Opinion
CASE NO. C16-1866-JCC
11-08-2017
NORTHWEST ENVIRONMENTAL ADVOCATES, Plaintiff, v. UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants.
ORDER REGARDING SCOPE OF REVIEW
This matter comes before the Court on Plaintiff's motion to determine scope of review for Claim 6 (Dkt. No. 44). Having thoroughly considered the parties' briefing and the relevant record, the Court GRANTS the motion for the reasons explained herein.
Plaintiff alleges in Claim 6 that Defendants failed to comply with the Endangered Species Act's Section 7 consultation requirements before approving plans and making grants addressing Washington's sources of nonpoint water pollution. (Dkt. No. 18 at 31-32.)
Plaintiff brings five claims pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. § 704, and one claim pursuant to the Endangered Species Act's ("ESA") citizen-suit provision, 16 U.S.C. § 1540(g)(1). (Dkt. No. 18 at 27-32.) The Court previously discussed the underlying facts of the case in ruling on Defendants' motion to dismiss and will not repeat those facts here. (See Dkt. No. 39 at 1-4.) At issue is whether the Court can look beyond the administrative record in resolving Plaintiff's ESA citizen-suit claim. The Court concludes that it can.
The ESA's citizen-suit provision contains no standard or scope for judicial review. See 16 U.S.C. § 1540(g). According to Ninth Circuit precedent, the APA's standard of review—an abuse of discretion—applies. W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 496 (9th Cir. 2011). This is undisputed by the parties. (Dkt. Nos. 44 at 3-5, 47 at 3-5.) But the parties dispute whether the APA's scope of review—the administrative record—should also apply. (Id.) Consistent with Ninth Circuit precedent, Plaintiff asserts the scope of review is not limited to the administrative record. (See Dkt. No. 44 at 3-5) (citing W. Watersheds Project, 632 F.3d at 496; Wash. Toxics Coal. v. Env't Prot. Agency, 413 F.3d 1024, 1034 (9th Cir. 2005)). Defendants assert prevailing Supreme Court precedent and recent Ninth Circuit decisions hold otherwise. The Court disagrees. W. Watersheds Project and Wash. Toxics Coal. control.
Defendants cite U.S. v. Carlo Bianchi & Co., 373 U.S. 709, 709, 714-15 (1963). (Dkt No. 47 at 3.) But at issue in Carlo Bianchi & Co. was the scope of review under the Wunderlich Act, whose purpose is to allow for review of decisions by federal agencies. 373 U.S. 709, 709, 714-15 (1963). It stands to reason that a court would have no need to look beyond the administrative record when considering the reasonableness of an agency's decision. The ESA's citizen-suit provision is a different animal. It is a "means by which private parties may enforce the substantive provisions of the ESA against regulated parties—both private entities and Government agencies." Bennett v. Spear, 520 U.S. 154, 173 (1997). Therefore, adjudication of an ESA citizen-suit claim requires a broader, more searching analysis than the administrative record can provide. Correspondingly, the Court need not limit consideration of such matters to the administrative record.
Defendants also cite San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581 (9th Cir. 2014), and San Luis & Delta-Mendota Water Auth. v. Locke, 776 F.3d 971 (9th Cir. 2014), claiming these cases represent current Ninth Circuit jurisprudence on the issue. (Dkt. No. 47 at 4.) Again, the Court disagrees. While both cases involved the adjudication of ESA-based claims limited to the administrative record, that was because both cases were biological opinion challenges. Jewell, 747 F.3d at 602, 604; Locke, 776 F.3d at 991, 995. Biological opinion challenges are APA claims, not citizen-suit claims. See Bennett, 520 U.S. at 178-79 (distinguishing between ESA-based APA claims and ESA citizen-suit claims).
Other Ninth Circuit cases that Defendants cite are also distinguishable because the decisions lack any reasoned analysis of the issue. (See Dkt. No. 47 at 6.) Without such analysis, a holding lacks precedential value. See U.S. v. Johnson, 256 F.3d 895, 914 (9th Cir. 2001) (en banc) (Kozinski, J., concurring) (circuit law is created "where a panel confronts an issue germane to the eventual resolution of the case, and resolves it after reasoned consideration"); Summers v. Schriro, 481 F.3d 710, 712-13 (9th Cir. 2007) (judicial assumption based upon parties' uncontested joint position is not a holding).
Those cases included Karuk Tribe v. U.S. Forest Serv., 681 F.3d 1006 (9th Cir. 2012). As the Court previously noted, the parties in Karuk stipulated to an administrative record review. See Wild Fish Conservancy v. Pritzker, Case No. C16-0223-JCC, Dkt. No. 24 at *1 n.1 (W.D. Wash. 2016). Karuk does not stand for the proposition Defendants assert. --------
For the foregoing reasons, Plaintiff's motion (Dkt. No. 44) is GRANTED. The parties are reminded that prior to bringing any discovery disputes to the Court, they must meet and confer in accordance with W.D. Wash. Local Civ. R. 37. // // // // // //
DATED this 8th day of November 2017.
/s/_________
John C. Coughenour
UNITED STATES DISTRICT JUDGE