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

Filing 58

ORDER granting Plaintiff's 44 Motion to Determine Scope of Review of Claim Six signed by U.S. District Judge John C Coughenour. (TH)

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,
Plaintiff,

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ORDER REGARDING SCOPE OF
REVIEW

v.

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CASE NO. C16-1866-JCC

UNITED STATES DEPARTMENT OF
COMMERCE, et al.,
Defendants.

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This matter comes before the Court on Plaintiff’s motion to determine scope of review

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18 for Claim 6 (Dkt. No. 44). Having thoroughly considered the parties’ briefing and the relevant

19 record, the Court GRANTS the motion for the reasons explained herein.
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Plaintiff brings five claims pursuant to the Administrative Procedure Act (“APA”), 5

21 U.S.C. § 704, and one claim pursuant to the Endangered Species Act’s (“ESA”) citizen-suit
22 provision, 16 U.S.C. § 1540(g)(1). (Dkt. No. 18 at 27–32.) The Court previously discussed the
23 underlying facts of the case in ruling on Defendants’ motion to dismiss and will not repeat those
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Plaintiff alleges in Claim 6 that Defendants failed to comply with the Endangered
26 Species Act’s Section 7 consultation requirements before approving plans and making grants
addressing Washington’s sources of nonpoint water pollution. (Dkt. No. 18 at 31–32.)
ORDER REGARDING SCOPE OF REVIEW
C16-1866-JCC
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1 facts here. (See Dkt. No. 39 at 1–4.) At issue is whether the Court can look beyond the
2 administrative record in resolving Plaintiff’s ESA citizen-suit claim. The Court concludes that it
3 can.
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The ESA’s citizen-suit provision contains no standard or scope for judicial review. See 16

5 U.S.C. § 1540(g). According to Ninth Circuit precedent, the APA’s standard of review—an
6 abuse of discretion—applies. W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 496 (9th
7 Cir. 2011). This is undisputed by the parties. (Dkt. Nos. 44 at 3–5, 47 at 3–5.) But the parties
8 dispute whether the APA’s scope of review—the administrative record—should also apply. (Id.)
9 Consistent with Ninth Circuit precedent, Plaintiff asserts the scope of review is not limited to the
10 administrative record. (See Dkt. No. 44 at 3–5) (citing W. Watersheds Project, 632 F.3d at 496;
11 Wash. Toxics Coal. v. Env’t Prot. Agency, 413 F.3d 1024, 1034 (9th Cir. 2005)). Defendants
12 assert prevailing Supreme Court precedent and recent Ninth Circuit decisions hold otherwise.
13 The Court disagrees. W. Watersheds Project and Wash. Toxics Coal. control.
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Defendants cite U.S. v. Carlo Bianchi & Co., 373 U.S. 709, 709, 714–15 (1963). (Dkt

15 No. 47 at 3.) But at issue in Carlo Bianchi & Co. was the scope of review under the Wunderlich
16 Act, whose purpose is to allow for review of decisions by federal agencies. 373 U.S. 709, 709,
17 714–15 (1963). It stands to reason that a court would have no need to look beyond the
18 administrative record when considering the reasonableness of an agency’s decision. The ESA’s
19 citizen-suit provision is a different animal. It is a “means by which private parties may enforce
20 the substantive provisions of the ESA against regulated parties—both private entities and
21 Government agencies.” Bennett v. Spear, 520 U.S. 154, 173 (1997). Therefore, adjudication of
22 an ESA citizen-suit claim requires a broader, more searching analysis than the administrative
23 record can provide. Correspondingly, the Court need not limit consideration of such matters to
24 the administrative record.
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Defendants also cite San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581 (9th

26 Cir. 2014), and San Luis & Delta-Mendota Water Auth. v. Locke, 776 F.3d 971 (9th Cir. 2014),
ORDER REGARDING SCOPE OF REVIEW
C16-1866-JCC
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1 claiming these cases represent current Ninth Circuit jurisprudence on the issue. (Dkt. No. 47 at
2 4.) Again, the Court disagrees. While both cases involved the adjudication of ESA-based claims
3 limited to the administrative record, that was because both cases were biological opinion
4 challenges. Jewell, 747 F.3d at 602, 604; Locke, 776 F.3d at 991, 995. Biological opinion
5 challenges are APA claims, not citizen-suit claims. See Bennett, 520 U.S. at 178–79
6 (distinguishing between ESA-based APA claims and ESA citizen-suit claims).
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Other Ninth Circuit cases that Defendants cite are also distinguishable because the

8 decisions lack any reasoned analysis of the issue. 2 (See Dkt. No. 47 at 6.) Without such analysis,
9 a holding lacks precedential value. See U.S. v. Johnson, 256 F.3d 895, 914 (9th Cir. 2001) (en
10 banc) (Kozinski, J., concurring) (circuit law is created “where a panel confronts an issue
11 germane to the eventual resolution of the case, and resolves it after reasoned consideration”);
12 Summers v. Schriro, 481 F.3d 710, 712–13 (9th Cir. 2007) (judicial assumption based upon
13 parties’ uncontested joint position is not a holding).
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For the foregoing reasons, Plaintiff’s motion (Dkt. No. 44) is GRANTED. The parties are

15 reminded that prior to bringing any discovery disputes to the Court, they must meet and confer in
16 accordance with W.D. Wash. Local Civ. R. 37.
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Those cases included Karuk Tribe v. U.S. Forest Serv., 681 F.3d 1006 (9th Cir. 2012).
As the Court previously noted, the parties in Karuk stipulated to an administrative record review.
26 See Wild Fish Conservancy v. Pritzker, Case No. C16-0223-JCC, Dkt. No. 24 at *1 n.1 (W.D.
Wash. 2016). Karuk does not stand for the proposition Defendants assert.
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ORDER REGARDING SCOPE OF REVIEW
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DATED this 8th day of November 2017.

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A

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John C. Coughenour
UNITED STATES DISTRICT JUDGE

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