Western Watersheds Project et al v. Bureau of Land Management

Filing 101

ORDERED that Plaintiffs' # 95 Motion to Supplement the Administrative Record is GRANTED in part and DENIED in part. ( See pdf order for specifics.) Signed by Judge Howard D. McKibben on 1/4/2012. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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WESTERN WATERSHEDS PROJECT and
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CENTER FOR BIOLOGICAL DIVERSITY, )
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Plaintiffs,
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vs.
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BUREAU OF LAND MANAGEMENT,
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Defendant, and
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SPRING VALLEY WIND LLC,
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Defendant-Intervenor. )
_________________________________ )

3:11-cv-00053-HDM-VPC

ORDER

This action is an appeal from the Bureau of Land Management’s

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administrative decision approving construction of a wind energy

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facility in Spring Valley, Nevada.

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lodged the Administrative Record, which includes 1,139 non-

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privileged documents. (Docket No. 92)

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plaintiffs Western Watersheds Project and Center for Biological

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Diversity moved to supplement the administrative record with the

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Power Purchase Agreement (PPA), Texas Wind Data, and two

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declarations (Docket Nos. 30, 58) by Dr. Tuttle. (Docket No. 95)
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On July 26, 2011, defendant BLM

On September 30, 2011,

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On October 4, 2011, the BLM filed a Notice of Lodging of the

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Amended Administrative Record. (Docket No. 96)

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Administrative Record includes 1,227 non-privileged documents, but

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not those plaintiffs seek to have the court review.

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intervening defendant Spring Valley Wind (SVW) opposed plaintiffs’

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motion to supplement the record on October 17, 2011. (Docket Nos.

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99, 97 respectively).

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(Docket No. 100)

The Amended

The BLM and

Plaintiffs replied on October 27, 2011.

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I.

Legal Standard
The general rule is that courts reviewing an agency decision

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are limited to the administrative record. Fla. Power & Light Co. v.

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

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record in existence at the time of the [agency] decision and [not

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some new] record that is made initially in the reviewing court.”

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Lands Council v. Powell, 395 F.3d 1019, 1030 (9th Cir. 2005)

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(quoting Southwest Ctr. for Biological Diversity v. United States

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Forest Serv., 100 F.3d 1443, 1450 (9th Cir. 1996).).

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administrative record “consists of all documents and materials

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directly or indirectly considered by agency decisionmakers and

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includes evidence contrary to the agency’s position.” Exxon Corp.

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v. Dep’t of Energy, 91 F.R.D. 26, 33 (N.D. Tex. 1981); Nat’l

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Wildlife Fed’n v. Burford, 677 F. Supp. 1445, 1457 (D. Mont. 1985);

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Thompson v. U.S. Dep’t of Labor, 885 F.2d 551, 555 (9th Cir. 1989).

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That is “the administrative

The

Documents and materials indirectly considered by agency

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decision-makers are those that may not have literally passed before

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the eyes of the decision-makers, but were “so heavily relied on in

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the recommendation that the decision maker constructively
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considered” them. Ctr. for Native Ecosystems v. Salazar, 711 F.

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Supp. 2d 1267, 1275-76 (D. Co. 2010).

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agency decision maker based his decision on the work and

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recommendations of subordinates, those materials should be included

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in the record.”

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subordinate’s recommendation is shown by clear evidence to have

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been heavily relied upon in the agency’s final decision, then the

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study should be included in the administrative record even if the

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final decision-makers did not actually read the study.

Id.

For example, “[i]f the

In addition, if a certain study cited in a

Id.

The

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touchstone is the decision-makers’ actual consideration.

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1276.

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will not suffice because that “argument stretches the chain of

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indirect causation to its breaking point” and it fails to give

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appropriate deference to the agency’s designation of the record.

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Id. at 1277;

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Supp. 2d 1243, 1255 (D. Co. 2010); Wildearth Guardians v. Salazar,

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2009 WL 4270039, *4 (D. Ariz. Nov. 25, 2009).

