Conservation Congress et al v. U.S. Forest Service et al
Filing
55
ORDER signed by District Judge John A. Mendez on 5/27/2020 GRANTING IN PART AND DENYING IN PART 38 Motion to Supplement the Administrative Record. (Kastilahn, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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CONSERVATION CONGRESS and the
CITIZENS FOR BETTER FORESTRY,
Plaintiffs,
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No.
2:13-cv-00934-JAM-DB
ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFFS’
MOTION TO SUPPLEMENT THE
ADMINISTRATIVE RECORD
v.
UNITED STATES FOREST SERVICE,
and the UNITED STATES FISH
AND WILDLIFE SERVICE,
Defendants.
In 2012, Conservation Congress and the Citizens for Better
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Forestry sued the United States Forest Service and the United
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States Fish and Wildlife Service.
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alleged that by approving the “Pettijohn Project,” a fuel-
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reduction project that would require cutting down trees in
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Shasta-Trinity National Forest, the two agencies violated the
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Endangered Species Act (ESA), the National Environmental Policy
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Act (NEPA), the National Forest Management Act (NFMA), and the
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Administrative Procedure Act (APA).
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Compl., ECF No. 1.
Plaintiffs
See Compl. ¶¶ 2, 10.
The parties stipulated to stay the proceedings after the
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Forest Service requested additional consultation with the Fish
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and Wildlife Service on the project.
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Service issued a Supplemental Information Report (“2019 SIR”).
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Six years later, the Forest
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First Am. Compl. (FAC) ¶ 60, ECF No. 32.
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new information and modified the Pettijohn Project accordingly.
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Id.
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the project still violated the ESA, NEPA, NFMA, and APA.
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FAC, ECF No. 32.
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the administrative record.
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Record (“Mot.), ECF No. 39.1
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The 2019 SIR considered
In response, Plaintiffs filed an amended complaint, alleging
See
Plaintiffs also filed a motion to supplement
See Memo. ISO Mot. to Supp. Admin.
Plaintiffs seek to supplement the record with the following
documents:
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1. Future of America’s Forests and Rangelands – Update to
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the Forest Service 2010 Resources Planning Act
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Assessment, Chapter 6 “Forest Carbon” (USDA Sept. 2016),
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cited in 2012 FEIS, USFS AR Record No. 34 at PAR-00054
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(Exhibit A, Declaration of Sean Malone (Malone Decl.));
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2. Brandt, Leslie; Shultz, Courtney (June 2016). Climate
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Change Considerations in National Environmental Policy
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Act Analysis. U.S. Department of Agriculture, Forest
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Service, Climate Change Resource (Exhibit B, Malone
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Decl.); and
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3. Process Paper for the Interim Baseline Adjustment for
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Northern Spotted Owl and its Critical Habitat: 2008
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through 2018 Wildfires (USFWS Dec. 20, 2018) (Exhibit C,
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Malone Decl.).
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Mot. at 3.
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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
scheduled for April 21, 2020.
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In Plaintiffs’ opening brief, they requested to supplement
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the administrative record on all three of their ESA claims
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(Claims I, II, III) with all three exhibits.
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also sought to supplement the record on their two NEPA claims
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(Claims VII, IX) with Exhibits A and B.
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Ultimately, the parties agreed to supplement the administrative
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record of Plaintiffs’ failure-to-reinstate-consultation claim
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and Plaintiffs’ failure-to-supplement claim with Exhibit C.
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Opp’n at 1, ECF No. 43; Reply at 2, ECF No. 44.
Mot. at 3.
They
Mot. at 10.
See
Moreover,
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Plaintiffs withdrew their request to supplement the record of
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their ESA claims with Exhibits A and B.2
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developments in mind, the Court is left to review the following:
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(1) Plaintiffs’ request to supplement the administrative record
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of Claims I and II with Exhibit C, and (2) Plaintiffs’ request
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to supplement the administrative record of Claims VII and IX
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with Exhibits A and B.
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Bearing these
For the reasons set forth above, the Court grants in part
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and denies in part plaintiffs’ motion to supplement the
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administrative record.
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supplement the record of their NEPA failure-to-supplement claim
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with Exhibits A and B.
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The Court grants Plaintiffs’ motion to
The Court also grants Plaintiffs’ motion
Plaintiffs’ reply brief states they “withdraw[] [their] request
to add Exhibits A and B to the administrative record in support
of [their] NEPA claims under the Ninth Circuit’s ESA citizen suit
exception.” Reply at 3 (emphasis added). The Court infers that
Plaintiffs intended to withdraw their request to add Exhibits A
and B to the administrative record of their ESA claims, not their
NEPA claims. Plaintiffs’ opening brief argued that the ESA
citizen suit exception only applies to their ESA claims. Mot. at
3-9. Moreover, pages 4-6 of Plaintiffs’ reply brief suggests
they still want to supplement the administrative record for their
NEPA claims with Exhibits A and B.
