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refusing to order supplementation of the administrative record with documents contained within a prior administrative record on a related decision from an earlier timeframe absent information indicating the documents were actually considered, either directly or indirectly, by decisionmakers
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CASE NO. 1:15-CV-01290-LJO-GSA
06-23-2016
SAN LUIS & DELTA-MENDOTA WATER AUTHORITY and WESTLANDS WATER DISTRICT, Plaintiffs, v. SALLY JEWELL, et al., Defendants, THE HOOPA VALLEY TRIBE; THE YUROK TRIBE; PACIFIC COAST FEDERATION OF FISHERMEN'S ASSOCIATIONS; and INSTITUTE FOR FISHERIES RESOURCES, Defendant-Intervenors.
MEMORANDUM DECISION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO COMPLETE THE ADMINISTRATIVE RECORD (Doc. 75)
I. INTRODUCTION
This case concerns the U.S. Bureau of Reclamation's ("Reclamation" or "the Bureau") decision to make certain "Flow Augmentation" releases ("FARs") of water in August 2014 ("2014 FARs") and 2015 ("2015 FARs") from Lewiston Dam, a feature of the Trinity River Division ("TRD") of the Central Valley Project ("CVP"). Doc. 1. The stated purpose of FARs is to "reduce the risk of an adult fish kill in the lower Klamath River." Environmental Assessment, 2015 Lower Klamath River Late-Summer Flow Augmentation from Lewiston Dam, EA-15-04-NCAO (August 2015) ("2015 EA"), Administrative Record ("AR") 1189; AR 5170 (Decision Memorandum Re 2014 FARs). Plaintiffs, the San Luis & Delta Mendota Water Authority ("Authority") and Westlands Water District ("Westlands"), allege that by approving and implementing the 2014 and 2015 FARs, Reclamation and its parent agency, the U.S. Department of the Interior ("Interior") (collectively, "Federal Defendants"), acted in excess of existing statutory authorities; violated reclamation law by delivering water as part of the 2015 FARs pursuant to the second proviso of Section 2 of the Act of August 12, 1955, Pub. L. No. 84-386, 69 Stat. 719 ("1955 Act"), without first entering into a contract for delivery of that water that meets the requirements of reclamation law and policy; violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., by, among other things, approving and implementing the 2014 and 2015 FARs without first preparing an Environmental Impact Statement ("EIS"); and violated the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531 et seq., and the Magnuson-Stevens Fishery Conservation and Management Act of 1976 ("MSA"), 16 U.S.C. §§ 1801 et seq., by implementing the 2015 FARs without first engaging in required consultation with relevant federal wildlife agencies. Doc. 1.
The Complaint also names as Defendants in their official capacities: Sally Jewell, the Secretary of the U.S. Department of the Interior; Estevan Lopez, Commissioner of the Bureau; and David Murrillo, Regional Director of the Bureau's Mid-Pacific Region. Doc. 1.
Plaintiffs filed suit in this Court on August 21, 2015. Id. The AR was lodged March 11, 2016. Doc. 71. Plaintiff moved to complete the AR, seeking inclusion of 82 documents. Doc. 75. Defendant Intervenors do not oppose the motion. Doc. 84. Federal Defendants have agreed to add a number of the documents to the record and point out that certain other documents are already in the record, but oppose inclusion of the remainder. Docs. 85 & 85-1. Plaintiffs replied. Doc. 87. Having reviewed the briefing in light of the entire record, the Court concludes that the matter is suitable for decision on the papers pursuant to Local Rule 230(g).
II. STANDARD OF DECISION
In an APA case, the scope of judicial review is limited to "the administrative record already in existence, not some new record made initially in the reviewing court." Camp v. Pitts, 411 U.S. 138, 142 (1973). The administrative record is "not necessarily those documents that the agency has compiled and submitted as 'the' administrative record." Thompson v. U.S. Dept. of Labor, 885 F.2d 551, 555 (9th Cir. 1989) (internal citation omitted). Rather, "'[t]he whole record' includes everything that was before the agency pertaining to the merits of the decision." Portland Audubon Soc'y v. Endangered Species Comm., 984 F.2d 1534, 1548 (9th Cir. 1993)(internal citation omitted). "The 'whole' administrative record, therefore, consists of all documents and materials directly or indirectly considered by agency decision-makers and includes evidence contrary to the agency's position." Thompson, 885 F.3d at 555 (emphasis added).
An incomplete record must be viewed as a fictional account of the actual decisionmaking process. When it appears the agency has relied on documents or materials not included in the record, supplementation is appropriate.Portland Audubon, 984 F.2d at 1548 (internal quotations and citations omitted). "A satisfactory explanation of agency action is essential for adequate judicial review, because the focus of judicial review is not on the wisdom of the agency's decision, but on whether the process employed by the agency to reach its decision took into consideration all the relevant facts." Asarco, Inc. v. U.S. Environmental Protection Agency, 616 F.2d 1153, 1160 (9th Cir. 1980). "
However, the record does not include "every scrap of paper that could or might have been created" on a subject. TOMAC v. Norton, 193 F. Supp. 2d 182, 195 (D.D.C. 2002).
A broad application of the phrase "before the agency" would undermine the value of judicial review: Interpreting the word "before" so broadly as to encompass any potentially relevant document existing within the agency or in the hands of a third party would render judicial review meaningless. Thus, to ensure fair review of an agency decision, a reviewing court should have before it neither more nor less information than did the agency when it made its decision.Pac. Sh ores Subdivision v. U.S. Army Corps of Eng'rs, 448 F. Supp. 2d 1, 5 (D.D.C. 2006) (internal citations and quotations omitted). The record certainly need not include documents that became available after the agency's decision had already been made ("post-decisional" documents). See Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 555 (1978) (judicial review is "limited [] by the time at which the decision was made....").
An agency's designation and certification of the administrative record is entitled to a "presumption of administrative regularity." McCrary v. Gutierrez, 495 F. Supp. 2d 1038, 1041 (N.D. Cal. 2007). This presumption requires courts to presume that public officials have properly discharged their official duties. Id. It is the burden of the party seeking to supplement the record to overcome this presumption by producing clear evidence to the contrary. Bar MK Ranches v. Yuetter, 994 F.2d 735, 740 (10th Cir. 1993); McCrary, 495 F. Supp. 2d at 1041.
III. DISCUSSION
A. Plaintiffs' Requests to Order Reclamation to Include Specific Documents in the AR.
Plaintiffs request inclusion of 82 documents in the AR. Federal Defendants have agreed to the addition of some of those documents, have pointed out that others already are in the AR, and dispute inclusion of the remainder. Plaintiffs attempt to group the disputed documents into various categories, and the Parties' briefing largely follows these groupings. However, because some of the documents fall into multiple groups, the Court has evaluated each document in turn in the following table, noting the nature of the document, the Parties' arguments for and against inclusion, and providing a relevant ruling, cross-referencing rulings wherever appropriate.
