MEMORANDUM DECISION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO COMPLETE THE ADMINISTRATIVE RECORD (Doc. 75)
LAWRENCE J. O'NEILL, Chief District Judge.
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")1 (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.
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.
# Document2 Plaintiffs' Federal Court's Ruling
Argument Defendants'
for Inclusion Response
1. Reclamation will add this document to the record.
2. Reclamation will add this document to the record.
3. December 2014 Cited in This document Plaintiffs argue that this document, a draft of a long term
Draft Long-Term Reclamation's was not plan for protecting salmonids in the Lower Klamath
Plan for decision considered by River, should be included in the AR because it was cited
Protecting Late document(s). the in at least one Reclamation decision document. While
Summer Adult decisionmaker this document is mentioned in the EA, this is not
Salmon in the or relied on for dispositive. Mere "references" to documents in the AR,
Lower Klamath the 2014/2015 even in the decision document, do not indicate they were
River FARs. necessarily considered by the decisionmaker. See
Pinnacle Armor, Inc. v. United States, 923 F. Supp. 2d
1226, 1240-41 (E.D. Cal. 2013) (distinguishing between
"citations" to documents and mere references thereto).
Here, the EA merely references the existence of a parallel
long-term planning process, see AR 1310, 1345, and does
not cite to any long-term planning document for any
factual proposition material to the relevant decision.
Therefore, Plaintiffs have not "identif[ied] reasonable,
non-speculative grounds for [their] belief that the
documents were considered by the decision makers."
Pinnacle Armor, 923 F. Supp. 2d at 1239 (internal
citation and quotation omitted). The motion is DENIED
as to this document.
4. April 2015 Draft Cited in This document Like Document #3, this document is also a draft of a
Long-Term Plan Reclamation's was not long-term plan to protect salmonids in the Lower
for Protecting decision considered by Klamath. For the same reasons set forth above for
Late Summer document(s). the Document #3, the motion is DENIED as to this
Adult Salmon in decisionmaker document.
the Lower or relied on for
Klamath River the 2014/2015
July 14, 2015 FARs.
Reclamation's
Notice of Intent to
Prepare EIS for
Long-Term Plan
5. July 14, 2015 Cited in This document Like Document #3 and #4, this document concerns long-term
Reclamation's Reclamation's was not planning for protection of salmonids in theLower
Notice of Intent to decision considered by Klamath. For the same reasons set forth above for
Prepare notice for document(s). the Document #3, the motion is DENIED as to this
EIS for Long decisionmaker document.
Term Plan or relied on for
the 2014/2015
FARs.
6. Reclamation will add this document to the record.
7. Evidence of Cited in There is no Plaintiffs' assertion that "evidence of consultation under
consultation under Reclamation's "evidence of the Magnuson Stevens Act" should be added to the
the Magnuson-Stevens decision consultation" to record is grounded in the following text in the EA and
Act for document(s). add. The text in FONSI for the 2015 FARs:
the Sacramento the EA and
River species in Finding of No Reclamation consulted under the Magnuson-Stevens
the 2009 Significant Act (MSA) for the Sacramento River species in the
Biological Impact 2009 Biological Opinion (BiOp) and since there was
Opinion ("FONSI") is a determination, concurred with by NMFS, that
self-explanatory because the proposed action is contemplated within
and any related the drought exception procedures as described in the
documents are 2009 NMFS BiOp it will not result in violation of the
already in the incidental take limit in the NMFS 2009 BiOp, nor
AR. jeopardize the continued existence of the listed
species or destroy or adversely modify their
designated critical habitats no further consultation
under the MSA is needed. As to the coho, the MSA
will be conducted as part of the ongoing consultation
on the coho. Additionally, as determined in the EA,
Reclamation did not identify any adverse effects
from the proposed action on essential fish habitat.
AR 1348; AR 1358.
This paragraph indicates that MSA consultation is not
required, in part because NMFS concurred that the
proposed action will not result in a violation of the
incidental take limit set forth under an ESA biological
opinion prepared by NMFS in 2009 addressing impacts
of the CVP and State Water Project ("SWP") on
salmonids and other species. While it is unclear from this
motion to what extent ESA concurrence letters are or
should be included in the record, Plaintiffs do not request
inclusion of the ESA concurrence letters. Rather, they
request MSA consultation documentation. The
EA/FONSI suggest that no such documents exist and
Plaintiffs present no evidence to the contrary. The agency
cannot include in the record non-existent documents.
The motion is DENIED as to this request.
8. Evidence of plan Cited in There is no For the same reasons set forth above for Document #7,
for consultation Reclamation's "evidence of the motion is DENIED as to this request.
under the decision consultation" to
Magnuson-Stevens document(s). add. The text in
Act for the EA and
Trinity River FONSI is self-explanatory
species and
any related
documents are
already in the
AR.
9. Aug. 21, 2003 Document This document This document is a notice related to FARs implemented
Federal regarding was not in 2013.
Defendants' prior FARs; considered by
Notice Regarding Document the Ruling 9A: As to the first ground for inclusion — that this
Decision to relevant to decisionmaker is a "document regarding prior FARs" — Plaintiffs
Release claimed or relied on for maintain that inclusion in the AR of this document
Supplemental authority for the 2014/2015 regarding pre-2014 FARs is required by a Department of
Water the 2015 FARs. Interior Guidance document regarding the preparation of
FARs. administrative records. Plaintiffs point out that the
Includes two Guidance, issued June 27, 2006, suggests inclusion of
exhibits: "relevant, supporting, documents" and provides as an
example of such "[d]ocuments contained in previous ARs
(1) Memorandum that were relied upon or considered in the decision-regarding
regarding making process." Doc. 82 at 11 (citing Declaration of
"Release of up to Rebecca Akroyd ("Akroyd Decl."), Ex. 9 (Doc. 78) at 6-50,000
acre-feet 7). Plaintiffs argue that because the 2015 EA and 2015
of water from the FONSI describe the pre-2014 releases and "appear to
Trinity River have been informed by analysis and information
Division for contained in the prior environmental documents," this
fishery purposes" document must be included in the AR. Doc. 82 at 12.