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Id. at

However, merely arguing “consideration through citation”1

Wildearth Guardians v. U.S. Forest Service, 713 F.

There are four exceptions to this general rule excluding

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extra-record evidence. Extra-record evidence may be admitted if:

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(1) admission is necessary to determine “whether the agency has

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considered all relevant factors and has explained its decision,”

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(2) “the agency has relied on documents not in the record,” (3)

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“supplementing the record is necessary to explain technical terms

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“Consideration through citation” is when a document considered

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by the agency decision-makers contains references to other documents

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and it is argued that the cited documents should be included in the

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record because they were “indirectly” considered by the agency.
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or complex subject matter,” or (4) “plaintiffs make a showing of

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agency bad faith.” Lands Council, 395 F.3d at 1030 (quoting

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Southwest Ctr., 100 F.3d at 1450 (internal citation and quotation

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marks omitted).).

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These exceptions should be narrowly construed and applied

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because there is a strong “presumption of regularity” toward the

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agency designated record.

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2d at 1274; Camp v. Pitts, 411 U.S. 138, 142-43 (1973); Lands

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Council, 395 F.3d at 1030 (“Were the federal courts routinely or

Ctr. for Native Ecosystems, 711 F. Supp.

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liberally to admit new evidence when reviewing agency decisions, it

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would be obvious that the federal courts would be proceeding, in

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effect, de novo rather than with the proper deference to agency

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processes, expertise, and decision-making.”).

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the presumption or regularity lies with the party seeking to

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supplement the record.

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that the record fails to include documents or materials considered

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by the [agency] in reaching the challenged decision” and that the

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record as presented is insufficient to allow “substantial and

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meaningful [judicial] review.”

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Supp. 2d at 1275; Franklin Sav. Ass’n v. Director, Office of Thrift

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Supervision, 934 F.2d 1127, 1138-39 (10th Cir. 1991).

The burden to rebut

That party “must show by clear evidence

Ctr. for Native Ecosystems, 711 F.

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II.

Analysis

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A.

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The PPA is a contract between SVW and NV Energy that predates

Power Purchase Agreement

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the BLM’s final decision. (Mot. to Supp. 4)

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PPA should be included in the Administrative Record because the BLM

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considered the energy requirements stated in the PPA in “developing
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Plaintiffs argue the

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the [Spring Valley Wind] Project’s purpose and need statement and

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alternatives.” (Reply 2) Defendants oppose including the PPA in the

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Administrative Record because, although it was aware of the

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agreement, it “ha[d] never seen the Agreement,” and it did not rely

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on the agreement in analyzing the environmental impacts of the

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Project and reaching its final decision. (BLM Opp’n 6; SVW Opp’n 2-

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3) In addition, the BLM argues that the PPA is a confidential

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document that “likely incorporates pervasive trade secret

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information” and would need to be heavily redacted if added to the

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Administrative Record. (BLM Opp’n 8, fn. 3)
The Environmental Assessment (EA) contains several references

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to an additional purpose of the Project being the production of

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149.1 MW as required under the PPA.2 (Mot. to Supp. Ex. 1)

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Although the PPA may not have literally passed before the eyes of

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the agency decision-makers in this case, it was “relied on in the

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[agency’s] recommendation” to such an extent that the court finds

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The EA on page 5 states: “As part of meeting the Nevada RPS,

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NV Energy has entered into a Power Purchase Agreement (PPA) with SVW

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to purchase 149.1 MW of wind energy produced from the SVWEF if it is

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constructed.

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meet the need to fulfill the production of 149.1 MW as required under

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the PPA.” (Mot. to Supp. Ex. 1)

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alternative meets the purpose and need for the project and includes

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75 WTGs in order to achieve the 149.1 MW required by the PPA with NV

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Energy.” Id.

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no more than the maximum 149.1 MW agreed to under the PPA would be

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output into the system.” Id.

Therefore, an additional purpose of this project is to

Page 7 of the EA states: “Each

Page 11 states: “no matter which turbine is selected,

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the BLM “constructively considered” it in making its decision. Ctr.

