompson, 885 F.2d at 555
(quoting Id. at 33 (emphasis added)).

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The Farmers raise the issue of impropriety on the grounds APHIS made multiple
modifications to the AR. However, those changes came at the Farmers’ request. The
Court declines to find any impropriety in the compilation of the AR based upon the
parties’ cooperative review of the administrative record.
APHIS argues the nine documents the Farmers seek to include in the AR were not
considered by it when it determined to monitor the Farmers’ deregulated fields. 1
However, the Court disagrees that certain records should not be included in the AR for
the reason APHIS asserts. The complaint generally discusses the rulemaking process and
the regulations governing the PCN eradication efforts related to the Farmers’ fields.
Those regulations, and the PCN program in Idaho, provide the backdrop against which
the Farmers assert their claims in this action.
Exhibits B1 and B2 are general reports describing the PCN program, activities
conducted pursuant to the program, and other information pertinent to APHIS’s
regulatory activities in Idaho. Further, Exhibit B1 was authored by defendant Brian
Marschman, while Exhibit B2 likely would have been reviewed by defendant Tina
Gresham, the director of the PCN eradication program in Idaho Falls, Idaho. The Farmers
have put forth a plausible argument that these two documents were generated during the
process for arriving at APHIS’s regulatory decisions related to the Farmers’ fields.
Exhibits B3 and B4 are directly related to specific acreage in eastern Idaho placed
under quarantine in February of 2012, and January of 2013, pursuant to the regulations at
1

APHIS agreed to add Exhibit B9, an email exchange among APHIS personnel, discussing the
deregulation of associated fields no longer in potato production.

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issue in this case. The Farmers argue these notices would have been considered during
the decision making process for determining the regulations imposed upon the Farmers.
Again, the Farmers have put forth a satisfactory explanation of why this document would
have been considered during APHIS’s process for arriving at its decision to regulate the
Farmers’ fields.
Exhibit B5 is an e-mail string among APHIS and State agency personnel, and
defendant Tina Gresham, the Director of the PCN program in Idaho, is an author. In the
email, Ms. Gresham describes the process for deregulation, and discusses certain survey
results from the spring of 2012. Considering this email was authored and received by
PCN program participants, and describes the deregulation process, the Farmers have
offered a satisfactory explanation demonstrating that the email, and the information
contained within it, would have been considered by APHIS during its decision making
process in this matter.
Exhibit B7 is a PCN program information update dated November 9, 2010,
discussing the activities of the PCN eradication program and the sampling that occurred.
Exhibit B8 provides public information regarding the PCN program in Idaho. Both
documents provide general information pertinent to APHIS’s regulatory activities in
Idaho, and both were originally part of the AR prior to their removal by APHIS. The
Farmers therefore have offered sufficient ground for their belief that the document was
considered by the decision makers.
Exhibit B6, in contrast, was created on February 13, 2015, after the activities
complained of in the complaint and pursuant to a FOIA request. The complaint seeks
MEMORANDUM DECISION AND ORDER - 5

relief related to APHIS’ activities between 2011 and 2014, while the letter discusses
activities outside that time frame, such as sampling rates currently used, or discusses
program activities and costs in general terms. Because of the nature of the document, the
Farmers cannot establish that the February 13, 2015 letter was “considered by the
decision makers” at the time APHIS was conducting its regulatory activities in relation to
the Farmers’ fields. The motion will be denied as to Exhibit B6.
And Exhibit B10, consisting of invoices of ten vendors which the Farmers insist
were delivered to APHIS, was not considered by APHIS because APHIS asserts it does
not possess these records with the Exhibit. APHIS could not have considered records it
contends it does not possess, even if the Farmers are correct in their assertion that the
records were delivered to APHIS. The motion will be denied as to Exhibit B10.
Accordingly, Exhibits B1 – B5 and B8 constitute materials considered by APHIS,
either directly or indirectly, because they include information regarding the PCN
eradication program. Consequently, they are properly part of the administrative record,
and the Court may consider them in determining whether the Agency’s action was
arbitrary and capricious or unsupported by substantial evidence.
2.

Privilege Log
The Farmers argue that the Federal Agency Defendants are withholding thirty

documents 2 on the basis of the deliberative process privilege, and have done so without
producing a privilege log. The Federal Agency Defendants argue they are not required to
2

The parties explained there was an email exchange disclosing to the Farmers that APHIS was
withholding thirty documents.

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compile a privilege log, and that privileged materials are not part of the administrative
record in APA cases in any event. They rely upon an unpublished Ninth Circuit Court of
Appeals opinion, Cook Inletkeeper v. U.S. Env. Protection Agency, 400 Fed. Appx. 239
(9th Cir. 2010), as support for their contention that the Ninth Circuit has addressed the
question whether there is a legal obligation to compile and produce a privilege log in
APA cases, and has found in the negative.
The court in Cook Inletkeeper denied the plaintiff’s motion to supplement, along
with an accompanying motion to compel a privilege log, without any comment regarding
the issue before this Court. 400 Fed. Appx. 240. 3 The Court therefore does not find Cook
Inletkeeper persuasive, or representative of the Federal Agency Defendants’ position
here.
There are two diverging views among district courts that have considered whether
agency defendants have a legal obligation to produce a privilege log in an administrative
record case. In Gill v. Dept. of Justice, 2015 WL 9258075 at *7 (N.D. Cal. Dec. 18,
2015), the district court commented there is no binding Ninth Circuit authority standing
for the proposition that, in an APA action, an agency may withhold documents on the
basis of privilege without providing a privilege log. The court held the defendants must
make a specific showing establishing the application of a privilege for each document it
contends it may withhold based on privilege. Id. (citing Ctr. Of Biological Diversity v.

