Opinion
No. 3:22-cv-00790-HZ
2023-07-17
XERCES SOCIETY FOR INVERTEBRATE CONSERVATION; and Center for Biological Diversity, Plaintiffs, v. Kevin SHEA, in his official capacity as Administrator of the Animal and Plant Health Inspection Service; Animal and Plant Health Inspection Service, Defendants, and State of Wyoming; and State of Montana, Intervenor-Defendants.
Andrew R. Missel, Hannah A. Goldblatt, Elizabeth Hunter Potter, Advocates for the West, 3701 SE Milwaukie Ave., Suite B, Portland, OR 97202, Attorneys for Plaintiffs. John P. Tustin, Amanda Lineberry, Johnny Walker, III, Department of Justice, Environment and Natural Resources Division, PO Box 7611, Washington, D.C. 20044, Attorneys for Defendants.
Andrew R. Missel, Hannah A. Goldblatt, Elizabeth Hunter Potter, Advocates for the West, 3701 SE Milwaukie Ave., Suite B, Portland, OR 97202, Attorneys for Plaintiffs. John P. Tustin, Amanda Lineberry, Johnny Walker, III, Department of Justice, Environment and Natural Resources Division, PO Box 7611, Washington, D.C. 20044, Attorneys for Defendants. OPINION & ORDER HERNÁNDEZ, District Judge:
Plaintiffs Xerces Society for Invertebrate Conservation ("Xerces Society") and Center for Biologic Diversity ("CBD") challenge the legality of Defendant Animal and Plant Health Inspection Service's ("APHIS") 2019 programmatic Environmental Impact Statement ("EIS") and Record of Decision ("ROD") for its Rangeland Grasshopper and Mormon Cricket Suppression Program. Plaintiffs also challenge Defendants' state-level Environmental Assessments ("EA") and Findings of No Significant Impact ("FONSI") for Oregon, Idaho, Montana, and Wyoming. Plaintiffs' claims are governed by the Administrative Procedure Act ("APA"), 5 U.S.C. § 706, under which the Court limits its review to the administrative records for the challenged agency decisions.
Defendants lodged final administrative records on January 26, 2023. Plaintiffs assert that the administrative records are incomplete and move the Court to compel Defendants to complete the administrative records with certain categories of materials they request. For the reasons stated below, the Court denies Plaintiffs' motion.
BACKGROUND
Through its rangeland pesticides program, Defendant APHIS sprays pesticides on public and private lands across seventeen Western states in an effort to control grasshopper and Mormon cricket populations on federal rangelands. First Am. Compl. ("FAC") ¶ 2, ECF 11. In 2019, APHIS re-authorized the rangeland pesticides program by issuing a programmatic EIS and ROD as required by the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq. FAC ¶ 5. APHIS also conducts annual state-level EAs to study the effects of the program within each state at a more granular level. State-level final EAs and FONSIs are issued in the spring of each year before pesticide treatments occur.
Plaintiffs bring this action challenging the legality of APHIS's 2019 EIS and ROD, as well as the operative state-level EAs and FONSIs for Oregon, Idaho, Montana, and Wyoming. FAC ¶¶ 145-167. Plaintiffs also bring a claim under the citizen suit provision of the Endangered Species Act ("ESA"), 16 U.S.C. § 1540(g)(1)(A). Except for the ESA claim, Plaintiffs' claims are governed by the APA, 5 U.S.C. § 706, in which the Court may "hold unlawful and set aside agency action, findings, and conclusions" that it finds to be "arbitrary and capricious." In doing so, the Court must adjudicate the claims based on the "administrative record[s] on which the agency based the challenged decision[s]." Fence Creek Cattle Co. v. U.S. Forest Serv., 602 F.3d 1125, 1131 (9th Cir. 2010).
Defendants first lodged administrative records on December 14, 2022. ECF 28. After informally conferring with the other parties about the contents of the records, Defendants lodged revised administrative records on January 26, 2023. ECF 29. Defendants filed five records: one for the programmatic EIS and ROD and four for the state-level EAs and FONSIs for Oregon, Idaho, Wyoming, and Montana. Plaintiffs challenge all five records and move the Court to compel Defendants to complete the administrative records.
