PAGE 1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

AUDUBON SOCIETY OF PORTLAND, 

et al.,

Plaintiffs,

v.

UNITED STATES ARMY CORPS OF 

ENGINEERS, et al.,

Defendants.

Case No. 3:15-cv-0665-SI

OPINION AND ORDER

Daniel J. Rohlff and Thomas Charles Buchele, EARTHRISE LAW CENTER, 10015 S.W. 

Terwilliger Boulevard, Portland, OR 97219-7768. Of Attorneys for Plaintiffs.

S. Amanda Marshall, United States Attorney, UNITED STATES ATTORNEY’S OFFICE, 

District of Oregon, 1000 S.W. Third Avenue, Suite 600, Portland, OR 97204; John C. Cruden, 

Assistant Attorney General, Seth M. Barsky, Section Chief, Bradley H. Oliphant, Trial Attorney, 

U.S. DEPARTMENT OF JUSTICE, Environment and Natural Resources Division, 999 18th 

Street, South Terrace, Suite 370, Denver, CO 80202; Stephen Finn, U.S. DEPARTMENT OF 

JUSTICE, Environment and Natural Resources Division, P.O. Box 7611, Washington, D.C. 

20044. Of Attorneys for Defendants.

Beth S. Ginsberg, STOEL RIVES, LLP, 600 University Street, Suite 3600, Seattle, WA 98101. 

Of Attorneys for Intervenor-Defendant Northwest RiverPartners.

Brian C. Gruber and Beth Baldwin, ZIONTZ CHESTNUT, 2101 Fourth Avenue, Suite 1230, 

Seattle, WA 98121. Of Attorneys for Amicus Curiae Confederated Tribes of the Colville 

Reservation.

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PAGE 2 – OPINION AND ORDER

Michael H. Simon, District Judge.

Before the Court is Plaintiffs’ Motion to Compel Completion of Administrative Record, 

including Plaintiffs’ request that Defendants be ordered to supplement the record and to lodge 

the record before the preliminary injunction hearing that is scheduled for May 8, 2015. Dkt. 20. 

Although a court is generally limited to reviewing the administrative record in considering 

actions brought under the Administrative Procedure Act (“APA”), the Court finds that the 

additional material sought by Plaintiffs fall within a recognized exception to the rule against 

supplementing the administrative record on judicial review. The Court does not, however, find

that the requested expedited schedule for lodging the record, as supplemented, is warranted. 

Accordingly, as discussed below, Plaintiffs’ motion is granted in part.

STANDARDS

“In general, a court reviewing agency action under the APA must limit its review to the 

administrative record.” San Luis & Delta-Mendota Water Auth. v. Locke, 776 F.3d 971, 992 (9th 

Cir. 2014). This is to ensure that the reviewing court affords the agency sufficient deference. Id.

Under the APA, an agency has substantial discretion “to rely on the reasonable opinions of its 

own qualified experts even if, as an original matter, a court might find contrary views more 

persuasive.” Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378 (1989). Courts are limited 

from considering extra-record materials because doing so “inevitably leads the reviewing court 

to substitute its judgment for that of the agency.” Locke, 776 F.3d at 992 (quoting Asarco, Inc. v. 

E.P.A., 616 F.2d 1153, 1160 (9th Cir. 1980)). A reviewing court may not perform a de novo

review of the agency’s action and must “limit[ ] itself to the deferential procedural review that 

the APA’s arbitrary or capricious standard permits.” Id.

Courts may, however, review extra-record material when:

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(1) it is necessary to determine whether the agency has considered 

all relevant factors and explained its decision, (2) the agency has 

relied on documents not in the record, (3) supplementing the 

record is necessary to explain technical terms or complex subject 

matter, or (4) plaintiffs make a showing of bad faith.

City of Las Vegas v. F.A.A., 570 F.3d 1109, 1116 (9th Cir. 2009). These exceptions are widely 

accepted, but are to be “narrowly construed and applied” to ensure that they do not undermine 

the general rule limiting review to the administrative record. Lands Council v. Powell, 395 F.3d 

1019, 1030 (9th Cir. 2004). The party seeking admission of the extra-record material “initially 

bears the burden of demonstrating that a relevant exception applies.” Locke, 776 F.3d at 993.