| # | Plaintiffs'Argumentfor Inclusion | FederalDefendants'Response | Court's Ruling | |
|---|---|---|---|---|
| 1. | Reclamation will add this document to the record. | |||
| 2. | Reclamation will add this document to the record. | |||
| 3. | December 2014Draft Long-TermPlan for | Cited inReclamation's decision | This documentwas notconsidered by | Plaintiffs argue that this document, a draft of a long termplan for protecting salmonids in the Lower KlamathRiver, should be included in the AR because it was cited |
| Protecting LateSummer AdultSalmon in theLower KlamathRiver | document(s). | thedecisionmakeror relied on forthe 2014/2015FARs. | in at least one Reclamation decision document. Whilethis document is mentioned in the EA, this is notdispositive. Mere "references" to documents in the AR,even in the decision document, do not indicate they werenecessarily considered by the decisionmaker. SeePinnacle Armor, Inc. v. United States, 923 F. Supp. 2d1226, 1240-41 (E.D. Cal. 2013) (distinguishing between"citations" to documents and mere references thereto).Here, the EA merely references the existence of a parallellong-term planning process, see AR 1310, 1345, and doesnot cite to any long-term planning document for anyfactual proposition material to the relevant decision.Therefore, Plaintiffs have not "identified] reasonable,non-speculative grounds for [their] belief that thedocuments were considered by the decision makers."Pinnacle Armor, 923 F. Supp. 2d at 1239 (internalcitation and quotation omitted). The motion is DENIEDas to this document. | |
|---|---|---|---|---|
| 4. | April 2015 DraftLong- Term Planfor ProtectingLate SummerAdult Salmon inthe LowerKlamath RiverJuly 14, 2015Reclamation'sNotice of Intent toPrepare EIS forLong-Term Plan | Cited inReclamation's decisiondocument(s). | This documentwas notconsidered bythedecisionmakeror relied on forthe 2014/2015FARs. | Like Document #3, this document is also a draft of along-term plan to protect salmonids in the LowerKlamath. For the same reasons set forth above forDocument #3, the motion is DENIED as to thisdocument. |
| 5. | July 14, 2015Reclamation'sNotice of Intent toPrepare notice forEIS for LongTerm Plan | Cited inReclamation's decisiondocument(s). | This documentwas notconsidered bythedecisionmakeror relied on forthe 2014/2015FARs. | Like Document #3 and #4, this document concerns long-term planning for protection of salmonids in theLowerKlamath. For the same reasons set forth above forDocument #3, the motion is DENIED as to thisdocument. |
| 6. | Reclamation will add this document to the record. | |||
| 7. | Evidence ofconsultation underthe Magnuson-Stevens Act forthe SacramentoRiver species inthe 2009BiologicalOpinion | Cited inReclamation's decisiondocument(s). | There is no"evidence ofconsultation" toadd. The text inthe EA andFinding of NoSignificantImpact("FONSI") isself-explanatoryand any relateddocuments arealready in theAR. | Plaintiffs' assertion that "evidence of consultation underthe Magnuson Stevens Act" should be added to therecord is grounded in the following text in the EA andFONSI for the 2015 FARs:Reclamation consulted under the Magnuson-StevensAct (MSA) for the Sacramento River species in the2009 Biological Opinion (BiOp) and since there wasa determination, concurred with by NMFS, thatbecause the proposed action is contemplated withinthe drought exception procedures as described in the2009 NMFS BiOp it will not result in violation of theincidental take limit in the NMFS 2009 BiOp, norjeopardize the continued existence of the listedspecies or destroy or adversely modify theirdesignated critical habitats no further consultationunder the MSA is needed. As to the coho, the MSAwill be conducted as part of the ongoing consultationon the coho. Additionally, as determined in the EA,Reclamation did not identify any adverse effectsfrom the proposed action on essential fish habitat. |
| AR 1348; AR 1358.This paragraph indicates that MSA consultation is notrequired, in part because NMFS concurred that theproposed action will not result in a violation of theincidental take limit set forth under an ESA biologicalopinion prepared by NMFS in 2009 addressing impactsof the CVP and State Water Project ("SWP") onsalmonids and other species. While it is unclear from thismotion to what extent ESA concurrence letters are orshould be included in the record, Plaintiffs do not requestinclusion of the ESA concurrence letters. Rather, theyrequest MSA consultation documentation. TheEA/FONSI suggest that no such documents exist andPlaintiffs present no evidence to the contrary. The agencycannot include in the record non-existent documents.The motion is DENIED as to this request. | ||||
| 8. | Evidence of planfor consultationunder theMagnuson-Stevens Act forTrinity Riverspecies | Cited inReclamation's decisiondocument(s). | There is no"evidence ofconsultation" toadd. The text inthe EA andFONSI is self-explanatory andany relateddocuments arealready in theAR. | For the same reasons set forth above for Document #7,the motion is DENIED as to this request. |
| 9. | Aug. 21, 2003FederalDefendants'Notice RegardingDecision toReleaseSupplementalWaterIncludes twoexhibits:(1) Memorandumregarding"Release of up to50,000 acre- feetof water from theTrinity RiverDivision forfishery purposes"dated Aug. 15,2003; and(2) the final"EnvironmentalAssessment forLate- Summer2003 PreventativeTrinity RiverFlow Releases for | Documentregardingprior FARs;Documentrelevant toclaimedauthority forthe 2015FARs. | This documentwas notconsidered bythedecisionmakeror relied on forthe 2014/2015FARs. | This document is a notice related to FARs implementedin 2013.Ruling 9A: As to the first ground for inclusion - that thisis a "document regarding prior FARs" - Plaintiffsmaintain that inclusion in the AR of this documentregarding pre-2014 FARs is required by a Department ofInterior Guidance document regarding the preparation ofadministrative records. Plaintiffs point out that theGuidance, issued June 27, 2006, suggests inclusion of"relevant, supporting, documents" and provides as anexample of such "[d]ocuments contained in previous ARsthat were relied upon or considered in the decision-making process." Doc. 82 at 11 (citing Declaration ofRebecca Akroyd ("Akroyd Decl."), Ex. 9 (Doc. 78) at 6-7). Plaintiffs argue that because the 2015 EA and 2015FONSI describe the pre-2014 releases and "appear tohave been informed by analysis and informationcontained in the prior environmental documents," thisdocument must be included in the AR. Doc. 82 at 12.This ignores the suggestion in the June 27, 2006Guidance that documents in previous ARs be includedonly if they were "relied upon or considered in thedecision-making process." Even assuming the 2015 EAand FONSI were "informed" by analyses and informationin the prior environmental documents, Plaintiffs fail toidentify reasonable, non-speculative grounds for theirbelief that the documents were actually considered(directly or indirectly) by the decision makers. Plaintiffsdo not specify the nature of how the documents inform |
|---|
| Protection of FallRun ChinookSalmon" datedAug. 20, 2003 | one another nor whether the AR lacks independentdocuments upon which the same or similar conclusionscould have been formed. The motion to add thisdocument on this ground is DENIED.Ruling 9B: As to the second ground for inclusion - thatthis document is relevant to the claimed authority for the2015 FARs - Plaintiffs argue that the AR does notcontain documents regarding certain sources of authorityfor the 2014 and 2015 FARs cited in the 2015 EA. SeeDoc. 82 at 12-13. Plaintiffs further argue that "[i]fReclamation is indeed relying on these statutes asauthority for the 2015 FARS, then information regardingReclamation's consultation under, implementation ofprograms regarding, or interpretation of the statutes asthey apply to FARs should be in the record." Id. at 13.Plaintiffs request that the Court order Federal Defendantto complete the record with relevant documents regardingthe claimed sources of authority. The Court agrees withFederal Defendants that Plaintiffs have offered "noevidence that Reclamation decision-makers []independently consider and reconsider whether there islegal authority to release water with each subsequentrelease, including the relevant releases here, rather thanbeing advised by counsel when necessary." Doc. 85 at10. To the extent Plaintiffs seek documents that provideadvice of counsel, such documents would be privileged.Plaintiffs have failed to demonstrate that relevant, non-privileged documents considered by the decisionmakerexist within this category. The motion to add thisdocument on this ground is DENIED. | |||
|---|---|---|---|---|
| 10. | Aug. 20, 2004FederalDefendants'Notice ofSupplementalFlows Includestwo exhibits: (1)the Finding of NoSignificant Impact/ EnvironmentalAssessment forthe Purchase ofWater from theSacramento RiverWater ContractorsAssociation andSupplemental Fall2004 Releases tothe Trinity River,dated Aug. 19,2004; and(2) the finalEnvironmentalAssessment forPurchase of Waterfrom theSacramento RiverWater ContractorsAssociation and | Documentregardingprior FARs;Documentrelevant toclaimedauthority forthe 2015FARs. | This documentwas notconsidered bythedecisionmakeror relied on forthe 2014/2015FARs. | This is an environmental document pertaining to FARsimplemented in 2004. For the same reasons set forthabove for Document #9 in Ruling 9A and Ruling 9B, themotion is DENIED as to this document. |
