Family Farm Alliance v. Kenneth Lee Salazar, et al., No. 1:2009cv01201 - Document 75 (E.D. Cal. 2010)

Court Description: MEMORANDUM DECISION denying Plaintiff's Motion for Summary Judgment as to Second and Third Claims 54 ; and granting Federal Defendants' cross-motion as to Second and Third Claims 60 , signed by Judge Oliver W. Wanger on 10/26/10. (Coffman, Lisa)

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Family Farm Alliance v. Kenneth Lee Salazar, et al. Doc. 75 1 2 3 4 UNITED STATES DISTRI CT CO URT 5 FOR THE EASTERN DISTRICT OF C ALIFORNIA 6 7 FAMILY F ARM ALLIANCE , 1:09-cv- 01201 OWW DL B 8 Plaint iff, 9 10 11 12 KENNETH LEE SALAZAR, as Secretar y of the Uni ted States Departme nt of the In terior, et al., 13 Defend ants. 14 15 16 17 18 MEMORAND UM DEC ISION RE CROSS MO TIONS FOR SUMMARY JUDGMENT ON CL AIMS TWO AND THREE (D OCS. 5 4 & 60) I. INTRODUCTION Before t he Court for decision are cross motions f or summary judgment on two of Plaintiff’s, Family Fa rm Alliance ’s (“FFA”), three claims. 1 The Second Claim 19 alleges that Defenda nt, Kenneth Salazar, Secretar y of the 20 United S tates Depart ment of the Interior, through the 21 United S tates Fish a nd Wildlife Service (“FWS”) f ailed to 22 timely r espond to FF A’s appeal filed under the 23 24 25 26 Informat ion Quality Act ( “IQA”), Pub. L. No . 106- 554, § 515(a) ( 2000), 44 U.S.C. § 3516, and Guidelines issued by the Offi ce of Manage ment and Budget (“OMB”) and F WS to 1 27 28 Th e Fi rs t Cl ai m fo r Rel ie f ha s be e n c on so li da te d wi th t he cla im s in t he D el ta S mel t Co ns ol id a ted C as es , 1: 09 -c v- 00 407 . C ro ss mot io ns o n al l co ns ol ida te d cl ai ms in th e De lt a Sm el t ca ses h av e bee n se pa ra te ly s ub mi tte d fo r de ci s ion . 1 Dockets.Justia.com 1 implemen t the IQA. 2 complian ce in connec tion with FWS’s issuance of a 2008 3 4 5 6 7 That appeal disputed FWS’s IQ A Biologic al Opinion u nder the Endangered Species A ct (“ESA”), addressing the impact of the coordinated operatio ns of the fe deral Central Valley Project (“CVP”) and Stat e Water Proj ect (“SWP”) on the threatened Delta 8 smelt (h ypomesus tra nspacificus) (“2008 Sme lt BiO p”). 9 The Thir d Claim alle ges that the peer review FWS 10 commissi oned to revi ew the 2008 Smelt BiOp violat ed 11 National Academy of Sciences (“NAS”) standards go verning 12 13 14 15 16 peer rev iewer confli cts of interest, incorporated by referenc e into FWS’s IQA Guidelines. FFA move s for summar y judgment, arguing: (1) its IQA claims a re judiciall y reviewable; (2) it has stan ding to 17 maintain these claim s in federal court; and (3) i t is 18 entitled to judgment on the merits of its Second and 19 Third cl aims. 20 21 22 23 24 Doc. 54. Federal Defendants filed a combined cross motio n/opposition, arguing: (1) Pl aintiff lacks st anding; (2) there is no right to judicial review of Plain tiff’s IQA c laims; (3) the Second Claim i s moot because FWS responde d to FFA’s appeal; and, in th e 25 alternat ive, (4) Federal Defendants are entitled to 26 summary judgment on the merits. 27 combined reply/oppos ition. 28 Doc. 61. Doc. 67. 2 FFA fi led a Federal Def endants 1 replied. Doc. 68. 2 3 4 II. FACTUAL BACKGR OUND On Decem ber 14, 2008 , FFA submitted to FWS a “Req uest 5 for Corr ection” of information in the draft effects 6 analysis of the 2008 Smelt BiOp (“Request”), whic h 7 asserted that the 20 08 Smelt BiOp did not comply with the 8 IQA and the ESA and requested that the 2008 Smelt BiOp be 9 10 11 12 13 withdraw n and correc ted under the IQA. The Reque st containe d twenty-five spe cific demands, inc luding but not limited to primary r equests that: (1) assumptions containe d in the ana lysis regarding the decline i n Delta 14 smelt be replaced wi th actual data and analysis 15 supporti ng those ass umptions; (2) all statements, 16 assumpti ons, and ass ertions which are not support ed by 17 the best available s cientific data and/or are 18 19 20 21 contradi cted by data and analysis be removed and replaced with sta tements that are supported by the best av ailable scientif ic data and analysis; (3) all state ments which 22 are pred icated on sp eculation, hypothesis, or 23 supposit ion, rather than data, be removed; (4) th e degree 24 of uncer tainty regar ding the cause of the decline of 25 delta sm elt be fully disclosed; (5) well-supported dat a 26 27 28 and anal ysis which demons trates that water projec t pumping operations h ave no important effects on a bundance 3 1 of delta smelt be ac knowledged; and (6) the 2008 Smelt 2 BiOp be appropriatel y peer reviewed. 3 4 5 6 7 See Request, AR 200001-2 00018. On Decem ber 23, 2008 , FWS sent FFA an interim response , acknowledg ing receipt of the Request on December 15, 2008. AR 800195. On March 12, 2009 , 8 seventy- nine days af ter FWS confirmed receipt of the 9 Request for Correcti on, FWS transmitted its forma l 10 Response to the FFA. 11 that no correction w as needed as to any of FFA’s 12 13 14 15 16 requests . AR 200019. The Response stated AR 200019 . On April 1, 2009, FF A appealed FWS’s denial of it s Request (the “Appeal ”) pursuant to FWS IQA Guidel ines, alleging deficiencie s in FWS’s Response. On Apri l 27, 17 2009, FW S sent an interim response letter t o FFA, 18 acknowle dging receip t of the Appeal on April 1, 2 009 and 19 advising that, altho ugh the IQA Guidelines provide that 20 21 22 23 24 25 the Acti ng Director has sixty days to respond to an Appeal, due to the “ series of complex scientific and legal is sues” raised in the Appeal, the fin al determin ation may no t be completed within that ti me. AR 800361. 26 On May 1 8, 2009, FFA sent correspondence to FWS 27 regardin g the discov ery by another organization t hat FWS 28 4 1 did not possess cert ain data sets on which it relied in 2 preparin g the 2008 B iological Opinion. 3 4 5 6 7 AR 800364 . On June 8, 2009, FWS re sponded, indicating that the agency viewed F FA’s May 18, 2009 correspondence as a suppleme ntal request for correction, which is not provided for under t he IQA, and would treat it as a 8 revised appeal (whic h also is not provided for un der the 9 IQA), ex tending the FWS’s time to decide FFA’s Ap peal by 10 another 60 days. 11 responde d, disputing the FWS’s classification of the May 12 13 14 On June 11, 2009, F FA 18, 2009 letter as a revised appeal a nd off ering to withdraw the letter. AR 800373. FFA file d this lawsu it on July 10, 2009, claiming 15 16 AR 800371. FWS: 17 (1) Fail ed to comply with the IQA, the IQA 18 Guidelin es, and the ESA in promulgating the 2008 19 Biologic al Opinion; 20 (2) Was unreasonably dela ying responding to 21 FFA’s IQ A Appeal; an d 22 (3) Fail ed to conduc t an adequate peer review of 23 the 2008 Smelt BiOp, because the peer reviewers 24 25 engaged by FWS to re view the Biological Opinion 26 did not meet NAS sta ndards for independence. 27 28 Doc. 1. 5 1 2 3 4 5 6 7 On Novem ber 20, 2009 , FWS sent FFA a document entitled : “U.S. Fis h and Wildlife Service’s Resp onse to the Fami ly Farm Alli ance Information Quality Act (IQA) Appeal o f the Draft Effects Analysis of the Biolo gical Opinion on the Conti nued Long-Term Op erations of the Central Valley Proje ct (CVP) and the State Water Project 8 (SWP) Ap ril 1, 2009” (“Appeal Response”). 9 The Appe al Response contains a report entitled 10 “Indepen dent Expert Panel Review of the Family Fa rm 11 Alliance ’s Informati on Quality Act Request for 12 13 14 15 16 Correcti ons” (“Panel Review”), conducted by Post, Buckley, Shuh & Jern igan (“PBS&J”). 2 letter t o FFA, stati ng Mr. Hayes’s belief that FW S “fully complied ” with the I QA. 18 Davis, D oc. 54-2, Exhibit B. 20 21 22 23 24 On Mar ch 16, 2010 , Deputy S ecretary of the Interior, David J, Hayes, sent a 17 19 AR 800 460. See Declaration of Brend a W. In respo nse, FFA sen t Mr. Hayes a letter alleging that the Appeal Resp onse was deficient and not in complian ce with the IQA. Id. , Exhibits A a nd C. Amon g other th ings, FFA as serted that the Appeal Response di d not resp ond to the a ctual requests contained in t he 25 Request for Correcti on and Appeal, and instead 26 summariz es, repurpos es, and essentially rewrites FFA’s 27 28 2 Th is i s no t th e pe er re vi ew c ha ll e nge d in t he T hi rd C la im. 6 1 requests . 2 Correcti on, AR 20000 1-200 018. See id. Exhibi t A; see als o Requ est for 3 III. LEGAL FRAMEWOR K 4 5 A. Summary Judgment. 6 Summary judgment is proper where the pleadings, 7 discover y and affida vits show that there is “no g enuine 8 issue as to any mate rial fact and that the moving party 9 is entit led to judgm ent as a matter of law.” 