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for Native Ecosystems, 711 F. Supp. 2d at 1275-76.

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court also agrees with the BLM that some portions of the PPA may

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contain confidential information.

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grant plaintiffs’ motion to supplement the record with those

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portions of the PPA that support the information provided to the

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BLM regarding the Project’s need to produce 149.1 MW of wind

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energy.

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B.

However, the

Accordingly, the court will

All other portions of the PPA shall be redacted.
Texas Wind Data

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The Texas Wind Data comes from a bat and bird mortality study

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conducted at the Texas Gulf Wind Facility in Kenedy County, Texas.

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The study focused on the efficacy of DeTect, Inc.’s MERLIN radar

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monitoring system in reducing mortality rates at wind turbine

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sites. (Brandt-Erichsen Decl. (Docket No. 98) Ex. A)

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report on this data was issued on January 1, 2011, after the BLM

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issued its final decision in this case. Id.

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plaintiffs’ motion for a preliminary injunction on March 24, 2011,

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the court advised plaintiffs to follow agency procedure and request

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that the BLM consider the Texas Wind Data as an additional

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mortality study. (See Mar. 28, 2011 Order 16, fn. 15)

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received plaintiffs’ request, but has not issued a “final analysis

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on any impact from the Texas Wind Study on the Project.” (BLM Opp’n

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12, fn. 5)

The final

At the hearing on

The BLM has

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Plaintiffs argue the Texas data should be included in the

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Administrative Record because the EA references the study. (Mot. to

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Supp. 6, Reply 4)

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vague references to “radar systems” in the EA, and a general

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statement about the Texas Gulf Wind Facility in the Avian and Bat

In support of this argument, plaintiffs cite to

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Protection Plan.

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before the BLM during the decision-making process and the data is

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irrelevant to the Spring Valley Wind Project. (BLM Opp’n 8-10; SVW

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Opp’n 3-7)

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makers in reaching the final decision. Id.

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(See Mot. to Supp. Ex. 1, pp. 90, 97; Ex.2, p.

In opposition, the defendants argue the Texas data was not

Therefore, it was not considered by agency decision-

Plaintiffs must show by “clear evidence that the record fails

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to include documents or materials [directly or indirectly]

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considered by the [agency] in reaching the challenged decision” in

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order to rebut the presumption of regularity. Ctr. for Native

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Ecosystems, 711 F. Supp. 2d at 1275; Franklin Sav. Ass’n, 934 F.2d

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at 1138-39.

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discussion of the effectiveness of radar systems that happens to

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include a general statement about the assumed effectiveness of the

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Texas Gulf Wind’s radar system is not sufficient to prove the BLM

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directly or indirectly considered the Texas data in reaching its

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final decision.

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argument stretches the chain of indirect causation too far and

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fails to give appropriate deference to the agency’s designation of

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the record.

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Plaintiffs’ have failed to meet this burden.

A broad

As with “consideration through citation,” this

Ctr. for Native Ecosystems, 711 F. Supp. 2d at 1277.

At the preliminary injunction hearing, the court advised

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plaintiffs to apply directly to the BLM and request that it

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consider the data.

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during the hearing on the plaintiffs’ application for the

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injunction, urged the BLM, upon appropriate application by the

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plaintiffs, to consider the impact ... the Texas Gulf Wind study

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might have, if any, on the mitigation measures set forth in the

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EA.”))

(Mar. 28, 2011 Order 16, fn. 15 (“[T]he court,

It appears plaintiffs have complied and the BLM is in the
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process of evaluating the potential impact of the data on the

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Spring Valley Wind Project. (BLM Opp’n 12, fn. 5)

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court will deny without prejudice plaintiffs’ motion to supplement

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the record with the Texas Wind Data.

Accordingly, the

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C.

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Plaintiffs argue the Tuttle Declarations (Docket Nos. 30, 58)

Tuttle Declarations

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should be included in the Administrative Record because they fit

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within an exception to the general rule on considering extra-record

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evidence.