dated Aug. 15, This ignores the suggestion in the June 27, 2006
2003; and Guidance that documents in previous ARs be included
only if they were "relied upon or considered in the
(2) the final decision-making process." Even assuming the 2015 EA
"Environmental and FONSI were "informed" by analyses and information
Assessment for in the prior environmental documents, Plaintiffs fail to
Late-Summer identify reasonable, non-speculative grounds for their
2003 Preventative belief that the documents were actually considered
Trinity River (directly or indirectly) by the decision makers. Plaintiffs
Flow Releases for do not specify the nature of how the documents inform
Protection of Fall one another nor whether the AR lacks independent
Run Chinook documents upon which the same or similar conclusions
Salmon" dated could have been formed. The motion to add this
Aug. 20, 2003 document on this ground is DENIED.
Ruling 9B: As to the second ground for inclusion — that
this document is relevant to the claimed authority for the
2015 FARs — Plaintiffs argue that the AR does not
contain documents regarding certain sources of authority
for the 2014 and 2015 FARs cited in the 2015 EA. See
Doc. 82 at 12-13. Plaintiffs further argue that "[i]f
Reclamation is indeed relying on these statutes as
authority for the 2015 FARS, then information regarding
Reclamation's consultation under, implementation of
programs regarding, or interpretation of the statutes as
they apply to FARs should be in the record." Id. at 13.
Plaintiffs request that the Court order Federal Defendant
to complete the record with relevant documents regarding
the claimed sources of authority. The Court agrees with
Federal Defendants that Plaintiffs have offered "no
evidence that Reclamation decision-makers []
independently consider and reconsider whether there is
legal authority to release water with each subsequent
release, including the relevant releases here, rather than
being advised by counsel when necessary." Doc. 85 at
10. To the extent Plaintiffs seek documents that provide
advice of counsel, such documents would be privileged.
Plaintiffs have failed to demonstrate that relevant, non-privileged
documents considered by the decisionmaker
exist within this category. The motion to add this
document on this ground is DENIED.
10. Aug. 20, 2004 Document This document This is an environmental document pertaining to FARs
Federal regarding was not implemented in 2004. For the same reasons set forth
Defendants' prior FARs; considered by above for Document #9 in Ruling 9A and Ruling 9B, the
Notice of Document the motion is DENIED as to this document.
Supplemental relevant to decisionmaker
Flows Includes claimed or relied on for
two exhibits: (1) authority for the 2014/2015
the Finding of No the 2015 FARs.
Significant Impact FARs.
/ Environmental
Assessment for
the Purchase of
Water from the
Sacramento River
Water Contractors
Association and
Supplemental Fall
2004 Releases to
the Trinity River,
dated Aug. 19,
2004; and
(2) the final
Environmental
Assessment for
Purchase of Water
from the
Sacramento River
Water Contractors
Association and
Supplemental Fall
2004 Releases to
the Trinity River,
dated Aug. 19,
2004
11. Aug. 2012 Final Document This document This document concerns FARs implemented in 2012. For
Environmental regarding was not the same reasons set forth above for Document #9 in
Assessment, 2012 prior FARs; considered by Ruling 9A and Ruling 9B, the motion is DENIED as to
Lower Klamath Document the this document on the first two grounds offered.
River Late relevant to decisionmaker
Summer Flow claimed or relied on for Ruling 11: As to the third ground for inclusion — that
Augmentation; authority for the 2014/2015 this is a "[s]ource document directly or indirectly relied
and the 2015 FARs. upon as basis for 2013, and then 2015 Environmental
FARs; Source Assessment" — Plaintiffs point to High Sierra Hikers
Aug. 10, 2012 document Association v. U.S. Department of the Interior, No. C-09-Finding
Finding of No directly or 4621 JCS, 2011 WL 2531138 (N.D. Cal. 2011). In that
Significant indirectly case, the agency defendant agreed that summaries of
Impact, 2012 relied upon as monthly stock use reports were properly part of the AR in
Lower Klamath basis for that case, but refused to include underlying documents,
River Late 2013, and arguing they were duplicative. Id. at *1. The district court
Summer Flow then 2015 ordered the underlying "source documents" included in
Augmentation Environmental the record because "at a minimum" they were "indirectly
Assessment. relied upon" and contained detailed information that was
not in the summaries." Id. at *6.
Plaintiffs here maintain that Document # 11 (and related
documents) should be included in the AR because "in
many instances" they contain language identical to the
language in the 2015 EA and FONSI. Even assuming this
is true, this does not present circumstances analogous to
those in High Sierra Hikers, where the agency admitted
to relying on underlying documents to create a summary
that was part of the AR. If the commonality of language
between the 2015 EA and FONSI and prior documents is
somehow legally relevant to the merits of this case,
Plaintiffs may offer the prior documents for consideration
on judicial notice for appropriate purposes (i.e., not for
the truth of the matters asserted therein). The motion is
DENIED as to this document on this ground.
12. Aug. 2013 Document This document concerns FARs implemented in 2013. For
Environmental regarding the same reasons set forth above for Document #9 in
Assessment, 2013 prior FARs; Ruling 9A and Ruling 9B and for Document #11 in
Lower Klamath Document Ruling 11, the motion is DENIED as to this document on
River Late-Summer relevant to all three grounds offered.
Flow claimed
Augmentation authority for
from Lewiston the 2015
Dam FARs; Source
document
Aug. 6, 2013 directly or
Finding of No indirectly
Significant relied upon as
Impact, 2013 basis for 2015
Lower Klamath Environmenta
River Late-Summer l
Flow Assessment.