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to supplement the administrative record of their ESA claims with
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Exhibit C.
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supplement the record of their NEPA hard-look claim with Exhibit
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A or B.
The Court, however, denies Plaintiffs’ motion to
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I.
OPINION
The APA “provides a right to judicial review of all ‘final
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agency action for which there is no other adequate remedy in a
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court.’”
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Generally, “courts reviewing an agency decision are limited to
Bennett v. Spear, 520 U.S. 154, 175 (1997).
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the administrative record.”
Lands Council v. Powell, 395 F.3d
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1019, 1029 (9th Cir. 2005) (citing Fla. Power & Light Co. v.
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Lorion, 470 U.S. 729, 743-44 (1985)).
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“typically focuses on the administrative record in existence at
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the time of the [agency’s] decision and does not encompass any
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part of the record that is made initially in the reviewing
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court.”
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Diversity v. United States Forest Serv., 100 F.3d 1443, 1450
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(9th Cir. 1996)).
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exception.
A “records review” case
Id. at 1029-30 (quoting Southwest Ctr. For Biological
But this general rule is not without
Id. at 1030.
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A.
NEPA Claims
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It is well-established that “district courts are permitted
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to admit extra-record evidence: (1) if admission is necessary to
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determine ‘whether the agency has considered all relevant
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factors and has explained its decision,’ (2) if ‘the agency has
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relied on documents not in the record,’ (3) ‘when supplementing
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the record is necessary to explain technical terms or complex
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subject matter,’ or (4) ‘when plaintiffs make a showing of
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agency bad faith.’”
Id. (quoting Southwest Ctr., 100 F.3d at
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1450).
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“narrowly construed.”
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exceptions when necessary to “identify and plug holes in the
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administrative record.”
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The “Lands Council exceptions” are “widely accepted” but
Id.
District courts only employ these
Id.
Plaintiffs request the Court supplement the record of
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Claims VII and IX with Exhibits A and B under Lands Council’s
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“all relevant factors” exception.
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update to the Forest Service’s Resource Planning Act Assessment
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and Exhibit B, published in June 2016, is a Forest Service
Exhibit A is a September 2016
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resource that details how to account for climate change when
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conducting a NEPA analysis.
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argue, different administrative records apply to these claims
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“because Plaintiffs’ hard-look claim challenges final agency
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action . . . while their failure-to-supplement claim seeks to
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compel agency action unlawfully withheld or unreasonably delayed
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under the APA.”
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to supplement Plaintiffs’ hard-look claim because Exhibits A and
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B both post-date the 2012 agency action challenged.
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14.
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is improper, Defendants argue, because (1) the agencies did not
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consider Exhibits A and B in issuing the SIR, and (2) both
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exhibits are irrelevant to Plaintiffs’ claims.
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Opp’n at 12.
See Exs. A-B to Mot.
As Defendants
Defendants contend it is improper
Id. at 13-
And supplementing Plaintiffs’ failure-to-supplement claim
1.
Opp’n at 16.
Hard-look Claim (Claim VII)
The Court agrees that it is inappropriate to supplement the
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record of Plaintiffs’ hard-look claim with Exhibits A or B.
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support of their hard-look claim, Plaintiffs allege, “[t]he
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Record of Decision for the Pettijohn Project violates NEPA
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because it fails to adequately analyze and disclose the direct,
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In
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indirect, and cumulative effects of the Pettijohn Project.”
FAC
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¶ 171.
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the Record of Decision (“2013 ROD”) in March 2013.
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Opp’n at 2.
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date the 2013 ROD.
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contend that this fact alone precludes judicial consideration of
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the proffered documents—even under the Lands Council exceptions.
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Opp’n at 13-14; see also Tri-Valley CAREs v. U.S. Dept. of
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Energy, 671 F.3d 1113, 1130 (9th Cir. 2012) (finding the Lands
As both parties acknowledge, the Forest Service issued
Mot. at 2;
Both parties also agree that Exhibits A and B postMot. 10-12; Opp’n at 13-14.
Defendants
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Council exceptions “only appl[y] to information available at the
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time [of the decision], not post-decisional information.”).
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Plaintiffs, on the other hand, seem to argue that the agencies’
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2019 SIR was tantamount to an amended ROD.
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Reply at 5-6.
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not the 2013 ROD, but the 2019 SIR.
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however, find any legal basis for Plaintiffs’ proposed timeline.