| Supplemental Fall2004 Releases tothe Trinity River,dated Aug. 19,2004 | ||||
| 11. | Aug. 2012 FinalEnvironmentalAssessment, 2012Lower KlamathRiver LateSummer FlowAugmentation;andAug. 10, 2012Finding of NoSignificantImpact, 2012Lower KlamathRiver LateSummer FlowAugmentation | Documentregardingprior FARs;Documentrelevant toclaimedauthority forthe 2015FARs; Sourcedocumentdirectly orindirectlyrelied upon asbasis for2013, andthen 2015Environmental Assessment. | This documentwas notconsidered bythedecisionmakeror relied on forthe 2014/2015FARs. | This document concerns FARs implemented in 2012. Forthe same reasons set forth above for Document #9 inRuling 9A and Ruling 9B, the motion is DENIED as tothis document on the first two grounds offered.Ruling 11: As to the third ground for inclusion - thatthis is a "[s]ource document directly or indirectly reliedupon as basis for 2013, and then 2015 EnvironmentalAssessment" - Plaintiffs point to High Sierra HikersAssociation v. U.S. Department of the Interior, No. C-09-4621 JCS, 2011 WL 2531138 (N.D. Cal. 2011). In thatcase, the agency defendant agreed that summaries ofmonthly stock use reports were properly part of the AR inthat case, but refused to include underlying documents,arguing they were duplicative. Id. at *1. The district courtordered the underlying "source documents" included inthe record because "at a minimum" they were "indirectlyrelied upon" and contained detailed information that wasnot in the summaries." Id. at *6.Plaintiffs here maintain that Document # 11 (and relateddocuments) should be included in the AR because "inmany instances" they contain language identical to thelanguage in the 2015 EA and FONSI. Even assuming thisis true, this does not present circumstances analogous tothose in High Sierra Hikers, where the agency admittedto relying on underlying documents to create a summarythat was part of the AR. If the commonality of languagebetween the 2015 EA and FONSI and prior documents issomehow legally relevant to the merits of this case,Plaintiffs may offer the prior documents for considerationon judicial notice for appropriate purposes (i.e., not forthe truth of the matters asserted therein). The motion isDENIED as to this document on this ground. |
|---|---|---|---|---|
| 12. | Aug. 2013EnvironmentalAssessment, 2013Lower KlamathRiver Late-Summer FlowAugmentationfrom LewistonDamAug. 6, 2013Finding of NoSignificantImpact, 2013Lower KlamathRiver Late-Summer FlowAugmentationfrom LewistonDam | Documentregardingprior FARs;Documentrelevant toclaimedauthority forthe 2015FARs; Sourcedocumentdirectly orindirectlyrelied upon asbasis for 2015EnvironmentalAssessment. | This document concerns FARs implemented in 2013. Forthe same reasons set forth above for Document #9 inRuling 9A and Ruling 9B and for Document #11 inRuling 11, the motion is DENIED as to this document onall three grounds offered. | |
| 13. | Jan. 30, 1995 | Document | This document relates to one of the claimed legal |
| Letter from theBureau ofReclamation tothe Trinity CountyBoard ofSupervisors re:50,000Acre-Feet | relevant toclaimedauthority forthe 2015FARs; Sourcedocumentdirectly orindirectlyrelied upon asbasis for 2015Environmental Assessment;Otherdocumentdirectly orindirectlyconsidered bythe agency. | authorities for implementing FARs. For the same reasonsset forth above for Document #9 in Ruling 9B and forDocument #11 in Ruling 11, the motion is DENIED as tothis document on the first two grounds offered.As to Plaintiffs' contention that this document shouldotherwise be included in the AR because it was "directlyor indirectly considered by Reclamation," the only basisoffered by Plaintiffs' for including this specific documentunder this rationale is that it was produced to Plaintiffs aspart of a Freedom of Information Act ("FOIA") responsethat requested "all records regarding emergency NEPAconsultation on the flow augmentation releases made in2014." See Doc. 82 at 14. But, a FOIA production is an"entirely discrete legal concept that bears no relation tothe [preparation of] an administrative record [] for acourt's review under the APA." State of Del. Dep't ofNatural Resources and Envtl. Control v. U.S. ArmyCorps of Eng'rs, 722 F. Supp. 2d 535, 544 (D. Del.2010). Absent clear evidence to the contrary, an agency'sproduction of documents under FOIA does notnecessarily mean they were "considered" for purposes ofcompiling an administrative record. See Fund forAnimals v. Williams, 245 F. Supp. 2d 49, 55-57 (D.D.C.2003), vacated on other grounds sub nom. Fund ForAnimals, Inc. v. Hogan, 428 F.3d 1059 (D.C. Cir. 2005)(where plaintiffs sought inclusion in the record ofnumerous documents secured by way of a FOIA request,it is the agency that is in the best position to determinewhich documents it considered and enjoys a presumptionthat it properly designated the record absent clearevidence to the contrary). Plaintiffs have made no clearshowing that would warrant this Court disregarding thepresumption of proper designation of the AR. The motionis DENIED as to this document on this ground. | ||
|---|---|---|---|---|
| 14. | Reclamation will add this document to the record. | |||
| 15. | Sept. 13, 2014YurokFisheriesProgramTechnicalMemorandum re:Ich | Otherdocumentdirectly orindirectlyconsideredby theagency. | This email isactually datedSeptember 24,2014, whichpost- dates thedecision. This isan update to anearlier versionof the samedocument that isalready in therecord at AR65, 68. | Defendants argue that the document should not beincluded in the AR because it postdates the decision torelease the additional water. Although this documentbears the date September 13, 2014, it contains data aboutfish disease prevalence in the Lower Klamath that runs upthrough and including September 29, 2014, which postdates Federal Defendants' formal announcement onSeptember 16, 2014, that Reclamation would releaseadditional water (above and beyond the level of releasesannounced in late August, see AR 5177-5181) to target aflow rate of approximately 5,000 cfs in the lower KlamathRiver for seven days. See AR 5250-53.Plaintiffs suggest that Document # 15 shouldnevertheless be part of the record because, while it post-dates the start of the 2014 FARs, it pre-dates the start ofthe 2015 FARs. Doc. 87 at 7. This, of course, would betrue of any document produced in the aftermath of the2014 FARs. Presumably, due to its inclusion of |
| information that post-dates the targeting of 5,000 cfsflows in the Lower Klamath, Document # 15 speaks to theeffectiveness (or lack thereof) of the supplementalreleases. But, this does not mean it was considered by thedecisionmaker. To the extent efficacy of the flows is anissue in this case, Federal Defendants' record must standor fall on the information included in the record or shownto be worthy of supplementation. As to this document,Plaintiffs have again failed to "identify reasonable, non-speculative grounds for its belief that the documents wereconsidered by the decision makers." Pinnacle Armor, 923F. Supp. 2d at 1239. Nor is there evidence that thedecision to target flows to 5,000 cfs, see Press Releasedated September 16, 2014 (AR 5250), was contingentupon collection of the information contained in Document# 15, which might have justified inclusion of thedocument in the record for the 2014 FARs. The motion isDENIED as to this document on this ground. | ||||
|---|---|---|---|---|
| 16. | June 18, 2015JointAnnouncement re:ShastaTemperatureManagement Plan | Otherdocumentdirectly orindirectlyconsideredby theagency. | This documentwas notconsidered bythe decision-maker or reliedon for the2014/2015FARs. Therelevant datawas consideredseparately andis in the AR. | This document announces "key components" ofReclamation's plan to manage temperature control issuesstemming from a "much smaller volume of cold water inShasta Reservoir." Plaintiffs argue generally that thisdocument was "directly or indirectly considered by theagency," and, somewhat more specifically, that "whilethe [AR] currently contains several documents regardingReclamation's operation of the CVP for temperaturemanagement in 2015, several other documents aremissing. These include letters to and from Reclamationregarding 2015 operations, which at a minimum, whereindirectly considered relevant to the 2015 FARs." Doc.82 at 14. The Court is left to guess how this argumentmight satisfy Plaintiffs' burden to establish "reasonable,non-speculative grounds for its belief that the documentswere considered by the decision makers," particularly inlight of Federal Defendants' undisputed assertion that therelevant data reflected in this document was consideredseparately and is already included in the AR. The merefact that Plaintiffs allege the FARs hamperedReclamation's ability to manage temperature in theSacramento River watershed is insufficient. The motionis DENIED as to this document on this ground. |