Augmentation
from Lewiston
Dam
13. Jan. 30, 1995 Document This document relates to one of the claimed legal
Letter from the relevant to authorities for implementing FARs. For the same reasons
Bureau of claimed set forth above for Document #9 in Ruling 9B and for
Reclamation to authority for Document #11 in Ruling 11, the motion is DENIED as to
the Trinity County the 2015 this document on the first two grounds offered.
Board of FARs; Source
Supervisors re: document As to Plaintiffs' contention that this document should
50,000 directly or otherwise be included in the AR because it was "directly
Acre-Feet indirectly or indirectly considered by Reclamation," the only basis
relied upon as offered by Plaintiffs' for including this specific document
basis for 2015 under this rationale is that it was produced to Plaintiffs as
Environmental part of a Freedom of Information Act ("FOIA") response
Assessment; that requested "all records regarding emergency NEPA
Other consultation on the flow augmentation releases made in
document 2014." See Doc. 82 at 14. But, a FOIA production is an
directly or "entirely discrete legal concept that bears no relation to
indirectly the [preparation of] an administrative record [] for a
considered by court's review under the APA." State of Del. Dep't of
the agency. Natural Resources and Envtl. Control v. U.S. Army
Corps of Eng'rs, 722 F. Supp. 2d 535, 544 (D. Del.
2010). Absent clear evidence to the contrary, an agency's
production of documents under FOIA does not
necessarily mean they were "considered" for purposes of
compiling an administrative record. See Fund for
Animals v. Williams, 245 F. Supp. 2d 49, 55-57 (D.D.C.
2003), vacated on other grounds sub nom. Fund For
Animals, Inc. v. Hogan, 428 F.3d 1059 (D.C. Cir. 2005)
(where plaintiffs sought inclusion in the record of
numerous documents secured by way of a FOIA request,
it is the agency that is in the best position to determine
which documents it considered and enjoys a presumption
that it properly designated the record absent clear
evidence to the contrary). Plaintiffs have made no clear
showing that would warrant this Court disregarding the
presumption of proper designation of the AR. The motion
is DENIED as to this document on this ground.
14. Reclamation will add this document to the record.
15. Sept. 13, 2014 Other This email is Defendants argue that the document should not be
Yurok document actually dated included in the AR because it postdates the decision to
Fisheries directly or September 24, release the additional water. Although this document
Program indirectly 2014, which bears the date September 13, 2014, it contains data about
Technical considered post-dates the fish disease prevalence in the Lower Klamath that runs up
Memorandum re: by the decision. This is through and including September 29, 2014, which post
Ich agency. an update to an dates Federal Defendants' formal announcement on
earlier version September 16, 2014, that Reclamation would release
of the same additional water (above and beyond the level of releases
document that is announced in late August, see AR 5177-5181) to target a
already in the flow rate of approximately 5,000 cfs in the lower Klamath
record at AR River for seven days. See AR 5250-53.
65, 68.
Plaintiffs suggest that Document # 153 should
nevertheless be part of the record because, while it post-dates
the start of the 2014 FARs, it pre-dates the start of
the 2015 FARs. Doc. 87 at 7. This, of course, would be
true of any document produced in the aftermath of the
2014 FARs. Presumably, due to its inclusion of
information that post-dates the targeting of 5,000 cfs
flows in the Lower Klamath, Document # 15 speaks to the
effectiveness (or lack thereof) of the supplemental
releases. But, this does not mean it was considered by the
decisionmaker. To the extent efficacy of the flows is an
issue in this case, Federal Defendants' record must stand
or fall on the information included in the record or shown
to be worthy of supplementation. As to this document,
Plaintiffs have again failed to "identify reasonable, non-speculative
grounds for its belief that the documents were
considered by the decision makers." Pinnacle Armor, 923
F. Supp. 2d at 1239. Nor is there evidence that the
decision to target flows to 5,000 cfs, see Press Release
dated September 16, 2014 (AR 5250), was contingent
upon collection of the information contained in Document
# 15, which might have justified inclusion of the
document in the record for the 2014 FARs. The motion is
DENIED as to this document on this ground.
16. June 18, 2015 Other This document This document announces "key components" of
Joint document was not Reclamation's plan to manage temperature control issues
Announcement directly or considered by stemming from a "much smaller volume of cold water in
re: indirectly the decisionmaker Shasta Reservoir." Plaintiffs argue generally that this
Shasta considered or relied document was "directly or indirectly considered by the
Temperature by the on for the agency," and, somewhat more specifically, that "while
Management agency. 2014/2015 the [AR] currently contains several documents regarding
Plan FARs. The Reclamation's operation of the CVP for temperature
relevant data management in 2015, several other documents are
was considered missing. These include letters to and from Reclamation
separately and regarding 2015 operations, which at a minimum, where
is in the AR. indirectly considered relevant to the 2015 FARs." Doc.
82 at 14. The Court is left to guess how this argument
might satisfy Plaintiffs' burden to establish "reasonable,
non-speculative grounds for its belief that the documents
were considered by the decision makers," particularly in
light of Federal Defendants' undisputed assertion that the
relevant data reflected in this document was considered
separately and is already included in the AR. The mere
fact that Plaintiffs allege the FARs hampered
Reclamation's ability to manage temperature in the
Sacramento River watershed is insufficient. The motion
is DENIED as to this document on this ground.