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Plaintiffs cite Standing Rock Sioux Tribe v. U.S. Army
See Mot. at 10-11;
Under this framework, the relevant timestamp is
The Court does not,
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Corps of Engineers, 255 F. Supp. 3d 101, 124 (D.D.C. 2017) for
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the undisputed proposition that when an agency’s extended
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decision-making process results in successive decisions,
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documents that post-date one decision may nonetheless be part of
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a later decision’s administrative record.
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Standing Rock Sioux Tribe, 255 F. Supp. 3d at 124 does not
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answer the question this motion poses.
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whether this Court can properly interpret Plaintiffs’ hard-look
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claim as a challenge to the 2019 SIR, instead of (or in addition
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to) a challenge to the 2013 ROD.
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2019 SIR a “final agency action” challengeable under NEPA?
Mot. at 11.
But
Rather, the issue is
Phrased differently: is the
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Plaintiffs do not identify any cases where a court has granted
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an SIR this designation.
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“limited role within NEPA’s procedural framework.”
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Sporting Congress Inc. v. Alexander, 222 F.3d 562, 566 (9th Cir.
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2000).
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new information.
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substitute” for NEPA-mandated reports if they ultimately find
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the new information significant.
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to the contrary, the Court finds that equating the 2019 SIR with
Indeed, SIRs are intended to play a
Idaho
Agencies use these reports to assess the significance of
Id.
But agencies may not use SIRs “as a
Id.
Absent binding authority
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an amended ROD would categorically push SIRs beyond their
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intended limits.
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a challenge to the 2013 ROD and finds Exhibits A and B both
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post-date the decision challenged.
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Plaintiffs’ motion to supplement the administrative record on
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this claim.
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2.
The Court views Plaintiffs’ hard-look claim as
The Court therefore denies
Failure-to-Supplement Claim (Claim IX)
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Unlike Plaintiffs’ hard-look claim, Plaintiffs’ failure-to-
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supplement claim “is not a challenge to a final agency decision,
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but rather an action . . . to ‘compel agency action unlawfully
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withheld or unreasonably delayed.’”
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v. Dombeck, 222 F.3d 552, 560 (9th Cir. 2000).
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“review is not limited to the record as it existed at any point
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in time, because there is no final agency action to demarcate
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the limits of the record.”
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courts may even consider extra-record evidence prepared after
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the onset of litigation.
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this temporal flexibility, the APA still bars extra-record
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evidence unless it falls within one of the Lands Council
Id.
Friends of the Clearwater
Consequently,
Under these circumstances,
See id. at 560-61.
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Notwithstanding
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exceptions.
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Plaintiffs invoke the “all relevant factors” exception.
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Mot. at 9-10.
This exception “only applies where supplementing
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the record is necessary.”
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3d 1182, 1128 (E.D. Cal. 2017), aff’d, 723 F. App’x 481 (9th
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Cir. 2018).
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administrative record fails to “explain how the [agency used the
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information before it] and why it reached its decision.’” Id.
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(quoting Ctr. For Biological Diversity v. Skalski, 61 F. Supp.
ForestKeeper v. LaPrice, 270 F. Supp.
Supplementing the record is “necessary” when the
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3d 945, 951 (E.D. Cal. 2014), aff’d, 613 Fed. App’x 571 (9th
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Cir. 2015)) (modifications in original).
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court should supplement the record when the agency ‘fail[s] to
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consider a general subject matter.”
For example, “[a]
Id.
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Plaintiffs maintain Exhibits A and B are necessary to
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determine whether the Forest service adequately considered the
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Pettijohn Project’s greenhouse gas impact when it decided not to
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issue a supplemental FEIS.
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2019 SIR does not address greenhouse gas emissions.
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exhibits because Plaintiffs’ failure-to-supplement claim does
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not challenge the agency’s consideration of greenhouse gas
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emissions.
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failure-to-supplement claim properly incorporates by reference
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an earlier allegation.
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10(c)).
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Forest service failed to consider “the effect and influence of
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climate change on the [Pettijohn] Project, as well as the effect
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and influence of the Project on the climate.”
Mot. at 10.
Defendants concede the
Opp’n at
They argue the Court should nonetheless exclude the
Id. at 15-16.
But as Plaintiffs refute, their
Reply at 6 (citing Fed. R. Civ. Proc.
In Plaintiffs’ hard-look claim, they alleged that the
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Compl. ¶ 194.
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Paragraph 203 of the complaint then incorporates that allegation
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into Plaintiffs’ failure-to-supplement claim.
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Plaintiffs could have more clearly set forth this theory of
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liability within the relevant section of their complaint.
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their decision to incorporate the allegation by refence
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certainly falls within the realm of permissible pleading
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options.