| 17. | July 1, 2015 LetterfromNationalMarineFisheriesService toReclamationand CaliforniaDepartment ofWaterResources re:2015 ContingencyPlan | Otherdocumentdirectly orindirectlyconsideredby theagency. | This documentwas notconsidered bythe decision-maker or reliedon for the2014/2015FARs. Therelevant datawas consideredseparately andis in the AR. | This document outlines a contingency plan for operations(including Shasta temperature management) in light ofongoing drought conditions. Plaintiffs offer the samerationale for its inclusion in the record as they did forDocument # 16, which fails for the same reasonsarticulated in the ruling for Document #16. The motion isDENIED as to this document on this ground. |
| 18. | July 7, 2015 LetterfromState WaterResourcesControl Board toRon Milligan re: | Otherdocumentdirectly orindirectlyconsidered bythe agency. | This documentwas notconsidered bythe decision-maker or reliedon for the | This document is the State Water Resources ControlBoard's approval of Reclamation's revised ShastaReservoir Temperature Management Plan. Doc. 82-3 atpp. 33-39 of 140 (Document #17). Plaintiffs offer thesame rationale for its inclusion in the record as they didfor Document # 16, which fails for the same reasons |
| SacramentoRiverTemperatureManagementPlan | 2014/2015FARs. Therelevant datawas consideredseparately andis in the AR. | articulated in the ruling for Document #16. The motion isDENIED as to this document on this ground. | ||
| 19. | June 25, 2015ReclamationRevisedSacramento RiverTemperatureManagement Plan- June 2015 | Otherdocumentdirectly orindirectlyconsidered bythe agency. | This documentwas notconsidered bythe decision-maker or reliedon for the2014/2015FARs. Therelevant datawas consideredseparately andis in the AR. | This document articulates the Bureau's RevisedSacramento River Water Temperature Management Plan.Doc. 82-3 at pp. 41-50 of 140 (Document #17). Plaintiffsoffer the same rationale for its inclusion in the record asthey did for Document # 16, which fails for the samereasons articulated in the ruling for Document #16. Themotion is DENIED as to this document on this ground. |
| 20. | Reclamation will add this document to the record. | |||
| 21. | Reclamation will add this document to the record. | |||
| 22. | Reclamation will add this document to the record. | |||
| 23. | Reclamation will add this document to the record. | |||
| 24. | Reclamation will add this document to the record. | |||
| 25. | Aug. 22, 2014Memorandumfrom B. Person toFiles re: DecisionRationale -AugmentingFlows in theLower KlamathRiver DuringAugust andSeptember of2014 | Documentgenerated inthe course ofan agency'sprocess forarriving at itsdecision;Otherdocumentdirectly orindirectlyconsidered bythe agency. | An identicalversion of thisdocument isalready in therecord at AR52. | Although in Reply Plaintiffs continue to include this inthe range of documents in dispute, see Doc. 87 at 5:27-28, Plaintiffs provide no specific reply to FederalDefendants' undisputed assertion that an identical versionof this document is already in the AR. Therefore, themotion is DENIED as moot as to this document. |
|---|---|---|---|---|
| 26. | May 12, 2010Memorandumfrom N. Sutley,Counsel onEnvironmentalQuality ("CEQ")to DepartmentHeads re:Emergencies andthe NationalEnvironmentalPolicy Act | Documentgenerated inthe course ofan agency'sprocess forarriving at itsdecision;Otherdocumentdirectly orindirectlyconsidered bythe agency. | This documentwas notconsidered bythedecisionmakeror relied on forthe 2014/2015FARs. | This is a CEQ Guidance document cited by FederalDefendants' in their opposition to Plaintiffs' motion for atemporary restraining order regarding the 2014 FARsfiled in this case. The document outlines a "step-by-stepprocess for determining the appropriate path forward forthe NEPA environmental review of all actions proposedin response to an emergency situation." Plaintiffs offer noevidence that Reclamation directly or indirectlyconsidered this document in making its decision to makethe 2014 or 2015 FARs. That Federal Defendants'counsel relied upon the document in making their legalarguments is not dispositive. Absent any other showing,the motion is DENIED as to this document on thegrounds presented. |
| 27. | Reclamation will add this document to the record. | |||
| 28. | Reclamation will add this document to the record. | |||
| 29. | June 26, 2003Memorandumfrom Doug | Documentregardingprior FARs; | This documentwas notconsidered by | This document concerns FARs proposed in 2003. Thefirst ground offered for inclusion of this document isaddressed in Ruling 9A, which found that the mere fact |
| Schleusner,ExecutiveDirector, TrinityRiver RestorationProgram re:DRAFTImplementationStrategy, Potential2003 Fall FlowReleases. | Otherdocumentdirectly orindirectlyconsidered bythe agency. | the decision-maker or reliedon for the2014/2015FARs. | that a document pertains to prior FARs is insufficient to"identify reasonable, non-speculative grounds for itsbelief that the documents were considered by the decisionmakers." Plaintiffs offer no independent, specific basisfor the inclusion of this document. See Doc. 82 at 12. Themotion to add this document on this ground is DENIED.As to the second ground, Plaintiffs again offer no specificbasis to believe that this document was considered, eitherdirectly or indirectly, by the agency, see Doc. 82 at 14,and no such basis is apparent from the face of thedocument. The motion to add this document on thisground is DENIED. | |
|---|---|---|---|---|
| 30. | Aug. 11, 2004Letter from M.Ryan to I.Lagomarsino re:Request forConcurrence witha Determination of"Not Likely toAdversely Affect"for ProposedSupplementalWater Releases tothe Trinity Riverfor August andSeptember 2004 | DocumentregardingpriorFARs. | This documentwas notconsidered bythe decision-maker or reliedon for the2014/2015FARs. | This document concerns FARs proposed in 2004. Theground offered for inclusion of this document isaddressed in Ruling 9A, which found that the mere factthat a document pertains to prior FARs is insufficient to"identify reasonable, non-speculative grounds for itsbelief that the documents were considered by the decisionmakers." Plaintiffs offer no independent, specific basisfor the inclusion of this document, and none is apparentfrom the face of the document. See Doc. 82 at 12. Themotion to add this document on this ground is DENIED. |
| 31. | Aug. 20, 2004Letter from R.McInnis to M.Ryan re: ESAconsultation | Documentregardingprior FARs. | This documentwas notconsidered bythe decision-maker or reliedon for the2014/2015FARs. | This document also concerns FARs implemented in2004The ground offered for inclusion of this document isaddressed in Ruling 9A, which found that the mere factthat a document pertains to prior FARs is insufficient to"identify reasonable, non-speculative grounds for itsbelief that the documents were considered by the decisionmakers." Plaintiffs offer no independent, specific basisfor the inclusion of this document, and none is apparentfrom the face of the document. See Doc. 82 at 12. Themotion to add this document on this ground is DENIED. |
| 32. | June 25, 2010 E-mail chainbeginning with e-mail from S.Naman to J.Simondet, andincluding relatede-mails betweenNMFS andReclamation staffand others re: FallFlowAugmentation/Meeting Agenda andMaterials | Documentregardingprior FARs;Otherdocumentdirectly orindirectlyconsidered bythe agency. | This documentwas notconsidered bythe decision-maker or reliedon for the2014/2015FARs. | This document discusses implementation FARs proposedin 2010. The first ground offered for inclusion of thisdocument is addressed in Ruling 9A, which found thatthe mere fact that a document pertains to prior FARs isinsufficient to "identify reasonable, non-speculativegrounds for its belief that the documents were consideredby the decision makers." Plaintiffs offer no independent,specific basis for the inclusion of this document. See Doc.82 at 12. The motion to add this document on this groundis DENIED.As to the second ground, Plaintiffs again offer no specificbasis to believe that this document was considered, eitherdirectly or indirectly, by the agency, see Doc. 82 at 14,and no such basis is apparent from the face of thedocument. The motion to add this document on thisground is DENIED. |
| 33. | Aug. 27, 2014 E-mail chainbeginning with e-mail from R.Grimes to D. Reck | Documentgenerated inthe course ofan agency'sprocess for | This is a heavilyredacted emailchain regardingCEQ discussionand the redacted | This document, as redacted, does not appear to containany content that is material to any claim in this case.Plaintiffs do not argue otherwise in reply, except tocontend, generally, that Federal Defendants should berequired to produce a privilege log, an assertion that is |