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Civ. P. 56(c). Fed . R. Summary j udgment is an appr opriat e mechanis m for resolv ing challenges to final agenc y action. See Occiden tal Eng’ Co. v. INS, 753 F.2d 766, 770 (9th Cir. 1985). B. Informat ion Quality Act. The IQA provides in its entirety: (a) IN G ENERAL.--The Director of the Office of Manageme nt and Budge t shall, by not later than Septembe r 30, 2001, and with public and Federal agency i nvolvement, issue guidelines under sections 3504(d)(1) and 3516 of title 44, United States C ode, that pr ovide policy and procedural guidance to Federal agencies for ensuring a nd maximizi ng the quali ty, objectivity, utility, and inte grity of inf ormation (including statisti cal informat ion) disseminated by Federal agencies in fulfillm ent of the purposes and provisio ns of chapte r 35 of title 44, Unite d States C ode, commonl y referred to as the Paperwor k Reduction Act. (b) CONT ENT OF GUIDE LINES.--The guide lines under subsecti on (a) shall-(1) appl y to the sha ring by Federal agencies 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 of, and access to, i nformation disseminated by Feder al agencies; and (2) requ ire that eac h Federal agency to which th e guidelines apply-(A) issu e guidelines ensuring and maximizi ng the quali ty, objectivity, utility, and integri ty of information (includi ng statistic al information) dissemin ated by the agency, by not later th an 1 year after the date of issuance of the guid elines under subsecti on (a); (B) esta blish admini strative mechanisms allowing affected pe rsons to seek and obtain c orrection of information maintain ed and disse minated by the agency t hat does not comply with the guidelin es issued un der subsection (a); and (C) repo rt periodica lly to the Director-(i) the number and n ature of complaints rec eived by th e agency regarding the accura cy of information di ssemin ated by the agency; and 16 17 18 19 (ii) how such compla ints were handled by the agenc y. 20 21 22 23 24 25 Pub. L. 106-55 4, 114 Stat 2763, 2763A-153-2763A-154 (2000)(c odified at 44 U.S.C. § 3516). The IQA has no legislat ive history. Subsecti on (a) manda tes t hat the Office of Management 26 and Budg et (“OMB”) i ssue, by no later than Septem ber 3 0, 27 2001, go vernment-wide gui delines to ensure the “quality, 28 8 1 objectiv ity, utility , and integrity of informatio n” 2 dissemin ated by fede ral agencies. 3 4 5 6 7 554, § 5 15(a) (2000) . See Pub. L. No. 106 - The statute itself contains no substant ive provisio ns regarding information qual ity, leaving the structur e and design of any such requ irements to OMB. Nor is ther e any relevant legislative hi story 8 disclosi ng sub stanti ve Co ngressional intent regarding 9 informat ion quality. 10 11 12 13 14 15 16 Within o ne year of O MB’s issuance of Guidelines, each federal agency was r equired to issue its own guid elines consiste nt with OMB’ s. Id. a t § 515(b)(2)(A). OMB, t he Departme nt of the In terior, and FWS timely issued the required guidelines. See , e. g., Guidelines for E nsuri ng and Maxi mizing the Quality, Objectivity, Utility, and 17 Integrit y of Informa tion Disseminated by Federal 18 Agencies , 67 Fed. Re g. 8,452 (Feb. 22, 2002) (“OM B IQA 19 Guidelin es”); Inform ation Quality Guidelines of t he U.S. 20 21 22 23 24 Departme nt of the In terior, 67 Fed. Reg. 50,687 ( Aug. 5, 2002)) ( “DOI IQA Gui delines”); FWS Information Qu ality Guidelin es (“FWS IQA Guidelines”) 3 . The IQA specifically required agencies to “est abli sh admin istrat ive mechani sms 25 allowing affected pe rsons to seek and obtain corr ection 26 of infor mation maint ained and disseminated by the 27 3 28 Av ai la bl e at h tt p: // www .f ws .g ov /i n for ma ti on qu al it y/ to pi cs/ IQA gu id el in es -f in al 82 307 .p df ( la st vis it ed A ug us t 11 , 20 10) . 9 1 agency.. ..” and to “ report periodically” on “the number 2 and natu re of compla ints received by the agency r egarding 3 4 5 6 the accu racy of info rmation disseminated by the a gency” and “how such compla ints were handled by the agen cy.” Id. at § 515(b)(2)(B )&(C)(emphasis ad ded). FWS’s ow n IQA Guidel ines are specific to its 7 8 activiti es and disse minations, including biologic al 9 opinions , and state that in order to ensure objec tivity 10 of infor mation disse minated, the information will be 11 presente d in a n “accurate[],” “clear[],” “complete[],” 12 13 14 15 16 and “unb iased” manne r. FWS IQA Guidelines III-8. In addition , FWS’ IQA G uidelines require that a “pre parer of a highly influential assessment or of influential informat ion ... docu ment the strengths and weakne sses of 17 the data underlying the assessment/information so that 18 the read er will unde rstand the context for the FW S 19 decision .” FWS IQA Guidelines § VI-10. 20 IV. ANALYSIS 21 22 23 24 A. Threshol d Issues. Federal Defendants a rgue that Plaintiff’s claims fail for the following threshold reasons: 25 (1) Plai ntiff’s Seco nd Cause of Action is Moot; 26 (2) Ther e is no righ t to judicial review of 27 28 either I QA claim at issue in this motion; and/or 10 1 (3) Plai ntiff has no t established standing to 2 sue. 3 4 1. 5 An issue is moot “wh en the issues presented are n o 6 longer ‘ live’ or the parties lack a legally cogni zable 7 interest in the outc ome.” City of Erie v. Pap’s A.M., 8 529 U.S. 277, 287 (2 000). If the parties cannot obtai n 9 10 11 12 13 Second C laim for Rel ief is Moot. any effe ctive relief , any opinion about the legality o f a challeng ed action is advisory. Id. “Mootn ess has been describe d as the doc trine of standing set in a ti me frame: T he requisite personal interest that must exist at 14 the comm encement of the litigation (standing) mus t 15 continue throughout its existence (mootness ).” 16 for Offi cial English v. Arizona, 520 U.S. 4 3, 68 n.22 17 (1997) ( citation and quotation omitted). 18 19 20 21 Arizon ans “[A]n a ctual controve rsy must be extant at all stages of revie w, not merely a t the time t he complaint is filed.” Id. at 67. Here, Pl aintif f’s Second Claim for Relief a lleges 22 that FWS ’s failure t o timely respond to FFA’s app eal 23 violated the IQA Gui delines’ timeline for respond ing to 24 such app eals and tha t this constitutes an “unlawf ul 25 delay” u nder the Adm inistrative Procedure Act (“A PA”), 26 27 28 which au thorizes a r eviewing court to “compel agency action u nlawfully wi thheld or unreasonably delaye d.” 11 5 1 U.S.C. § 706(1). 2 FFA’s ap peal on Nove mber 20, 2009. 3 4 5 6 7 8 It is u ndisputed that FWS respo nded to The only reli ef a court ma y order in a n unlawful delay claim is to compe l the agen cy to act. There is no longer any relief availabl e to Plainti ff in connection with this cl aim. See Cart er v. Vetera ns Admin., 780 F. 2d 1479, 148 1 (9th Cir. 198 6). Plaintif f rejoins th at the November 20, 2009 resp onse 9 10 is insuf ficien t to m oot the Second Claim for Reli ef 11 because FWS “failed to actually respond to [FFA’s ] 12 13 14 15 16 Request for Correcti on and the subsequent IQA App eal.” Doc. 67 at 17. Spec ifically, Plaintiff complains that FWS “ign ored the que stions in the Request for Cor recti on, repurpos ed some of t he issues raised in that peti tion 17 into gen eral concept s, and provided generic summa ries in 18 response to the FWS’ s own inquiries; all of which avoided 19 respondi ng to the fu ndamental requests posed by [ FFA].” 20 21 22 23 24 Id. Thi s is a challenge to the merits, sub stance , and sufficie ncy of FWS’s response that goes beyond th e allegati on of agency delay on which the Second Cl aim is premised . A merits challenge to the Appeal Respo nse has 25 not been raised in t he Complaint; FFA has not mov ed for 26 leave to amend its C omplaint; and the Complaint c annot be 27 amended to avoid sum mary judgment because of the 28 12 1 2 3 4 5 6 7 addition al jurisdict ional defects discussed below . Plaintif fs’ argument that the controversy is ongo ing (and the refore not m oot) because the 2008 Smelt B iOp h as not been withdrawn f rom the public domain is unav ailing. The Seco nd Claim for Relief specifically challeng es the timing o f FWS’s fail ure to respond to FFA’s IQA Appeal. 8 FWS resp onded. 9 response is mo ot. 10 relief i s to compel action which has been taken, no 11 further relief can b e provided). 12 Any controversy over the ti ming o f FWS ’s Carter, 780 F.2d at 1481 (wher e onl y Thi s claim fails as a matter o f law. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. Right to Judicial Re view Under the Administ rative Proce dure Act. It is un disputed tha t the IQA provides no private right of action. 