Southeast Alaska Conservation Council et al v. Federal Highway Administration et al

Filing 60

Order on Motion to Compel

UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA

SOUTHEAST ALASKA
CONSERVATION COUNCIL, et al.,
Plaintiffs,
vs.
FEDERAL HIGHWAY
ADMINISTRATION, et al.,
Defendants,
and
STATE OF ALASKA,
Intervenor-Defendant.

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1:06-cv-00009 JWS
ORDER AND OPINION
[Re:

Motion at Docket 24]

I. MOTION PRESENTED
At docket 24, plaintiffs Southeast Alaska Conservation Council, et al. (“plaintiffs”)
moved for an order augmenting the agency record and compelling defendants to file the
complete administrative record in this action. At docket 40, intervenor-defendant the
State of Alaska (“intervenor-defendant”) filed a “qualified non-opposition” to plaintiffs’
motion to augment. At docket 54, defendants Federal Highway Administration, et al.,
(“defendants”) opposed plaintiffs’ motion. Plaintiffs filed a consolidated reply at
docket 57. Oral argument was not requested and would not assist the court.

II. BACKGROUND
This action arises under the Administrative Procedures Act (“APA”), which
provides for judicial review of agency action.1 The subject matter of this action is the
proposed Juneau Access Improvements Project (“the Project”). The Project consists of
building a 50.8 mile two-lane highway from the end of the existing highway in Juneau to
a new ferry terminal that would be constructed at the Katzehin River delta. The new
ferry terminal would provide ferry service to Haines and Skagway. Existing mainline
ferry service between Juneau, Haines, and Skagway would be discontinued.
The proposed highway would be “constructed through roadless, old-growth forest
along the coast of Berners Bay and Lynn Canal, including a 1.2 million-acre inventoried
roadless area in the Tongass National Forest.”2 Because the Project involves federal
land, federal funds, and environmental impacts, the Alaska Department of
Transportation and Public Facilities (“Alaska DOT&PF”) was required to obtain
approvals and permits from several federal agencies.
In April 2006, the Federal Highway Administration (“FHWA”) entered a Record of
Decision (“ROD”) approving the Project for federal funding. The ROD completed the
FHWA’s review under the National Environmental Policy Act (“NEPA”), and was based
on a series of environmental documents prepared by the Alaska DOT&PF. The Alaska
DOT&PF prepared a Draft Environmental Impact Statement (“DEIS”) for the Project in
1997, a Supplemental Draft Environmental Impact Statement (“SDEIS”) in January
2005, and a Final Environmental Impact Statement (“FEIS”) in January 2006.
On May 3, 2006, the Alaska DOT&PF sent a letter to the FHWA requesting a
right-of-way for the Project from the United States Forest Service (“Forest Service”).
The FHWA forwarded the request to the Forest Service. By letter dated May 22, 2006,
the Forest Service consented to the appropriation by the FHWA of the portion of the
right-of-way for the Project that is on federal lands within the Tongass National Forest.

1

5 U.S.C. §§ 701-706.

2

Doc. 24 at 3.

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On August 16, 2006, plaintiffs filed a complaint for declaratory and injunctive
relief pursuant to 5 U.S.C. § 702, 42 U.S.C. § 4332, 16 U.S.C. § 1536, 16 U.S.C.
§ 1604, 23 U.S.C. §§ 109(a)&(b), and 16 U.S.C. § 668. Plaintiffs’ complaint requests
the court to enter declaratory judgment that:
a.

the Forest Service violated NFMA by approving a right-of-way crossing
designated Old-Growth Habitat without determining that no feasible
alternative existed;

b.

FHWA acted arbitrarily by approving the choice of Alternative 2B when its
own findings show that operation of the completed road may result in the
taking of bald eagles in violation of the Bald Eagle Protection Act;

c.

the FEIS for the Juneau Access Improvements Project violates NEPA by
failing to consider reasonable alternatives for improving transportation in
Lynn Canal using existing infrastructure without new construction;

d.

FHWA acted arbitrarily by approving the selection of Alternative 2B when
evidence in the record shows that the frequency delay times used in the
Traffic Demand Forecast were inappropriate, and FHWA did not
adequately explain its decision to use those times;

e.

FHWA violated NEPA by relying on inaccurate and misleading frequency
delay times in predicting traffic demand and by failing to explain its use of
those frequency delay times in light of evidence in the record showing that
they were inaccurate; and

f.

FHWA acted arbitrarily in violation of the Endangered Species Act and
Administrative Procedure Act by failing to initiate formal consultation when
the proposed road may adversely affect designated critical habitat for
Steller sea lions.3

On January 29, 2007, defendants filed a combined administrative record in this
case. The administrative record is divided into two parts described as “the record
before [FHWA]” and “the administrative record before the Forest Service.”4 The record
attributed to the FHWA consists of 1,326 documents dated from September 1992,
through the issuance of the ROD in April 2006. The portion of the administrative record

3

Doc. 1 at 26.