| Re: EmergencyLower KlamathRiver FlowAugmentation -Late Summer2014 | arriving at itsdecision;Otherdocumentdirectly orindirectlyconsidered bythe agency. | portions areprivileged andthus not part ofthe record. Thenon- redactedportions are notrelevant to the2014/2015FARs and thuswere notconsidered bythe decision-maker. | addressed separately below. The motion to add thisdocument on the offered ground is DENIED. | |
| 34. | May 31, 2012Memorandumfrom Fall FlowSubgroup to B.Person re: 2012Fall Flow ReleaseReccomendation(sic) | Documentregardingprior FARs;Documentgenerated inthe course ofan agency'sprocess forarriving at itsdecision;Sourcedocumentdirectly orindirectlyrelied upon asbasis for 2015Environmental Assessment;Otherdocumentdirectly orindirectlyconsidered bythe agency. | This documentwas notconsidered bythe decision-maker or reliedon for the2014/2015FARs. Thisdocument isspecific to the2012 FARsonly. | This document concerns FARs recommended for 2012.As to the first ground for inclusion - that this is adocument regarding prior FARs - Ruling 9A explainedthat this rationale, standing alone, fails to "identifyreasonable, non-speculative grounds for its belief that thedocuments were considered by the decision makers."Pinnacle Armor, 923 F. Supp. 2d at 1239 (internalcitation and quotation omitted). The motion is DENIEDas to this document on this ground.As to the second ground - that this is a documentgenerated in the course of an agency's process forarriving at its decision - Plaintiffs offer absolutely noexplanation of why this document, dated May 31, 2012,was generated in Reclamation's process for arriving at itsdecision on either of the FARs at issue in this case. Themotion is DENIED as to this document on this ground.As to the third ground - that this is a source documentdirectly or indirectly relied upon as a basis for the 2015EA -- as Ruling 11 explained, High Sierra Hikers standsfor the proposition that the AR should be expanded toinclude "source documents" containing data used toproduce other documents in the AR. 2011 WL 2531138,at *6. But Plaintiffs argue Document # 34 is a "sourcedocument" simply because it includes language/criteriathat have only been slightly modified in the 2015 EA.High Sierra Hikers is therefore not controlling.Overlapping language between a so-called "source"document and a decision document does not necessarilymean the "source" document was considered, evenindirectly, by decisionmakers. The motion is DENIED asto this document on this ground.As to the fourth rationale - that this document wasotherwise directly or indirectly considered by the agency-- Plaintiffs fail to "identify reasonable, non-speculativegrounds for its belief that the documents were consideredby the decision makers." Pinnacle Armor, 923 F. Supp.2d at 1239 (internal citation and quotation omitted). Themotion is DENIED as to this document on this ground. |
|---|---|---|---|---|
| 35. | July 1, 1974Memorandumfrom AssistantRegional Solicitor | Documentrelevant toclaimedauthority for | This documentwas notconsidered bythe decision- | This document concerns a claimed authority for theFARs. As to the first ground for inclusion- that thisdocument is relevant to the claimed authority for the2015 FARs - as explained in Ruling 9B, Plaintiffs again |
| to RegionalDirector, Bureauof Reclamation,Sacramento, re:"Request foropinion reauthority of theSecretary of theInterior to alterpresent functionsandaccomplishmentsof Trinity RiverDivision, "CentralValley Project" | the 2015FARs; Otherdocumentdirectly orindirectlyconsideredby theagency. | maker or reliedon for the2014/2015FARs. | offer "no evidence that Reclamation decision-makers []independently consider and reconsider whether there islegal authority to release water with each subsequentrelease, including the relevant releases here, rather thanbeing advised by counsel when necessary." Doc. 85 at10. To the extent Plaintiffs seek documents that provideadvice of counsel, such documents would be privileged.Plaintiffs have failed to demonstrate that relevant, non-privileged documents considered by the decisionmakerexist within this category. The motion to add thisdocument on this ground is DENIED.As to the second ground, plaintiffs again offer no specificbasis to believe that this document was considered, eitherdirectly or indirectly, by the agency, see Doc. 82 at 14,and no such basis is apparent from the face of thedocument. The motion to add this document on thisground is DENIED. | |
|---|---|---|---|---|
| 36. | Jan. 21, 1977Memorandumfrom RegionalSolicitor to FieldSupervisor,Division ofEcologicalServices, USFWS,re: "Trinity RiverDivision, CVP—Reconsiderationof July 1, 1974Memorandum toRegional Director,Bureau ofReclamation,ConcerningSection 2 of theTrinity RiverDivision Act" | Documentrelevant toclaimedauthority forthe 2015FARs; Otherdocumentdirectly orindirectlyconsideredby theagency. | This documentwas notconsidered bythe decision-maker or reliedon for the2014/2015FARs. | This document concerns a claimed authority for theFARs. For the same reasons set forth above for Document#35, the motion is DENIED as to this document. |
| 37. | May 18, 2015Letter from R.Milligan to M.Rea re:Contingency Planfor Water Year(WY) 2015Pursuant toReasonable andPrudentAlternative (RPA)Action 1.2.3.C ofthe 2009CoordinatedLong- termOperation of theCentral ValleyProject (CVP) andState WaterProject (SWP)BiologicalOpinion (NMFS | Documentgenerated inthe course ofan agency'sprocess forarriving at itsdecision;Otherdocumentdirectly orindirectlyconsidered bythe agency. | This documentwas notconsidered bythedecisionmakeror relied on forthe 2014/2015FARs. | This document, a request for concurrence from NMFSthat drought contingency plans are consistent with actionsset forth in NMFS's 2009 Biological Opinion on theCoordinated Long-Term Operation of the CVP and SWP,is closely related to Documents ## 16-19.As to the first ground for inclusion - that this is adocument generated in the course of an agency's processfor arriving at its decision - Plaintiffs offer absolutely noexplanation of why this document was "generated inReclamation's process for arriving at its decision oneither of the FARs at issue in this case," when facially ithas to do with a separate ESA compliance process. Themotion is DENIED as to this document on this ground.As to the second rationale, Plaintiffs argue generally thatthis document was "directly or indirectly considered bythe agency," but fail to offer "reasonable, non-speculativegrounds for its belief that the documents were consideredby the decision makers." The motion is DENIED as tothis document on this ground. |
| 2009 BiOp) | ||||
| 38. | Reclamation will add this document to the record. | |||
| 39. | Information /BriefingMemorandum forthe Commissionerof Reclamationfrom Brian Personre: Contract withHumboldt Countyfor 50,000 acre-feet of water in Trinity Reservoir | Documentrelevant toclaimedauthority forthe 2015FARs; Otherdocumentdirectly orindirectlyconsidered bythe agency. | This documentwas notconsidered bythedecisionmakeror relied on forthe 2014/2015FARs. | This document concerns a claimed authority for theFARs. As to the first ground for inclusion- that thisdocument is relevant to the claimed authority for the2015 FARs - as explained in Ruling 9B, Plaintiffs againoffered "no evidence that Reclamation decision-makers []independently consider and reconsider whether there islegal authority to release water with each subsequentrelease, including the relevant releases here, rather thanbeing advised by counsel when necessary." Doc. 85 at10. Finally, to the extent Plaintiffs are seeking documentsthat provide advice of counsel, such documents would beprivileged. Plaintiffs have failed to demonstrate thatrelevant, non-privileged documents considered by thedecisionmaker exist within this category. The motion toadd this document on this ground is DENIED.As to the second ground, plaintiffs again offer no specificbasis to believe that this document was considered, eitherdirectly or indirectly, by the agency, see Doc. 82 at 14,and no such basis is apparent from the face of thedocument. The motion to add this document on thisground is DENIED. |
|---|---|---|---|---|
| 40. | Mar. 21, 2011Draft BriefingPaper for MichaelConnor,Commissioner re:50,000 acre-feetof water in 1959Humboldtcontract | Documentrelevant toclaimedauthority forthe 2015FARs; Otherdocumentdirectly orindirectlyconsidered bythe agency. | This documentwas notconsidered bythedecisionmakeror relied on forthe 2014/2015FARs. | This document concerns a claimed authority for theFARs. For the same reasons set forth above forDocument #39, the motion is DENIED as to thisdocument. |
| 41. | Jan. 22, 2013Draft BriefingPaper for DavidMurillo, RegionalDirector | Documentrelevant toclaimedauthority forthe 2015FARs; Otherdocumentdirectly orindirectlyconsidered bythe agency. | This documentwas notconsidered bythedecisionmakeror relied on forthe 2014/2015FARs. | This document concerns a claimed authority for theFARs. For the same reasons set forth above forDocument #39, the motion is DENIED as to thisdocument. |