4 A party challenging an administrativ e agency’s compliance with a substantive statute th at lacks an inter nal private right of action must seek jud icial 4 Pl ai nt if f is c or re ct th at t he l ac k of “ ri gh ts -c re at in g” lan gu ag e in t he I QA i s n ot f at al t o it s cl ai ms , bu t FF A mis un de rs ta nd s th e re aso n wh y th e a bse nc e of s uc h la ng ua ge is n ot dis po si ti ve . P la in ti ff di sc us se s a t g re at l en gt h th e ex amp le o f th e Nat io na l En vi ro nm en ta l P ol ic y Ac t ( “NE PA ”) , ar gu in g NE PA is a pro ce du ra l st at ut e si mil ar t o th e I QA fo r wh ic h ju di ci al re vi ew i s pro vi de d. Ju di ci al r evi ew o f NE PA cas es i s af fo rd ed u nd er th e AP A, so lo ng a s th e th re sh old j ur is di ct i ona l re qu ir em en ts o f the A PA a re sat is fi ed . W he th er t hos e th re sh ol d re qu ir em en ts a re s at isf ie d wi th res pe ct t o th e IQ A cl aim s in t hi s c ase i s a se pa ra te q ue sti on t ha t is no t re so lv ed b y vi rtu e of t he f a ct th at N EP A ca se s ar e r ev ie wa bl e und er t he A PA . W hi le NE PA a nd t he IQA m ay b ot h be p ro ce dur al sta tu te s, t he ir p ro vi sio ns a re f ar fro m id en ti ca l. NE PA co nt ai ns spe ci fi c st at ut or y co mma nd s th at f e der al a ge nc ie s pr ep ar e env ir on me nt al i mp ac t sta te me nt s (“ E IS” ) be fo re u nd er ta ki ng “m aj or Fed er al a ct io ns s ig ni fic an tl y af fe c tin g th e hu ma n en vi ro nme nt .” Man da to ry i nf or ma ti on mu st b e in cl u ded i n ev er y EI S as d efi ne d by sta tu te . T he I QA c on tai ns n o su ch spe ci fi c re qu ir em en ts . 13 1 review u nder the APA . 2 497 U.S. 871, 882 (1 990); Vil lage of False Pass v. Cla rk, 3 4 5 6 7 See Lujan v. Nat’l Wildlif e Fed’n, 733 F.2d 605, 609 (9 th Cir. 1984) (because ESA co ntains no inter nal standard of review, APA § 706 governs review of actio ns brought u nder the ESA). The APA authorizes s uit by a plaintiff “suffering 8 legal wr ong because of agency action, or adversel y 9 affected or aggrieve d by agency action within the meaning 10 of a rel evant statut e.” 11 presumpt ion of revie wability under the APA. 12 13 14 15 16 5 U.S.C. § 702. There i s a Shalala v. Illinois Council on Long Term Care, Inc., 5 29 U.S . 1, 44 n.11 (20 00). Howeve r, the APA expressly pr eclude s judicial review wher e: (1) any statute “precludes judicial review”; or (2) “agency action is commit ted to 17 agency d iscretion by law.” 18 of these exceptions is tr igge red, the lawsuit can not 19 proceed under the AP A. 20 21 22 23 24 5 U.S.C. § 701(a). I f either If neith er of these exceptions applies, the APA permits judicial rev iew of “[a]gency action made reviewab le by statut e and fin al agency action for which there is no other ad equate remedy in a court....” 5 25 U.S.C. § 704. 26 review p rovision, th e “agency action made reviewa ble by 27 statute” language is inapplicable, requiring the 28 Where a statute lacks an internal judicial 14 1 existenc e of a “fina l agency action.” 2 defined to include “ the whole or a part of an age ncy 3 4 5 6 7 “Agency ac tion” is rule, or der, license , sanction, relief, or the eq uivalent or denia l thereof, o r failure to act.” 551(13). 5 U.S.C. § The APA re quires that the agency action be upheld u nless it is found to be “arbitrary, capri cious, 8 an abuse of discretion, or otherwise not in accordance 9 with law ,” or “witho ut observance of procedure re quired 10 by law.” 11 for fail ure to condu ct an appropriate peer review of the 12 13 14 15 16 17 18 19 20 21 22 5 U.S.C. § 706(2). The Third Claim for Relief 2008 Bio logical Opin ion invokes § 706(2) by alleging that the peer review was conducted “without observance of procedur e required b y law.” a. APA § 70 2(a)(2)’s Ex ception for Agency Action “ Committed to Agency Discretion by Law” Bar s Judicial R eview in this Case. Plaintif f does not a llege tha t any statute expressly preclude s judicial r eview of Plaintiff’s IQA clai m. The issue is whether the IQA and/or its implementing guidelin es, by law, commit to agency discre tion t he 23 disputed agency acti ons c hall enged by Plaintiff’s claims. 24 The gen eral t est for when an action is “committed to 25 agency d iscretion by law” under the APA is whethe r there 26 is “no l aw to apply. ” 27 28 Heckler v. Chaney, 4 70 U.S . 821 , 830 (198 5) (internal quotation marks omitted). 15 “Agenc y 1 action i s committed to the discretion of the agen cy by 2 law when ‘the statute is drawn so that a court would have 3 4 5 6 7 no meani ngful standa rd against which to judge the agency’s exercise of discretion.’” Steenho ldt v. FAA, 314 F.3d 633, 638 (D .C. Cir. 2003) (quoting Heckl er, 470 U.S. at 830). “If n o ‘judicially manageabl e stan dard’ 8 exists b y which to j udge the agency’s action, mea ningful 9 judicial review is i mpossible and the courts are without 10 jurisdic tion to revi ew that action.” 11 itself c ontains absolutely no substantive s tandar ds, let 12 13 14 15 16 Id. Here, the I QA alone an y stan dards relevant to the c laims brought in this cas e conc erning the timing of response s to Reques ts and Appe als and the makeup of peer review panels. The statute itself commi ts the challenged agency acti ons to 17 the agen cy’s discret ion. 18 action i s committed to absolute agency discretion by law, 19 ... cour ts have assu med the power to review alleg ations 20 21 22 23 24 However, even “[w ]here an that an agency excee ded its legal authority, acte d unconsti tutionally, or failed to follow its own regulati ons.” United States v. Carpenter, 526 F.3d 12 37, 1242 (9t h Cir. 2008) ; see als o Padula v. Webster, 822 25 F.2d, 97 , 100 (9th C ir. 1987)(“Judicially m anagea ble 26 standard s may be fou nd in formal and informal pol icy 27 statemen ts and regul ations as well as in statutes , but if 28 16 1 a court examines all thes e possible sources and c onclu des 2 that the re is, in fa ct, ‘no law to apply,’ judici al 3 4 5 6 7 8 9 review w ill be precl uded.”)(quoting Citizen s to P reser ve Overton Park, Inc. v . Volpe, 401 U.S. 402, 410 (1 971)) . The crit ical issue i s: Do the agency’s own regulations create m eaningful st andards or do they preserve t he discretion aff orded by the statute? Salt Ins titute v. Th ompson, 3 45 F. Supp. 2d 589 (E.D. 10 Va. 2004 ), aff’d sub nom. on alternate grounds, Salt 11 Inst. v. Leavitt, 440 F.3d 156 (4th Cir. 20 06), a pplie d 12 13 14 15 16 701(a)(2 ) and Steenholdt to t he IQA, finding that “[n]eith er the IQA n or the OMB Guidelines provide judicial ly manageabl e standards that would allow meaningf ul judicial review to determine whether a n agency 17 properly exercised i ts discretion in deciding a r equest 18 to corre ct a prior c ommunication.” 19 request for correcti on at issue in Salt Institute : 20 21 22 23 24 25 26 27 28 With respect to the [T]he gu idelines pro vide that “[a]gencies, in making t heir determi nation of whether or not to correct information, may reject claims made in bad fait h or without justification, a nd are required to undertak e only the degree of correcti on that they conclude is appropriate for the natu re and timel iness of the information involved .” 67 Fed. Reg. at 8458. Courts have determin ed that regu lations containin g simi lar language granted suf ficient discretion to agencies to preclude judicial review under the APA. Se e Steenholdt, 314 F.3d at 638 (hold ing that age ncy’s decisi on under a regulation allowing an agency t o take an action “for any 17 1 2 3 4 5 6 7 reason t he Administr ation considers a ppropriate” is commi tted to agen cy discretion and not reviewab le under APA ). Judicial review of [the agency’s ] discretion ary decisions is not availabl e under the APA because the IQA and OMB guidelin es at issue insulate the agency’s determin ations of when correction of information containe d in informa l agency statements is warrante d. Id. at 6 02-603 . Do the IQA Guidelines create mea ningful 8 standard s over the t iming of responses and/ or the make up 9 of a pee r review pan el, or do the Guidelines pres erve 10 agency d iscretion ov er these procedural matters? 