Opinion
CASE NO. CV 02-0697 DT (FMOx).
October 31, 2005
ORDER REGARDING MOTIONS TO STRIKE
In conjunction with Cross-Motions for Summary Judgment which are scheduled for hearing on November 10, 2005, all parties filed Motions to Strike the various declarations submitted in conjunction with the briefing on the Cross-Motions for Summary Judgment. Cemex, Inc. ("Cemex") filed an Ex Parte Application for Ruling on Evidentiary Objections Prior to Hearing on Cross-Motions for Summary Judgment. This Court granted the Ex Parte Application and hereby sets forth its rulings on the Motions to Strike. I. Federal Defendants' Motion to Strike the Declaration of Susan O'Carroll and to Strike Portions of Plaintiffs' Brief Relying on the Declaration
Hereinafter, "Plaintiffs" collectively refers to Plaintiffs City of Santa Clarita and Ventana Conservation and Land Trust, and "Federal Defendants" collectively refers to Defendants U.S. Department of Interior, Gale Norton, Fish and Wildlife Service, Marshall Jones, Diane K. Noda, Bureau of Land Management, Nina Hatfield, Mike Pool and Tim Salt.
Cemex filed a Joinder in Federal Defendants' Motion to Strike Declaration of Susan O'Carroll and to Strike Portions of Plaintiffs' Brief Relying on the Declaration.
Federal Defendants seek to strike the Declaration of Susan O'Carroll ("O'Carroll Declaration") which Plaintiffs submitted with their summary judgment motion. For the reasons explained below, this Court finds that the O'Carroll Declaration should be stricken.
In this action, Plaintiffs seek review of Federal Defendants' agency actions under the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq., and under the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321, et seq. Such challenges to final agency actions are subject to the review provisions of the Administrative Procedure Act ("APA"). Under the APA, agency action may be overturned only where it is found, as a matter of law, to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).
The APA limits judicial review of agency action to the administrative record. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 549 (1978). The Supreme Court and the Ninth Circuit have emphasized that "the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court." Camp v. Pitts, 411 U.S. 138, (1973); Florida Power Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985); Lands Council v. Powell, 379 F.3d 738, 747 (9th Cir. 2004). "The task of the reviewing court is to apply the appropriate APA standard of review to the agency decision based on the record the agency presents to the court." Florida Power Light, 470 U.S. at 743-44.
Consistent with these principles, the Ninth Circuit has allowed extra-record review or limited discovery in only four narrow circumstances: (1) if necessary to determine whether the agency has considered all relevant factors and has explained its decision; (2) when it appears that the agency has relied on documents or materials not included in the administrative record; (3) when necessary to explain technical terms or complex subject matter involved in the agency action; or (4) when there is a strong showing of bad faith or improper behavior by the agency.Southwest Ctr. for Biological Diversity v. United States Forest Serv., 100 F.3d 1443, 1450 (9th Cir. 1996) (quotations and citations omitted). These exceptions, however, are to be applied sparingly. Rybachek v. EPA, 904 F.2d 1276, 1296 n. 25 (9th Cir. 1990).
In their Opposition, Plaintiffs contend that the O'Carroll Declaration is admissible for the following purposes: (1) to create a record of Federal Defendants' improper inaction; (2) to explain the existing record; and (3) to establish Federal Defendants' failure to consider all relevant factors. This Court disagrees with Plaintiffs' contention.
This Court notes that Plaintiffs bear the burden of making an initial showing that the administrative record is inadequate for effective judicial review and that one of the exceptions to record review applies. Animal Defense Council v. Hodel, 840 F.2d at 1436-38 (affirming district court order limiting review to administrative record and prohibiting discovery because plaintiffs did not show record presented was insufficient for review or that any of the exceptions to record review were applicable). However, here, Plaintiffs submitted expert declarations without any prior showing, and only in response to defense motions to strike, Plaintiffs seek to make a showing that an exception applies.
