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Mickelsen Farms, LLC v. Animal and Plant Health Inspection Service

United States District Court, D. Idaho

May 17, 2017

MICKELSEN FARMS, LLC, et al., Plaintiffs,
v.
ANIMAL AND PLANT HEALTH INSPECTION SERVICE, et al., Defendants.

          MEMORANDUM DECISION AND ORDER

          Hon. Candy W. Dale, United States Magistrate Judge

         INTRODUCTION

         Plaintiffs, who are potato farmers in Eastern Idaho, seek declaratory and injunctive relief against the Federal Agency Defendants and individuals charged with administering the Pale Cyst Nematodes' quarantine program. Plaintiffs' claims arise under the Plant Protection Act; the Administrative Procedure Act; the National Environmental Policy Act; the Federal Advisory Committee Act; the Declaratory Judgment Act; and the Tenth Amendment to the United States Constitution.

         The Federal Agency Defendants were required to compile the administrative record, and the parties were ordered to meet and confer about any disputes that arose once the record was filed. (Dkt. 43.) If disputes remained, the Court contemplated addressing them upon timely motion. Before the Court is Plaintiffs' motion to resolve the administrative record disputes. (Dkt. 52.) The Plaintiffs' motion seeks the following:

         (1) Supplementation of the Administrative Record (AR) with nine documents that APHIS omitted from the AR and that Plaintiffs claim are necessary to provide the Court with a complete record on which to consider the validity of the Farmers' complaint and APHIS's defenses;

         (2) A Court order addressing APHIS's refusal to submit to the Farmers a privilege log justifying APHIS's claim of deliberative process privilege claimed to approximately thirty documents and any other privileges APHIS may be asserting over other documents it has withheld; and

         (3) Supplementation of the AR with ten documents that support the Farmers' Tenth Amendment claim.

         The Court conducted a hearing on April 24, 2017, at which the parties appeared and presented oral argument. Thereafter, the Court took the matter under advisement. Based upon the parties' arguments and relevant authority, the Court will grant Plaintiffs' motion in part, and deny it in part, as explained below.

         ANALYSIS

         1. Supplementation of the Administrative Record

         When reviewing agency decisions, the Court is limited to reviewing the closed administrative record, with few exceptions. Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv., 450 F.3d 930, 943 (9th Cir. 2006). Parties may not use “post-decision information as a new rationalization either for sustaining or attacking the Agency's decision.” Ass'n of Pac. Fisheries v. EPA, 615 F.2d 794, 811-12 (9th Cir. 1980). The four instances where extra-record materials will be considered include:

(1) if necessary to determine whether the agency has considered all relevant factors and has explained its decision,
(2) when the agency has relied on documents not in the record, or
(3) when supplementing the record is necessary to explain technical terms or complex ...

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