United States District Court, W.D. Washington, Seattle
ORDER REGARDING SCOPE OF REVIEW
C. COUGHENOUR UNITED STATES DISTRICT JUDGE.
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
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.
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.
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.
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
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
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.
 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
 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). ...