Ozark Society v. United States Forest Service et al

Filing 72

ORDER granting in part and denying in part 64 Motion to Compel supplementation of the administrative record and to extend the schedule for filing a response to defts' motions to dismiss (Case No. 4:11-cv-425, doc. no. 45; Case No. 4:11-cv-782, doc. no. 64). Further, this Court orders Ozark Society to enter its appearance in Case No. 4:11-cv-00425 and to make all future filings in this case, as it is the lead case. Signed by Judge Kristine G. Baker on 9/30/13. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
OUACHITA WATCH LEAGUE, et al.
v.

PLAINTIFFS

No. 4:11-cv-00425 KGB

JUDITH L. HENRY, et al.

DEFENDANTS
*******************

THE OZARK SOCIETY
v.

PLAINTIFF
No. 4:11-cv-00782 KGB

THE UNITED STATES FOREST SERVICE, et al.

DEFENDANTS

ORDER
Pending before the Court are the Ouachita Watch League’s and the Ozark Society’s
motions to compel supplementation of the administrative record and to extend the schedule for
filing a response to defendants’ motions to dismiss (Case No. 4:11-cv-425, Dkt. No. 45; Case
No. 4:11-cv-782, Dkt. No. 64). The Court grants in part and denies in part these motions.
In regard to the requests to supplement the record, through its motion, the Ouachita
Watch League requests categories of documents identified in their requests 1, 2, and 3:
1. Records of communications, comments, memoranda, reports or other documents between
the named Defendant agencies and any other agency, person, organization, corporation or
entity regarding the 2010 Report-Analysis that is the subject of this lawsuit or any matter
addressed or covered by said Report-Analysis.
2. All interagency and intra-agency communications, memoranda (including electronic
communications), notes, reports and other documents generated by those agencies
regarding the 2010 Report-Analysis.
3. All communications, memoranda (including electronic communications), notes, reports
and other documents received by the Defendants from members of the public (including
organizations), or issued to members of the public, regarding the 2010 Report-Analysis.