11 (1) 12 13 14 15 16 17 18 Applicat ion to the S econd Claim for Relief. The Seco nd Claim all eges that FWS failed “to time ly respond to [FFA’s] a ppeal and/or make corrections to the 2008 Bio logical Opin ion.” Doc. 1 at 16-17. Neit her t he IQA itse lf nor the O MB Guidelines contain any rel evant deadline s. The timi ng provisions FFA alleges wer e 19 violated are contain ed in FWS’s own IQA Guideline s. 20 FWS IQA Guidelines p rovide a process for: (1) an initial 21 “Request for Correction of Informatio n”; an d (2) an 22 23 24 25 26 The administ rative appea l, or “Information Quality Ap peal.” For an i nitial petition, the FWS IQA Guidelines state: “FWS wil l review the request and issue a decision within 90 calen dar days fro m the receipt of the challeng e.” FWS 27 IQA Guid elines, Part V-6. “If the request requir es more 28 than 90 calendar day s to resolve, the agency will inform 18 1 the requ ester that m ore time is required, indicat ing the 2 reason(s ) why and pr oviding an alternative timeli ne for 3 4 5 6 7 reaching a decision. ” FWS IQ A Guidelines, Part V -6. the init ial request is denied by FWS or if the re quester is “diss atisfied wit h a FWS decision regarding th eir request, ” the FWS IQ A Guidelines provide for an 8 administ rative appea l, and the “Director of the F WS or 9 his/her design ated r epres entative will make the final 10 decision on the appe al within 60 calendar days fr om 11 receipt of the appea l in the FWS.” 12 13 14 15 16 17 18 19 20 21 22 23 24 If FWS IQA Guide lines, Part V-8 . Notwiths tanding the time period for r espond ing to an appeal c ontained in Part V-8, the Guidelines state tha t alternat ive procedur es may be utilized: The qual ity of the i nformation that the FWS dissemin ates is alwa ys important, however, factors such as home land security, threats to public h ealth, statu tory or court-ord ered deadline s, cir cumsta nces beyo nd our control , or other un foreseen eve nts may limit applicability of these guidelines. The application of the se factors will be dete rmined by the Director, FWS or his/h er designee which may result in a deferral , waiver, or use of alternative procedur es. FWS IQA Guidelines P art II (emphasis added). Lik e the 25 guidelin es pertainin g to the decision whether or not to 26 correct information at issue in Salt Instit ute, w hich 27 were com pletely disc retionary because the agency could 28 19 1 “mak[e] their determ ination of whether or n ot to corre ct 2 informat ion, may rej ect claims made in bad faith or 3 4 5 6 7 without justificatio n, and are required to undert ake only the degr ee of correc tion that they conclude is appropri ate for the nature and timeliness of the informat ion involved ,” 67 Fed . Reg. at 8458, so too Pa rt 8 II of th e FWS IQA Gu idelines consigns all matters related 9 to appli cation of th ose Guidelines, including the timing 10 of respo nses, to the discretion of FWS. 11 Guidelin es prescribe a timeline for responding to 12 13 14 15 16 The FWS Requests for C orrection and Appeals, but authorize the Director or his desi gnee to depart fr om the Guide lines under a wide range o f circumstances, including “circums tances beyon d our control or other unfore seen 17 events.” 18 Second C laim for Rel ief because neither the IQA n or the 19 OMB Guid elines conta in substantive standards with respect 20 21 Section 70 1(a)(2) bars judicial review of the to respo nse deadline s, and FWS’s own Guidelines p reserve the agen cy’s discret ion with respect to its deadl ines. 22 23 24 25 26 (2) Applicat ion to the T hird Claim for Relief. The Thir d Claim for Relief alleges that FWS faile d to conduct an appropria te peer review of the 2008 Bi ological 27 Opinion. Specifical ly, FFA alleges that certain members 28 of the p eer review b ody were not sufficiently independ ent 20 1 because they authored papers upon which por tions of th e 2 2008 Sme lt BiOp were based, were graduate student s of 3 4 5 6 7 persons whose work f ormed the basis of portions o f the 2008 Sme lt BiOp, wer e CALFED (a joint federal sta te initiati ve concernin g the Delta) grant recipients , and/or particip ated in work ing groups whose work product was 8 consider ed by the au thors of the 2008 Smelt BiOp. 9 at ¶60. 5 10 11 12 Doc. 1 The OMB IQA Guidelin es define “quality,” “utility ,” “objecti vity,” and “ integrity.” 6 Only the “ object ivity ” definiti on contains guidance about pe er rev iew: 13 “Objecti vity” involv es two distinct elements, presenta tion and sub stance. 14 15 a. “Obje ctivity” inc ludes whether dissemin ated informa tion is being presented in an ac curate, clea r, complete, and unbiased manner. Thi s involves whether the informat ion is prese nted within a proper context. Sometimes, in disseminating certain types of information to the public, other informat ion must als o be disseminated in order to ensure an a ccurate, clear, complete , and unbias ed presentation. Also, the agen cy needs to identify the sources of the diss eminated inf ormation (to the extent possible , consistent with confidentiality protecti ons) and, in a scientific, financia l, or statis tical context, the 16 17 18 19 20 21 22 23 24 5 25 26 27 28 At o ra l ar gu me nt , FF A m en ti on ed a num be r of o th er c om pl ain ts abo ut t he p ee r re vi ew pr oc es s, n on e of w hi ch w er e ra is ed in t he Com pl ai nt . 6 Pl ai nt if f ci te s th es e d ef in it io ns as ex am pl es o f ju di ci all y enf or ce ab le s ta nd ar ds . Ev en a ss um i ng th es e ar e en fo rc ea ble sta nd ar ds , th ey d o no t a dd re ss t he dea dl in e is su es r ai se d b y th e Sec on d Ca us e of A ct io n a nd a re t he r efo re n ot d is cu ss ed i n c on ne ct io n wit h th at c la im . 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 supporti ng data and models, so that the public c an assess for itself whether there may be s ome reason t o question the objectiv ity of the s ources. Where appropri ate, data sh ould have full, accurate , transparen t documentation, and error so urces affect ing data quality should be ident ified and di sclosed to users. b. In ad dition, “obj ectivity” involves a focus on ensuring ac curate, reliable, and unbiased information . In a scientific, financia l, or statis tical context, the original and support ing data shall be generate d, and the a nalytic results shall be develope d, using sound statistical and research methods. i. If da ta and analytic results have been sub jected to fo rmal, independent, external peer review , the information may gene rally be pre sumed to be of acceptab le objectivi ty. However, this presumpt ion is rebut table based on a persuasi ve showing b y the petitioner in a partic ular instanc e. If agencysponsore d peer revie w is employed to help sat isfy the obj ectivity standard, the revi ew process e mployed shall meet the gene ral criteria for competent and credible peer review reco mmen ded by OMB-OIRA to the Pres ident’s Management Council (9/20/01)... namely, “that (a) peer rev iewers be se lected primarily on the basi s of necessa ry technical expertis e, (b) peer reviewers be expected to disclose to agencies prior technica l/policy positions they may have tak en on the is sues at hand, (c) peer rev iewers be ex pected to disclose to agenc ies their so urces of personal and inst itutional fu nding (private or public s ector), and (d) peer reviews be conducte d in an open and rigorous manner.” 67 Fed. Reg. 8,459-60. This provides , gene rally, that 22 1 peer rev iew is one, but not the only, way to sati sfy the 2 objectiv ity requirem ent. 3 4 5 6 7 Where peer review is em ployed, it “shal l meet the g eneral criteria for competent and credible peer review recommended by O MB-OIR A to t he Presiden t’s Manageme nt Council (9/20/01)....” Th e OMB- OIRA cri teria are not exp ressed as enforcea ble st andar ds. 8 Rather, they prescri be that (a) peer reviewers be 9 selected “prim arily” on t he basis of necessary technic al 10 expertis e; (b) peer reviewers are expected to “disclose” 11 prior te chnical/policy positions taken on t he issues a t 12 13 14 15 16 hand, an d (c) their sources of personal and institutional funding (private or public); and (d) peer reviews are to be condu cted in an “ open and rigorous manner.” Id. These cr iteria are n ot di sabl ing as they do not call 17 for disq ualification , even where potential source s of 18 conflict exist. 19 disclosu re to the ag ency of prior technical or policy 20 21 22 23 24 The OMB- OIRA criteria only requi re position s taken on t he issues under r eview and/or reviewer s’ sou rces of personal and institutional funding. The OMB- OIRA criteri a do not create e nforce able rules of conduct. Nothing in the statute or the Guideline s 25 address the use of p eer reviewers with the potent ial 26 sources of conflict about which FFA complains. 27 28 FFA references the FWS IQA Guidelines at Part VI-2, 23 1 which st ate that “FW S adheres to the OMB Memorand um (M- 2 05-030) ‘Final Information Quality Bulletin for Peer 3 4 5 6 7 Review’ dated Decemb er 16, 2004, to ensure that influent ial scientific information disseminated to the public i s subject to peer review.” For influential scientif ic informati on, the OMB IQA Bulletin for Peer 8 Review “ requires age ncies to adopt or adapt the commit tee 9 selectio n policies e mployed by the National Acade my of 10 Sciences (NAS) when selecting peer reviewers who are not 11 governme nt employees .” 12 13 14 15 16 See Doc. 61 at Ex. A (OMB Informat ion Quality Bulletin for Peer Review) at 3. 