17. July 1, 2015 Letter Other This document This document outlines a contingency plan for operations
from document was not (including Shasta temperature management) in light of
National directly or considered by ongoing drought conditions. Plaintiffs offer the same
Marine indirectly the decisionmaker rationale for its inclusion in the record as they did for
Fisheries considered or relied Document # 16, which fails for the same reasons
Service to by the on for the articulated in the ruling for Document #16. The motion is
Reclamation agency. 2014/2015 DENIED as to this document on this ground.
and California FARs. The
Department of relevant data
Water was considered
Resources re: separately and
2015 Contingency is in the AR.
Plan
18. July 7, 2015 Letter Other This document This document is the State Water Resources Control
from document was not Board's approval of Reclamation's revised Shasta
State Water directly or considered by Reservoir Temperature Management Plan. Doc. 82-3 at
Resources indirectly the decisionmaker pp. 33-39 of 140 (Document #17). Plaintiffs offer the
Control Board to considered by or relied same rationale for its inclusion in the record as they did
Ron Milligan re: the agency. on for the for Document # 16, which fails for the same reasons
Sacramento 2014/2015 articulated in the ruling for Document #16. The motion is
River FARs. The DENIED as to this document on this ground.
Temperature relevant data
Management was considered
Plan separately and
is in the AR.
19. June 25, 2015 Other This document This document articulates the Bureau's Revised
Reclamation document was not Sacramento River Water Temperature Management Plan.
Revised directly or considered by Doc. 82-3 at pp. 41-50 of 140 (Document #17). Plaintiffs
Sacramento River indirectly the decisionmaker offer the same rationale for its inclusion in the record as
Temperature considered by or relied they did for Document # 16, which fails for the same
Management Plan the agency. on for the reasons articulated in the ruling for Document #16. The
— June 2015 2014/2015 motion is DENIED as to this document on this ground.
FARs. The
relevant data
was considered
separately and
is in the AR.
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, 2014 Document An identical Although in Reply Plaintiffs continue to include this in
Memorandum generated in version of this the range of documents in dispute, see Doc. 87 at 5:27-from
B. Person to the course of document is 28, Plaintiffs provide no specific reply to Federal
Files re: Decision an agency's already in the Defendants' undisputed assertion that an identical version
Rationale — process for record at AR of this document is already in the AR. Therefore, the
Augmenting arriving at its 52. motion is DENIED as moot as to this document.
Flows in the decision;
Lower Klamath Other
River During document
August and directly or
September of indirectly
2014 considered by
the agency.
26. May 12, 2010 Document This document This is a CEQ Guidance document cited by Federal
Memorandum generated in was not Defendants' in their opposition to Plaintiffs' motion for a
from N. Sutley, the course of considered by temporary restraining order regarding the 2014 FARs
Counsel on an agency's the filed in this case. The document outlines a "step-by-step
Environmental process for decisionmaker process for determining the appropriate path forward for
Quality ("CEQ") arriving at its or relied on for the NEPA environmental review of all actions proposed
to Department decision; the 2014/2015 in response to an emergency situation." Plaintiffs offer no
Heads re: Other FARs. evidence that Reclamation directly or indirectly
Emergencies and document considered this document in making its decision to make
the National directly or the 2014 or 2015 FARs. That Federal Defendants'
Environmental indirectly counsel relied upon the document in making their legal
Policy Act considered by arguments is not dispositive. Absent any other showing,
the agency. the motion is DENIED as to this document on the
grounds presented.
27. Reclamation will add this document to the record.
28. Reclamation will add this document to the record.
29. June 26, 2003 Document This document This document concerns FARs proposed in 2003. The
Memorandum regarding was not first ground offered for inclusion of this document is
from Doug prior FARs; considered by addressed in Ruling 9A, which found that the mere fact
Schleusner, Other the decisionmaker that a document pertains to prior FARs is insufficient to
Executive document or relied "identify reasonable, non-speculative grounds for its
Director, Trinity directly or on for the belief that the documents were considered by the decision
River Restoration indirectly 2014/2015 makers." Plaintiffs offer no independent, specific basis
Program re: considered by FARs. for the inclusion of this document. See Doc. 82 at 12. The
DRAFT the agency. motion to add this document on this ground is DENIED.
Implementation
Strategy, Potential As to the second ground, Plaintiffs again offer no specific
2003 Fall Flow basis to believe that this document was considered, either
Releases. directly or indirectly, by the agency, see Doc. 82 at 14,
and no such basis is apparent from the face of the
document. The motion to add this document on this
ground is DENIED.
30. Aug. 11, 2004 Document This document This document concerns FARs proposed in 2004. The
Letter from M. regarding was not ground offered for inclusion of this document is
Ryan to I. prior considered by addressed in Ruling 9A, which found that the mere fact
Lagomarsino re: FARs. the decisionmaker that a document pertains to prior FARs is insufficient to
Request for or relied "identify reasonable, non-speculative grounds for its
Concurrence with on for the belief that the documents were considered by the decision
a Determination of 2014/2015 makers." Plaintiffs offer no independent, specific basis
"Not Likely to FARs. for the inclusion of this document, and none is apparent
Adversely Affect" from the face of the document. See Doc. 82 at 12. The
for Proposed motion to add this document on this ground is DENIED.
Supplemental
Water Releases to
the Trinity River
for August and
September 2004
31. Aug. 20, 2004 Document This document This document also concerns FARs implemented in
Letter from R. regarding was not 2004The ground offered for inclusion of this document is
McInnis to M. prior FARs. considered by addressed in Ruling 9A, which found that the mere fact
Ryan re: ESA the decisionmaker that a document pertains to prior FARs is insufficient to
consultation or relied "identify reasonable, non-speculative grounds for its
on for the belief that the documents were considered by the decision
2014/2015 makers." Plaintiffs offer no independent, specific basis
FARs. for the inclusion of this document, and none is apparent
from the face of the document. See Doc. 82 at 12. The
motion to add this document on this ground is DENIED.
