Guardians v. United States Fed. Emergency Mgmt. Agency, CV 10-863-PHX-MHM

Decision Date15 March 2011
Docket NumberNo. CV 10-863-PHX-MHM,CV 10-863-PHX-MHM
CourtU.S. District Court — District of Arizona

Currently before the Court is Plaintiff Wildearth Guardians' Motion for Leave to Supplement "Purported" Administrative Record. (Doc. 28). Having carefully considered the Parties' briefing and determined that oral argument is unnecessary, the Court issues the following Order:


Pursuant to the National Flood Insurance Act of 1968 ("NFIA"), 42 U.S.C. §§ 40014129, Defendant Federal Emergency Management Agency ("FEMA") is authorized to establish and carry out the National Flood Insurance Program ("NFIP"). 42. U.S.C. §§ 4001(a), 4011, 4128. In its First Amended Complaint, Plaintiff Wild Earth Guardians ("WEG") alleges that Defendant's administration and implementation of the NFIP in Arizona violates the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq, the NationalEnvironmental Policy Act ("NEPA"), 42 U.S.C. 4321 et seq., and two Executive Orders; 11988 and 11990. Specifically, WEG asserts that ESA Section 7(a)(2) requires FEMA to consult with the Fish and Wildlife Service ("FWS") concerning the NFIP's impact on threatened and endangered species, that NEPA requires FEMA to undertake a supplemental NEPA analysis, and that the Executive Orders require FEMA to engage in further analysis regarding floodplains and wetlands. Plaintiff seeks both injunctive and declaratory relief.

Plaintiff Wildearth Guardians originally filed this case on August 26, 2009, in the Tucson division of the District of Arizona. (Doc. 1). On November 20, 2009, Plaintiff filed its First Amended Complaint, adding five more causes of action. (Doc. 20). On April 16, 2010, Judge David Bury granted Defendant's Motion for Change of Venue, (Doc. 21), moving this case to the Phoenix division of the District of Arizona. Plaintiff filed its original Motion to Supplement Administrative Record on May 5, 2010, (Doc. 22). Shortly thereafter, pursuant to the Parties' stipulation, and so that the Parties might resolve the issue of record supplementation on their own, the Court extended the time for Defendant to respond to Plaintiff's motion. (Doc. 24). After the Parties once again sought to modify the briefing schedule, the Court entered an order denying Plaintiff's motion as unripe and informed the Parties that if they were unable to resolve their dispute concerning supplementation of the record, Plaintiff could file a renewed motion to supplement. (Doc. 27).

On July 30, 2010, Plaintiff filed the instant Motion to Supplement the Administrative Record. (Doc. 28). After being granted an extension of time, (Doc. 30), Defendant responded on August 30, 2010, (Doc. 31), and the motion became fully briefed when Plaintiff replied on September 24, 2010. (Doc. 35). Also on September 24, 2010, Defendant filed its Notice of Recent Decision Re: Plaintiff's Motion to Supplement the Administrative Record, informing this Court of a potentially relevant and recently decided Ninth Circuit case, Western Watersheds Project v. Kraayenbrink, 620 F.3d 1187 (9th Cir. 2010) (Doc. 34). On October 8, 2010, Plaintiff filed a response to Defendant's Notice. (Doc. 37). Finally, on February 1, 2011, Plaintiff filed its own Notice of Supplemental Authority Re: Plaintiff's Motion for Leave to Supplement Purported Administrative Record, informing this Court thatthe Kraayenbrink decision had been amended upon the Ninth Circuit's denial of an en banc rehearing, Western Watersheds Project v. Kraayenbrink, __F.3d 2011__, 2011 WL 149363 (9th Cir. January 19, 2011). (Doc. 38).


The instant motion concerns a discrete issue; whether Plaintiff may supplement the administrative record. Plaintiff argues that supplementation is allowable as to both his ESA claims and his NEPA claim; Defendant disagrees. The Court will address this issue as it relates to Plaintiff's NEPA claim first.

A. Supplementation of the record is permissible in NEPA failure-to-act claims

NEPA claims are reviewed under the judicial review provision of the Administrative Procedure Act ("APA"), 5 U.S.C. § 702. Turtle Island Restoration Network v. United States Dept. of Commerce, 438 F.3d 937, 943 (9th Cir. 2006). "When a plaintiff challenges a final agency action, judicial review normally is limited to the administrative record in existence at the time of the agency's decision." Friends of the Clearwater v. Dombeck, 222 F.3d 552, 560 (9th Cir. 2000). However, in cases such as this one, where the plaintiff seeks to "compel agency action unlawfully withheld or unreasonably delayed, " "review is not limited to the record as it existed at any single point in time, because there is no final agency action to demarcate the limits of the record." Id.; San Francisco Baykeeper v. Whitman, 297 F.3d 877, 886 (9th Cir. 2002) ("As this case concerns agency inaction, there can be no final agency action that closes the administrative record or explains the agency's actions"). "The reason for this rule 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." San Francisco Baykeeper, 297 F.3d at 886.