7 The NAS Poli cy reference d in the OMB IQA Bulletin is entitled “Policy on Committee Composition and Balanc e and Confl ict of Inter est” 8 and contains guidance on the subject of 17 conflict s of interes t. 18 Peer Rev iew requires each federal agency adopt or adapt 19 the NAS Policy when disseminating influential sci entific 20 21 22 23 Altho ugh the OMB IQA Bulletin for informat ion, i n a se parate section entitled “Judi cial Review,” the Bulleti n spe cifi cally disclaims crea ting any right to judicial re view: This Bul letin is int ended to improve the internal management of the executive branch, and is not i ntended to, and does not, cre ate an y right or benefit, su bstantive or procedural, 24 25 26 7 27 28 Th e OM B IQ A Bu ll et in fo r Pe er R ev i ew wa s pu bl is he d in t he Fed er al R eg is te r. 70 Fe d. R eg . 2, 6 64 (J an . 14 , 20 05 ). 8 Se e Do c. 6 1- 2, E x. B , a va il ab le a t htt p: // ww w. na ti on al ac ade mi es .o rg /c o i/i nd ex .h tm l. 24 1 2 3 4 5 6 7 enforcea ble at law o r in equity, against th e United S tates, its a gencies or other entities, its offi cers or empl oyees, or any other person. OMB IQA Bulletin for Peer Review at Part XII, p. 41 (emphasis adde d). Salt I nstitu te hel d: “Judicial revi ew of [the agency’s ] discretion ary decisions is not availabl e under 8 the APA because the IQA and OMB guidelines at iss ue 9 insulate the agency’ s determinations of when corr ection 10 of infor mation conta ined in informal agency state ments is 11 warrante d.” 12 13 14 15 16 345 F. Supp. 2d at 603. Likewise, t he OMB IQA Bull etin insulat es from judicial review the a gency’s determin ations about peer reviewers. The IQA itself conta ins no standards concerning p eer review, committing s uch matters to ag ency d iscretion. 17 The OMB IQA Bulletin for Peer Review specifically 18 disclaim s that its c ontents create any enforceabl e 19 rights, thereby pres erving the agency’s discretio n to 20 21 22 23 24 25 26 27 28 interpre t and apply the OMB IQA Bulletin for Peer Review. There is “no law to apply” to Plainti ff’s claim regarding the make up of the pe er review panel. Section 701 (a)(2) bars jud icial review of the Third Claim. b. Plaintif f’s Argument s That Salt Institute and Othe r Cases Cite d by Defendants Are Distingu ishable. Plaintif f seek s to distin guish Salt Institu te on that 25 1 ground t hat, there, plaintiff sought to obt ain 2 informat ion from the Department of Health and Hum an 3 4 5 6 7 Services under the I QA, not to correct alle gedly erroneou s informatio n disseminated by that agency . 67 at 13 . Do c. The Salt Institute plainti ffs alleged that the defendan t agency, th e National Heart, Lung and Bl ood 8 Institut e (“NHLBI”), violated the IQA by (1) fail ing to 9 disclose certain dat a and methods used by a grant 10 recipien t, (2) repor ting the results of that study on the 11 NHLBI we bsite and in medical journals, and (3) 12 13 14 15 16 recommen ding that pe ople limit their sodium intak e. Institut e v. Thompso n, 345 F. Supp. 2d at 5 92-93. The second a nd third cla ims in Salt Institute were re quest s to corre ct erroneous information, not only requests fo r 17 informat ion. 18 the clai ms for lack of standing, reasoning: 19 Salt The Fo urth Circuit affirmed dismiss al of 25 By its t erms, [the I QA] statute creates no legal rights i n any third parties. Instead, it orders the Offi ce of Manage ment and Budget t o draf t guidelin es concernin g information quality and specifie s what those guidelines should contain. Because the statute upon which appellants rely does not create a le gal right to access to informat ion or to correctness, appellants have not alle ged an invas ion of a legal right an d, thus, ha ve failed to establish an injury in fact sufficie nt to satisf y Article III. 26 Salt Ins t. v. Leavit t, 440 F.3d 156, 159 (4 th Cir. 200 6). 20 21 22 23 24 27 28 Federal Defendants c ite a number of other cases i n 26 1 which co urts have re fused to exercise jurisdictio n over 2 IQA clai ms. 3 Sys. Lit ig., 3 63 F. Supp. 2d 1145, 1174 (D. Minn. 2004) 9 4 5 6 7 S ee In re Op eration of the Mis souri River (“[T]he language of the IQA indicates that the Co urt may not revi ew an agency ’s decision to deny a party’s informat ion qu ality complaint. The IQA does not provide 8 for a pr ivate cause of action....”), aff’d in par t and 9 vacated in part on o ther grounds, 421 F.3d 618 (8 th Cir. 10 2005); H aas v. Gutie rrez, 200 8 WL 2566634, *6 (S.D.N.Y . 11 June 26, 2008) (same ); Americans for Safe Access v. U. S. 12 13 14 15 16 Dep’t of Health & Hu man Servs., 2007 WL 214 1289, *4 (N .D. Cal. Jul y 24, 2007), aff’d 2010 WL 4024989 (Oct. 14, 2010)(sa me). Plaintif f argues tha t Sal t In stitute and th ese ot her 17 cases ar e distinguis hable on the ground none of t hem 18 involved “fina l agen cy action” cognizable under t he APA. 19 The issu ance of the 2008 Smelt BiOp is indisputab ly final 20 21 22 23 24 agency a ction under the APA. However, whet her or not Plaintif f challenges final agency action is irrel evant to the appl icability of APA § 701(a)(2), which operates a s a threshol d bar to ope ration of the APA in this IQA case, 25 9 26 27 28 At o ra l ar gu me nt , Pl ain ti ff a tt em p ted t o di st in gu is h Mi sso ur i Riv er o n th e gr ou nd t hat t he I QA w a s a “ pe ri ph er al ” is su e i n th at cas e. Pe ri ph er al o r not , th e Mi ss o uri R iv er d ec is io n di rec tl y add re ss ed w he th er a ge ncy a ct io n un d er th e IQ A wa s co mm it ted t o age nc y di sc re ti on b y law b ar ri ng j u dic ia l re vi ew u nd er 5 U. S. C. § 701 (a )( 2) . 27 1 regardle ss of the pr esence of “final agency actio n.” 2 3 4 5 c. Prime Ti me Int’l Co. v. Vilsack, 599 F.3d 678 (D.C . Cir. 2010) Does Not Support Assertio n of Judicia l Review in this Case. Plaintif f places gre at emphasis on the D.C Circui t’s 6 recent d ecision in Prime Time Int’l C o. v. Vilsack, 599 7 F.3d 678 (D.C. Cir. 2010), to argue that the DC Circui t 8 has deci ded the IQA is judicially reviewable. 9 district court, in Single Stick, Inc. v. Johanns, 601 F. 10 11 12 13 14 Th e Supp. 2d 307, 316 (D .D.C. 2009), found that plain tiff did not have standing to pursue its claims that USDA violated the IQA by failing t o correct or disclose data so urces underlyi ng its marke t share calculations and by f ailing 15 to respo nd to plaint iff’s petition and request for 16 reconsid eration: 17 18 19 20 21 22 23 24 25 26 27 28 To allow a plaintiff to seek review of an agency’s violation o f a statute, the court must examine “whether or not Congress intended to confer i ndividual ri ghts upon a class of benefici aries” in enactin g the statute. Gon zaga Univ. v. Doe, 536 U.S. 273, 285 (2002). “The question is not simp ly who would benefit from the Act, but whether Congress intended to confer federal rights upon those beneficiaries.” Californ ia v. Sierra Club, 451 U.S. 287, 294 (1981). To make this determination, a court should f ocus on whet her the statute contains “rights- creating lan guage,” see Gonza ga Univ., 536 U.S. at 287, whi ch is language that emphasiz es the indiv iduals protected rather than simply d ictating the actions an agenc y shou ld take. Se e Alexander v. Sandoval, 532 U.S. 2 75, 289 (200 1) (holding that “[s]tatutes that focus on the p erson regula ted rather than the individu als protecte d create ‘no implication of 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 an inten t to confer rights on a particular class of perso ns’ ” (quoti ng Sierra Club, 4 51 U.S. at 294)). The IQA “creates no legal rights in any third party,” and “does no t create a legal right to access t o informatio n or to correctness.” Salt Inst. v. Leavitt, 440 F.3d 156, 159 (4th Cir.2006 ). Both the actual te xt of the stat ute and its implementing guidelines dictate the actions that agencie s must take and do not contain “individuall y focused terminology.” Gonzaga Univ., 536 U.S. at 287; see 44 U.S. C. § 3516 not e (“The Dire ctor [of the Office of Manageme nt and Budge t (“O MB”) ] shall ... is sue guidelin es ... that provide policy and procedur al guidance to Federal agencies ...”); see also Guidelines for Ensuring and Maximizing the Qual ity, Objecti vity, Utility, and Integrity of Infor mation Disse minated by Federal Agen cies, 67 Fed. Reg. 8452, 8 458 (Feb. 22, 2002) (republi cation) (ord ering that agencies should “[i]ssue their own i nformation quality guidelin es[,] ... [e ]stablish administrative mechanis ms[, and] .. . report to the Director of OMB the number and n ature of complaints”). The focus of the IQA is the communication between agencies and the dev elopment of internal procedur es for ensur ing quality of information. While th e statute ob ligates agencies to establis h a process by which individuals can alert an agency to a need for information correcti on to improv e information quality, the statute