The Court determines, in regard to these three requests, “absent clear evidence to the
contrary, an agency is entitled to a strong presumption of regularity, that it properly designated
the administrative record.” Pac. Shores Subdivision v. U.S. Army Corp of Eng’rs, 448 F.Supp.2d
1, 5 (D.D.C. 2006). Here, defendants submitted a sworn affidavit that the Administrative Record
lodged with the Court was properly designated. See Bar MK Ranches v. Yuetter, 994 F.2d 735,
740 (10th Cir. 1993) (“The court assumes the agency properly designated the Administrative
Record absent clear evidence to the contrary.”). The Court acknowledges that defendants, in the
face of plaintiffs’ motions, submitted two documents in addition to the Administrative Record
during discovery (Dkt. No. 69, at 9 n.3). For these reasons, and for those stated in the plaintiffs’
motions, the Court grants on this record the plaintiffs’ motions to require defendants to
supplement the record with the documents the Ouachita Watch League seeks in its requests 1, 2,
and 3 to the extent these materials were compiled by defendants and were before defendants at
the time the administrative decision that is the subject of this litigation was made, including all
documents and materials defendants directly or indirectly considered. See generally The Fund
for Animals, et al. v. Williams, 245 F.Supp. 2d 49 (D.D.C. 2003), order vacated on other grounds
sub nom Fund for Animals v. Hogan, 428 F.3d 1059 (D.C. Cir. 2005).
Ouachita Watch League’s requests 4 and 5 seek:
4. Any documents that relate to the manner in which categorical exclusions are
implemented by the FS/BLM in the Ozark National Forest, or the use of that guidance in
preparation of the 2010 Report-Analysis.
5. Information regarding individual wells that have been drilled in the Ozark National
Forest pursuant or subsequent to the 2005 Revised Land and Resource Management Plan
for the Ozark-St. Francis National Forest and/or the 2010 Report-Analysis.
The Court determines in regard to these two requests that defendants are not required to
supplement the record with these documents. Defendants are required by this Order to lodge
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with the Court the administrative record for the SIR, which does not include information relating
to individual wells that have been approved since the SIR or the use of categorical exclusions.
See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971) (review is to be
based on the full administrative record that was before the agency at the time it made the
decision); Utah Envtl. Cong. v. Troyer, 479 F.3d 1269, 1282 (10th Cir. 2007) (documents that
postdate the decision being challenged are not properly part of an administrative record).
Plaintiffs must challenge discrete and final agency action, rather than a class of actions.
Norton v. South Utah Wilderness Alliance, 542 U.S. 55, 64 (2004); Lujan v. Nat’l Wildlife
Federation, 497 U.S. 871, 882 (1990); see also Sierra Club v. Peterson, 228 F.3d 559, 567 (5th
Cir. 2000) (identifying some specific actions in the pleadings that are final agency actions is not
enough). “The case-by-case approach that this requires is understandably frustrating to an
organization . . . . But this is the traditional, and remains the normal, mode of operation of the
courts.” Lujan, 497 U.S. at 894.
Through its motion, plaintiff the Ozark Society seeks to supplement the record with
documents identified in requests 1 and 3, which seek:
1. All documents which comprise the administrative record for Applications for Permits to
Drill approved by the Defendants since implementing the SIR.
3. All documents produced which pertain to the use of Categorical Exclusions under Section
390 of the Energy Policy Act of 2005 and the Categorical Exclusion Guidance issued by
the United States Forest Service.
The Court determines in regard to these requests 1 and 3 submitted by the Ozark Society
that defendants are not required to supplement the record with these documents. Defendants are
required by this Order to lodge the administrative record for the SIR, which does not include
information relating to individual wells that have been approved since the SIR or the use of
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categorical exclusions. See Citizens to Preserve Overton Park, 401 U.S. at 420; Utah Envtl.
Cong., 479 F.3d at 1282.
The Ozark Society’s requests 2 and 4 seek:
2. All documents produced as a result of the “cooperating agency” review process that the
Defendants engaged in to analyze the 2008 Reasonably Foreseeable Development
document.
4. All documents pertaining to interagency consultation for the purposes of complying with
the National Environmental Policy Act.

The Court determines, in regard to these requests 2 and 4 from the Ozark Society that,

“absent clear evidence to the contrary, an agency is entitled to a strong presumption of regularity,
that it properly designated the administrative record.” Pac. Shores Subdivision, 448 F.Supp.2d at
5. Here, defendants submitted a sworn affidavit that the Administrative Record lodged with the
Court was properly designated.

See Bar MK Ranches, 994 F.2d at 740.

The Court

acknowledges that defendants, in the face of the plaintiffs’ motions submitted two additional
documents (Dkt. No. 69, at 9 n.3). For these reasons, and for those stated in the plaintiffs’
motions, the Court grants on this record the Ozark Society’s motion to require defendants to
supplement the record with the documents the Ozark Society seeks in requests 2 and 4 to the
extent these materials were compiled by defendants and were before defendants at the time the
decision that is the subject of this litigation was made, including all documents and materials
defendants directly or indirectly considered. See The Fund for Animals, 245 F.Supp. 2d at 49.
Defendants have 30 days from the date of this Order to comply with the terms of the
Order and to supplement the administrative record. Pursuant to the Court’s prior Order entered
on January 31, 2013, plaintiffs shall have 20 days from the deadline by which defendants are

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required to supplement the administrative record to respond to defendants’ motion to dismiss
(Dkt. No. 68).
Further, this Court orders Ozark Society to enter its appearance in Case No. 4:11-cv00425 and to make all future filings in this case, as it is the lead case.
SO ORDERED this the 30th day of September, 2013.

____________________________________
Kristine G. Baker
United States District Judge

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