Specifically, they argue the evidence in both

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declarations is necessary to determine “whether the agency has

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considered all relevant factors and has explained its decision” and

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the evidence in the first declaration “is appropriately considered

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because it concerns a topic for which ‘the agency has relied on

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documents not in the record,’” to wit, the “characterization of the

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effectiveness of its Texas radar system.” (Mot. to Supp. 11)

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defendants oppose supplementing the record with these declarations

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because they were not before the BLM when it made its decision,

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they do not fall within any of the exceptions to this rule, and

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their consideration would be contrary to the law of the case. (BLM

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Opp’n 10-15; SVW Opp’n 8-10)

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The

The court finds the Tuttle Declarations should not be added to

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the Administrative Record because they contain extra-record

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evidence that was not before the BLM at the time it made its final

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decision, they do not fall within the four exceptions, and the

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court previously struck the first Tuttle Declaration (Docket No.

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30) from the record.

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Exxon Corp., 91 F.R.D. at 33.

On March 28, 2011, this court granted defendant SVW’s Motion

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to Strike the first Tuttle Declaration3 (Docket No. 50), finding

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that the first Tuttle declaration was an eleventh hour submission

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that did not fall within any of the four exceptions that would

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permit consideration of extra-record evidence in this case. (Order

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on Mot. to Strike (Docket No. 61))

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case that the first Tuttle Declaration is not before the court and

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should not be added to the Administrative Record.

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Colt Indus. Operating Corp., 486 U.S. 800, 815-16 (1988) (“the

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doctrine of the law of the case posits that when a court decides

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upon a rule of law, that decision should continue to govern the

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same issues in subsequent stages in the same case”).

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“depart from a prior holding [only] if [it is] convinced that it is

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clearly erroneous and would work a manifest injustice.” Arizona v.

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California, 460 U.S. 605, 618 (1983).

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Therefore, it is the law of the

Christianson v.

The court may

There is no basis for the court to reconsider its order
striking the first Tuttle Declaration.

First, the first Tuttle

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The

motion

was

titled

“Motion

to

Strike

Extra-Record

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Declaration, or in the Alternative, to Supplement the Record.”

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referred to in this order as the “Motion to Strike the first Tuttle

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Declaration” for clarity as to which document SVW sought to strike.

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SVW submitted a rebuttal declaration of Wallace Erickson (Docket No.

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50-1) in support of its motion to strike, in the event the court chose

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not to strike the first Tuttle Declaration and, instead, chose to

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supplement

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Declaration (Docket No. 58) to rebut the Erickson Declaration. Because

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the court struck the first Tuttle Declaration, it did not consider the

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Erickson Declaration or the second Tuttle Declaration.

the

record.

Plaintiffs

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submitted

the

It is

second Tuttle

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Declaration has not been amended or modified to add new data or

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conclusions that would warrant the court reconsidering its earlier

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decision striking the declaration.

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in the court’s March 28, 2011 order on the motion to strike (Docket

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No. 61), this unchanged evidence does not demonstrate that the BLM

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failed to consider all relevant factors in its decision.

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For reasons already set forth

Second, the court’s holding that the BLM had not relied on

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documents outside the record in reaching its decision that would

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warrant admission of the first Tuttle Declaration is not “clearly

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erroneous and would [not] work a manifest injustice.” Arizona, 460

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U.S. at 618.

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Texas Gulf Wind radar system in the Avian and Bat Protection Plan’s

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(ABPP) discussion of radar monitoring is not enough to convince the

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court that its earlier decision was clearly erroneous.

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reference to the Texas radar system in the EA was by example. (See

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Mot. to Supp. Ex.2, pp. 15)

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complete or fully available to the BLM when it made its final

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decision.

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studies in drafting and designing the Avian and Bat Protection

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Plan, including some with adverse statistical data, such as the

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Judith Gap Study. (EA, App. F, ABPP 24; Not. of Am. Admin. R. Ex.

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2)

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the Texas radar system’s effectiveness would not work a manifest

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injustice.