does [not] c ontain any indication that individu als choosing to participate in such a process have a right to seek or correct informat ion. See 67 Fed. Reg. at 8458-59. Because the IQA lack s any rights-creating language , Single Sti ck has no right under that statute to seek revi ew of the USDA’s actions. Id. at 316. The tria l court found that plaintiff’s chal lenge could no t proceed un der the APA because there was no final ag ency a ction: 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 An agenc y action is reviewable under the APA only if the action i s a final agency action. Norton v . S. Utah Wi lderness Alliance, 542 U.S. 55, 61-6 2 (2004). A final agency action is one where “‘ rights or ob ligations have been determin ed,’ or from which ‘legal consequences will flo w[.]’” Benne tt v. Spe ar, 520 U.S. 1 54, 178, (19 97) (quoting Port of Boston M arine Terminal Ass’n v. Re deriaktiebolaget Transatl antic, 400 U .S. 62, 71 (1970)). Because the IQA does not ves t any party with a right to informat ion or to co rrection of information, see Salt Ins t., 440 F.3d at 159, the USDA’s actions under th e IQA did no t determine Single Stick’s rights o r cause any legal consequence. See Ams. for Safe Access v. H HS, N o. C 07-01049 WHA, 2007 WL 21412 89, at *4 (N .D. Cal. July 24, 2007) (holding that becaus e the IQA does not grant any legal ri ghts, there was no legal consequence flowing from the def endant’s response to the plaintif f’s IQA peti tion). Accordingly, the USDA’s l ack of respo nse was not a final agency action a nd cannot be reviewed under t he APA. See id. Id. at 3 16-317 . The D.C. Circu it affirmed dismissal of the IQA claims on an en tirely diffe rent ground, base d on USDA’s argument , not raised below, that an exemption fro m the term “di ssemination” used in the OMB guidel ines barred plaintif f’s claim: The Info rmation Qual ity Act of 2000 provides that the Director of the Office of Management and Budg et (“OMB”) s hall, “with public and Federal agency invol vement,” issue guidelines by the end of September 2001 that: provide policy and p rocedural guidance to Federal agencies for ensuring and maximizing the qual ity, objecti vity, utility, and integrit y of informa tion (including statisti cal informat ion) disseminated by Federal agencies in fulfillment of the 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 purposes and provisions of chapter 35 of title 44 , United Sta tes Code, commonly referred to as the P aperwork Reduction Act. 44 U.S.C . § 3516 not e (a). The guidelines “apply to the s haring by Fe deral agencies of, and access t o, informati on disseminated by Federal agencies ,” and require such agencies to “issue guidelin es ensuring and maximizing the quality, objectiv ity, utility , and integrity of informat ion ... diss eminated by the agency.” Id. § 3516 n ote (b)(1), (2)(A). Each such Federal agency s hall, under the guidelines, “establ ish administ rative mecha nisms allowing affected persons to seek and obtain correction of informat ion maintain ed and disseminated by the agency t hat does not comply with the guidelines issued u nder” the IQ A. Id. § 3516 note (b)(2)(B ). The OMB Guidelines d efine “dissemination” as “agency initiated or sponsored distribution of informat ion to the p ublic.” 67 Fed. Reg. at 8460. Th e definition excludes “distribution limited to ... adjud icative processes.” Id. On appeal, USDA points to the preamble to OMB’s Guidelin es: The exem ption from t he definition of “dissemi nation” for “adjudicative processes” is inten ded to exclu de, from the scope of these gu idelines, th e findings and determin ations that an agency makes in the course o f adjudicati ons involving specific parties. There are w ell-estab lished procedur al safeguard s and rights to address the qual ity of adjud icatory decisions and to provide persons with an opportunity to contest decisions. T hese guidelines do not impose a ny additiona l requirements on agencies during adju dicative proceedings and do not p rovide parti es to such adjudicative proceedi ngs any addi tional rights of challeng e or appeal. 67 Fed. Reg. at 8454 . USDA’s guidelines, in turn, ex clude “docum ents prepared and released in the c ontext of adjudicative proces ses.” USDA Informat ion Quality Guidelines, Definitions, § 2, supra note 4. Prime Ti me sought di sclosure and correction under th e IQA of the data that USDA used to calculat e its [] ass essments[.] USDA never responde d, and Prime Time challenges that 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 nonrespo nse. USDA ma intains that the IQA does not mand ate the issu ance of information but merely i nstructs OMB to “provide policy and procedur al guidance” for ensuring quality, utility, and integri ty of information. 44 U.S.C. § 3516 n ote (a). Prime Ti me relies, however , on the prov ision that r equires agencies to “establi sh administr ative mechanisms allowing affected persons to seek and obtain correction of infor mation maint ained and disseminated by the agen cy.” Id. § ( b)(2) (B). Regardless, because Congress delegated to OMB authority to develop binding guid elines implementing the IQA, we defer to OMB’s re asonable construction of the statute. See United States v. Mead, 5 33 U.S. 218, 226 -27 (2001). The IQA is silent on the meaning of “dissemin ation,” a nd in defining the term OMB exercised i ts discretion to exclude document s prepared a nd distributed in the context of adjudicat ive proceedings. This is a permissi ble interpre tation of the statute, see Chevron, 467 U.S. at 843, and Prime T ime does not cont end otherwis e. Rather, Prime Time attempts to avoid th e consequences of the IQA exemptio n for adjudi cations on the ground it is waived b ecause USDA did not raise it in the district court. Id. 684- 86 (footnote s omitted). The issue of w hether the newly raised argum ent should be addre ssed was dec ided affirmatively: This cou rt has repea tedly recognized that issues and lega l theories n ot asserted in the district court “o rdinarily wi ll not be heard on appeal.” See, e.g ., Horowitz v. Peace Corps, 4 28 F.3d 271, 282 (D.C. Cir. 2005).... The reasons for this rul e are clear: [O]ur pr ocedural sch eme contemplates that parties shall come t o issue in the trial forum ve sted with au thority to determine question s of fact. T his is essential in order th at parties m ay have the opportunity to offer all the evi dence they believe relevant to the issu es which the trial tribunal is alone co mpetent to decide; it is equally essential in order that litigants may not be surprised on appeal by final decision there of is sues upon which they have had no opportun ity to introduce evidence . 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Hormel v . Helvering, 312 U.S. 552, 55 6 (194 1). USDA did not raise t he “exemption for adjudica tions” argum ent in the district court, so norma lly it would be forfeited. See gene rally United S tates v. Olano, 5 07 U .S. 725, 733 (1993). However, in Singl eton v. Wulff, 428 U.S. 106, 121 (1976), the Supreme Court observed: The matt er of what q uestions may be taken up and reso lved for the first time on appeal is one left primarily t o the discretion of the courts o f appeals, to be exercised on the facts of individual cases. We announce no general rule. Certainly there are circumst ances in whi ch a federal appellate court is justified i n resolving an issue not passed o n below, as where the proper resoluti on is beyond any doubt, see T urner v. City of Memphis, 369 U .S. 350 (1962). The “pro per resoluti on [of the IQA issue] is beyond a ny doubt,” s o this court is free to reach it . The issue involves a straig htforward legal qu estion, and both parties have fully addresse d the issue on appeal. Consequently, no “injusti ce” will be done if we decide the issue. Id. Prime Ti me, 59 9 F.3d at 6 86 (emphasis added ). FFA argu es tha t the D.C. Circuit affirmed the dismissa l on an issu e other than the availability of judicial review under the IQA, which amounts to an implied finding that there is a right to judicial review under th e IQA. To t he contrary, the appeals court 23 specific ally c oncluded the underlying agency action -- 24 USDA’s d etermination of manufacturer’s assessment s under 25 the Fair and Equitab le Tobacco Reform Act ( “FETRA”) -- 26 was an a djudicatory proceeding subject to judicia l review 27 28 33 1 directly under FETRA : 10 2 USDA’s d etermination of Prime Time’s assessments for thre e quarters o f FY 2005 was an adjudica tion, attend ant to which Prime Time had rights t o an adminis trative appeal and judicial review. See 5 U.S.C. § 55 1(7) (defining “adjudic ation”); 7 U .S.C. § 518d(i), (j). Prime Time’s c ontention th at USDA violated the IQA when it did not resp ond to a request to disclose and corr ect certain infor mati on underlying the tobacco assessments thus fails. 