Friends of the River v. National Marine Fisheries Service

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FRIENDS OF THE RIVER, No. 2:16-cv-00818-DJC-JDP 12 Plaintiff, 13 v. ORDER 14 NATIONAL MARINE FISHERIES SERVICE, et al., 15 Defendants. 16 17 Plaintiff and Federal Defendants dispute whether extra-record evidence can 18 properly be included and considered in the forthcoming Motions for Summary 19 Judgment. Plaintiff seeks to include evidence outside of the administrative record in 20 connection with summary judgment. (See Mot. (ECF No. 159).) Federal Defendants 21 contend that this is improper and that only the administrative record should be 22 considered when ruling on Motions for Summary Judgement. (See Opp’n (ECF No. 23 164).) For the reasons stated below, the Court will grant Plaintiff’s Motion (ECF No. 24 159). 25 This issue has been the subject of repeated litigation in this and other district 26 courts. The source of much of this litigation is the Ninth Circuit’s decision in Western 27 Watersheds Project v. Kraayenbrink, 632 F.3d 472 (2011). In Kraayenbrink, the Ninth 28 Circuit determined that for claims under the Endangered Species Act (“ESA”), they 1 could consider evidence “outside the administrative record[.]” 632 F.3d at 498. 2 Based on this, numerous other district courts have found that it was proper for the 3 Court to consider extra-record evidence in ruling on summary judgment. See e.g., 4 Friends of the Clearwater v. Higgens, 523 F. Supp. 3d 1213, 1221 (D. Idaho 2021); Nat. 5 Resources Def. Council v. Zinke, 347 F. Supp. 3d 465, 501 (E.D. Cal. 2018); Hoopa 6 Valley Tribe v. Nat’l Marine Fisheries Serv., 230 F. Supp. 3d 1106, 1125 (N.D. Cal. 2017) 7 White v. U.S. Army Corp. of Eng’rs, No. 3:22-cv-06143-JSC, 2024 WL 24322, at *2 8 (N.D. Cal. 2024). This is not without some dispute; the Ninth Circuit’s later statement 9 in Karuk Tribe of California v. U.S. Forest Service, that “[a]n agency's compliance with 10 the ESA is reviewed under the Administrative Procedures Act” which does not permit 11 extra-judicial evidence has been a point of litigation in several ESA actions. 681 F.3d 12 1006, 1017 (9th Cir. 2012); see Ctr. For Biological Diversity v. Wolf, 447 F. Supp. 3d 13 965, 970–972 (D. Ariz. 2020) (describing the confusion regarding the use of extra- 14 record evidence in ESA actions). However, the weight of authority still leans toward 15 the finding that some amount of extra-record evidence is permissible for ESA claims. 16 More importantly, this issue has already been litigated in this action when it was 17 assigned to Senior District Judge John A. Mendez. (See ECF No. 62 at 14–15.) Judge 18 Mendez considered and expressly rejected Federal Defendants’ argument that the 19 scope of review should be limited to the administrative record. (Id.) This ruling 20 represents the law of the case. Musacchio v. United States, 577 U.S. 237, 244–45 21 (2016) (“The law-of-the-case doctrine generally provides that when a court decides 22 upon a rule of law, that decision should continue to govern the same issues in 23 subsequent stages in the same case.” (internal citations and quotation marks 24 omitted).) Federal Defendants suggest that the law-of-the-case doctrine does not 25 apply because Plaintiff has since amended their complaint since Judge Mendez’s 26 ruling. (Opp’n at 9–10.) But this exception to the law of the case doctrine is intended 27 to apply where the amended complaint presents new facts or claims. See Borenstein 28 v. Animal Found., No. 2:19-cv-00985-CDS-NJK, 2023 WL 2810258, at *4 n.6 (D. Nev. 1 Apr. 5, 2023). It is not applicable here as the issue resolved by Judge Mendez is not 2 one altered by Plaintiff amending their complaint. 3 None of the other exceptions to the law of the case doctrine apply. See Askins 4 v. U.S. Dep't of Homeland Sec., 899 F.3d 1035, 1042 (9th Cir. 2018) (identifying that 5 the law-of-the-case doctrine did not apply where “1) the first decision was clearly 6 erroneous; 2) an intervening change in the law has occurred; 3) the evidence on 7 remand is substantially different; 4) other changed circumstances exist; or 5) a 8 manifest injustice would otherwise result.”) Federal Defendants contend that the law- 9 of-the-case doctrine should not apply “there is relevant new law” for this Court to 10 consider but throughout Federal Defendants’ Opposition, they only cite three district 11 court decisions issued after Judge Mendez’s original order. (Opp’n at 7–8 (citing 350 12 Mont. v. Bernhardt, 443 F. Supp. 3d 1185 (D. Mont. 2020), All. for the Wild Rockies v. 13 Probert, 412 F. Supp. 3d 1188 (D. Mont. 2019), and Wolf, 447 F. Supp. 3d 965.) At 14 least one of these decisions found that ESA claims should be afforded a different, 15 more permissive standard for supplementation of the administrative record, see Wolf, 16 447 F. Supp. 3d at 972, and all of these decisions are only persuasive authority. 17 Federal Defendants cite no intervening Ninth Circuit authority abrogating or 18 overruling Kraayenbrink. Just like subsequent district court decisions finding that 19 extra-record evidence is admissible, the district court decisions cited by Federal 20 Defendants simply represent the ongoing confusion and dispute on this issue. None 21 of these cases provides new law to justify the Court deviating from Judge Mendez’s 22 decision and finding it to no longer be law-of-the-case. 23 //// 24 //// 25 //// 26 //// 27 //// 28 //// 1 Accordingly, Plaintiff's Motion to Utilize Extra-Record Evidence (ECF No. 159) is 2 | GRANTED. Plaintiff will be permitted to provide evidence outside the administrative 3 | record in litigating summary judgment.’ Federal Defendants’ Motion to Stay Summary 4 | Judgment Briefing until this issue is resolved (ECF No. 160) is DENIED AS MOOT. 5 6 IT IS SO ORDERED. 7 | Dated: _ April 10, 2025 Donel J CoD tto— Hon. Daniel alabretta 8 UNITED STATES DISTRICT JUDGE 9 10 11 12 | DJct -FOR16cv00818.extrarecordevidence 13 14 15 16 17 18 19 20 21 22 23 24 25 26 | —___ ' The Court notes that this Order only means that extra-record evidence is admissible generally but 27 | does not mean that all pieces of evidence Plaintiff seeks to include are deemed to be admissible and will be considered by the Court. Defendants may still object to the admissibility of any specific extra- 28 | record evidence Plaintiffs seek to utilize.