32. June 25, 2010 E-mail Document This document This document discusses implementation FARs proposed
chain regarding was not in 2010. The first ground offered for inclusion of this
beginning with e-mail prior FARs; considered by document is addressed in Ruling 9A, which found that
from S. Other the decisionmaker the mere fact that a document pertains to prior FARs is
Naman to J. document maker or relied insufficient to "identify reasonable, non-speculative
Simondet, and directly or on for the grounds for its belief that the documents were considered
including related indirectly 2014/2015 by the decision makers." Plaintiffs offer no independent,
e-mails between considered by FARs. specific basis for the inclusion of this document. See Doc.
NMFS and the agency. 82 at 12. The motion to add this document on this ground
Reclamation staff is DENIED.
and others re: Fall
Flow As to the second ground, Plaintiffs again offer no specific
Augmentation/Me basis to believe that this document was considered, either
eting Agenda and directly or indirectly, by the agency, see Doc. 82 at 14,
Materials and no such basis is apparent from the face of the
document. The motion to add this document on this
ground is DENIED.
33. Aug. 27, 2014 E-mail Document This is a heavily This document, as redacted, does not appear to contain
chain generated in redacted email any content that is material to any claim in this case.
beginning with e-mail the course of chain regarding Plaintiffs do not argue otherwise in reply, except to
from R. an agency's CEQ discussion contend, generally, that Federal Defendants should be
Grimes to D. Reck process for and the redacted required to produce a privilege log, an assertion that is
Re: Emergency arriving at its portions are addressed separately below. The motion to add this
Lower Klamath decision; privileged and document on the offered ground is DENIED.
River Flow Other thus not part of
Augmentation — document the record. The
Late Summer directly or non-redacted
2014 indirectly portions are not
considered by relevant to the
the agency. 2014/2015
FARs and thus
were not
considered by
the decisionmaker.
34. May 31, 2012 Document This document This document concerns FARs recommended for 2012.
Memorandum regarding was not As to the first ground for inclusion — that this is a
from Fall Flow prior FARs; considered by document regarding prior FARs — Ruling 9A explained
Subgroup to B. Document the decisionmaker that this rationale, standing alone, fails to "identify
Person re: 2012 generated in or relied reasonable, non-speculative grounds for its belief that the
Fall Flow Release the course of on for the documents were considered by the decision makers."
Reccomendation an agency's 2014/2015 Pinnacle Armor, 923 F. Supp. 2d at 1239 (internal
(sic) process for FARs. This citation and quotation omitted). The motion is DENIED
arriving at its document is as to this document on this ground.
decision; specific to the
Source 2012 FARs
document only. As to the second ground — that this is a document
directly or generated in the course of an agency's process for
indirectly arriving at its decision — Plaintiffs offer absolutely no
relied upon as explanation of why this document, dated May 31, 2012,
basis for 2015 was generated in Reclamation's process for arriving at its
Environmental decision on either of the FARs at issue in this case. The
Assessment; motion is DENIED as to this document on this ground.
Other
document As to the third ground — that this is a source document
directly or directly or indirectly relied upon as a basis for the 2015
indirectly EA — as Ruling 11 explained, High Sierra Hikers stands
considered by for the proposition that the AR should be expanded to
the agency. include "source documents" containing data used to
produce other documents in the AR. 2011 WL 2531138,
at *6. But Plaintiffs argue Document # 34 is a "source
document" simply because it includes language/criteria
that 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 necessarily
mean the "source" document was considered, even
indirectly, by decisionmakers. The motion is DENIED as
to this document on this ground.
As to the fourth rationale — that this document was
otherwise directly or indirectly considered by the agency
— Plaintiffs fail to "identify reasonable, non-speculative
grounds for its belief that the documents were considered
by the decision makers." Pinnacle Armor, 923 F. Supp.
2d at 1239 (internal citation and quotation omitted). The
motion is DENIED as to this document on this ground.
35. July 1, 1974 Document This document This document concerns a claimed authority for the
Memorandum relevant to was not FARs. As to the first ground for inclusion-that this
from Assistant claimed considered by document is relevant to the claimed authority for the
Regional Solicitor authority for the decisionmaker 2015 FARs — as explained in Ruling 9B, Plaintiffs again
to Regional the 2015 or relied offer "no evidence that Reclamation decision-makers []
Director, Bureau FARs; Other on for the independently consider and reconsider whether there is
of Reclamation, document 2014/2015 legal authority to release water with each subsequent
Sacramento, re: directly or FARs. release, including the relevant releases here, rather than
"Request for indirectly being advised by counsel when necessary." Doc. 85 at
opinion re considered 10. To the extent Plaintiffs seek documents that provide
authority of the by the advice of counsel, such documents would be privileged.
Secretary of the agency. Plaintiffs have failed to demonstrate that relevant, non-Interior
Interior to alter privileged documents considered by the decisionmaker
present functions exist within this category. The motion to add this
and document on this ground is DENIED.
accomplishments
of Trinity River As to the second ground, plaintiffs again offer no specific
Division, "Central basis to believe that this document was considered, either
Valley Project" directly or indirectly, by the agency, see Doc. 82 at 14,
and no such basis is apparent from the face of the
document. The motion to add this document on this
ground is DENIED.
36. Jan. 21, 1977 Document This document This document concerns a claimed authority for the
Memorandum relevant to was not FARs. For the same reasons set forth above for Document
from Regional claimed considered by #35, the motion is DENIED as to this document.
Solicitor to Field authority for the decisionmaker
Supervisor, the 2015 or relied
Division of FARs; Other on for the
Ecological document 2014/2015
Services, USFWS, directly or FARs.
re: "Trinity River indirectly
Division, CVP— considered
Reconsideration by the
of July 1, 1974 agency.