STANDARDS
Under the Administrative Procedure Act, 5 U.S.C. § 706, a court may set aside a decision of a federal administrative agency "if it is 'unsupported by substantial evidence' or 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.' " Mackowiak v. Univ. Nuclear Sys., Inc., 735 F.2d 1159, 1162 (9th Cir. 1984) (citing 5 U.S.C. § 706(2)(A), (E)). "[J]udicial review of agency action is limited to review of the record on which the administrative decision was based." Thompson v. U.S. Dept. of Labor, 885 F.2d 551, 555 (9th Cir. 1989); see Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743-44, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985) (courts review "the agency decision based on the record the agency presents to the reviewing court"). Under the APA, judicial review of agency action must be based on the "whole record." Portland Audubon Soc'y v. Endangered Species Comm., 984 F.2d 1534, 1548 (9th Cir. 1993) (citing 5 U.S.C. § 706). The whole record consists of "everything that was before the agency pertaining to the merits of its decision." Id. (citation omitted). This includes "all documents and materials directly or indirectly considered by agency decision-makers and includes everything contrary to the agency's position." Thompson, 885 F.2d at 555.
An agency is entitled to the presumption that the submitted record is complete. Goffney v. Becerra, 995 F.3d 737, 748 (9th Cir. 2021), cert. denied, — U.S. —, 142 S. Ct. 589, 211 L.Ed.2d 366 (Mem) (2021). A party seeking to complete an administrative record bears the burden of overcoming the presumption of regularity by "clear evidence." Nw. Env't Advocs. v. U.S. Fish and Wildlife Serv., No. 3:18-CV-01420-AC, 2019 WL 6977406, at *4 (D. Or. Dec. 20, 2019). Supplementation of the record is appropriate only if "it appears the agency has relied on documents or materials not included in the record." Portland Audubon Soc'y, 984 F.2d at 1548. A party who moves to supplement or "complete" the record must "show that the additional materials sought are necessary to adequately review the [agency's] decision[.]" Fence Creek Cattle Co., 602 F.3d at 1131; see Audubon Soc'y of Portland v. Zinke, No. 1:17-cv-00069-CL (lead), 2017 WL 6376464, at *4 (D. Or. Dec. 12, 2017) (citations omitted) (a party seeking to complete the administrative record must identify the specific documents allegedly omitted and provide "reasonable, non-speculative grounds for its belief that the documents were considered by the decision-makers involved in the determination").
DISCUSSION
Plaintiffs first assert that the administrative records are incomplete because Defendants did not include internal deliberative materials and drafts of documents. Plaintiffs argue that deliberative materials are part of the "whole record" before the agency and that Defendants must produce a privilege log for any such documents they withheld. Second, Plaintiffs contend that the administrative records for state-level EA and FONSI decisions are incomplete because they exclude documents related to past pesticide treatments as well as documents showing communications APHIS had with cooperating agencies and local land managers.
I. Programmatic EIS and ROD Records
A. Categorical Exclusion of Deliberative Materials
Plaintiffs argue that because complete administrative records must broadly contain all documents and materials directly or indirectly considered by agency decision-makers, "it necessarily includes deliberative materials." Pl. Mot. to Complete 10, ECF 33 (quoting Ksanka Kupaqa Xa'lcin v. U.S. Fish & Wildlife Serv., No. CV 19-20-M-DWM, 2020 WL 4193110, at *2 (D. Mont. Mar. 9, 2020)). Plaintiffs assert that before withholding documents that reflect the agency's deliberations, Defendants must produce a privilege log and explain why those documents should be excluded under the "deliberative process privilege." Id. (citing Gill v. Dep't of Justice, No. 14-cv-03120-RS (KAW), 2015 WL 9258075, at *6-7 (N.D. Cal. Dec. 18, 2015)). Defendants argue that deliberative materials are categorically outside the scope of administrative records because courts generally do not inquire into "the mental processes of administrative decision-makers." Def. Resp. 3, ECF 35 (quoting Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)).
A deliberative document is one that "reflects the give-and-take of the consultative process, [which] includes recommendations, draft documents, proposals, suggestions, and other documents that reflect the personal opinion of the writer, rather than the policy of the agency." Blue Mountains Biodiversity Project v. Jeffries, No. 2:20-cv-02158-SU, 2021 WL 3683879, at *4 (D. Or. Aug. 19, 2021), (citing Nat'l Wildlife Fed'n v. U.S. Forest Serv., 861 F.2d 1114, 1118-19 (9th Cir. 1988)). Deliberative materials may also include documents that "inaccurately reflect or prematurely disclose the views of the agency." Nat'l Wildlife Fed'n, 861 F.2d at 1118-19.