Defendant appears to acknowledge that supplementation of the record is permitted in failure to acts cases, but argues that it is permitted only in four circumstances:

(1) if necessary to determine whether the agency has considered all relevant factors and has explained its decision, (2) when the agency has relied on documents not in the record, [ ] (3) when supplementing the record isnecessary to explain technical terms or complex subject matter, [or] (4) when plaintiff's make a showing of agency bad faith.

Center for Biological Diversity v. U.S. Fish & Wildlife Serv., 450 F.3d 930, 943 (9th Cir. 2006). The Court rejects this argument. While these four exceptions undoubtedly control supplementation of the record in cases where a final agency action is challenged, they do not appear to apply in failure-to-act cases. In so finding, the Court notes that none of the Ninth Circuit cases that have addressed record supplementation in failure-to-act cases make reference to or condition supplementation on the four exceptions. See, e.g., Friends of the Clearwater v. Dombeck, 222 F.3d at 560; San Francisco Baykeeper, 297 F.3d at 886. Additionally, utilization of these exceptions in failure-to-act cases would render superfluous the Ninth Circuit's repeated statements that the record is not closed in such cases. The Ninth Circuit's treatment of record supplementation in failure-to-act cases strongly suggests that failure to act cases are themselves an independent exception to the record review rule. See Independence Mining Co. v. Babbitt,105 F.3d 502, 505 (9th Cir. 1997) ("Judicial review of an agency's actions under § 706(1) for alleged delay has been deemed an exception to the "final agency decision" requirement." (emphasis added)); see also Firebaugh Canal Water Dist. v. United States, 2010 U.S. Dist. LEXIS 97707, *5-7 (E.D. Cal. Sept. 17, 2010) (finding that a "court is not limited to those four exceptions in a 706(1) case, " and that failure to act cases present are an "an exception to the record review rule for cases challenging agency delay.").

Defendant also argues, that even if supplementation of the record is permissible, only the Government may provide such evidence. While this Court's review of the case law suggests that the Government is the party that most often seeks to supplement the record, the Ninth Circuit has not promulgated any rule that prohibits a Plaintiff from doing so as well. And to the contrary, in Independence Mining Co., the Court upheld a district court's consideration of extra-record material in part because "the court permitted both sides to submit supplemental evidence." Id. Likewise, the district court in Consejo de Desarrollo Economico de Mexicali v. United States, granted the plaintiff's request to supplement therecord in his failure to act claim. 438 F. Supp. 2d 1207, 1222 (D. Nev. 2006) ("Accordingly, the Court will grant Plaintiff's' motion to supplement the Administrative Record with admissible materials relating to Plaintiff's' NEPA and ESA claims and will deny Defendants' motion to limit the scope of review to the Administrative Record."); see Firebaugh Canal Water Dist., 2010 U.S. Dist. LEXIS 97707 at *26 (granting plaintiff leave to supplement the record in a failure to act case). Accordingly, Plaintiff is not precluded by law from supplementing the record in this case.

B. Supplementation of the record is permissible in claims brought pursuant to the ESA's citizen suit provision

The Parties disagree about the same issue with respect to Plaintiff's ESA claims; whether supplementation of the record is permitted. Defendant's arguments in opposition to Plaintiff's motion, however, have been mooted by the Ninth Circuit's recent decision in Western Watersheds Project v. Kraayenbrink, __F.3d 2011_ _, 2011 WL 149363 (9th Cir. January 19, 2011). The Kraayenbrink Court stated unequivocally that the scope of review1for ESA citizen-suit claims is not provided for by the APA and as a result parties may submit and the court may consider evidence outside the administrative record:

As we explained in Washington Toxics Coalition, the APA applies only where there is "no other adequate remedy in a court, " 5 U.S.C. § 704, and-because the ESA provides a citizen suit remedy-the APA does not apply in such actions. 413 F.3d at 1034.Therefore, under Washington Toxics Coalition we may consider evidence outside the administrative record for the limited purposes of reviewing Plaintiff's' ESA claim.

2011 WL 149363, *22 (citing Washington Toxics Coal. v. EPA, 413 F.3d 1024,1030 (9th Cir. 2005). Plaintiff has brought all four of its ESA claims under the Act's...

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