Memorandum to
Regional Director,
Bureau of
Reclamation,
Concerning
Section 2 of the
Trinity River
Division Act"
37. May 18, 2015 Document This document This document, a request for concurrence from NMFS
Letter from R. generated in was not that drought contingency plans are consistent with actions
Milligan to M. the course of considered by set forth in NMFS's 2009 Biological Opinion on the
Rea re: an agency's the Coordinated Long-Term Operation of the CVP and SWP,
Contingency Plan process for decisionmaker is closely related to Documents ## 16-19.
for Water Year arriving at its or relied on for
(WY) 2015 decision; the 2014/2015 As to the first ground for inclusion — that this is a
Pursuant to Other FARs. document generated in the course of an agency's process
Reasonable and document for arriving at its decision — Plaintiffs offer absolutely no
Prudent directly or explanation of why this document was "generated in
Alternative (RPA) indirectly Reclamation's process for arriving at its decision on
Action 1.2.3.C of considered by either of the FARs at issue in this case," when facially it
the 2009 the agency. has to do with a separate ESA compliance process. The
Coordinated motion is DENIED as to this document on this ground.
Long-term
Operation of the As to the second rationale, Plaintiffs argue generally that
Central Valley this document was "directly or indirectly considered by
Project (CVP) and the agency," but fail to offer "reasonable, non-speculative
State Water grounds for its belief that the documents were considered
Project (SWP) by the decision makers." The motion is DENIED as to
Biological this document on this ground.
Opinion (NMFS
2009 BiOp)
38. Reclamation will add this document to the record.
39. Information/ Document This document This document concerns a claimed authority for the
Briefing relevant to was not FARs. As to the first ground for inclusion-that this
Memorandum for claimed considered by document is relevant to the claimed authority for the
the Commissioner authority for the 2015 FARs — as explained in Ruling 9B, Plaintiffs again
of Reclamation the 2015 decisionmaker offered "no evidence that Reclamation decision-makers []
from Brian Person FARs; Other or relied on for independently consider and reconsider whether there is
re: Contract with document the 2014/2015 legal authority to release water with each subsequent
Humboldt County directly or FARs. release, including the relevant releases here, rather than
for 50,000 acre-feet indirectly being advised by counsel when necessary." Doc. 85 at
of water in considered by 10. Finally, to the extent Plaintiffs are seeking documents
Trinity Reservoir the agency. that provide advice of counsel, such documents would be
privileged. Plaintiffs have failed to demonstrate that
relevant, non-privileged documents considered by the
decisionmaker exist within this category. The motion to
add this document on this ground is DENIED.
As to the second ground, plaintiffs again offer no specific
basis to believe that this document was considered, either
directly or indirectly, by the agency, see Doc. 82 at 14,
and no such basis is apparent from the face of the
document. The motion to add this document on this
ground is DENIED.
40. Mar. 21, 2011 Document This document This document concerns a claimed authority for the
Draft Briefing relevant to was not FARs. For the same reasons set forth above for
Paper for Michael claimed considered by Document #39, the motion is DENIED as to this
Connor, authority for the document.
Commissioner re: the 2015 decisionmaker
50,000 acre-feet FARs; Other or relied on for
of water in 1959 document the 2014/2015
Humboldt directly or FARs.
contract indirectly
considered by
the agency.
41. Jan. 22, 2013 Document This document This document concerns a claimed authority for the
Draft Briefing relevant to was not FARs. For the same reasons set forth above for
Paper for David claimed considered by Document #39, the motion is DENIED as to this
Murillo, Regional authority for the document.
Director the 2015 decisionmaker
FARs; Other or relied on for
document the 2014/2015
directly or FARs.
indirectly
considered by
the agency.
42. Dec. 14, 2010 Document This document This document concerns a claimed authority for the
Draft Briefing relevant to was not FARs. For the same reasons set forth above for
Paper for Michael claimed considered by Document #39, the motion is DENIED as to this
Connor, authority for the document.
Reclamation the 2015 decisionmaker
Commissioner FARs; Other or relied on for
document the 2014/2015
directly or FARs.
indirectly
considered by
the agency.
43. Reclamation will add this document to the record.
44. Draft Policy Document This document This document concerns a claimed authority for the
Statement Outline relevant to was not FARs. For the same reasons set forth above for
— Humboldt claimed considered by Document #39, the motion is DENIED as to this
County 50,000 authority for the document.
Acre-Feet the 2015 decisionmaker
Contract FARs; Other or relied on for
document the 2014/2015
directly or FARs.
indirectly
considered by
the agency.
45. Reclamation will add this document to the record.
46 Aug. 9, 2004 Document This document This document concerns a claimed authority for the
Letter from V. relevant to was not FARs. For the same reasons set forth above for
Whitney, Division claimed considered by Document #35, the motion is DENIED as to this
Chief, to authority for the document.
Humboldt County the 2015 decisionmaker
Board of FARs; Other or relied on for
Supervisors, c/o document the 2014/2015
Honorable Jill directly or FARs.
Geist, re: indirectly
"Complaint considered by
Against the the agency.
Bureau of
Reclamation
Regarding the
Trinity River
Division of the
Central Valley
Project in Trinity
County
47. Yurok boat E-mail in the This document Plaintiffs' sole argument for inclusion of this document is
dance_20140822_steady record was superseded that it is an attachment to an email that has been included
ramdown.xlsx identifies by a later email in the AR. Federal Defendants maintain that the
document as that provided an underlying email was superseded by a later email that
attachment; update and the provided an update and that email and attachment will be
attachment is email and added to the record. Plaintiffs offer no specific reply.
missing from attachment will Plaintiffs therefore fail to offer "reasonable, non-the
record. be added to the speculative grounds for its belief that the documents were
record. considered by the decision makers." The motion is
DENIED 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_C E-mail in the Reclamation Plaintiffs' sole argument for inclusion of this document is
OMMENTS_US record claims this is a that it is an attachment to an email that has been included
BR_2015_Lower_Klamath_Flows. identifies duplicate of AR in the AR. Federal Defendants maintain that the
pdf document as 63. underlying document is already included in the AR at AR
attachment; Doc. 63 and has determined it should be removed.