The Ninth Circuit recently resolved this issue. In affirming the district court's decision in Blue Mountains Biodiversity Project v. Jeffries, the Ninth Circuit held that "deliberative materials are generally not part of the [administrative record] absent impropriety or bad faith by the agency." 72 F.4th 991, 996 (9th Cir. 2023). The court based its reasoning on "two well-settled principles governing judicial review of agency action under the APA." Id. First, because the agency is entitled to a presumption of regularity as to the record it presents, "barring clearly evidence to the contrary, we presume that an agency properly designated the Administrative Record." Id. (quoting Goffney, 995 F.3d at 748) (internal quotation marks omitted). Second, courts must "assess the lawfulness of the agency's action based on the reasons offered by the agency." Id. (emphasis added). Thus, "[d]eliberative documents, which are prepared to aid the decision-maker in arriving at a decision, are ordinarily not relevant to the analysis." Id.; see Overton Park, 401 U.S. at 420, 91 S.Ct. 814 (noting that courts should avoid "inquiry into the mental processes of administrative decisionmakers").
Accordingly, under Ninth Circuit precedent, the administrative records are presumptively complete without the inclusion of all "internal materials, drafts, and similar documents" as requested by Plaintiffs. Plaintiffs bear the burden of rebutting that presumption by presenting clear evidence that Defendants acted in bad faith by withholding particular materials on which they relied in the decision-making process.
B. Specificity
Supplementation of an administrative record that is presumptively complete is allowed "in four narrowly construed circumstances: (1) supplementation is necessary to determine if the agency has considered all factors and explained its decision; (2) the agency relied on documents not in the record; (3) supplementation is needed to explain technical terms or complex subjects; or (4) plaintiffs have shown bad faith on the part of the agency." Fence Creek Cattle Co., 602 F.3d at 1131. The party seeking to supplement the record bears a "heavy burden" of showing that the excluded materials are necessary to adequately review the agency decision. Id. The party must present more than broad categories of documents that were excluded. It must make a "particularized showing" of what specific documents it seeks to include in the record. Save the Colorado v. United States Department of the Interior, 517 F. Supp. 3d 890, 901 (D.Ariz. 2021). In other words, Plaintiffs here must "identify the materials allegedly omitted from the record with sufficient specificity, as opposed to merely proffering broad categories of documents that are likely to exist." Nw. Env't Advocs., 2019 WL 6977406, at *5 (citation and ellipses omitted).
In seeking to supplement the administrative records, Plaintiffs note that Defendants included "just a few draft documents and internal documents" and "just a handful of emails." Pl. Mot. to Complete 6. Plaintiffs assert that "[t]he records contain no emails between agency employees and no non-public versions of draft documents." Id. at 14. But Plaintiffs do not identify any specific deliberative documents on which the agency relied that they believe should be included in the administrative records. Instead, Plaintiffs simply speculate that such documents exist because in Defendants' conferral correspondence, they assert the position that "indirect, internal, or draft materials are outside the scope of the administrative record." Missel Decl. Ex. 1, ECF 32-1. Thus, even if Plaintiffs could overcome their burden of showing that Defendants engaged in bad faith and improperly withheld internal communications and draft documents, Plaintiffs do not identify which particular deliberative documents should be included in the records for the programmatic EIS and ROD. As such, Plaintiffs have not met their burden to overcome the presumption of completeness.
In other cases, when seeking to supplement administrative records, plaintiffs have supplied courts with materials they had obtained through Freedom of Information Act ("FOIA") requests. For example, in Blue Mountain Biodiversity Project v. Jefferies, the plaintiff presented 1,200 pages of material it received from the Forest Service through a FOIA request. 2021 WL 3683879, at *5. Nevertheless, the court in that case rejected the plaintiff's motion to complete the record in part because the plaintiff "provide[d] little in the way of specific argument concerning why these documents were improperly excluded from the administrative record[.]" Id. Here, Plaintiffs do not provide the Court with any specific documents they have identified through FOIA requests or other means that they believe should be included in the administrative records. Nor do Plaintiffs show why any particular deliberative documents they claim have been withheld are necessary for the Court's review of the agency's decisions.
C. Privilege Log
Plaintiffs also contend that Defendants must produce a privilege log to justify their withholding of deliberative documents from the administrative records. In Blue Mountain Biodiversity Project, the Ninth Circuit concluded that "[b]ecause deliberative materials are not part of the administrative record to begin with, they are not required to be placed on a privilege log." 72 F.4th at 997 (quoting Oceana, Inc. v. Ross, 920 F.3d 855, 865 (D.C. Cir. 2019)). Thus, without a showing of bad faith or improper behavior on the part of the agency, requiring a privilege log "would be without useful purpose and would undermine the limited scope of the Court's APA review." Blue Mountain Biodiversity Project, 2021 WL 3683879, at *5. Because Plaintiffs present no evidence that Defendant acting in bad faith or wrongfully withheld any particular documents, the Court denies Plaintiffs' request to supplement the record for the 2019 EIS and ROD and denies Plaintiff's request to compel Defendants to produce a privilege log.