A vague characterization of the effectiveness of the

The

Moreover, the Texas data was not

Lastly, the BLM considered extensively other bat-related

Therefore, disallowing the admission of Dr. Tuttle’s opinion of

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The second Tuttle Declaration (Docket No.58) was filed to

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rebut the Declaration of Wallace Erickson (Docket No. 50-1), which

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was submitted by SVW with its Motion to Strike the first Tuttle

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Declaration (Docket No. 50) to rebut the first Tuttle Declaration.
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The Erickson Declaration was never considered by the court because

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the court elected to strike the first Tuttle Declaration.

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Consequently, consideration of the second Tuttle Declaration, the

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sole purpose of which was to rebut the Erickson Declaration, is a

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moot issue.

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In addition, the evidence contained in the second Tuttle

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Declaration, which includes Dr. Tuttle’s opinions on the population

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status of free-tailed bats and the adequacy of the ABPP, does not

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fall within any of the four exceptions that would permit the court

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to consider extra-record evidence.

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declaration, the admission of this extra-record evidence is not

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necessary to determine “whether the agency has considered all

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relevant factors and has explained its decision” in this case.

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Lands Council, 395 F.3d at 1030

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indicates that the BLM reviewed data concerning the bat population

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and the impact the Spring Valley Wind Project could have on local

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bat populations.

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in the western United States with habitats similar to Spring Valley

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and three published bat studies on bat mortality risks.

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Administrative Record contains additional studies.

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defer to the agency's expertise in evaluating this data.

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Council, 395 F.3d at 1030.

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before the court that the BLM has not relied on documents not in

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the record, to wit, the Erickson Declaration, in reaching its

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decision in this case that would warrant supplementing the record

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with the second Tuttle Declaration.

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1030.

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purpose of rebutting the first Tuttle Declaration.

As with the first Tuttle

The administrative record

Specifically, the BLM considered 11 wind projects

The full

The court will
Lands

Second, it is clear from the record

Lands Council, 395 F.3d at

The Erickson Declaration was submitted by SVW for the sole

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There is no

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evidence that indicates the Erickson Declaration was considered by

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the BLM in reaching its final decision.

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need for the agency to have considered the second Tuttle

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Declaration.

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is not necessary to explain technical terms or complex subject

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matter.

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analysis of the bat population.

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rebut his conclusions.

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opinion.

Consequently, there is no

Third, the evidence in the second Tuttle Declaration

It is not being offered to explain Erickson’s statistical
Instead, it is being offered to

It represents a difference in expert

This is not enough to warrant its addition to the

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Administrative Record. See Airport Cmtys Coal v. Graves, 280 F.

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Supp. 2d 1207, 1213 (W.D. Wash. 2003) (varying expert opinions do

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not warrant improper de novo review by court of agency decision).

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Finally, there has been no showing of agency bad faith.

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For the foregoing reasons, the court will deny plaintiffs’
motion to supplement the record with the Tuttle Declarations.

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III. Conclusion
Plaintiffs’ Motion to Supplement the Administrative Record

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(Docket No. 95) is GRANTED in part and DENIED in part.

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hereby ordered that:

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1.

It is

Plaintiffs’ request to supplement the Administrative

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Record with the Power Purchase Agreement is GRANTED in

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part.

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redacted version of the Power Purchase Agreement

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containing the portions of the PPA that support the

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information provided to the BLM regarding the project’s

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need to produce 149.1 MW of wind energy.

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supplementation shall be made within thirty (30) days.

Defendants shall supplement the record with a

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Such

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2.

Plaintiffs’ request to supplement the Administrative

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Record with the Texas Wind Data is DENIED without

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prejudice.

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supplement the record with the Texas Wind Data after the

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BLM has had an opportunity to issue a final analysis of

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the impact of the Texas data on the Spring Valley Wind

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Project.

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3.

Plaintiffs may renew their motion to

Plaintiffs’s request to supplement the Administrative
Record with the Tuttle Declarations (Docket Nos. 30, 58)
is DENIED.

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IT IS SO ORDERED.

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DATED: This 4th day of January, 2012.

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____________________________

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UNITED STATES DISTRICT JUDGE

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