attachment is Plaintiffs offer no specific reply. Plaintiffs therefore fail
missing from to offer "reasonable, non-speculative grounds for its
the record. belief that the documents were considered by the decision
makers." 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. 2015.08.20 E-mail in the This document Plaintiffs' sole argument for inclusion of this document is
PC_BOR Lower record was not that it is an attachment to an email that has been included
Klamath Flow identifies considered in in the AR. Federal Defendants maintain that the
Augmentation document as regards to the underlying document was included in the AR in error and
EIS Scoping.pdf attachment; 2014 or 2015 has determined it should be removed. Plaintiffs offer no
attachment is FARs and will specific reply, other than to persist in its generic
missing from be removed. argument that attachments are missing. Doc. 87 at 6.
the record. Plaintiffs therefore fail to offer "reasonable, non-speculative
grounds for its belief that the documents were
considered by the decision makers." The motion is
DENIED as to this document.
67. Declaration of Document This document This document, a Declaration produced in the context of
Donald Reck in generated in post-dates the this litigation, is dated August 26, 2014, which post-dates
Support of the course of final agency is the August 22, 2014 Press Release announcing the 2014
Federal an agency's properly not FARs. Plaintiffs argue that Document # 67 nevertheless
Defendants' process for part of the belongs in the AR because it discusses NEPA compliance
Opposition to arriving at its record. action for the 2014 FARs and because Reclamation's decisions
Plaintiffs' decision; and regarding NEPA compliance continued beyond the date
Motions for Other the FARs began. While it is true that this document does
Temporary document suggest that Reclamation (1) was invoking NEPA
Restraining Order directly or emergency procedures and (2) intended to complete
and Preliminary indirectly NEPA environmental review after the FARs began, there
Injunctions considered by is no evidence in the record suggesting the agency
the agency. generated Document # 67 in the course of arriving at its
decision (either its initial decision to implement the FARs
or any subsequent decision to issue a related
environmental document) or considered Document # 67
either directly or indirectly. That decision-making
continued past the start of the FARs does not mean that
every document mentioning the FARs generated after
initiation of the FARs should become part of the AR.
This would eviscerate the general rule that "`[t]he whole
record' includes everything that was before the agency
pertaining to the merits of the decision." Portland
Audubon, 984 F.2d at 1548. Again, Plaintiffs have failed
to articulate a non-speculative basis to believe this
document was considered, directly or indirectly, by the
agency. The motion to add this document to the AR is
therefore DENIED.
68. Declaration of Document This document This is a Declaration filed in this litigation on August 26,
Brian Person in generated in post-dates the 2014. Plaintiffs concede that this document post-dates the
Support of the course of final agency beginning of the 2014 FARs, put argue that because it
Federal an agency's action and is pre-dates the start of the 2015 FARs, was before
Defendants' process for properly not Reclamation when it made its decision regarding the
Opposition to arriving at its part of the 2015 FARs, and was germane to that decision, it should
Plaintiffs' decision; record. be part of the AR. Again, plaintiffs fail to offer
Motions for Other "reasonable, non-speculative grounds for its belief that
Temporary document the documents were considered by the decision makers."
Restraining Order directly or The motion to add this document to the AR is therefore
and Preliminary indirectly DENIED.
Injunction considered by
the agency.
69. Declaration of Document This document Document # 69 is yet another Declaration filed in this
Ronald Milligan generated in post-dates the litigation, dated August 26, 2014. As with Document #
in Support of the course of final agency 68, Plaintiffs argue that, while this document does post-Federal
Federal an agency's action and is date the beginning of the 2014 FARs, it pre-dates the start
Defendants' process for properly not of the 2015 FARs, was before Reclamation when it made
Opposition to arriving at its part of the its decision regarding the 2015 FARs, and was germane
Plaintiffs' Motion decision; record. to that decision. Again, Plaintiffs fail to offer
for Temporary Other "reasonable, non-speculative grounds for its belief that
Restraining Order document the documents were considered by the decision makers."
and Preliminary directly or The motion to add this document to the AR is therefore
Injunction indirectly DENIED.
considered by
the agency.
70. Reclamation will add this document to the record.
71. Reclamation will add this document to the record.
72. July 24, 2015 E-mail Document This document This is an email pertaining to temperature control in the
mail chain generated in was not upper Sacramento River. As with Document # 16 and
beginning with the course of considered by related documents, the mere fact that Plaintiffs allege the
email from T. an agency's the FARs hampered Reclamation's ability to manage
Washburn to process for decisionmaker temperature in the Sacramento River watershed is
numerous arriving at its or relied on for insufficient to sweep all related documents into the AR in
recipients, and decision; the 2014/2015 this case. The motion is DENIED as to this document.
including Other FARs. This
attachments, re: document document
Additional data directly or concerns only
requested indirectly the upper
considered by Sacramento
the agency. River.
73. March 20, 2015 Document This document This is another email pertaining to drought operations for
E-mail chain generated in was not the CVP. The Court has reviewed this document in its
beginning with the course of considered by entirety and agrees with Federal Defendants that nothing
email from S. Fry an agency's the therein indicates it was considered directly or indirectly
to numerous process for decisionmaker by the agency. The motion is DENIED as to this
recipients, and arriving at its or relied on for document.
including decision; the 2014/2015
attachment, re: Other FARs. The only
Final Draft ESA document mention of the
Project directly or Trinity River in
Description for indirectly this document is
Apr-Sept 2015 considered by a reference
drought the agency. regarding
operations consultation
with the Tribes.