In this case, Plaintiffs challenge two biological opinions and decisions made pursuant to and under the NEPA and the ESA. It is clear from a reading of the O'Carroll Declaration that said declaration is relied upon to make such a challenge. While Plaintiffs assert that they challenge agency inaction, the record review limitations of the APA still apply. Section 706 of the APA makes clear that the scope of review of both claims under Section 706(1), challenges to agency inaction, and section 706(2), challenges to agency action, is to be based "on the whole record." 5 U.S.C. § 706. Contrary to Plaintiffs' assertions, the Ninth Circuit precedent does not hold that review of a "failure to act" claim is not pursuant to the administrative record. Rather, by allowing the agency to provide further explanation in circumstances where the record is not sufficient for judicial review, courts have recognized that in some cases, additional explanation by the agency may be necessary for judicial review.See Friends of the Payette v. Horseshoe Bend Hydroelectric Co., 988 F.2d 989, 997 (9th Cir. 1993) ("When a failure to explain action frustrates judicial review, the reviewing court may obtain from the agency, through affidavit or testimony, additional explanations for the agency's decisions.") Here, Plaintiffs' challenges surround and relate to the issuance of the Supplemental Biological Opinion ("SBO") which encompasses the agency's decisions and rationales relating to the SBO. Even if the administrative record were inadequate, then further explanation should come from the FWS and BLM.
Furthermore, where a court considers a claim that an agency has failed to act in violation of its obligations, review may not be limited to record documents if "there is no final agency action to demarcate the limits of the record." San Francisco BayKeeper v. Whitman, 297 F.3d 877, 886 (9th Cir. 2002). The reason for this exception is that "when a court is asked to review agency inaction before the agency has made a final decision, there is often no official statement of the agency's justification for its actions or inactions." Id. Here, the two instances of agency inaction alleged by Plaintiffs may be reviewed using the existing 30,000-page record. The O'Carroll Declaration does not offer independent "factual information"; rather, it parrots the legal arguments presented in the Plaintiffs' brief.
As set forth above, Plaintiffs also argue that the O'Carroll Declaration is admissible to explain technical or complex subject matter and to determine whether the agency considered all relevant factors. However, courts are to admit extra-record evidence only in "limited circumstances" and only where "necessary to explain technical or complex subject matter." The Lands Council v. Powell, 395 F.3d 1019, 1030 (9th Cir. 2005). The exceptions to record review do not allow for extra-record evidence where the extra-record material "might suppl[y] a fuller record, but otherwise does not address issues not already [in the administrative record]." Friends of the Earth v. Hintz, 800 F.2d 822, 829 (9th Cir. 1986). Here, the O'Carroll Declaration clearly sets forth the opinions and interpretations of Ms. O'Carroll, and it is not "necessary." Indeed, the administrative record in this case consists of 30,000 pages. The O'Carroll Declaration, rather than offering explanatory or background materials, attacks the decisions of the BLM and the Service and introduces new information. The Ninth Circuit has clearly explained why the exceptions to record review are "narrowly construed and applied":
The scope of these exceptions permitted by our precedent is constrained, so that the exception does not undermine the general rule. Were the federal courts routinely or liberally to admit new evidence when reviewing agency decisions, it would be obvious that federal courts would be proceeding, in effect, de novo rather than with the proper deference to agency process, expertise, and decision-making.Lands Council, 395 F.3d at 1030.