3 4 5 6 7 Accordin gly ... we a ffirm the dismissal of the IQA chal lenge, altho ugh on a different ground than rel ied upon by the district court. 8 9 10 Id. at 6 86. T here w as no need to and that decision di d 11 not eval uate whether the IQA provided a basis for 12 judicial review unde r the APA. 11 13 support Plaintiff’s argument that by negative inference 14 the IQA provides a r ight to judicial review. 12 Prime Time does n ot 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 Ne it he r th e is su an ce of t he 2 00 8 S mel t Bi Op n or F WS ’s a cti on s wit h re sp ec t to t he p eer r ev ie w pa n el co ns ti tu te a dj ud ic ati on s un de r the A PA , wh ic h de fi ne s “ ad ju di ca ti o n” to m ea n me an s “a ge ncy p ro ce ss for t he f or mu la ti on o f a n or de r. 5 U. S. C. § 5 51 (7 ). An “o rd er ” is “th e wh ol e or a p ar t of a fi na l di s pos it io n, w he th er a ff irm at iv e, neg at iv e, i nj un ct iv e, or d ec la ra to r y i n fo rm , of a n ag en cy in a mat te r ot he r th an r ul e m ak in g bu t i ncl ud in g li ce ns in g. ” § 55 1( 6) . The i ss ua nc e of a b io log ic al o pi ni o n i s, h ow ev er , re vi ew abl e un de r the A PA a s “f in al a ge ncy a ct io n” s u bje ct t o ju di ci al ly m ana ge ab le sta nd ar ds s et f or th i n t he E SA . C a lif or ni a Tr ou t v. F .E .R. C. , 57 2 F.3 d 10 03 , 10 11 n . 4 (9t h Ci r. 2 00 9 ). 11 Th e go ve rn me nt p et it ion ed f or r eh e ari ng t o se ek a s pe ci fic rul in g th at t he I QA i s n ot j ud ic ia l ly re vi ew ab le . T he D C C ir cu it iss ue d a si ng le p ag e den ia l, w hi ch did n ot a dd re ss j ud ic ial rev ie wa bi li ty . S ee U nit ed S ta te s v . C ot e, 5 1 F. 3d 1 78 , 181 ( 9t h Cir . 19 95 ) (s um ma ry d eni al o f a re h ear in g pe ti ti on d oe s not est ab li sh t ha t th e co urt c on si de re d an d de ci de d th e is su e t he pet it io n pr es en te d) . 12 Th e OM B Gu id el in es a ckn ow le dg e “[ t ]he re a re w el l- es ta bl ish ed pro ce du ra l sa fe gu ar ds an d ri gh ts t o ad dr es s th e qu al it y of adj ud ic at or y de ci si on s a nd t o pr ov i de pe rs on s wi th a n op por tu ni ty t o con te st d ec is io ns ,” a nd ex pl ai n th a t “ [t ]h es e gu id el in es do n ot imp os e an y ad di ti on al re qu ir em en ts on ag en ci es d ur in g ad jud ic at iv e pro ce ed in gs a nd d o no t p ro vi de p ar t ies t o su ch a dj ud ic at ive pro ce ed in gs a ny a dd it ion al r ig ht s o f c ha ll en ge o r ap pe al .” 6 7 Fe d. 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 3. Standing . a. Presenta tion of Comp etent Evidence. Federal Defendants c omplain that, at least as of the filing o f thei r repl y bri ef, Plaintiff pres ented no evidence demonstrati ng its standing. FFA erroneo usly insisted in its own reply/opposition that such fa cts only need be alleged in i ts complaint. See Doc. 67 at 5. 13 On summary judgment, FF A must establish standing to sue b y “compete nt evidence” : The part y invoking f ederal jurisdiction bears the burd en of establ ishing the[ ] elements [of standing ].... Since they are not mere pleading requirem ents but rat her an indispensa ble part of the plai ntiff’s case , each element must be supporte d in the sam e way as any other matter on which th e plaintiff bears the burden of proof, i.e., wi th the manne r and degree of evidence required at the succ essive stages of the litigati on. At the pleading stage, general factual allegations of injury resulting from the defendan t’s conduct may suffice, [] on a motion to dismi ss we presum [e] that general allegations embrace those specif ic facts that are necessary to suppo rt the claim . In response to a summary judgment motion, how ever, the plaintiff can no longer r est on such mere allegations, but must set fort h by affidav it or other evidence specific facts which for purposes of the summary judgment motion will be taken to be true. Lujan v. Defenders o f Wildlife, 504 U .S. 555, 560 -61 (1992) ( internal cit ations and quotation marks om itted). Although two individ uals filed standing affidavit s on 25 26 27 28 Reg . 8, 45 4. 13 Pl ai nt if f al so o bj ec ts th at F ed er a l D ef en da nt s’ d id n ot tim el y ra is e th e is su e o f st an di ng . S ee D oc . 67 a t 4- 5. T hi s obj ec ti on i s wi th ou t mer it . S ta nd i ng go es t o su bj ec t ma tte r jur is di ct io n, t he a bs enc e of w hi ch can b e ra is ed “ at a ny ti me ” by a par ty o r th e Co ur t. See F ed . R. C i v. P. 1 2( h) (3 ). 35 1 behalf o f FFA in the Delta Smelt Cons olidat ed Cases on 2 December 3, 2009, th ose declarations were not fil ed in 3 4 5 6 7 this cas e unti l September 7, 2010, several weeks after Plaintif f filed its reply brief in connection wit h these cross mo tions. See Docs. 69 & 70. T he sta nding declaran ts, Joe Del Bosque and Chris Hurd, both c laim to 8 members of FFA. 9 claim to have been h armed by the water export 10 restrict ions imposed by the 2008 Biological Opini on. 11 id. 12 13 14 15 16 Both are farmers in Fresno County, an d A court has a sua sponte duty to examine standing in every ca se. B ernhardt v. County of Los Angeles, 279 F.3d 862, 868 (9 th Cir. 2002) . Normally, to prevent prejudice from the late filing of these declarations, Defen dants 17 should b e afforded the opportunity to respond. 18 because Plaintiff’s standing declarat ions are 19 insuffic ient a s a matter of law, furt her br iefing is 20 See H owever, unnecess ary. 21 22 b. Legal St andard Re: S tanding. 23 Standing is a judici ally created doctrine that is an 24 essentia l part of th e case-or-controv ersy requirement of 25 Article III. 26 27 28 Pritikin v. Dept. of Energy, 254 F.3d 79 1, 796 (9th Cir. 2001). “To satisfy the Article III case or controve rsy requirem ent, a litigant must have suf fered 36 1 some act ual injury t hat can be redressed by a fav orable 2 judicial decision.” 3 4 5 6 7 8 Iron Arrow Honor Soc. v. Heckler, 464 U.S. 67, 70 (198 4). “In essence the question of standing is wh ether the litigant is entitled to have the court de cide the mer its of the dispute or of part icular issues.” Wart h v. S eldin , 422 U.S. 490, 498 (197 5). The doct rine of stan ding “requires careful judici al 9 examinat ion of a com plaint’s allegations to ascer tain 10 whether the particul ar plaintiff is entitled to a n 11 adjudica tion of the particular claims asserted.” 12 13 14 15 16 v. Wrigh t, 468 U.S. 737, 752 (1984). Allen “The court is powerles s to create its own jurisdiction by embel lishing otherwis e deficient allegations of st anding.” Whitmo re v. Arkan sas, 4 95 U.S., 149 155-56 (9th Cir. 1990) ; 17 Schmier v. U.S. Cour t of Appeals for Ninth Circui t, 279 18 F.3d 817 , 821 (9th C ir. 2002). 19 elements . 20 21 22 23 24 25 26 27 28 Standing requires three First, t he plaintiff must have suffered an “injury in fact” -- an invasion of a legall y protecte d interest w hich is (a) concrete and particul arized and ( b) actual or imminent, not conjectu ral or hypot hetical. Second, there must be a cau sal connecti on between the injury and the cond uct complain ed of -- the injury has to be fairl y traceable to the challenged action of the defe ndant, and n ot the result of the independ ent action o f some third party not before t he court. Th ird, it must be likely, as opposed to merely sp eculative, that the injury will be redressed by a fa vorable decision. Lujan v. Defenders o f Wildlife, 504 U .S. 555, 560 -61 37 1 (1992) ( internal cit ations and quotations omitted ). 2 a plaint iff seeks to vindicate a procedural harm, rather 3 4 When than a s ubstantive r ight, the causation and redressi bility requiremen ts are relaxed: 5 A showin g of procedu ral injury lessens a plaintif f’s burden o n the last two prongs of the Article III standing inquiry, causation and redressi bility. Plai ntiffs alleging procedural injury m ust show onl y that they have a procedur al right tha t, if exe rcised, could protect their concre te interests. 