| 42. | Dec. 14, 2010Draft BriefingPaper for MichaelConnor,ReclamationCommissioner | Documentrelevant toclaimedauthority forthe 2015FARs; Otherdocumentdirectly orindirectlyconsidered bythe agency. | This documentwas notconsidered bythedecisionmakeror relied on forthe 2014/2015FARs. | This document concerns a claimed authority for theFARs. For the same reasons set forth above forDocument #39, the motion is DENIED as to thisdocument. |
| 43. | Reclamation will add this document to the record. | |||
| 44. | Draft PolicyStatement Outline | Documentrelevant to | This documentwas not | This document concerns a claimed authority for theFARs. For the same reasons set forth above for |
| - HumboldtCounty 50,000Acre- FeetContract | claimedauthority forthe 2015FARs; Otherdocumentdirectly orindirectlyconsidered bythe agency. | considered bythedecisionmakeror relied on forthe 2014/2015FARs. | Document #39, the motion is DENIED as to thisdocument. | |
| 45. | Reclamation will add this document to the record. | |||
| 46 | Aug. 9, 2004Letter from V.Whitney, DivisionChief, toHumboldt CountyBoard ofSupervisors, c/oHonorable JillGeist, re:"ComplaintAgainst theBureau ofReclamationRegarding theTrinity RiverDivision of theCentral ValleyProject in TrinityCounty | Documentrelevant toclaimedauthority forthe 2015FARs; Otherdocumentdirectly orindirectlyconsidered bythe agency. | This documentwas notconsidered bythedecisionmakeror relied on forthe 2014/2015FARs. | This document concerns a claimed authority for theFARs. For the same reasons set forth above forDocument #35, the motion is DENIED as to thisdocument. |
| 47. | Yurok boatdance_20140822_steadyramdown.xlsx | E-mail in therecordidentifiesdocument asattachment;attachment ismissing fromthe record. | This documentwas supersededby a later emailthat provided anupdate and theemail andattachment willbe added to therecord. | Plaintiffs' sole argument for inclusion of this document isthat it is an attachment to an email that has been includedin the AR. Federal Defendants maintain that theunderlying email was superseded by a later email thatprovided an update and that email and attachment will beadded to the record. Plaintiffs offer no specific reply.Plaintiffs therefore fail to offer "reasonable, non-speculative grounds for its belief that the documents wereconsidered by the decision makers." The motion isDENIED as to this document. |
| 48. | Reclamation asserts this document is already in the record and Plaintiffs do not dispute this assertion in Reply. | |||
| 49. | Reclamation will add this document to the record. | |||
| 50. | Reclamation asserts this document is already in the record and Plaintiffs do not dispute this assertion in Reply. | |||
| 51. | Reclamation will add this document (a missing attachment) to the record. | |||
| 52. | Reclamation will add this document (a missing attachment) to the record. | |||
| 53. | Reclamation will add this document (a missing attachment) to the record. | |||
| 54. | Reclamation asserts this document is already in the record and Plaintiffs do not dispute this assertion in Reply. | |||
| 55. | Reclamation asserts this document is already in the record and Plaintiffs do not dispute this assertion in Reply. | |||
| 56. | Reclamation will add this document (a missing attachment) to the record. | |||
| 57. | Reclamation will add this document (a missing attachment) to the record. | |||
| 58. | Reclamation will add this document (a missing attachment) to the record. | |||
| 59. | Reclamation will add this document (a missing attachment) to the record. | |||
| 60. | Reclamation will add this document (a missing attachment) to the record. | |||
| 61. | Reclamation will add this document (a missing attachment) to the record. | |||
| 62. | Reclamation will add this document (a missing attachment) to the record. | |||
| 63. | 150810 NCRWQCB_COMMENTS USBR2015_Lower_Klamath_Flows.pdf | E-mail in therecordidentifiesdocument asattachment;attachment is | Reclamationclaims this is aduplicate of AR63. | Plaintiffs' sole argument for inclusion of this document isthat it is an attachment to an email that has been includedin the AR. Federal Defendants maintain that theunderlying document is already included in the AR at ARDoc. 63 and has determined it should be removed.Plaintiffs offer no specific reply. Plaintiffs therefore fail |
| missing fromthe record. | to offer "reasonable, non-speculative grounds for itsbelief that the documents were considered by the decisionmakers." The motion is DENIED as to this document. | |||
| 64. | Reclamation will add this document (a missing attachment) to the record. | |||
| 65. | Reclamation will add this document (a missing attachment) to the record. | |||
| 66. | 2015.08.20PC_BOR LowerKlamath FlowAugmentationEIS Scoping.pdf | E-mail in therecordidentifiesdocument asattachment;attachment ismissing fromthe record. | This documentwas notconsidered inregards to the2014 or 2015FARs and willbe removed. | Plaintiffs' sole argument for inclusion of this document isthat it is an attachment to an email that has been includedin the AR. Federal Defendants maintain that theunderlying document was included in the AR in error andhas determined it should be removed. Plaintiffs offer nospecific reply, other than to persist in its genericargument that attachments are missing. Doc. 87 at 6.Plaintiffs therefore fail to offer "reasonable, non-speculative grounds for its belief that the documents wereconsidered by the decision makers." The motion isDENIED as to this document. |
| 67. | Declaration ofDonald Reck inSupport ofFederalDefendants'Opposition toPlaintiffs'Motions forTemporaryRestraining Orderand PreliminaryInjunctions | Documentgenerated inthe course ofan agency'sprocess forarriving at itsdecision;Otherdocumentdirectly orindirectlyconsidered bythe agency. | This documentpost-dates thefinal agency isproperly notpart of therecord. actionand | This document, a Declaration produced in the context ofthis litigation, is dated August 26, 2014, which post-datesthe August 22, 2014 Press Release announcing the 2014FARs. Plaintiffs argue that Document # 67 neverthelessbelongs in the AR because it discusses NEPA compliancefor the 2014 FARs and because Reclamation's decisionsregarding NEPA compliance continued beyond the datethe FARs began. While it is true that this document doessuggest that Reclamation (1) was invoking NEPAemergency procedures and (2) intended to completeNEPA environmental review after the FARs began, thereis no evidence in the record suggesting the agencygenerated Document # 67 in the course of arriving at itsdecision (either its initial decision to implement the FARsor any subsequent decision to issue a relatedenvironmental document) or considered Document # 67either directly or indirectly. That decision-makingcontinued past the start of the FARs does not mean thatevery document mentioning the FARs generated afterinitiation of the FARs should become part of the AR.This would eviscerate the general rule that "'[t]he wholerecord' includes everything that was before the agencypertaining to the merits of the decision." PortlandAudubon, 984 F.2d at 1548. Again, Plaintiffs have failedto articulate a non-speculative basis to believe thisdocument was considered, directly or indirectly, by theagency. The motion to add this document to the AR istherefore DENIED. |
|---|---|---|---|---|
| 68. | Declaration ofBrian Person inSupport ofFederalDefendants'Opposition toPlaintiffs'Motions forTemporaryRestraining Orderand PreliminaryInjunction | Documentgenerated inthe course ofan agency'sprocess forarriving at itsdecision;Otherdocumentdirectly orindirectlyconsidered bythe agency. | This documentpost-dates thefinal agencyaction and isproperly notpart of therecord. | This is a Declaration filed in this litigation on August 26,2014. Plaintiffs concede that this document post-dates thebeginning of the 2014 FARs, put argue that because itpre-dates the start of the 2015 FARs, was beforeReclamation when it made its decision regarding the2015 FARs, and was germane to that decision, it shouldbe part of the AR. Again, plaintiffs fail to offer"reasonable, non-speculative grounds for its belief thatthe documents were considered by the decision makers."The motion to add this document to the AR is thereforeDENIED. |
| 69. | Declaration ofRonald Milliganin Support of | Documentgenerated inthe course of | This documentpost-dates thefinal agency | Document # 69 is yet another Declaration filed in thislitigation, dated August 26, 2014. As with Document #68, Plaintiffs argue that, while this document does post- |
| FederalDefendants'Opposition toPlaintiffs' Motionfor TemporaryRestraining Orderand PreliminaryInjunction | an agency'sprocess forarriving at itsdecision;Otherdocumentdirectly orindirectlyconsidered bythe agency. | action and isproperly notpart of therecord. | date the beginning of the 2014 FARs, it pre-dates the startof the 2015 FARs, was before Reclamation when it madeits decision regarding the 2015 FARs, and was germaneto that decision. Again, Plaintiffs fail to offer"reasonable, non-speculative grounds for its belief thatthe documents were considered by the decision makers."The motion to add this document to the AR is thereforeDENIED. | |