II. State-Level Records
Plaintiffs assert that Defendants have excluded certain materials from each of the administrative records related to the state-level EAs and FONSIs for Oregon, Idaho, Wyoming, and Montana. These materials contain information about pesticide treatment in prior years that agency decisionmakers used when preparing each state-level EA. The materials fall into two broad categories: (1) internal treatment-specific documents and (2) requests for treatment and other communications from outside the agency, including communications with land managers and other outside entities. The first category consists of treatment-specific forms, treatment documents, and maps from the treatment years directly preceding each state-level EA. Based on Defendants' assertion that they relied only on treatment summaries from prior years, which are already in the administrative records, Plaintiffs have withdrawn their request to include "granular treatment information." Pl. Reply 19, ECF 37. Thus, Plaintiffs no longer move to supplement the administrative records with internal treatment-specific documents.
As Intervenor-Defendants, Montana and Wyoming join and adopt Defendants' Response in Opposition to Plaintiffs' Motion to Complete the Administrative Records. ECF 36.
Plaintiffs still seek to supplement the state-level administrative records with materials in the second category. These materials include pre-decisional requests for treatment from the year of each state-level EA at issue and documents reflecting communications between APHIS and outside entities. Plaintiffs argue that both materials currently in the administrative records and documents they have obtained through FOIA requests show that the agency considered pre-decisional treatment requests each year before the EAs were prepared. Plaintiffs contend that the state-level records are devoid of these treatment requests. Plaintiffs also assert that APHIS coordinated with the Bureau of Land Management ("BLM"), the U.S. Forest Service, and various state agencies before completing the EAs. Plaintiffs claim the administrative records are missing some these communications with outside entities and contain very few pre-decisional communications between APHIS and local land managers. Defendants note that the administrative records already contain many documents showing external communications and argue that Plaintiffs simply speculate that additional relevant communications exist. Thus, according to Defendants, Plaintiffs do not identify what additional documents should be included with sufficient specificity.
To overcome the presumption that the agency properly submitted a complete administrative record, "a plaintiff must (1) identify reasonable, non-speculative grounds for its belief that the documents were considered by the agency and not included in the record, and (2) identify the materials allegedly omitted from the record with sufficient specificity, as opposed to merely proffering broad categories of documents that are likely to exist." Audubon Soc'y of Portland, 2017 WL 6376464, at *4. It is not enough for a plaintiff to "simply assert[ ] that the documents were relevant, were before or in front of the agency and not included in the record." Nw. Env't Advocs., 2019 WL 6977406, at *5.
As for pre-decisional requests for treatment, Plaintiffs have identified with sufficient specificity the documents it seeks to include. Plaintiffs request to supplement the administrative records with specific types of documents received by APHIS during limited time periods. For example, for the 2020 EA for Idaho, Plaintiffs propose to supplement the record with all requests for pesticide treatment from outside parties received by APHIS between January 2020 and May 2020. But Plaintiffs do not adequately explain how Defendants directly or indirectly relied on these treatment requests in preparing the state-level EAs or why such information is necessary for the Court's review of the agency's decisions. See Fence Creek Cattle Co., 602 F.3d at 1131 (holding that a plaintiff has a "heavy burden to show that the additional materials sought are necessary to adequately review the [agency's] decision").
As for pre-decisional coordination communications with BLM and other outside entities, Plaintiffs do not indicate the specific documents it seeks to include in the record or the relevance of those documents. For example, in seeking follow-up emails related to two coordinating meetings with BLM, Plaintiffs note that very few documents related to those meetings were included in the administrative record. But Plaintiffs merely speculate about the existence of such emails. See Pl. Reply 21 ("Either APHIS held two of the least email-generating meetings of the 21st century or there are emails related to those meetings missing from the records."). Plaintiffs' speculation is not "clear evidence" that the state-level administrative records are incomplete. See Nw. Env't Advocs., 2019 WL 6977406, at *4 ("[S]everal district courts in the Ninth Circuit, including the District of Oregon, have utilized the 'clear evidence' standard to evaluate requests to complete an administrative record."). And even if emails related to the coordinating meetings exist, Plaintiff do not clearly explain the relevance of those of emails to the agency's decisions. Thus, Plaintiffs do not meet their burden of rebutting the presumption that the state-level administrative records are complete without the pre-decisional treatment requests or pre-decisional communications with outside entities.
CONCLUSION
The Court DENIES Plaintiff's Motion to Complete the Administrative Records [33].
IT IS SO ORDERED.