Wilderness Society, The et al v. United States Forest Service et al
Filing
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ORDER granting 39 Plaintiffs' Motion to Strike documents from the 32 ADMINISTRATIVE RECORD. Defendants may seek inclusion of the challenged documentsvia completion or supplementation, but any motion to that end must be filed no later than 4/13/12, by Judge John L. Kane on 3/30/12.(gmssl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge John L. Kane
Civil Action No. 1:11-cv-00246-AP
THE WILDERNESS SOCIETY,
QUIET USE COALITION,
WILDLANDS CPR,
CENTER FOR NATIVE ECOYSTEMS, and
GREAT OLD BROADS FOR WILDERNESS
Plaintiffs,
v.
U.S. FOREST SERVICE, a federal agency within the U.S. Department of Agriculture, and
JERRI MARR, in her official capacity as Forest Supervisor for the Pike and San Isabel
National Forests,
Defendants,
and
COLORADO OFF HIGHWAY VEHICLE COALITION,
TRAILS PRESERVATION ALLIANCE, and
THE BLUERIBBON COALITION,
Defendant Intervenors.
ORDER
Kane. J.
This matter is currently before me on Plaintiffs’ Motion to Strike Documents from the
Administrative Record (doc. 39). Based on the forthcoming discussion, this motion is
GRANTED. The challenged documents shall be stricken from the administrative record.
BACKGROUND
On January 31, 2011, Plaintiffs filed their complaint challenging the Forest Service’s
adoption and publication of Motor Vehicle Use Maps for six ranger districts within the Pike and
San Isabel National Forests starting in 2007 and continuing through 2010. See Complaint for
Declaratory and Injunctive Relief and Petition for Review of Agency Action (doc. 1) at 2.
Plaintiffs allege that, by publishing these maps, the Forest Service designated hundreds of miles
of routes within the forests as open to public motorized vehicles without the environmental
analyses required by federal statutes, Forest Service regulations, and a Presidential Executive
Order.1 Plaintiffs filed suit pursuant to the Administrative Procedure Act, 5 U.S.C. §§ 702, 704
(“APA”), which allows persons and organizations to challenge final agency actions in federal
courts.
Following a court-approved case management plan, the Forest Service prepared and
submitted the administrative record for its Pike and San Isabel Motor Vehicle Use Map decision
on September 6, 2011 (doc. 32). The parties then engaged in extensive negotiations regarding
the content of the administrative record, and were able to resolve the majority of their concerns
(docs. 40-1, 40-2).
One issue, however, remains unresolved, and is the subject of Plaintiffs’ Motion to Strike
Documents from the Administrative Record (doc. 39). In their Motion to Strike, Plaintiffs seek
to strike five charts and five affidavits from the administrative record.2 These charts and
1
Specifically, Plaintiffs cite Presidential Executive Order 11644 aiming to minimize offroad vehicle impacts, the Forest Service’s 2005 Travel Management Regulations, 36 C.F.R. Part
212, establishing a national framework governing the designation of roads, trails, and areas for
motor vehicle use on Forest Service lands, and three federal environmental statutes: the National
Environmental Policy Act, 42 U.S.C. § 4332(2)(C); the Endangered Species Act, 16 U.S.C. §
1536(a)(2); and the National Forest Management Act, 16 U.S.C. § 1600 et seq.
2
The challenged documents are: the Leadville Ranger District MVUM Table (T17020T17021), the Pikes Peak District MVUM Table (T17619-T17626), the Salida MVUM Table
(T17903-T17907), the San Carlos MVUM Table (T18518-T18535), the South Park MVUM
Table (T18826), the Declaration of Rick Ellsworth (T17627-T17628), the Declaration of Frank
M. Landis (T17629-T17630), the Declaration of Charles E. Medina (T17908-T17909), the
Declaration of Carl Robert Bauer (T18536-T18537), and the Declaration of Raymond Michael
Hegler (T18538-T18539).
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affidavits represent or contain testimony regarding the historic existence of motorized vehicle
routes within the Pike and San Isabel National Forests. Both parties acknowledge that these
documents were created in 2011 – after Defendants made the challenged decisions and after
Plaintiffs filed their complaint in this matter. Plaintiffs maintain that these documents constitute
post hoc rationalizations that should be struck from the record; Defendants argue that the
documents in question represent oral testimony that was considered by the Forest Service when
it adopted and published the maps in question.3
DISCUSSION
It is well-established that when an agency follows its established procedures, its official
acts are entitled to a presumption of regularity. Wilson v. Hodel, 758 F.2d 1369, 1372 (10th Cir.
1985). This presumption ordinarily applies to an agency’s designation of an administrative
record, Bar MK Ranches v. Yuetter, 994 F.2d 735, 740 (10th Cir. 1993); however, if the agency’s
designation of the record deviates from its established procedure the presumption does not apply.
Wilson, 758 F.2d at 1372. It is therefore necessary to first determine whether the agency’s
inclusion of these post hoc documents complies with its established procedures. If so, Plaintiffs
must establish “clear evidence” rebutting the presumption. Id.