74. August 11, 2015 Document This document This document appears to already be in the record. See
E-mail chain generated in was not AR 1095; see also Doc. 85 at 6:15-16. The motion is
beginning with the course of considered by therefore moot as to this document.
email from P. an agency's the
Zedonis to G. Yip process for decisionmaker
and S. Naman, arriving at its or relied on for
and including decision; the 2014/2015
attachments, re: Other FARs.
Fall Flow Action-2015 document
Draft Letters/Bio directly or
Review indirectly
considered by
the agency.
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 Document This document This document is an email related to a letter that is related
mail chain generated in was not to Document # 37, which all concern temperature
beginning with the course of considered by management in the upper Sacramento River.
email from R. an agency's the
Milligan to M. process for decisionmaker For the same reasons the motion for inclusion was denied
Rea, and arriving at its or relied on for as to Document # 37, it is DENIED as to document 76. .
including decision; the 2014/2015
attachments, re: Other FARs.
ETA on package document
transmittal? directly or
indirectly
considered by
the agency.
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 Document This document Federal Defendants maintain that this document does
mail from P. generated in was not nothing more than provide information to NMFS for
Zedonis to NMFS the course of considered by NMFS's use in future analyses. Plaintiffs do not
staff, re: Water an agency's the specifically respond to this assertion in Reply. It is
Resources Fall process for decisionmaker Plaintiffs' burden to "identify reasonable, non-Flows
Flows 2015 arriving at its or relied on for speculative grounds for its belief that the documents were
decision. the 2014/2015 considered by the decision makers." Pinnacle Armor, 923
FARs. It F. Supp. 2d at 1239. Plaintiffs have failed to do so as to
provides NMFS this document. The motion to add this document to the
information AR is therefore DENIED.
about the
decision for use
in the future.
81. Sept. 4, 2015 E-mail Document This document This document discusses Chinook migration patterns in
chain generated in post-dates the the lower Klamath River. Plaintiffs argue that the content
beginning with the course of final agency of these documents reveal that decision-making regarding
email from P. an agency's action and is the 2015 FARs continued after the formal decision(s) to
Zedonis to process for properly not make the 2015 FARs issued. The Court agrees. Unlike
numerous arriving at its part of the with Document # 15, where the document itself did not
recipients, re: Sept decision; record. reveal that decision-making was contingent upon its
4 update: Fish Other content, Document # 81 expressly states that additional
Abundance in the document information (including, presumably, information
lower Klamath directly or contained in Document # 81) would be considered in
River indirectly "formulating the decision of when to implement the
considered by preventative pulse."
the agency;
Document The 2015 EA explains the parameters for triggering a
postdating the preventative pulse flow:
start of the
2015 FARs. • Due to the heightened alert for this year with the
recent and continued low level infections of Ich
observed, a 3-day pulse (including ramping up and
down) peaking at 5,000 cfs in the lower Klamath River
may be implemented when:
• the peak of fall run migration (first or second
week of September) is identified in the lower
Klamath River as indicated by tribal harvest, and
• low level infections of Ich (less than 30 Ich per
gill) is found on three fall-run adult salmon (of a
maximum sample size of 60) captured in the
lower Klamath River in one day during the first
or second week of September. Sampling and
confirmation would follow the methods as
described in NOAA and USFWS (2013). The
benefit of the pulse is to enhance
flushing/dilution of the river of parasites when
the bulk of fall run adults are likely to be the
lower river. This flow would also further
improve water quality and help facilitate
movements of adult salmon.
• If rainfall increases the flow in the lower Klamath
River to above 5,000 cfs this component would not be
implemented.
• If needed, this action may avert the need to apply the
emergency criteria.
• Implementation of a pulse flow will be within the
Proposed Action volume of 51 TAF.
AR 1196 (emphasis added to highlight that the peak of
fall 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 to
suggest that considerable discretion is involved in
determining when the "peak of fall run migration" trigger
was deemed to be present prior to implementation of the
September 2015 pulse flow. There appears to be no
dispute that Federal Defendants' decision-makers were
involved in the back-and-forth communication
documented in these emails. This document is clearly
germane to the claims in this case, appears to have been
considered by decision-makers, and expressly reveals
what appears to be ongoing decision-making (as opposed
to rote application of purely objective factors) taking
place after the decision date. Because Federal Defendants
offer no basis for refusing to include this document in the
record other than that it "post-dates" the decision, the
motion is GRANTED as to this document.
82. Sept. 7, 2015 E-mail Document This document Document # 82, an email chain dated September 7, 2015,
chain generated in post-dates the appears to be discussing details about and concerns with
beginning with the course of final agency implementation of the September 2015 pulse flow. In this
email from P. an agency's action and is document, one concerned communicator discusses
Zedonis to process for properly not discrepancies between planned and actual flow levels,
numerous arriving at its part of the suggesting a "pattern of undermining the
recipients, re: Sept decision; record. recommendations of the best available science and short
7 update: Fish Other changing the fish on the flows and water volumes." The
Abundance and document Court is at a loss as to how this part of Document # 82
Preventative Pulse directly or could possibly be relevant to the claims in this case. In
Flow indirectly another portion of Document # 82, however, a
considered by communicator discusses how recent fish catch increases
the agency; have triggered a process by which Reclamation
Document "conducted outreach to the key technical team staff to
postdating the help determine when to implement the preventative pulse
start of the flow." This further reveals that decision-making
2015 FARs. continued after the relevant formal decision. Again, the
only argument Federal Defendants make against
inclusion of this document in the record is that it post-dates
the relevant formal decision. For the same reason
the motion was GRANTED as to Document # 81, the
motion is GRANTED as to Document # 82, although
Federal Defendants may choose to omit material that is
not relevant to the disputed decision(s).
B. Plaintiffs' Arguments Regarding Certification of the Record.
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 *6.4
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.
***
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.
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.
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.
