VINCE CHHABRIA, District Judge.
These are Endangered Species Act claims against Caltrans. Endangered Species Act claims are not subject to the Administrative Procedure Act's limitations on the scope of the record, because those claims "arise under the ESA citizen suit provision, and not the APA." Washington Toxics Coal. v. Envtl. Prot. Agency, 413 F.3d 1024, 1034 (9th Cir. 2005). Thus, the Court "may consider evidence outside the administrative record for the limited purposes of reviewing Plaintiffs' ESA claim[s]." W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 497 (9th Cir. 2011). Both Washington Toxics and Kraayenbrink seem to remain good law on this point. See Ellis v. Housenger, No. 13-cv-1266-MMC, 2015 WL 3660079, at *3-4 (N.D. Cal. June 12, 2015); Nw. Coal. for Alternatives to Pesticides v. Envtl. Prot. Agency, 920 F.Supp.2d 1168, 1173-74 (W.D. Wash. 2013).
Accordingly, the record for Claims 1-3 will include Exhibits 1-16. On their face, these exhibits seem at least somewhat relevant to the plaintiffs' Endangered Species Act claims, and Caltrans has not lodged any other evidentiary objection to them.
This is an APA claim against Caltrans, based on an alleged violation of NEPA. As the plaintiffs agreed at the hearing, it's a challenge to final agency action under 5 U.S.C. § 706(2). Thus, the Court "must limit its review to the administrative record," unless the plaintiffs bear their burden to establish that an exception to this rule applies. San Luis & Delta-Mendota Water Auth. v. Locke, 776 F.3d 971, 992 (9th Cir. 2014). Such exceptions "are to be narrowly construed." Id. at 992-93.
The only exception relevant here concerns whether the extra-record evidence is "necessary to determine whether the agency has considered all relevant factors and has explained its decision." Id. at 992. "Reviewing courts may admit evidence under this exception only to help the court understand whether the agency complied with the APA's requirement that the agency's decision be neither arbitrary nor capricious"; they "may not look to this evidence as a basis for questioning the agency's scientific analyses or conclusions." Id. at 993.
With this in mind, the Court considers the plaintiffs' supplemental evidence:
The plaintiffs offer these documents to show that one of the proposed mitigation measures was illusory, in that the project proposed preserving land that the City already had an obligation to preserve. To mitigate the project's destruction of habitat for the red-legged frog and San Francisco garter snake, Caltrans' August 2011 Draft Environmental Impact Report/Environmental Assessment for the project proposed "to preserve a 5.1 acre parcel owned by the City of Pacifica that is west of the Pacifica waste water treatment plant." AR 184. But this is the same parcel that, according to Exhibits 3-12 and 16, the City already had some obligation to preserve.
This raises questions about whether Caltrans "considered all relevant factors" about the project's proposed mitigation plan. Locke, 776 F.3d at 992. If the project's mitigation plan relied on the assumption that the City's parcel was not already set aside for preservation, the plan may have been built on a false premise. And Exhibits 3-12 and 16 seem to be the only evidence before the Court addressing whether and how the parcel in question was, in fact, already set aside for preservation — which means those exhibits are "necessary" to determine whether Caltrans considered this potential problem. See id.
To be sure, Caltrans may have properly considered this problem in the end. Caltrans cites correspondence in its record acknowledging "that preservation of Pacifica's 5.14 acre parcel, as previously proposed, is not an option," and recommending "enhancement" of that parcel instead. Caltrans AR 9133. Indeed, Caltrans' Final Environmental Impact Report/Environmental Assessment, dated August 2013, proposes "enhance[ing]" the City's parcel where the August 2011 draft recommended "preserv[ing]" it. Caltrans AR 488. But even if this issue is ultimately resolved in Caltrans' favor on the merits, Exhibits 3-12 and 16 are still "necessary to determine whether the agency has considered all relevant factors and has explained its decision." Locke, 776 F.3d at 992. Without Exhibits 3-12 and 16, the Court could not assess the City's preexisting obligations toward that parcel, and therefore could not assess whether the project's proposed mitigation measures duplicated those obligations.
Accordingly, with respect to Claim 4, Exhibits 3-12 and 16 will be part of the record.
But the fact that Caltrans considered this general issue isn't the end of the matter. The Court can supplement the record not merely to determine whether an agency has considered an issue at all, but "to determine whether the agency has considered all relevant factors." Locke, 776 F.3d at 992. The document Caltrans cites doesn't explain what factors the agency should have considered in concluding that wildlife crossings were impractical. The Wildlife Crossings Guidance Manual, by contrast, discusses factors that (according to Caltrans itself) Caltrans decisionmakers should consider in deciding whether and how to create wildlife crossings. Without considering the Manual, it's not clear how the Court could evaluate Caltrans' conclusion that wildlife crossings were impractical. Thus, Exhibit 15 will be part of the record for Claim 4.