6 7 8 9 10 Salmon S pawning & Re covery Alliance v. Gutierrez, 545 11 F.3d 122 0, 1226 (9th Cir. 2008) (emphasis in orig inal) 12 13 14 15 16 (interna l citations and quotations omitted). Where an organizatio n or association sues on behalf of its m embers, that organization or association must demonstr ate that: (1 ) its members would otherwise have 17 standing to sue in t heir own right; (ii) the inte rests it 18 seeks to protect are germane to the organization’ s 19 purpose; and (iii) n eithe r th e claim asserted nor the 20 relief r equested req uires the participation of in dividual 21 22 23 24 25 members in the lawsu it. Friends of the Earth, In c. v. Laidlaw Envtl. Servs . (TOC), Inc., 528 U.S. 167, 181 (2000). Standing is evaluate d on a claim-by-claim b asis. 26 plaintif f must demon strate standing ‘for each cla im he 27 seeks to press’ and for ‘each form of relief soug ht.’” 28 38 “A 1 Oregon v . Legal Serv s. Corp., 552 F.3 d 965, 969 ( 9th Cir. 2 2009) (q uoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 3 4 5 6 7 8 9 10 11 332, 352 (2006)). gross... .” “ [S]tanding is not dispensed i n Le wis v. Casey, 5 18 U.S. 343, 358, n.6 (1996). The actu al-inj ury re quire ment would hardly serve the purp ose ... of p reventing courts from undertak ing tasks as signed to the political branches [,] if once a plaintiff demonstrate d harm fro m one partic ular inadequacy in governme nt administr ation, the court were authoriz ed to remedy all inadequacies in that administ ration. Id. at 3 57. 12 13 14 c. Injury-In-Fact. Salt Ins titute v. Le avitt, 440 F.3d 156, 158-59 (4th 15 Cir. 200 6), affirmed the dismissal of two I QA claims – - 16 one alle ging that in formation was withheld in vio lation 17 of the I QA and anoth er alleging that erroneous 18 19 20 21 22 23 24 25 26 27 28 informat ion was rele ased in violation of the IQA -- on the grou nd that the IQA creates no legal right to informat ion or its correctness and therefore that plaintif fs had no st anding to sue: To invok e the jurisd iction of an Article III court, t he plaintiff s “must have suffered an ‘injury in fact.’” Lujan v. Defenders of Wildlife , 504 U.S. 5 55, 560 (1992). T he injury “require d by Art. III may exist solely by virtue of statu tes creating legal rights, the invasion of which creates sta nding.” Id. at 57 8 (quo ting Warth v. Seldin, 422 U.S. 490 , 500 (1975)). The injuries alleged by appellants are the deprivat ion of the r aw data from the studies and the asse rted incorre ctness in NHLBI’s public 39 1 statemen ts. 2 Although there is no general common law right to informat ion from age ncies or to informational correctn ess, appella nts insist that these rights are conf erred by the IQA... By its terms, [ the IQA] cre ates no lega l rights in any third parties. Instead, it orders the Office of Manageme nt and Budge t to draft guidelines concerni ng informati on quality and specifies what tho se guideline s should contain. Because the stat ute upon whi ch appellants rely does not create a legal right to access to information or to corre ctness, appe llants have not alleged an invasion of a legal right and, thus, have failed to estab lish an inju ry in fact sufficient to satisfy Article III. 3 4 5 6 7 8 9 10 Id. at 1 58-59 (emphasis added)(footno tes om itted). 11 contenti on tha t assertion of an informational inj ury is 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FF A’s sufficie nt was speci fically rejected: Against this conclus ion, appellants argue that the Supr eme Court re cognized the sufficiency of informat ional injuri es in Fed eral Ele ction Commissi on v. Akins, 524 U.S. 11 (199 8). However, in relying upon Akins, appel lants confuse two distinct standing inquiries: the concrete ness of the alleged injury and the status o f the claime d right. In Akins , the Supreme Court held t hat an informatio nal injury was “suf ficiently co ncrete and specific” to satisfy Article III. Id. at 25. In th is cas e, we have not decided (an d need not decide) the question whether app ellants’ alleged injury is sufficie ntly concret e and specific. Rather, we have dec ided the ant ecedent question whether Congress has granted a legal right to the informat ion in quest ion. Akins contro ls the former q uestion, but not the latter. Indeed , on the latt er question, Akins is distinguishab le because the statute in question there, the Federal Election Cam paign Act of 1971, clearly created a right to i nformation by requiring the Federal Election Com mission to make certain informat ion availabl e to the public. See 2 U.S.C. § 434(a)(11)( B) (“The Commission shall make a d esignation, state ment , report, or notifica tion that is filed with the Commission under th is Act avail able for inspection by the public.” ). The IQA, by co ntra st, does not c reate any lega l right to i nformation or its 40 1 correctn ess. 2 Because the statute upon which appellants r ely does not grant the r ights that appellants claim were inv aded, appell ants cannot establish an injury i n fact and, therefore, lack Article III standing to pursue t heir case in the federal courts. 3 4 5 6 Id. at 1 59 (em phasis added)(footnotes omitted). 7 8 9 10 11 12 Salt Ins titute ’s reasoning is sound. “The injury required by Article III can exist solely by virtu e of ‘statute s creating l egal rights, the invasion of which creates standing.’” Edwards v. First Am. C orp., 610 F .3d 514, 517 (9th Cir. 2 010)(quoting Warth v. Seldin, 422 13 U.S. 490 , 500 (1975) ). 14 legal ri ghts at all, as the O MB and FWS Guidelines 15 contain no judiciall y manageable standards releva nt to 16 Plaintif f’s claims. 17 18 19 20 21 22 23 24 25 26 The IQA creates no enforc eable There is no stan ding. Subject matter j urisdiction over Plaintiff’s IQA cl aims is absent because no statutes or regulations create the rig hts FFA claims w ere violated. B. Merits o f Third Clai m for relief. FFA alle ges that FWS violated the IQA when it commissi oned an outs ide peer review of the Octobe r 2008 draft Bi ological Opinion, because two members of that peer rev iew had eith er conducted research on the delta 27 smelt pr eviously, or had mentorship connections w ith 28 scientis ts who had d one so, or had allegedly acce pted 41 1 grants f rom the agen cies responsible for the Biol ogical 2 Opinion, and were no t sufficiently “independent” for 3 4 5 6 7 purposes of the IQA. Doc. 54 -1 at 21 -25. Becaus e the re are mult iple thresho ld jurisdictional bars to jud icial review o f FFA’s clai ms, it is unnecessary to discuss the merits o f the Third Claim for Relief in det ail. Arguendo , reviewing this claim on the merits, the 8 9 OMB’s IQ A Bulletin f or Peer Review, which incorpo rates 10 the NAS Peer Review Policy, and which is in turn 11 incorpor ated by refe rence into FWS’s IQA Guidelin es, 12 13 14 15 16 17 18 19 20 21 specific ally disclai ms creating any rights enforc eable against the United S tates. OMB IQA B ulletin for Peer Review a t Part XII, p. 41 (emphasis added). The Third Claim fa ils as a mat ter of law. C. Certific ation of Par tial Judgment. Rule 54( b) “permits a district court to enter separate final judgm ent on any claim or cou ntercl aim, after ma king an expr ess determination that there is no 22 just rea son for dela y. 23 discreti onary, to be exercised in light of judici al 24 administ rative inter ests as well as the equities 25 involved , and giving due weight to the historic f ederal 26 27 28 This power is largely policy a gainst piece meal appeals.” Reiter v. Coo per, 507 U.S. 258 , 265 (1993) (internal citations and quot ations 42 1 omitted) . 2 “pragmat ic approach focusing on severability and 3 4 5 6 7 Rule 54(b ) should be applied using a efficien t judicial a dministration.” Continental Airlines , Inc. v. Go odyear Tire & Rubber Co., 819 F.2d 1519, 15 25 (9th Cir. 1987). Certification under Rule 54(b) ma y be appropr iate where the matters dispos ed of 8 are “suf ficiently se verable factually and legally from 9 the rema ining matter s,” and could “completely ext inguish 10 [ ] ... liability.” 11 12 13 14 15 16 Id. The Seco nd and Third Claims, which raise procedur al challeng es under FWS ’s IQA Guidelines related to the timing o f responses to an IQA Appeal and the make up of the peer review pane l that reviewed the BiOp, are legally distinct from the Fi rst Claim, which directly cha llenges 17 the qual ity of the s cience applied in the BiOp it self and 18 is being separately decided. 19 entry of judgment on these claims. There is no reason to defer 20 V. CONCLUSI ON 21 22 For the reasons stat ed above, Federal Defendants’ 23 motion f or summary j udgment on the Se cond and Thi rd 24 Claims i s GRANTED; Plaintiff’s cross-motion as to thes e 25 claims i s DENIED. 26 27 28 The First claim ha s been severed fo r decision with the Consolidated Delta Smelt cases. Pursuant to Federal Rule of Civil Procedure 54(b) , 43 1 there is no just rea son to delay entry of judgmen t as to 2 the Seco nd and Third Claims. 3 4 5 6 7 8 Partial final judgm ent will be enter ed for Defen dants and against Plaintiffs as to the Seco nd and Third Claims. Federal Defendants s hall submit a form of order consiste nt with this memorandum decision within five ( 5) days fol lowing elect ronic service of this decision. 9 10 11 12 13 14 SO ORDER ED Dated: October 26, 2010 /s/ O liver W. Wanger Oliver W. Wang er United States Distri ct Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 44

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