White v. United States Army Corps of Engineers

Background

Sean K. White brought two claims under the Endangered Species Act’s citizen-suit provision. He alleges that the United States Army Corps of Engineers is unlawfully taking listed salmon species, violating Section 9 of the Act. He also alleges that the Army Corps and the National Marine Fisheries Service failed to reinitiate required consultations, violating Section 7 of the Act and the Administrative Procedure Act. White seeks declaratory and injunctive relief.

The Army Corps and the National Marine Fisheries Service lodged their administrative records with the court. White moved to supplement those records with extra-record evidence, including water samples he collected from five locations in the Russian River watershed around the Coyote Valley Dam, documents already filed in the case, and potentially additional evidence gathered later. He also sought to fill an alleged gap in the record with scientific papers.

Court’s Analysis

The court explained that the Administrative Procedure Act generally limits judicial review of final agency action to the administrative record that existed when the agency acted. But the court held that this limitation does not govern the scope of review for White’s substantive Endangered Species Act claims because the Act’s citizen-suit provision independently authorizes the action.

Relying on Ninth Circuit precedent, including Western Watersheds Project v. Kraayenbrink and National Family Farm Coalition v. U.S. Environmental Protection Agency, the court concluded that it could consider evidence outside the administrative record for the limited purpose of reviewing the Endangered Species Act claims. The court rejected the defendants’ argument that Karuk Tribe of California v. U.S. Forest Service required limiting review to the administrative record, explaining that Karuk Tribe did not address the same scope-of-review issue and did not overrule the controlling precedent.

The court also rejected the defendants’ argument that White had waived his request or that considering extra-record evidence would be unfair. The court found that White had previously stated that he believed review was not strictly limited to the administrative record, so the defendants had long been on notice of his position.

Ruling

Judge Jacqueline Scott Corley granted White’s motion to bring extra-record evidence. The court stated that it would consider whether particular evidence should receive any weight during the summary-judgment briefing. Because the court would consider extra-record evidence for White’s substantive Endangered Species Act claims, the court found moot White’s argument that extra-record evidence should also be considered for his injunctive-relief claim and his request to supplement the record with scientific papers. The parties were ordered to provide a new briefing schedule by January 12, 2024. The order disposed of Docket Number 59.