BACKGROUND

For more than twenty years, there has been ongoing litigation relating to the operation of 

federal hydropower dams in the Columbia River Basin, collectively known as the Federal 

Columbia River Power System (“FCRPS”), and its effect on endangered salmon and steelhead. 

In 2007, Defendant U.S. Army Corps of Engineers (“Corps”), along with other agencies, jointly 

released a biological assessment determining that “the existence and operation of the FCRPS 

alone without mitigation is likely to result in a jeopardy finding” for certain listed salmon and 

steelhead. To avoid this “jeopardy” outcome, the Corps and other agencies drafted a 

comprehensive set of “reasonable and prudent alternatives” (“RPAs”). One of these RPAs, 

RPA 46, called for the reduction of consumption of juvenile salmon and steelhead by 

double-crested cormorants’ (“cormorants”)1. RPA 46, among other RPAs, was adopted by the 

National Marine Fisheries Service (“NMFS”) in its biological opinions (“BiOps”) issued in 

2008, 2010, and 2014. In its 2014 BiOp, NMFS calculated that the increase in cormorants on 

East Sand Island in the Columbia estuary since 2002 has created a “survival gap” of 3.6 percent 

 

1 Although there are other types of cormorants, this opinion shall refer to double-crested 

cormorants simply as “cormorants.”

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for upriver steelhead and 1.1 percent for upriver Chinook. NMFS asserted that “it is logical that 

cormorant management objectives assist” in the goal of reducing this gap.

After NMFS issued its 2014 BiOp, the Corps issued a record of decision adopting FCRPS 

operations and other actions consistent with the 2014 BiOp’s RPAs, including RPA 46 relating 

to cormorant reduction. The Corps prepared an environmental impact statement (“EIS”) relating 

to cormorant management (“Cormorant EIS”).

2

The Cormorant EIS describes the purpose and 

need of cormorant management to bring cormorant predation to the level identified in RPA 46. 

The cormorant management plan is to reduce the East Sand Island cormorant population to 

between 5,380-5,939 nesting pairs. Plaintiffs allege that this will be achieved by shooting nearly 

11,000 adult cormorants and destroying approximately 26,000 cormorant nests, either by oiling 

eggs or by allowing eggs to fail and nestlings to starve after their parents have been shot. 

After completing the Cormorant EIS in approximately March 2015, the Corps secured a 

“depredation permit” from Defendant U.S. Fish and Wildlife Service (“FWS”) that allowed the 

killing of cormorants. This permit also allows for the accidental killing due to misidentification

of up to a certain number of Brandt’s cormorants and pelagic cormorants.

Plaintiffs filed this action on April 20, 2015. Plaintiffs bring eleven claims for relief, 

alleging violations of the National Environmental Policy Act (“NEPA”), the APA, the Water 

Resources Development Act, and the Migratory Bird Treaty Act. Relevant to this motion, 

Plaintiffs allege that: (1) the Corps violated NEPA by issuing a record of decision implementing 

RPA 46 without considering reasonable alternatives to improve salmon survival other than 

killing cormorants or without considering whether killing cormorants will actually increase the 

number of adult spawning salmon or steelhead; (2) the Corps violated NEPA by defining too 

 

2

The Cormorant EIS is available at http://www.nwp.usace.army.mil/portals/24/

docs/environment/eis/cormorants/final_eis_cormorant_feb2015.pdf.

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narrowly the purpose of the Cormorant EIS as reducing cormorant predation of juvenile 

salmonids; (3) the Corps violated NEPA by failing to take a “hard look” at whether killing 

cormorants will achieve the stated purpose and need; (4) the Corps violated the APA by failing 

to provide a rational connection between the decision to carry out RPA 46 and an increase in 

survival of listed juvenile salmon and steelhead and returning spawning adults to the extent 

deemed necessary by the 2014 BiOp; and (5) FWS violated the APA by issuing the depredation 

permit without demonstrating a valid justification, because FWS made no effort to verify the 

Corps’ assertion that killing cormorants will increase the number of listed juvenile salmon and 

steelhead that survive and return as spawning adults.