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Admittedly,
But
Fed. R. Civ. Proc. 10(c).
Defendants declined to consider the “general subject
matter” of greenhouse gas emissions in assessing whether to
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issue a supplemental SEIS.
Insofar as Plaintiffs’ failure-to-
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supplement claim challenges this decision, Plaintiffs may
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proffer Exhibits A and B under the “all relevant factors”
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exception.
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B.
ESA Claims
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Far less established than the Lands Council exceptions is
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what Plaintiffs identify as the “ESA citizen suit exception.”
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See Reply at 3.
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permits parties to present extra-record evidence to the
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reviewing court in support of a claim arising out of the ESA’s
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citizen suit provision.
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Kraayenbrink, 632 F.3d 462, 481-82 (9th Cir. 2011); Washington
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Toxics Coalition v. EPA, 413 F.3d 1024, 1034 (9th Cir. 2005),
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abrogated on other grounds by Cottonwood Environ. Law Center v.
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U.S. Forest Service, 789 F.3d 1075, 1089-91 (9th Cir. 2015).
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Kraayenbrink, the Ninth Circuit reasoned that the APA’s scope-
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of-review limitations did not apply to claims brought under the
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ESA’s citizen suit provision because “the APA applies only where
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there is ‘no other adequate remedy in a court.’”
As the name suggests, this exception arguably
See Western Watersheds Project v.
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632 F.3d at
In
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497 (quoting 5 U.S.C. § 704).
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provision provides an adequate remedy in court, the Ninth
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Circuit found the APA’s limitation inapplicable and permitted
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plaintiffs’ submission of extra-record evidence.
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Finding the ESA’s citizen suit
Id.
But district courts within the Ninth Circuit apply
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Kraayenbrink inconsistently.
See Northwest Envir. Advocates v.
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United States Fish and Wildlife Services, No. 3:18-cv-01420-AC,
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2019 WL 6977406, at *13 (D. Or. Dec. 20, 2019) (collecting
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cases).
Indeed, as Northwest Envir. Advocates helpfully
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illustrates, Kraayenbrink gave rise to both inter- and intra-
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district splits regarding the propriety of the ESA citizen suit
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exception.
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Circuit opinions since Kraayenbrink have denounced extra-record
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evidence in cases involving ESA citizen suit claims—neither,
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however, expressly overruled or even discussed Kraayenbrink.
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See Karuk Tribe of California v. U.S. Forest Service, 731 F.3d
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1006, 1017 (9th Cir. 2012) (referring to a suit involving ESA
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citizen suit claims as a “record review case” and limiting
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review to the administrative record); San Luis & Delta-Mendota
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Water Auth. v. Jewell, 747 F.3d 581, 602-04 (9th Cir. 2014)
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(expressing “serious concerns” that the district court judge
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considered extra-record evidence in a case involving ESA citizen
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suit claims).
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Id.
Adding to this uncertainty, at least two Ninth
Although both parties present sound arguments, with respect
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to the instant motion, this Court adopts Kraayenbrink’s citizen
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suit exception.
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Northwest Envir. Advocates, 2019 WL 6977406, at *12-14 is
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particularly persuasive, and places this decision in line with
The reasoning set forth by Judge Acosta in
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other rulings from the Eastern District.
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Council v. Zinke, 347 F.Supp.3d 465, 500-01 (E.D. Cal. 2018);
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Conservation Congress v. U.S. Forest Service, No. 12-cv-02416-
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WBS-KJN, 2013 WL 2457481, at *3 (E.D. Cal. June 6, 2013).
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Court declines to wade into the thicket of pronouncing when the
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Ninth Circuit has abrogated a prior decision sub silentio.
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Accepting Defendants’ position would require that type of
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endeavor.
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See Nat. Res. Def.
This
Plaintiffs seek to supplement their First and Second Claims
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with Exhibit C to Malone’s declaration.
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the ESA’s citizen suit provision; they therefore fall within
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Kraayenbrink’s exception.
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to supplement the administrative record of these claims.
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II.
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Both claims arise under
The Court grants Plaintiffs’ motion
ORDER
For the reasons set forth above, the Court GRANTS IN PART
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and DENIES IN PART Plaintiffs’ motion to supplement the
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administrative record.
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supplement the record of their NEPA failure-to-supplement claim
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with Exhibits A and B.
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to supplement the administrative record of their ESA claims with
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Exhibit C to their motion.
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Plaintiffs’ motion to supplement the record of their NEPA hard-
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look claim with Exhibit A or B.
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The Court GRANTS Plaintiffs’ motion to
The Court also GRANTS Plaintiffs’ motion
The Court, however, DENIES
IT IS SO ORDERED.
Dated: May 27, 2020
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