| 70. | Reclamation will add this document to the record. | |||
| 71. | Reclamation will add this document to the record. | |||
| 72. | July 24, 2015 E-mail chainbeginning withemail from T.Washburn tonumerousrecipients, andincludingattachments, re:Additional datarequested | Documentgenerated inthe course ofan agency'sprocess forarriving at itsdecision;Otherdocumentdirectly orindirectlyconsidered bythe agency. | This documentwas notconsidered bythedecisionmakeror relied on forthe 2014/2015FARs. Thisdocumentconcerns onlythe upperSacramentoRiver. | This is an email pertaining to temperature control in theupper Sacramento River. As with Document # 16 andrelated documents, the mere fact that Plaintiffs allege theFARs hampered Reclamation's ability to managetemperature in the Sacramento River watershed isinsufficient to sweep all related documents into the AR inthis case. The motion is DENIED as to this document. |
| 73. | March 20, 2015E-mail chainbeginning withemail from S. Fryto numerousrecipients, andincludingattachment, re:Final Draft ESAProjectDescription forApr- Sept 2015droughtoperations | Documentgenerated inthe course ofan agency'sprocess forarriving at itsdecision;Otherdocumentdirectly orindirectlyconsidered bythe agency. | This documentwas notconsidered bythedecisionmakeror relied on forthe 2014/2015FARs. The onlymention of theTrinity River inthis document isa referenceregardingconsultationwith the Tribes. | This is another email pertaining to drought operations forthe CVP. The Court has reviewed this document in itsentirety and agrees with Federal Defendants that nothingtherein indicates it was considered directly or indirectlyby the agency. The motion is DENIED as to thisdocument. |
| 74. | August 11, 2015E-mail chainbeginning withemail from P.Zedonis to G. Yipand S. Naman,and includingattachments, re:Fall Flow Action-2015 Draft Letters/Bio Review | Documentgenerated inthe course ofan agency'sprocess forarriving at itsdecision;Otherdocumentdirectly orindirectlyconsidered bythe agency. | This documentwas notconsidered bythedecisionmakeror relied on forthe 2014/2015FARs. | This document appears to already be in the record. SeeAR 1095; see also Doc. 85 at 6:15-16. The motion istherefore moot as to this document. |
|---|---|---|---|---|
| 75. | Reclamation asserts this document is already in the record and Plaintiffs do not dispute this assertion in Reply | |||
| 76. | June 25, 2015 E-mail chainbeginning withemail from R.Milligan to M.Rea, and | Documentgenerated inthe course ofan agency'sprocess forarriving at its | This documentwas notconsidered bythedecisionmakeror relied on for | This document is an email related to a letter that is relatedto Document # 37, which all concern temperaturemanagement in the upper Sacramento River.For the same reasons the motion for inclusion was deniedas to Document # 37, it is DENIED as to document 76. . |
| includingattachments, re:ETA on packagetransmittal? | decision;Otherdocumentdirectly orindirectlyconsidered bythe agency. | the 2014/2015FARs. | ||
| 77. | Reclamation will add this document to the record. | |||
| 78. | Reclamation will add this document to the record. | |||
| 79. | Reclamation will add this document to the record. | |||
| 80. | Aug. 19, 2015 E-mail from P.Zedonis to NMFSstaff, re: WaterResources FallFlows 2015 | Documentgenerated inthe course ofan agency'sprocess forarriving at itsdecision. | This documentwas notconsidered bythedecisionmakeror relied on forthe 2014/2015FARs. Itprovides NMFSinformationabout thedecision for usein the future. | Federal Defendants maintain that this document doesnothing more than provide information to NMFS forNMFS's use in future analyses. Plaintiffs do notspecifically respond to this assertion in Reply. It isPlaintiffs' burden to "identify reasonable, non-speculative grounds for its belief that the documents wereconsidered by the decision makers." Pinnacle Armor, 923F. Supp. 2d at 1239. Plaintiffs have failed to do so as tothis document. The motion to add this document to theAR is therefore DENIED. |
|---|---|---|---|---|
| 81. | Sept. 4, 2015 E-mail chainbeginning withemail from P.Zedonis tonumerousrecipients, re: Sept4 update: FishAbundance in thelower KlamathRiver | Documentgenerated inthe course ofan agency'sprocess forarriving at itsdecision;Otherdocumentdirectly orindirectlyconsidered bythe agency;Documentpostdating thestart of the2015 FARs. | This documentpost-dates thefinal agencyaction and isproperly notpart of therecord. | This document discusses Chinook migration patterns inthe lower Klamath River. Plaintiffs argue that the contentof these documents reveal that decision-making regardingthe 2015 FARs continued after the formal decision(s) tomake the 2015 FARs issued. The Court agrees. Unlikewith Document # 15, where the document itself did notreveal that decision-making was contingent upon itscontent, Document # 81 expressly states that additionalinformation (including, presumably, informationcontained in Document # 81) would be considered in"formulating the decision of when to implement thepreventative pulse."The 2015 EA explains the parameters for triggering apreventative pulse flow:• Due to the heightened alert for this year with therecent and continued low level infections of Ichobserved, a 3- day pulse (including ramping up anddown) peaking at 5,000 cfs in the lower Klamath Rivermay be implemented when:o the peak of fall run migration (first or secondweek of September) is identified in the lowerKlamath River as indicated by tribal harvest, ando low level infections of Ich (less than 30 Ich pergill) is found on three fall-run adult salmon (of amaximum sample size of 60) captured in thelower Klamath River in one day during the firstor second week of September. Sampling andconfirmation would follow the methods asdescribed in NOAA and USFWS (2013). Thebenefit of the pulse is to enhanceflushing/dilution of the river of parasites whenthe bulk of fall run adults are likely to be thelower river. This flow would also furtherimprove water quality and help facilitatemovements of adult salmon. |
| • If rainfall increases the flow in the lower KlamathRiver to above 5,000 cfs this component would not beimplemented.• If needed, this action may avert the need to apply theemergency criteria.• Implementation of a pulse flow will be within theProposed Action volume of 51 TAF.AR 1196 (emphasis added to highlight that the peak offall run migration was a trigger for a 3-day pulse flow).Document # 81 discusses the timing of the peak of fall-run migration in the lower Klamath and appears tosuggest that considerable discretion is involved indetermining when the "peak of fall run migration" triggerwas deemed to be present prior to implementation of theSeptember 2015 pulse flow. There appears to be nodispute that Federal Defendants' decision-makers wereinvolved in the back-and-forth communicationdocumented in these emails. This document is clearlygermane to the claims in this case, appears to have beenconsidered by decision-makers, and expressly revealswhat appears to be ongoing decision-making (as opposedto rote application of purely objective factors) takingplace after the decision date. Because Federal Defendantsoffer no basis for refusing to include this document in therecord other than that it "post-dates" the decision, themotion is GRANTED as to this document. | ||||
| 82. | Sept. 7, 2015 E-mail chainbeginning withemail from P.Zedonis tonumerousrecipients, re: Sept7 update: FishAbundance andPreventative PulseFlow | Documentgenerated inthe course ofan agency'sprocess forarriving at itsdecision;Otherdocumentdirectly orindirectlyconsidered bythe agency;Documentpostdating thestart of the2015 FARs. | This documentpost-dates thefinal agencyaction and isproperly notpart of therecord. | Document # 82, an email chain dated September 7, 2015,appears to be discussing details about and concerns withimplementation of the September 2015 pulse flow. In thisdocument, one concerned communicator discussesdiscrepancies between planned and actual flow levels,suggesting a "pattern of undermining therecommendations of the best available science and shortchanging the fish on the flows and water volumes." TheCourt is at a loss as to how this part of Document # 82could possibly be relevant to the claims in this case. Inanother portion of Document # 82, however, acommunicator discusses how recent fish catch increaseshave triggered a process by which Reclamation"conducted outreach to the key technical team staff tohelp determine when to implement the preventative pulseflow." This further reveals that decision-makingcontinued after the relevant formal decision. Again, theonly argument Federal Defendants make againstinclusion of this document in the record is that it post-dates the relevant formal decision. For the same reasonthe motion was GRANTED as to Document # 81, themotion is GRANTED as to Document # 82, althoughFederal Defendants may choose to omit material that isnot relevant to the disputed decision(s). |
The documents in dispute are presented as attachments to the Electronic Case File Documents ("Doc.") 82 and 83.
