National Wildlife Federation v. National Marine Fisheries Service
3:01-cv-00640
D. Or.Feb 2, 2015Background
- Plaintiffs (National Wildlife Federation and State of Oregon) challenge NOAA Fisheries’ 2014 Biological Opinion (BiOp) under the ESA, NEPA, and the APA, contending it recycles flawed prior BiOps and fails to consider required factors.
- Plaintiffs moved to admit three extra-record expert declarations (total ~226 pages) to support their summary judgment motions; defendants and several intervenors objected as impermissible extra-record material.
- The Objecting Defendants argued recent Ninth Circuit decisions (Locke, Jewell) narrow the circumstances for admitting extra-record evidence and require denial of the motions.
- The court reviewed the Lands Council exceptions (narrowly construed) that permit extra-record evidence to determine whether the agency considered relevant factors, relied on outside documents, explain technical terms, or where there is bad faith.
- The court concluded some extra-record material was necessary to identify omitted factors and to explain complex technical aspects of the BiOp, and therefore granted the motions subject to strict limits on use.
- The court emphasized it will only consider the extra-record declarations to the extent they (1) show factors NOAA Fisheries did or did not consider, or (2) explain technical/complex issues, and will not rely on them to substitute its scientific judgment for the agency’s.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether extra-record expert declarations should be admitted in APA review | Declarations are necessary to identify factors NOAA Fisheries omitted and to explain complex technical analyses | Admission is barred by APA review limits; recent Ninth Circuit precedent restricts extra-record evidence | Court granted admission in part: allowed limited extra-record material under Lands Council exceptions to identify omissions and explain technical matters |
| Proper scope/use of admitted extra-record evidence | Use is limited to showing what agency considered/failed to consider and to explain technical matters | Concern that extra-record material will be used to challenge the agency’s scientific conclusions and create a battle of the experts | Court restricted use: may not rely on extra-record evidence to question agency’s scientific judgments or substitute court’s judgment for agency expertise |
| Whether volume of record makes extra-record evidence unnecessary | Plaintiffs: despite large record, limited extra-record materials are still helpful for background and explanation | Defendants: voluminous administrative record covers relevant factors; extra-record is unnecessary and risks abuse | Court found limited extra-record evidence appropriate despite large record; contrasted this case with Locke and Jewell where courts admitted massive extra-record submissions and abused discretion |
| Remedy requested by defendants (striking memoranda/requiring refiling) | Plaintiffs did not seek refiling; they sought admission of declarations as submitted | Defendants asked to strike filings that reference extra-record material or require refiling without such references | Court denied wholesale striking/refiling; allowed current memoranda to stand but limited how extra-record material may be used and said it will identify any extra-record material it relies upon and the applicable Lands Council exception |
Key Cases Cited
- Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (1989) (courts should defer to reasonable agency expert judgments)
- Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29 (1983) (arbitrary and capricious standard requires reasoned explanation and consideration of relevant factors)
- Asarco, Inc. v. E.P.A., 616 F.2d 1153 (9th Cir. 1980) (courts must avoid substituting their judgment for the agency’s)
- Lands Council v. Powell, 395 F.3d 1019 (9th Cir. 2005) (articulating narrow exceptions permitting extra-record evidence)
- San Luis & Delta-Mendota Water Authority v. Jewell, 747 F.3d 581 (9th Cir. 2014) (district court abused discretion by admitting extensive extra-record expert materials and resolving scientific disputes)