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Pacific Shores Subdivision California Water District v. United States Army Corps of Engineers

August 10, 2006


The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge


This case was referred to me for determination of Plaintiffs' Motion to Supplement the Administrative Record (hereinafter "Pls' Mot."). For the reasons stated herein, Plaintiffs' motion will be denied.


A. Procedural Background

On August 17, 2004, the California Department of Fish and Game and Del Norte County, California jointly applied to Defendant, United States Army Corps of Engineers ("Corps"), for a ten-year permit to breach Lake Earl and Lake Talawa in Del Norte County, California, at eight to ten feet mean sea level ("msl"). Federal Defendants' Opposition to Motion to Supplement the Administrative Record at 2 (hereinafter "Def's Opp'n"). Following a period of public notice and comment, the Corps issued the permit on January 7, 2005. Id. at 1. On June 22, 2005, Plaintiffs Pacific Shores Subdivision California Water District, Helen Ferguson, Louis Goodgame, and Ron Plechaty ("Plaintiffs" or "Pacific Shores") brought a lawsuit challenging the issuance of the permit. In its complaint, Pacific Shores alleges that the Corps violated the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq.,*fn1 and the Endangered Species Act, 16 U.S.C. §§ 1531 et seq., by granting a permit to breach the lakes at eight to ten feet msl without evaluating the environmental impacts. Id.; Pls' Mot. at 4. On August 2, 2005, this Court ordered the Corps to file an administrative record, which was then filed on December 21, 2005.*fn2

Subsequently, on February 2, 2006, Pacific Shores requested that the Corps add nineteen documents to the administrative record. Pls' Mot. at 2. The Corps agreed to include three of those documents. Id. On February 9, 2006, Pacific Shores filed its Motion to Supplement the Administrative Record with sixteen documents. Pacific Shores eventually withdrew two of those documents, and thus fourteen documents remain before this Court on Pacific Shores' motion.*fn3*fn4

According to Pacific Shores, the administrative record is incomplete without the additional fourteen documents. Pls' Mot. at 4; Plaintiffs' Reply to Federal Defendants' Opposition to Motion to Supplement the Administrative Record at 12 (hereinafter "Pls' Reply"). Pacific Shores insists that the documents should be included in the administrative record because they are relevant and because they were before the Corps at the time it made its decision to issue the permit. Pls' Mot. at 4; Pls' Reply at 3-5, 12. Pacific Shores argues that, because the documents were before the agency, the Corps was certainly aware of the various impacts of breaching, and thus ignored these warnings in issuing the permit. Pls' Reply at 5. In opposition, the Corps claims that it has submitted the "'whole' administrative record, [and] that it includes all documents that were directly or indirectly considered by the decision-maker." Def's Opp'n at 5. The Corps further insists that the certified record is entitled to a presumption of regularity, which Pacific Shores has failed to overcome. Id. at 5-6. In addition, the Corps asserts that Pacific Shores cannot invoke an exception to the general prohibition against extra-record review. Id. at 7-8. However, as I will explain below, this latter argument does not apply to the principal issue before this Court.

B. Factual Background

Located in northern California, lakes Earl and Talawa are tidal lagoons, separated from the Pacific Ocean by only a narrow unvegetated sandbar. Pls' Reply at 2. From time to time, the sandbar is artificially breached in response to high water levels resulting from the addition of groundwater, rainwater, and stream water to the lakes. Def's Opp'n at 2. Because the act of "breaching" causes the discharge of material into waters of the United States within the meaning of section 404 of the Clean Water Act, 33 U.S.C. § 1344, any party seeking to breach the lakes must first obtain a permit from the Corps, who has regulatory authority over navigable waters in this capacity. See Clean Water Act, 33 U.S.C. § 1344; Rivers and Harbors Act of 1899, 33 U.S.C. § 403; 33 C.F.R. parts 320-330.

The level at which to artificially breach lakes Earl and Talawa has been entangled in controversy for many years in northern California. See Administrative Record at 223 ("There is considerable controversy - and technical difficulty - associated with determining what breaching scheme, if any, would result in the 'optimal' lagoon level that balances the needs of all species and habitats under the stewardship of the Department [of Fish and Game]."). This controversy has now found itself on center stage before this Court: the lakes would naturally breach the sandbar at a water level of twelve to fourteen feet msl, the Corps has permitted breaching at eight to ten feet msl, and Pacific Shores argues that the lakes should be breached much lower, at four to six feet msl. Pls' Reply at 2-3; Def's Opp'n at 2.


A. Legal Standard

Section 706 of the Administrative Procedure Act ("APA") directs a court reviewing an agency decision to "review the whole record or those parts of it cited by a party."*fn5 5 U.S.C. § 706; Ctr. for Auto Safety v. Fed. Highway Admin., 956 F.2d 309, 314 (D.C. Cir. 1992); Fund for Animals v. Williams, 391 F. Supp. 2d 191, 196 (D.D.C. 2005). Review of the "whole record" under section 706 "is to be based on the full administrative record that was before the [agency decisionmakers] at the time [they] made [their] decision." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977); Am. Bioscience, Inc. v. Thompson, 243 F.3d 579, 582 (D.C. Cir. 2001). This Court has interpreted the "whole record" to include "all documents and materials that the agency 'directly or indirectly considered'. . . . [and nothing] more nor less." Maritel, Inc. v. Collins, 422 F. Supp. 2d 188, 196 (D.D.C. 2006) (quoting Bar MK Ranches v. Yuetter, 994 F.2d 735, 739 (10th Cir. 1993)); Fund for Animals, 391 F. Supp. 2d at 197; Amfac Resorts, LLC v. Dep't of Interior, 143 F. Supp. 2d 7, 12 (D.D.C. 2001). In other words, the administrative record "should not include materials that were not considered by agency decisionmakers." Novartis Pharms. Corp. v. Shalala, No. 99-323, 2000 U.S. Dist. LEXIS 6152, at *1, *11-12 (D.D.C. Apr. 28, 2000) (citing Ammex, Inc. v. United States, 62 F. Supp. 2d 1148, 1156 (C.I.T. 1999) ("relevant materials that were neither directly nor indirectly considered by agency decisionmakers should not be included")).

Limiting review of the administrative record to only what the agency decisionmakers directly or indirectly considered is important. A broad application of the phrase "before the agency" would undermine the value of judicial review: "[I]nterpreting 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." Fund for Animals v. Williams, 245 F. Supp. 2d 49, 57 n.7 (D.D.C. 2003). 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 ...

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