Court Rejects Claim in First Decision on Data Quality Act

In the first ever court decision to address the Data Quality Act, a federal district court in Minnesota has held that the Act does not permit petitioners to seek judicial review. The DQA issue was just one of many complaints targeting the plans of the Army Corps of Engineers and the Fish and Wildlife Service for management of the Missouri River. Several different causes of action were consolidated by the Judicial Panel on Multidistrict Litigation and referred to the U.S. District Court for the District of Montana. The resulting 51-page opinion disposed of the entirety of the case by granting the government's motions for summary judgment. Although the DQA issue received a scant page of discussion, it remains significant nonetheless as the first court decision to address the DQA. Background: Data Quality Act The Data Quality Act, also known as the Information Quality Act, was passed in 2000 without discussion or debate as a last-minute rider to a much larger omnibus budget package. See Treasury and General Government Appropriations Act for Fiscal Year 2001, Pub. L. No. 106-554, 114 Stat. 2763, at App.C § 515 (codified in a note to 44 U.S.C. § 3516). It ordered the Office of Management and Budget (OMB) to develop guidelines to "ensur[e] and maximiz[e] the quality, objectivity, utility, and integrity of information" disseminated by federal agencies "in fulfillment of the purposes [of] the Paperwork Reduction Act." Among other things, agencies were required to establish administrative mechanisms for "affected persons to seek and obtain correction of information maintained and disseminated by the agency that does not comply" with DQA guidelines. Unlike the Freedom of Information Act, which forces the government to produce documents, the DQA theoretically allows petitioners to force the government to correct erroneous information or supply rationales where crucial information is lacking. Although some public interest organizations are beginning to use the DQA, it is still primarily used by industry interests to stall regulatory activity. OMB Watch has been tracking the Data Quality Act and the peer review guidelines issued in its wake. Although many petitions have been filed at the agency level, only a handful have begun to work their way into the courts. This case appears to be the first court decision to address the Data Quality Act. Background: The Missouri River Litigation The DQA issue was raised by a coalition of industry interests concerned by the Army Corps of Engineers' plan for operation of the Missouri River and a Biological Opinion ("BiOp") from the Fish and Wildlife Service that served as the basis for that plan. With the enaction of the Flood Control Act and other statutes, Congress entrusted management of the Missouri River Basin to the Army Corps of Engineers. The Corps must operate the Missouri River to serve a number of objectives, which include flood control, maintaining downstream navigation, irrigation, water supply and quality control, power, recreation, and fish and wildlife. Its chief mechanism for doing so is the construction and operation of a series of dams and reservoirs. The Corps operates from the general approach it adopted in its Missouri River Main Stem Reservoir System Reservoir Regulation Manual ("Master Manual"), last updated in 1979. In accordance with the Master Manual, the Corps must develop Annual Operating Plans ("AOPs") detailing its plan for controlling water flows. Another significant requirement affecting the Corps' management plans is the Endangered Species Act. In accordance with the ESA, the Corps must consult the Fish and Wildlife Service on the effects of its Missouri River operations on endangered and threatened species. The Fish and Wildlife Service concluded that several species have been jeopardized by the Corps' operations in the Missouri River. For such species, the Service issues a Biological Opinion ("BiOp") addressing whether the Corps' activities jeopardize the continued existence of the species or its critical habitat. If so, the BiOp identifies reasonable and prudent alternatives ("RPAs"), if any, to the Corps' plans. The Fish and Wildlife Service's 2000 BiOp concluded that the Corps' proposed river operations were likely to jeopardize two endangered species (the least tern and the pallid sturgeon) and a threatened species (the piping plover). The BiOp's RPA recommended multiple alternatives, including the following: seasonal adjustments of water level to include a rise in the spring and lower waters in the summer; restoration and recreation of habitat, along with a goal for the number of acres of shallow water per mile; and rotating water levels of three reservoirs. The BiOp findings were supported by two independent scientific reviews: one, conducted by experts chosen jointly by the Corps and the Service, agreeing that the survival of the jeopardized species depended on the restoration of a more natural flow of the Missouri River; the other, a panel of the National Academy of Sciences, confirming that the Corps' plans jeopardized the species and urging that a more natural flow was required to avoid the "irreversible extinction of species." The 2000 BiOp was never actually implemented. The Corps conducted a cost-benefit analysis in its revised draft environmental impact statement, concluding that some aspects of the changes called for by the BiOp would reduce the economic benefits of flood control by 1% while the flow changes would produce total net economic benefits of $8.8 million annually. Its draft 2003 AOP, however, did not include the BiOp RPAs of a flow regime with a spring rise and a low summer flow. Although the BiOp did cite continuing drought as a basis for delaying implementation of the spring rise, it provided no such exception for delaying the low summer flow. After a number of environmental groups filed their own lawsuit alleging violations of the Endangered Species Act, the Corps released an Additional Supplemental Biological Assessment