4

Doc. 16 at 2.

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attributed to the Forest Service consists of five volumes, four of which contain a copy of
the 1997 Tongass Land Management Plan and one which contains nine documents. In
addition, defendants provided a list of documents relied upon by the Forest Service from
the FHWA Administrative Record Index.
Plaintiffs contend that the administrative record is incomplete and moves the
court for an order augmenting the record and compelling the FHWA and Forest Service
to file the complete administrative record for this litigation. Defendants oppose the
motion. Intervenor-defendant does not oppose the addition of seventeen documents
specifically identified by plaintiffs from Alaska DOT&PF’s Special Projects File, but
opposes plaintiffs’ generalized request that the court require production of “all other
documents that constitute the complete record.”5
III. STANDARD OF REVIEW
Judicial review of agency action is governed by the Administrative Procedures
Act (“APA”). Under the APA, a reviewing court may set aside agency action only if it
was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.”6 Judicial review of agency action is to be based on the whole administrative
record before the agency at the time the agency made its decision.7 Consequently, the
“critical inquiry” is whether documents were before the agency at the time of the
decision.8 The whole administrative record is not necessarily those documents the
agency has compiled and submitted as the administrative record.9 Rather, the whole
administrative record “consists of all documents and materials directly or indirectly

5

Doc. 24 at 24.

6

National Wildlife Federation v. U.S. Army Corps of Engineers, 384 F.3d 1163, 1170 (9th
Cir. 2004) (quoting Wilderness Society v. U.S. Fish & Wildlife Serv., 353 F.3d 1051, 1059 (9th
Cir. 2003) (en banc)).
7

Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420 (1971).

8

Thompson v. U.S. Dept. of Labor, 885 F.2d 551, 556 (9th Cir. 1981)

9

Id.

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considered by agency decision-makers and includes evidence contrary to the agency’s
position.”10
IV. DISCUSSION
Plaintiffs move to augment the administrative record on the grounds that “the
administrative record designated by the federal defendants excludes documents that
were considered, either directly or indirectly, by the agencies in reaching the decisions
that are the subject of this litigation.”11 Plaintiffs request the court to remand the
administrative record to the FHWA and Forest Service “with direction to add the specific
documents identified by Plaintiffs and all other documents that constitute the complete
record.”12
After reviewing the combined administrative record, plaintiffs have “identified two
categories of documents that were considered, either directly or indirectly, by the
agencies but not included in the designated record.”13 First, plaintiffs contend that the
designated record excludes a large number of documents that are contained in the
Alaska DOT&PF’s Special Projects File and were used by DOT&PF in preparing the
DEIS, SDEIS, and FEIS for the Project. Plaintiffs argue that “[b]y approving the Draft,
Supplemental Draft, and Final Environmental Impact Statements prepared by Alaska
[DOT&PF] and by signing a ROD authorizing construction of the project, FHWA
indirectly considered documents used by Alaska [DOT&PF] in evaluating the potential
impacts of, and choosing among, the alternatives.”14 Plaintiffs request that the court
remand the record to defendants with directions to add all documents considered by the
Alaska DOT&PF in preparing the DEIS, SDEIS, and FEIS.15 In the alternative, plaintiffs

10

Id. (citation omitted).

11

Doc. 24 at 1.

12

Doc. 57 at 11.

13

Doc. 24 at 6.

14

Doc. 24 at 14.

15

Doc. 24 at 18.

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request the court to require defendants to augment the administrative record with the
specific documents from the Special Projects File identified by plaintiffs and attached as
Exhibits 10 - 24 and Exhibit 27 to the Declaration of Counsel filed at docket 25.
Defendants oppose the addition of documents from Alaska DOT&PF’s Special
Projects File on several grounds. First, defendants argue that the agency’s
determination of what constitutes the whole record is presumed to be correct, but do not
cite any Ninth Circuit authority adopting that presumption. Second, defendants oppose
the addition of documents considered by the Alaska DOT &PF in preparing the DEIS,
SDEIS, and FEIS on the basis that those documents were not before the FHWA.
Defendants’ argument is unavailing. Defendants acknowledge that although FHWA did
not prepare the environmental documents, FHWA staff “participated extensively in
reviewing and commenting on the documents during the preparation process,”16 which
suggests some of the documents were at least indirectly considered by the FHWA.
Next, defendants oppose plaintiffs’ request that defendants be required to add all
documents considered by the Alaska DOT&PF in preparing the DEIS, SDEIS, and FEIS
on the grounds that plaintiffs’ request would effectively require the inclusion of all
documents in the Alaska DOT&PF’s files pertaining to the Project because defendants
do not know which documents the State considered in preparing the environmental
documents for the Project. Intervenor-defendant the State of Alaska also opposes
plaintiff’s request to require the addition of all documents considered by the Alaska
DOT&PF in preparing the DEIS, SDEIS, and FEIS on the grounds that plaintiffs openended request goes beyond the scope of what is necessary for effective judicial review.
Moreover, intervenor-defendant argues that plaintiffs had “complete and unfettered
access” to the Alaska DOT&PF files, after which plaintiffs flagged seventeen documents
as relevant for addition to the administrative record.17 Intervenor-defendant posits that
requiring the addition of all documents in the Alaska DOT&PF Special Projects File
would require the “addition of potentially hundreds, or thousands, of documents with no