DISCUSSION

A. The Requested Supplemental Materials

Plaintiffs seek an order from the Court requiring Defendants to supplement the 

administrative record with documents, including communications, email, notes, studies, and 

analyses prepared by agency personnel or by outside personnel or entities, that are relevant to 

how implementation of the Corps’ management plan for cormorants on East Sand Island is likely 

to affect the numbers of returning adult salmon and steelhead and whether it is likely to increase 

productivity of listed salmon and steelhead adults to the extent called for in RPA 46 in the 2014 

BiOp. Plaintiffs argue that the record in this case, although not yet lodged, will be incomplete 

because Defendants already have stated that information relating to whether killing cormorants 

to reduce predation of juvenile salmonids and steelheads will actually result in increased survival 

of those juvenile fish or will actually increase the return of adult spawning salmon or steelhead is 

not relevant to the actions and decisions challenged in this case and, thus, will not be part of the 

administrative record. The primary information sought by Plaintiffs relates to whether the 

number of juvenile salmonids eaten by cormorants reflects “compensatory mortality”—that is, 

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whether the reduced mortality to salmonids from killing the cormorants will be replaced (or 

compensated for) by other causes of mortality—or whether it is “additive mortality,” meaning a 

source of mortality that is added to other sources for a combined larger total mortality. 

Plaintiffs do not limit their request only to information relating to compensatory 

mortality, but seek all information regarding the effectiveness of the cormorant management plan 

to increase surviving juvenile and adult salmon. Plaintiffs argue that such information is essential 

for the Court properly to review whether the challenged actions and decisions are arbitrary and 

capricious under the APA or violated the requirements of NEPA. Defendants respond that the 

Court is limited to the administrative record that was before the agencies and that Plaintiffs fail 

to demonstrate that any exception applies that would allow extra-record material.

Supplementation of the record may be proper when “necessary to determine whether the 

agency has considered all relevant factors and has explained its decision.” Lands Council, 395 

F.3d at 1030 (quotation marks omitted). “A satisfactory explanation of agency action is essential 

for adequate judicial review, because the focus of judicial review is not on the wisdom of the 

agency’s decision, but on whether the process employed by the agency to reach its decision took 

into consideration all the relevant factors.” Asarco, 616 F.2d at 1159. Although a court “must not 

substitute its own judgment for that of the [a]gency,” it is required to “engage in a substantial 

inquiry” of the agency’s action. Nat’l Audubon Soc. v. U.S. Forest Serv., 46 F.3d 1437, 1447 (9th 

Cir. 1993) (quotation marks omitted). This may include reviewing extra-record material, 

because, as explained by the U.S. Court of Appeals for the Ninth Circuit:

It will often be impossible . . . for the court to determine whether 

the agency took into consideration all relevant factors unless it 

looks outside the record to determine what matters the agency 

should have considered but did not. The court cannot adequately 

discharge its duty to engage in a “substantial inquiry” if it is 

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required to take the agency’s word that it considered all relevant 

matters.

Asarco, 616 F.2d at 1160. Thus, a court may look to extra-record material “only for background 

information . . . or for the limited purposes of ascertaining whether the agency considered all the 

relevant factors or fully explicated its course of conduct or grounds of decision.” Id.

Here, Defendants argue that Plaintiffs are incorrect in their premise that compensatory 

mortality was not properly addressed because the Cormorant EIS addresses compensatory 

mortality in a section entitled “Uncertainty and Compensatory Mortality.” This section, however, 

repeatedly states that whether cormorant predation is compensatory or additive is unknown. It 

also states that the 2014 BiOp does not apply compensatory-mortality analysis to any of the 

RPAs, which includes RPA 46. It further states that in the Cormorant EIS, the “fish effects 

analysis” and the “economic analysis” do “not apply compensatory mortality to any expected 

benefits (economic or juvenile survival) associated with reduced [cormorant] predation; thus 

benefits from the proposed action are likely maximum benefits that could occur in the absence of 

compensatory mortality.” Cormorant EIS at 4-138.