In sum, this Court finds that Plaintiffs have not met their burden of showing that the O'Carroll Declaration fits within the exceptions to record review. Consequently, the striking of the O'Carroll Declaration is warranted. Further, any references to the O'Carroll Declaration in Plaintiffs' brief are stricken. Accordingly, this Court grants Federal Defendants' Motion to Strike the Declaration of Susan O'Carroll and to Strike Portions of Plaintiffs' Brief Relying on the Declaration. II. Plaintiffs' Motion to Strike the Declaration of Carolyn M. Casavan
Plaintiffs seek to strike the Declaration of Carolyn M. Casavan ("Casavan Declaration") submitted by Cemex. They argue that (1) the declarant is not qualified to render an expert opinion on the Project's effects on endangered species and hydrology; (2) the declarant fails to cite sufficient factual support to justify her opinions; and (3) the declaration is a post-hoc rationalization of agency action that does not fall within any exception to the general rule barring extra-record evidence in a record review case such as this. However, Cemex states that the Casavan Declaration is introduced solely for the purpose of rebutting the O'Carroll Declaration should the Court deny the Motion to Strike the O'Carroll Declaration. As such, because this Court strikes the O'Carroll Declaration, this Court finds that it must also strike the Casavan Declaration. Accordingly, this Court grants Plaintiffs' Motion to Strike the Declaration of Carolyn M. Casavan.
III. Cemex's Motion to Strike Declarations of Frank Hovore and Douglas S. Santo Federal Defendants' Motion to Strike Declarations of Douglas S. Santo and Frank Hovore and to Strike Portions of Plaintiffs' Brief Relying on the Declarations
Cemex seeks to strike the Declaration of Frank Hovore ("Hovore Declaration") and the Declaration of Douglas Santo ("Santo Declaration") which Plaintiffs offer as expert declarations in support of their combined Reply and Opposition Briefs. It argues that these declarations do not meet any of the well-established standards for extra-record documents or testimony, and are instead an attempt by Plaintiffs to manufacture their own record. Similarly, Federal Defendants seek to strike the Hovore and Santo Declarations on the same bases asserted with respect to the Motion to Strike the O'Carroll Declaration.
Applying the standard above, this Court finds that the Hovore and Santo Declarations should be stricken. These declarations attempt to introduce new evidence not considered by the Service or the BLM during the administrative process, and they seek to attack the wisdom of the challenged agency decisions in this case. The Hovore Declaration attempts to "explain" why arroyo toads were not originally found on the Project Site and were discovered only during subsequent surveys. It also attempts to introduce a "final" silt pile report which is dated after the AR in this matter. Clearly, these things do not qualify as admissible "background" or explanatory material. The Santo Declaration offers a hydrogeologic report dated March 2005. This report is simply another report from another expert that reaches a conclusion different from the reports prepared for Federal Defendants. In sum, both declarations "constitute post-decisional information, which may not be advanced as a new rationalization either for sustaining or attacking an agency's decision." Southwest Ctr. for Biological Diversity v. United States Forest Serv., 100 F.3d 1443, 1450 (9th Cir. 1996).
Thus, based on the above, this Court grants Cemex's Motion to Strike Declarations of Frank Hovore and Douglas S. Santo and grants Federal Defendants Motion to Strike Declarations of Douglas S. Santo and Frank Hovore and to Strike Portions of Plaintiffs' Brief Relying on the Declarations.
IV. Plaintiffs' Motion to Strike the Declarations of Carolyn M. Casavan, Michael Bumgardner and Peter Thams
Plaintiffs seek to strike the Reply Declarations of Carolyn M. Casavan, Michael Bumgardner and Peter Thams, filed by Cemex, because (1) the declarants are not qualified to render an expert opinion on the Project's effects on endangered species and hydrology; (2) the declarants fail to cite sufficient factual support to justify their opinions; and (3) the declarations are post-hoc rationalization of agency action that does not fall within any exception to the general rule barring extra-record evidence in a record review case such as this. However, again, Cemex states that these declarations were offered solely to rebut Plaintiffs' Reply and Opposition declarations. It acknowledges that if Plaintiffs' declarations are stricken, then its "rebuttal" declarations — Casavan, Bumgardner and Thams Declarations — are unnecessary and may likewise be stricken. As such, because this Court strikes Plaintiffs' declarations, this Court finds that Cemex's declarations must also be stricken and grants Plaintiffs' Motion to Strike the Declarations of Carolyn M. Casavan, Michael Bumgardner and Peter Thams.
IT IS SO ORDERED.