for its 2003 AOP. After the Bush administration replaced the scientific team behind the 2000 BiOp, the Fish and Wildlife Service in turn issued a 2003 Supplemental BiOp. The supplemental information for the 2003 AOP added a revised proposal that it touted as a hybrid approach to the flow issue. Responding to the Corps' new information, the Service concluded that the flow changes required by the 2000 BiOp would not be necessary for 2003, but it reiterated that the 2000 BiOp was still the "controlling biological opinion" and added that the conclusions of the 2003 BiOp were relevant only to 2003. The court presiding over the environmental groups' case issued a preliminary injunction ordering the Corps to ignore the 2003 BiOp and instead follow the 2000 BiOp. The court found that the 2003 BiOp was predicated on the Corps actually reverting, after the 2003 water year, to the mandates of the 2000 BiOp, even though the Corps had repeatedly insisted that it had no intention to do so. Further, the court held that the Service failed to honor its obligations to do a comprehensive assessment in its 2003 Supplemental BiOp and that it failed to justify its departure from the underlying 2000 BiOp. During this time, six other cases were filed in federal courts in Nebraska, North Dakota, and South Dakota. Among these was the DQA case. All of them were consolidated by order of the Judicial Panel on Multidistrict Litigation and referred to the district court in Minnesota, where all were ended when the court granted the government's motions for summary judgment. Data Quality Act Issues The Data Quality Act issues related to Missouri River management were filed by a number of area groups, primarily industry interests:
  • Blaske Marine, Inc.;
  • the Coalition to Protect the Missouri River, a coalition of business interests;
  • ConocoPhillips Company;
  • Ergon Asphalt & Emulsions, Inc.;
  • Magnolia Marine Transport Company;
  • Memco Barge Line, Inc.;
  • Midwest Area River Coalition 2000 (MARC 2000);
  • Midwest Terminal Warehouse Company, Inc.;
  • Missouri River Keepers;
  • MO-ARK Association, another coalition of industry interests;
  • RiverBarge Excursion Lines, Inc.; and
  • Terminal Grain Corporation, Inc.
These plaintiffs opposed the spring rise policy and the low flows in the 2003 BiOp. Pointing to the 2000 BiOp, they noted that the government's findings included an observation that a natural spring rise already occurs and that there may be segments of the River and its tributaries in which habitat and flows already support successful spawning of one of the three jeopardized species. Excused from having to exhaust their administrative remedies, the plaintiffs considered their notices of intent to sue as legally sufficient to constitute DQA petitions and, with no response from the Corps or the Service to the challenges, filed suit. In the motion for summary judgment, the DQA issues were distilled into two data quality challenges:
  • failure to "justify[] and provid[e] the information and science" explaining the necessity of "an augmented spring pulse or rise . . . to avoid jeopardy to the pallid sturgeon when a spring rise already occurs from the confluence of the Platte River with the Missouri River to St. Louis and in the Yellowstone reach of the Missouri River Basin," and
  • failure to "justify[] and provid[e] the information and science for the default plan for implementation . . . set forth in the 2003 Amended Biological Opinion, including the low flows set forth therein."
The court's treatment of the DQA in its disposal of the consolidated actions is cursory at best. It begins with the unsurprising conclusion that the DQA itself does not create any private right of action. This much, at least, has been clear from the beginning; the DQA has no express provision for a right of action, and its language does not even approach the increasingly stringent requirements for an implied right of action. The real surprise is the court's rejection of the plaintiffs' use of the Administrative Procedure Act to seek judicial review of the DQA issues. The court essentially held that there are no substantive standards in the DQA that permit the court to review the agencies' actions under the Act. Looking at the key terms of the DQA's requirements for data quality -- "quality," "objectivity," "utility," and "integrity" -- the court held that the terms are so broad that the plain language of the Act creates no meaningful standard against which to judge agency compliance. Its conclusion then conflates the question of suit under the DQA itself with the question of liability under the APA: "Absent any 'meaningful standard' against which to evaluate the agency's discretion, the Court finds that Congress did not intend the [DQA] to provide a private cause of action .... " The court did not address, however, whether the APA permits judicial review downstream of the DQA itself -- whether, that is, the APA permits judicial review of an agency's failure to comply with the OMB guidelines interpreting the DQA or an agency's compliance with its own DQA guidelines. Further, as a district court decision -- and a limited one-page discussion at that -- the decision has little precedential weight. Given these remaining questions, this case is most likely not the last word from the courts on the Data Quality Act. For Further Reading OMB Watch Data Quality Page Data Quality Filings
  • Notice of intent to sue, December 2002
  • Notice of intent to sue, January 2004
  • Memorandum of Points & Authorities in Support of Motion for Summary Judgment
  • Memorandum and Order disposing of case
Consolidation and referral by Panel on Mulitidistrict Litigation: In re Operation of Missouri River System Litigation, 277 F. Supp. 2d 1378 (J.P.M.L. 2003) (not available online) Court decision on environmental groups' motion for preliminary injunction: American Rivers v. U.S. Army Corps of Engineers, 271 F. Supp. 2d 230 (D.D.C. 2003) (slip op. available on line)
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