Plaintiffs appear to mis-label Document # 15 as Document # 14 on page 7 of their Reply.
Plaintiffs argue that Federal Defendants' certification of the administrative record "confirms the inadequacy" of the AR. Doc. 82 at 16. A court may conclude that the presumption of completeness is rebutted where an agency's certification of the administrative record "on its face, appears to contain less than all the documents and materials directly or indirectly considered by the agency in making its decision." Gill v. Dep't of Justice, No. 14-CV-03120-RS (KAW), 2015 WL 9258075, at *5 (N.D. Cal. Dec. 18, 2015). In Gill, plaintiffs challenged a Department of Justice ("DOJ") standard that defined "suspicious activity" for purposes of triggering reporting such activity under a federally-funded anti-terrorism information sharing initiative. Id. at *1-2. Plaintiffs argued that DOJ certified the record under the wrong legal standard, certifying that the record included "information considered in the development" of the suspicious activity definition, instead of certifying inclusion of "all documents and materials directly or indirectly considered by the agency in making its decision." Id. at *3. The district court agreed, finding plaintiffs "sufficiently rebutted the presumption of completeness, and remanded the record to the agency, requiring a new search for "all documents and materials directly or indirectly considered." Id. at *6.
The other arguably analogous case cited by Plaintiffs, People of the State of Cal. ex rel. Lockyer v. U.S. Dept. of Agriculture, No. C05-03508 EDL, 2006 WL 708914, at *3 (Mar. 16, 2006), follows a similar pattern. --------
Plaintiffs argue that a similar finding is warranted here. The certification provided in this case provides in relevant part:
To the best of my knowledge, the index filed with the Court in this matter constitutes a true, correct, and complete index of the administrative record in this action. To the best of my knowledge, this index identifies all documents and materials directly or indirectly considered by the agency decision-makers in relation to the development of the Finding of No Significant Impact and Environmental Assessment, and in relation to the action challenged in the Complaint filed in the above-captioned matter, for 2015 Lower Klamath River Late Summer Flow Augmentation from Lewiston Dam that is mentioned in the Complaint in this matter.Akroyd Decl., Ex. 1 (Doc. 76-1). Plaintiffs argue that this certification is insufficient because it makes no mention of compliance with the ESA or MSA or of the 2014 FARs. While this is true, the legal consequences of such a substantive omission are unclear. Gill does not control, as the record in this case does not reveal application of the incorrect legal standard. Put another way, the issue in Gill was whether the administrative agency applied the correct standard when searching its files for documents to include in the administrative record. The agency's certification attested to a search only for "information considered in the development" of the suspicious activity definition, instead of certifying inclusion of "all documents and materials directly or indirectly considered by the agency in making its decision." Gill, 2015 WL 9258075, at *3. The district court in Gill took issue with the depth of the search conducted, not the scope of the search vis-a-vis the decisions challenged.
Here, the certification does not raise issues of depth, as the certification in this case specifically mentions the correct standard: inclusion of "all documents and materials directly or indirectly considered by the agency decision-makers." Rather, Plaintiffs' concern is with the apparent scope of the certification and whether it reveals a failure of the AR to cover all of the issues raised in the operative complaint. Unlike issues of depth, which cannot easily be evaluated by way of a Court examination of the AR itself for completeness, Plaintiffs' concern over scope can be evaluated on the present record. Critically, the AR produced plainly demonstrates that the agency collected documents pertaining to the 2014 FARs, as a separate section of the AR is dedicated wholly to that action. A further review of the record reveals that ESA documents are also included in the AR. As discussed above, in connection with the ruling on Document #7, no documents related to MSA consultation exist. The certification in this case, while inartfully drafted, does not rebut the presumption of completeness. C. Plaintiffs' Request for a Privilege Log.
Plaintiffs argue that Federal Defendants should be required to produce a privilege log identifying documents withheld from the AR under claim of privilege. Doc. 82 at 17. While district courts in the Northern District of California have required privilege logs in administrative record cases, see, e.g., Gill, 2015 WL 9258075, at *6-7, the only other district court in the Eastern District of California to address the question declined to do so. See California v. U.S. Dep't of Labor, No. 2:13-CV-02069-KJM, 2014 WL 1665290, at *13 (E.D. Cal. Apr. 24, 2014), In that case, the district court relied on National Association of Chain Drug Stores v. U.S. Dep't of Health & Human Services, in which a district court in the District of Columbia reasoned:
Since deliberative documents are not part of the administrative record, an agency that withholds these privileged documents is not required to produce a privilege log to describe the documents that have been withheld.631 F. Supp. 2d 23, 27-28 (D.D.C. 2009) (internal citations omitted). The Court finds this reasoning persuasive. To require a privilege log as a matter of course in any administrative record case where a privilege appears to have been invoked would undermine the presumption of correctness. This would shift the record compilation process too closely toward mechanisms employed in cases subject to regular civil discovery. The request to require the preparation of a privilege log is therefore DENIED. D. Plaintiffs' "Relevant Factors" Argument.
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Plaintiffs claim to seek a privilege log so that they can participate in the process of determining what documents are and are not part of the administrative record. However, the argument that a plaintiff and the Court should be permitted to participate in an agency's record compilation as a matter of course contravenes "the standard presumption that the agency properly designated the Administrative Record." To overcome the assumption that the agency properly designated the record, a party must make a "significant showing" that the agency has acted in bad faith. Plaintiffs here have not alleged any bad faith on the part of defendants, and absent such an allegation and showing, defendants' determination as to which materials are and are not part of the administrative record is conclusive.
In the alternative, Plaintiffs argue that the disputed documents should be considered because they "demonstrate Reclamation ignored relevant factors to its decisions to make the FARs." Doc. 87 at 8. A reviewing court may consider information outside the record under "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.San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 602-03 (9th Cir. 2014). However, it is inappropriate for the Court to address this argument, because this issue was raised for the first time in Reply. Compare Doc. 82 with Doc. 87; Ass'n of Irritated Residents v. C & R Vanderham Dairy, 435 F. Supp. 2d 1078, 1089 (E.D. Cal. 2006) ("It is inappropriate to consider arguments raised for the first time in a reply brief.").
IV. CONCLUSION AND ORDER
For the reasons set forth above, Plaintiffs' motion is GRANTED as to Documents # 81 and 82 and DENIED in all other respects. IT IS SO ORDERED.
Dated: June 23 , 2016
/s/ Lawrence J. O'Neill
UNITED STATES CHIEF DISTRICT JUDGE