Northwest Environmental Advocates v. U.S. Department of Commerce et al

Filing 141

ORDER granting Plaintiff's 129 Motion for Leave to Take Discovery. Signed by U.S. District Judge John C Coughenour. (SWT)

THE HONORABLE JOHN C. COUGHENOUR

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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NORTHWEST ENVIRONMENTAL
ADVOCATES,

CASE NO. C16-1866-JCC
ORDER

Plaintiff,
v.

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THE U.S. DEPARTMENT OF
COMMERCE, et al.,

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Defendants.

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This matter comes before the Court on Plaintiff’s motion for leave to take discovery (Dkt.

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No. 129). Having thoroughly considered the parties’ briefing and the relevant record, the Court

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hereby GRANTS the motion for the reasons explained herein.

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The facts of this case have been outlined in prior orders by this Court and will not be

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repeated here. (See Dkt. Nos. 39, 56, 58, 79, 84, 112, 119.) The Court previously granted

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summary judgment for Defendants on Plaintiff’s second and third claims because Plaintiff had

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failed to establish that it had standing to bring two claims. (Dkt. No. 112.) Now, Plaintiff moves

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for leave to take discovery into the issue of standing for its fourth and fifth claims. (Dkt. No.

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129.) Plaintiff argues that (1) discovery is appropriate in record review cases where discovery is

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only for the purpose of establishing Article III standing; (2) discovery should be allowed because

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Defendants contest Plaintiff’s standing on claims four and five; and (3) information in the record
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C16-1866-JCC
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suggests that discovery would reveal additional evidence of Plaintiff’s standing to bring claims

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four and five. (See Dkt. No. 129.) Defendants oppose the motion, arguing that (1) record review

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cases are normally limited to the record before the agency and inquiries into standing are not a

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recognized exception to this general rule; (2) Plaintiff must use affidavits to establish standing,

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rather than discovery regarding speculative matters; and (3) discovery is not warranted because it

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is purely speculative, because it likely would not lead to facts sufficient to prove standing, and

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because there is already evidence in the record going to standing. (See Dkt. No. 138).

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In administrative record review cases, “courts reviewing an agency decision are limited
to the administrative record.” Lands Council v. Powell, 395 F.3d 1019, 1029 (9th Cir. 2005).

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“Judicial review of an agency decision typically focuses on the administrative record in existence

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at the time of the decision and does not encompass any part of the record that is made initially in

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the reviewing court.” Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1450

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(9th Cir. 1996). This is because the district court’s role is to review an agency’s action, which

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would require the court to use the evidence that the agency had before it. See id. But because

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Article III’s standing requirement does not apply to agency proceedings, there is often no reason

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for a party to include facts sufficient to establish standing as part of the administrative record.

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Nw. Envtl. Def. Ctr. v. Bonneville Power Admin., 117 F.3d 1520, 1527–28 (9th Cir. 1997).

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Therefore, extra-record evidence may be appropriate to establish a party’s standing to bring a

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lawsuit in federal court in record review cases. See id.

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Defendants argue that Northwest Environmental Defense Center merely stands for the

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proposition that Plaintiff-proffered affidavits may be used to supplement an administrative

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record to prove standing, not broader discovery. (Dkt. No. 138 at 3–7.) The Court is not

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convinced by this narrow reading. See Wildearth Guardians v. Salazar, 2010 WL 2998667, slip

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op. at *1 (D. Colo. 2010). Northwest Environmental Defense Center instructs that extra-record

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evidence in record review cases is appropriate to provide evidence of a party’s standing to bring

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a claim in federal court. See Nw. Envtl. Def. Ctr., 117 F.3d at 1527–28. Nothing in Northwest
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Environmental Defense Center or in any other case cabins this holding to affidavits. See id.; see

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also Wildearth Guardians, 2010 WL 2998667, slip op. at *1. Therefore, discovery may be

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appropriate to establish Plaintiff’s standing to bring claims four and five in this Court.

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“[D]iscovery should ordinarily be granted where pertinent facts bearing on the question

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of jurisdiction are controverted or where a more satisfactory showing of the facts is necessary.”

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Laub v. U.S. Dep’t of the Interior, 342 F.3d 1080, 1093 (9th Cir. 2003) (citing Butcher’s Union

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Local No. 498 v. SDC Inv., Inc., 788 F.2d 535, 540 (9th Cir. 1986)). First, jurisdiction is

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controverted. Defendants have previously moved to dismiss claims four and five for lack of

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standing. (Dkt. No. 21.) Additionally, a more satisfactory showing of the facts is necessary for at

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least two reasons. First, as discussed above, the administrative record that the Court is required to

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rely on likely does not contain facts sufficient to establish standing because the Article III

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standing requirement does not apply to agency proceedings. See Nw. Envtl. Def. Ctr., 117 F.3d at

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1527–28. Second, the administrative record is mostly limited to the Environmental Protection

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Agency’s action and it does not go to the State of Washington’s likely response to that action.

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Washington’s response to that action is what would allegedly harm Plaintiff. Therefore, Plaintiffs

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will be granted leave to take discovery into the issue of standing on claims four and five because

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jurisdiction is controverted and a more satisfactory showing of the facts is necessary.

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For the foregoing reasons, Plaintiff’s motion for leave to take discovery into standing to

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bring claims four and five (Dkt. No. 129) is GRANTED. The deadline for this discovery shall be

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in accordance with the case management schedule already set by this Court. (See Dkt. No. 135.)

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DATED this 4th day of January 2019.

A

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John C. Coughenour
UNITED STATES DISTRICT JUDGE

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ORDER
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