Defendants also submit with their response to Plaintiffs’ motion the declaration of Robert 

Winters, a Corps employee involved in assembling the Corps’ administrative record, and the 

declaration of Nanette Seto, an FWS employee involved in assembling FWS’s administrative 

record. These declarations both state that FWS’s draft analysis (submitted to the Court by 

Plaintiffs) of whether predation by double-crested cormorants is an additive or a compensatory 

source of mortality for Snake River steelhead is not relevant to the cormorant reduction at issue 

in this case and, thus, will not be part of the record. Ms. Seto further states that when an FWS 

employee emailed her the draft analysis on March 16, 2015, she responded on March 20, 2015, 

that “while not directly relevant to the Migratory Bird Program’s review of a depredation 

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application” that FWS anticipated receiving from the Corps, she “recognize[d] this draft contains 

a preliminary analysis that is more directly related to NMFS’s FCRPS biological opinion.”

Dkt. 32 at ¶ 4. The biological opinion referenced by Ms. Seto appears to be the 2014 BiOp, 

whose RPA 46 is the basis for the cormorant management plan.

The Court concludes that, although Plaintiffs’ motion has been filed before the record has 

been lodged, there are sufficient representations made by Defendants that the record will not 

include the information sought by Plaintiffs to render Plaintiffs’ motion timely. The Court further 

concludes that the extra-record material sought by Plaintiffs likely will provide relevant 

background information that will assist the Court in conducting the required “substantial inquiry” 

and also may provide information necessary for the Court to determine whether the agencies 

considered all relevant factors in reaching their decisions. In light of the NEPA and APA 

violations alleged by Plaintiffs, the Court will need access to the requested information in order 

to determine whether consideration of the effectiveness of the cormorant management plan on 

salmon and steelhead survival was a relevant factor the agencies should have considered. The 

fact that RPA 46 calls for a reduction in cormorants does not, by itself, prove that the decisions 

challenged in this case were based on consideration of all relevant factors. See, e.g., 

Forestkeeper v. Benson, 2015 WL 1012364, at*3 (E.D. Cal. March 5, 2015) (granting motion to 

supplement record and rejecting as circular agency’s argument that its reports were proof that the 

agency considered all relevant environmental impacts because each report simply “assumes that 

because a conclusion was reached it must have been based on a valid analysis”).

B. The Requested Expedited Schedule

Plaintiffs also request that Defendants be ordered to lodge the record, as supplemented,

before the hearing on Plaintiffs’ motion for preliminary injunction, which is scheduled for 

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May 8, 2015. Defendants respond that they are diligently compiling the administrative record, 

but anticipate it will take approximately 90 days to assemble.

In their preliminary injunction motion, Plaintiffs include nearly 1500 pages of exhibits 

and also incorporate by reference the 1,157-page Cormorant EIS. Defendants state that they will 

include as exhibits any additional documents they believe are relevant to their defense against 

Plaintiffs’ motion for preliminary injunction. The Court is satisfied that it will have sufficient 

evidence on which to decide the preliminary injunction motion and therefore denies in part 

Plaintiffs’ motion for expedited lodging of the record.

CONCLUSION

Plaintiffs’ Motion to Compel Completion of Administrative Record (Dkt. 20) is 

GRANTED IN PART. Plaintiffs’ request to supplement the record is GRANTED. Defendants 

shall include with the administrative record all documents in the possession, custody, or control

of the agencies, including communications, notes, studies, and analysis, prepared by agency 

personnel or outside personnel or entities, that are relevant to the issue of how or whether 

implementation of the Corps’ management plan for cormorants on East Sand Island or in the 

Columbia River estuary is likely to affect the number of returning adult salmon or increase 

productivity of listed salmon and steelhead adults to the extent called for in RPA 46. Plaintiffs’ 

request that the record, as supplemented, be lodged before May 8, 2015 is DENIED. The record, 

as supplemented, shall be lodged within 90 days from the date of this Order.

IT IS SO ORDERED.

DATED this 5th day of May, 2015.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge

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