This claim advances two different theories under the APA against the Fish and Wildlife Service. In part, the claim alleges that FWS failed to reinitiate consultation under the Endangered Species Act after the project changed in ways that triggered a new duty to consult. In this respect, the claim is an effort to "compel agency action unlawfully withheld or unreasonably delayed." 5 U.S.C. § 706(1). "[W]hen a court considers a claim that an agency has failed to act in violation of a legal obligation, 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." San Francisco BayKeeper v. Whitman, 297 F.3d 877, 886 (9th Cir. 2002).
Accordingly, Exhibits 1-13 and 17-20 will be part of the record for this claim. They seem at least somewhat relevant to the question whether FWS was required to reinitiate consultation under the Endangered Species Act (even if, as FWS contends, the answer to that question on the merits will ultimately be "no"), and FWS has made no other evidentiary objection to them.
The other half of Claim 5 is an APA challenge to final agency action under section 706(2). The record on this claim is thus limited under the same rules discussed above in the context of Claim 4. Specifically:
The plaintiffs' arguments for including these exhibits are very vague, and for that reason alone the plaintiffs probably haven't met their burden. Additionally, based on the Court's own review, there doesn't seem to be any indication that these e-mails raise serious potential obstacles to the project's proposed conservation measures that FWS failed to consider. Some of the potential obstacles that the plaintiffs identify — submitting proposed mitigation efforts to an FWS biologist for approval and getting confirmation from FWS that the proposed mitigation measures are acceptable — were under the control of FWS itself, so it doesn't make sense to assert that FWS didn't consider them. And though the e-mails do also discuss whether to ask the City of Pacifica to re-confirm that it would be willing to donate its 5.1-acre parcel for mitigation, there's no indication that this issue raised a significant obstacle to the project's proposed mitigation measures. On the contrary, the e-mails show that the City had already expressed its willingness to donate the parcel in the past, and there's no evidence that the City's position had changed.
For these reasons, Exhibits 18-19 will not be part of the record with respect to the plaintiffs' section 706(2) claim.
This is an Administrative Procedure Act claim against Caltrans, based on an alleged violation of the Federal Transportation Act. The Federal Transportation Act forbids the "use" of publicly owned parkland unless "(1) there is no prudent and feasible alternative to using that land; and, and (2) the program or project includes all possible planning to minimize harm to" the parkland. 49 U.S.C. § 303(c). The plaintiffs allege that the project will "use" public parkland by further dividing two National Park Service sites (Mori Point and Sweeney Ridge) on either side of Highway 1, and that the project does not comply with this provision in the Federal Transportation Act. As the plaintiffs agreed at the hearing, this claim is a challenge to final agency action under 5 U.S.C. § 706(2).
Exhibits 1-12 and 16 don't seem relevant to this claim. The e-mails in Exhibit 13 are relevant to the claim, in that they discuss the project's impact on connectivity between Mori Point and Sweeney Ridge, but the plaintiffs haven't shown that those e-mails are "necessary to determine whether the agency has considered all relevant factors and has explained its decision." Locke, 776 F.3d at 992. On the contrary, Caltrans' record already contains the National Park Service's own commentary on the project, which addresses this same issue. See Caltrans AR 1611-15. And though some of the discussion in the 2000 NEPA Environmental Assessment in Exhibit 14 seems relevant to the ways in which widening Highway 1 would affect connectivity between Mori Point and Sweeney Ridge, the plaintiffs haven't explained how that exhibit is "necessary" to determine whether Caltrans has overlooked a significant issue, either.
That leaves Exhibit 15, the Caltrans Wildlife Crossings Guidance Manual. The argument for considering Exhibit 15 with respect to Claim 7 seems to be basically the same as the argument for considering that exhibit with respect to Claim 4: the project will impose "barriers to migration of Listed Species" and "fail[s] to mitigate road crossing impacts." In this way, the plaintiffs' theory seems to go, the project will not only might adversely affect listed species (which implicates NEPA) but also might constructively "use" National Park Service land by dividing Mori Point and Sweeney Ridge (which implicates the Federal Transportation Act). Thus, though Claim 4 and Claim 7 implicate different statutes, Exhibit 15 will be part of the record for Claim 7 for the same reasons that it will be part of the record for Claim 4.
This argument has a certain appeal. In section 706(2) challenges, "the agency must justify its final action by reference to the reasons it considered at the time it acted." Friends of the Clearwater, 222 F.3d at 560. In section 706(1) challenges, the absence of agency action means an agency can't be limited to the reasons it considered "at the time it acted," but it might still be appropriate to limit review to reasons that the agency actually "considered."
On the other hand, BayKeeper's rationale does not seem to depend on the identity of the party seeking to supplement the record. As long as the administrative record is still open, it's unclear why the plaintiffs can't also supplement the record with new evidence relevant to whether agency inaction is arbitrary.
In any event, BayKeeper did not limit its statement of the rule to situations in which the agency itself seeks to supplement the record. It's not impossible that the Ninth Circuit will narrow the rule it articulated in BayKeeper. Until it does so, however, this Court will follow that rule in the broad way that BayKeeper articulated it.