16

Delcaration of Tim A. Haugh at 3, exh. 2, doc. 54.

17

Doc. 40 at 2.

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apparent relevance to any matter in dispute.”18 The court concurs and will deny
plaintiffs’ generalized request to include all documents considered by the Alaska
DOT&PF in preparing the DEIS, SDEIS, and FEIS.
Defendants also oppose the inclusion of the documents at Exhibits 10-24 and 27
on the basis that the documents were not considered by the FHWA. In support of their
argument, defendants cite the affidavit of a FHWA staff member who does not have
personal knowledge of which documents actually were or were not considered either
directly or indirectly by the FHWA, nor which documents were considered by the Alaska
DOT&PF and may have been reviewed by the FHWA in preparing the DEIS, SDEIS,
and FEIS.
The court is more persuaded by the fact that intervenor-defendant, which actually
prepared the DEIS, SDEIS, and FEIS for the Project on behalf of FHWA, “does not
object to addition of the seventeen Special Project file documents flagged by plaintiffs,
and would prefer that the documents be added, and a briefing schedule set.”19 The fact
that the Alaska DOT&PF, which prepared the EIS documents for the Project on behalf
of the FHWA, supports the inclusion of the seventeen documents identified by plaintiffs
suggests that the documents filed at Exhibits 10-24 and 27 were part of the record
before the agencies at the time the agencies made their decisions and therefore
constitute part of the “whole administrative record” as defined under Thompson.
Accordingly, the documents filed as Exhibits 10 - 24 and Exhibit 27 at docket 25 will be
incorporated into the administrative record.
Plaintiffs next argue that the federal agencies “have identified a series of drafts,
reports and other documents that were considered during the decisionmaking process
but not included in the designated record.”20 Plaintiffs specifically request that the
documents filed as Exhibits 4 - 7, and Exhibits 29 - 31 to the Declaration of Counsel at
docket 25 be included in the administrative record. Plaintiffs contend that the

18

Doc. 40 at 3.

19

Doc. 40 at 2.

20

Doc. 24 at 6.

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documents at Exhibits 4 - 7 are documents provided by the Forest Service in response
to a Freedom of Information Act (“FOIA”) request by plaintiffs for documents considered
by the Forest Service in concurring with the ROD and agreeing to transfer lands for the
construction of the Project.
Defendants previously agreed to include the documents filed as Exhibits 5 and 7,
but oppose the inclusion of the documents at Exhibits 4 and 6 in part because the
documents “pre-date the FHWA application of May 3, 2006, to the Forest Service for a
right-of-way on Forest Service Land for the Juneau road project.”21 Defendants suggest
that because the documents pre-date the application, they were not relied upon or
considered by the Forest Service when they made their decision. Plaintiffs argue that
“[t]his contention is both unsupported by the case law and inconsistent with the Forest
Service’s prior designation of the record,” given that the Forest Service has
acknowledged relying on numerous document from the FHWA administrative record
which are dated prior to April 3, 2006. The court concurs and will include the
documents filed as Exhibits 4, 5, 6, and 7 at docket 25 in the administrative record.
Plaintiffs next argue that defendants considered a report entitled the “Alaska
Marine Highway System Marketing and Pricing Study,” filed as Exhibits 29 and 30 at
docket 25, but did not include it in the administrative record. However, the evidence
shows that report itself was not submitted to, nor considered by defendants at the time
they made their decisions.22 Rather, the record shows that defendants directly or
indirectly considered two letters from plaintiffs filed as Exhibits 23 and 24 at docket 24,
which referenced and included a copy of the title page from the Alaska Marine Highway
System Marketing and Pricing Study.23 Accordingly, the documents filed as Exhibits 23
and 24 at docket 24 will be added to the administrative record, but the document filed as
Exhibits 29 and 30 at docket 25 will not.