3

In Cook, the court first considered the plaintiff’s motion to supplement the administrative
record. The court found the plaintiffs had not presented clear evidence that the defendants considered the
documents at issue. Id. Without any additional comment, the court simply denied the motion to
supplement “along with the accompanying motion to require preparation of a privilege log.” Id.

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U.S. Bureau of Land Mgt., 2007 WL 3049869, at *6 (N.D. Cal. Oct. 18, 2007) (finding in
camera review of purportedly privileged documents appropriate despite declaration
formally asserting the deliberative process privilege and explaining the bases for those
assertions)). The Court notes, however, that in Gill, the court found the plaintiffs rebutted
the presumption of completeness with regard to their motion to supplement the
administrative record.
On the other side of the coin is San Luis & Delta-Mendota Water Authority v.
Jewell, 2016 WL 3543203, at *19 (E.D. Cal. June 23, 2016). While acknowledging Gill,
the court relied upon other district court opinions that reasoned, because deliberative
process documents are not part of the administrative record, the agency withholding the
privileged documents is not required to produce a privilege log. Id. The court explained
requiring a privilege log as a matter of course would contravene the standard presumption
that the agency properly designated the administrative record. Id. Absent a “significant
showing that the agency has acted in bad faith,” the court declined to require production
of a privilege log. Id.
In support of their argument, the Farmers cited to recent federal cases involving
other agencies within the Department of Agriculture where the agency defendant
produced a privilege log in conjunction with the administrative record. See, e.g., Western
Watersheds Project v. Cardinale, Case No. 1:16-cv-00083-BLW. 4 Such actions are

4

At the hearing, the Farmers provided the Court with a one-inch thick stack of paper comprising
a 308-page privilege log acquired in connection with the Greater Sage-Grouse Litigation. The Court has
lodged the document as an Exhibit in this case with the Clerk of the Court.

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seemingly inconsistent with the Federal Agency Defendants’ position here, wherein they
argue that it may, if it wishes to do so, voluntarily produce a privilege log, but that it may
not be compelled to do so by the Court. They cite to several court decisions within the
D.C. Circuit to support their argument.
There is no clear authority within the Ninth Circuit for guidance. However, the
Court finds that production of privilege logs by agency defendants in other administrative
record cases undercuts the Federal Agency Defendants’ position here. While the Court
acknowledges the distinction between a voluntary act and one that is compelled, the
Court is also mindful of its role, as well as the parties’ obligation, to ensure documents
are legitimately withheld from the administrative record on the basis of the deliberative
process privilege.
The Court will therefore require production either of a privilege log, or submission
of the thirty documents to the Court for in camera review.
3.

Tenth Amendment Claim Documents
The Farmers contend APHIS’s Final Rule, which requires the designation of the

entire State of Idaho as quarantined unless Idaho adopts and enforces APHIS’s
regulations on the intrastate movements of the regulated articles, violates the Tenth
Amendment because it coerces the State of Idaho to adopt and enforce APHIS’s
regulatory program. Under the Tenth Amendment, “the Federal Government may not
compel States to implement, by legislation or executive action, federal regulatory
programs.” Envtl. Def. Ctr., Inc. v. E.P.A., 344 F.3d 832, 847 (9th Cir. 2003) (quoting
Printz v. United States, 521 U.S. 898, 925 (1997)). Similarly, the federal government may
MEMORANDUM DECISION AND ORDER - 9

not force the States to regulate third parties in furtherance of a federal program. Id.
The Farmers seek to add ten documents that allegedly constitute evidence of
APHIS’s coercion of the State of Idaho, which they assert are relevant to their claim of
coercion. The Federal Agency Defendants oppose introduction of the documents as part
of the record before the Court, on the grounds that the Farmers’ Tenth Amendment claim
presents a legal argument, for which no evidentiary record is necessary. Both parties wish
for the Court to determine the issue now, instead of considering motions to strike filed
with the parties’ respective summary judgment motions.
The Court finds these ten documents are not properly included in the
administrative record, but constitute independent evidence the Court may consider at an
appropriate stage in this litigation. See, e.g., City of Tombstone v. United States, 2015 WL
11120851 (D. Ariz. Mar. 12, 2015) (finding Tombstone pointed to no evidence it was
coerced to enforce or enact federal legislation, suggesting the court can consider other
evidentiary materials). Further, several documents are public records. See, e.g., Ex. E5
(Notice of Rulemaking IDAPA 02). Although declining to require the proposed
documents be included in the AR, the Court does not foreclose their later consideration.
Accordingly, the parties may not file motions to strike any of these ten documents
in connection with their summary judgment motion. They may, however, advance
arguments within their respective briefs whether the documents are relevant to their
claims or defenses. Judge Lodge may then exercise his discretion to consider the
documents in connection with the Farmers’ Tenth Amendment claim.

MEMORANDUM DECISION AND ORDER - 10

ORDER
NOW THEREFORE IT IS HEREBY ORDERED:
1)

Plaintiffs’ Motion to Resolve Administrative Record Disputes (Dkt. 52) is
GRANTED IN PART AND DENIED IN PART.

2)

The Federal Agency Defendants must either provide a privilege log to the
Plaintiffs or lodge the 30 documents withheld as privileged with the Court
for in camera review on or before June 2, 2017.

DATED: May 17, 2017

_________________________
Honorable Candy W. Dale
United States Magistrate Judge

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