21

Doc. 54 at 18.

22

Doc. 24, exh. 24.

23

Declaration of Tim A. Haugh at 9, exh. 2, doc. 54.

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Plaintiffs contend that the designated record also excludes a June 15, 2005
“Cooperative Road Agreement,” which was signed by the Forest Service and Alaska
DOT&PF and referenced in the administrative record. The “Cooperative Road
Agreement” is filed as Exhibit 31 at docket 25. In support of their opposition,
defendants cite evidence that the document at Exhibit 31 was not in the possession of,
nor considered by, the FHWA in making its Project decisions.24 However, that same
evidence suggests that the document was considered at least indirectly by the Forest
Service, and thus constitutes part of the “whole administrative record” as defined under
Thompson. The agreement filed as Exhibit 31 at docket 25 shall accordingly be added
to the administrative record.
In addition to the documents specifically identified above, plaintiffs also request
the addition of numerous documents that defendants identified in response to two FOIA
requests by plaintiffs. By letter dated June 8, 2006, plaintiffs requested the Forest
Service to produce “records generated, received, kept, and/or considered” by the Forest
Service in
...1) deciding to ‘concur with the FHWA’ in the decision made in the ROD, as
stated in the May 23, 2006 letter; 2) deciding to ‘agree’ to the transfer or lands
under 23 U.S.C. § 317 for purposes of constructing Alternative 2B for the
[Project] as stated in the May 23, 2006 letter; and 3) authorizing clearing,
brushing, or any other felling of any trees along the proposed right-of-way prior to
the date of this request.25
The Forest Service identified “73 documents totaling 244 pages and a CD containing
additional information within the scope of [plaintiffs’] request.”26 The Forest Service
declined to produce 14 of the 73 documents on the grounds that they were exempt from
disclosure because they were “deliberative and pre-decisional internal agency
communications” or due to attorney-client privilege. An index of the 73 documents is
attached as Exhibit 3 to the motion at docket 24.

24

Id.

25

Doc. 25, exh. 1 at 1-2.

26

Doc. 25, exh. 2 at 1.

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Similarly, by letter dated May 10, 2006, plaintiffs requested the FHWA to produce
the following documents pursuant to FOIA:
...all memoranda, studies, reports, data, correspondence, comments,
conversation records, files, electronic mail records, or other documents, which
have been generated, received, kept and/or considered by FHWA in ‘furnishing
guidance, participating in the preparation, and independently evaluating’ the
Supplemental Draft Environmental Impact Statement (SDEIS) and the FEIS for
the [Project] and in preparation or approval of the ROD.27
In response to plaintiffs’ request, the FHWA provided plaintiffs with an index of
documents that fell within the scope of plaintiffs’ FOIA request. The index is attached
as Exhibit 35 to docket 24.
Plaintiffs contend that defendants have failed to include many of the documents
identified in response to the FOIA requests in the administrative record. Defendants
argue that inclusion of the omitted documents in the administrative record is not
required because some of the documents pre-dated the FHWA application to the Forest
Service for a right-of-way for the Project, some of the documents were drafts, some of
the documents were not generally circulated within the agency for comment, and some
of the documents were not considered directly or indirectly by the agencies in their
decision making. Defendants arguments are unavailing. Defendants’ responses to
plaintiffs’ FOIA requests make it clear that the documents identified by the FHWA and
Forest Service were part of the whole administrative record before the agencies at the
time the agencies made their decisions. Because the court cannot determine from the
record which of the documents listed in Exhibits 3 and 35 are already included in the
administrative record, and which are not, the court will remand the administrative record
to defendants to add any documents listed in Exhibits 3 and 35 which are currently not
included in the administrative record, with the exception of the documents listed in
Exhibit 3 which defendants have indicated are protected by attorney client privilege.

27

Doc. 25, exh. 32 at 1.

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V. CONCLUSION
For the reasons set out above, plaintiffs’ motion at docket 24 to augment and
compel completion of the administrative record is GRANTED IN PART and DENIED IN
PART as follows: The documents filed as Exhibits 4-7, 10-24, and 31 at docket 25, and
as exhibits 23 and 24 at docket 24 shall be added to the administrative record. In
addition, the documents listed in Exhibits 3 and 35 at docket 25, except those
documents already included in the administrative record and those protected by
attorney-client privilege, shall also be added to the administrative record. Plaintiffs’
request to add “all other documents that constitute the complete record” is denied.
It is FURTHER ORDERED that the administrative record filed at docket 16 shall
be remanded to defendants and that defendants shall forthwith file an amended certified
administrative record to which the documents identified above have been added.
DATED at Anchorage, Alaska, this 10th day of October 2007.

/s/ JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE

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