The parties’ briefs assume without argument that the agency has acted in accordance with
3
In their Opposition to Plaintiffs’ Motion to Strike (doc. 41), Defendants also argue that
the challenged documents may be included in the administrative record under an exception that
allows a court to include explanations of actions when the record is otherwise insufficient. See
Citizens to Pres. Overton Park v. Volpe, 401 U.S. 402, 420 (1971); Camp v. Pitts, 411 U.S. 138,
143 (1973). To the extent Defendants’ argument constitutes a motion to supplement the record,
it is improperly filed in a responsive pleading. D.C.COLO.LCivR 7.1(C). If Defendants wish to
supplement the record with the challenged documents, they should file a motion to that end.
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its standard procedures in compiling the administrative record in this case. Absent any evidence
or argument to the contrary, I adopt this assumption. Accordingly, Defendants’ designation of
the record is presumed to be regular, and Plaintiffs bear the burden of rebutting the presumption
with clear evidence of irregularity. In order to determine whether Plaintiffs have met their
burden, it is necessary to determine what constitutes clear evidence of irregularity in this context.
As the parties argue and previous decisions suggest, specificity is the touchstone for
determining whether a party has established clear evidence of irregularity. This guiding
principle, although helpful, begs the ultimate question: about what facts must a party be specific?
Plaintiffs suggest the standard applied in assessing motions to complete an administrative record
should also apply when assessing motions to strike portions of an administrative record. Thus, a
party seeking to strike portions of an administrative record would be required to develop three
facts: (1) when the documents were presented to the agency; (2) to whom they were presented;
and (3) the context under which the documents were presented. WildEarth Guardians v. U.S.
Forest Serv., 713 F. Supp. 2d 1243, 1254 (D. Colo. 2010).
Applying these standards, Plaintiffs conclude they have met their burden and overcome
the presumption of regularity. Specifically, they argue that because these documents were
created in 2011, nearly two years after the date of the challenged decision, they could not have
been considered by Defendants in reaching the challenged decision. According to Plaintiffs, this
fact constitutes a sufficient basis for finding Defendants’ designation of the administrative record
irregular.
Although Defendants do not specifically address the standard that should be applied in
these cases, they implicitly adopt Plaintiffs’ proposed standard in arguing for the inlcusion of
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these documents in the administrative record. Defendants do not dispute that the documents
themselves were not considered during the decisionmaking process. Instead, they argue that the
information contained in the documents was considered. Specifically, the government cites an
affidavit from a decisionmaker stating that the challenged documents contain evidence of oral
conversations that were considered during the decisionmaking process. Defendants argue that
this affidavit, coupled with the presumption of regularity, defeats Plaintiffs’ argument.
These arguments reflect a host of competing concerns. On the one hand, conversations
often shape decisions that agencies ultimately make, and those conversations are not always
documented in detail. Further, it may be unfair to require a detailed level of documentation in
light of the presumption of regularity owed the agency’s designation of the record.
On the other hand, allowing the Forest Service to include testimony concerning
undocumented conversations in the administrative record presents its own dangers. Most
importantly, it may provide a means of including in the record post hoc rationalizations for
challenged decisions that were not, in reality, considered by the Forest Service when it adopted
and published the maps. This would not only make it nearly impossible for outside parties to
meaningfully challenge final agency action under the APA, it would allow the agency to
impermissibly expand the scope of the administrative record beyond the documents and
materials “that [were] before the [decisionmaker] at the time he made his decision.” Citizens to
Pres. Overton Park v. Volpe, 401 U.S. 402, 420 (1971).
These concerns reveal the tension between two competing mandates: (1) Defendants’
designation of the record is entitled to a presumption of regularity; but (2) the record of decision
may only include documents and materials considered by a decisionmaker in the decisionmaking
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process. Indeed, these competing mandates underly the parties’ arguments. Focusing on the
presumption of regularity, Defendants argue that a showing that a document was created after the
agency reached its final decision does not suffice to rebut testimonial evidence that the
information contained in the post-decisional document was actually considered in the
decisionmaking process. Focusing on the limitations on the scope of an administrative record,
Plaintiffs’ propose what amounts to a per se rule: any document that post-dates the challenged
decision should be excluded from the administrative record.
Both approaches have merit, but neither adequately balances these competing mandates.
An affidavit prepared in the course of litigation cannot justify the inclusion in the record of post
hoc rationalizations. Nor can a showing that a document post-dates the challenged decision,
standing alone, constitute “clear evidence” of irregularity. If, however, a party establishes that a
post hoc document included in the record contains information or testimony plausibly relating to
the rationale underlying the challenged decision, the presumption of regularity is overcome and
the burden shifts to the government to justify the inclusion of the challenged documents in the
administrative record.
This framework is consistent with existing procedures for completing and supplementing
the record. An agency may introduce post hoc documents containing information actually
considered in the decisionmaking process or explanations and summaries into an administrative
record via motions to complete or supplement the record.4 Application of this burden-shifting
framework resolves the conflict between the presumption of regularity and the limitations on the
4
For a more thorough discussion of record completion and supplementation, see
WildEarth Guardians v. U.S. Forest Serv., 713 F. Supp. 2d 1243 (D. Colo. 2010).
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scope of the administrative record. Once a party rebuts the presumption of regularity, the agency
bears the burden of proving the document should be included in the administrative record via
completion or supplementation.
Applying this standard to Plaintiff’s Motion to Strike, neither party contests that the
challenged documents and affidavits were created after the challenged decisions were finalized.
Standing alone, this does not rebut the presumption of regularity owed Defendants’ designation
of the administrative record. Plaintiffs must establish that the challenged documents contain
information plausibly relating to Defendants’ rationale in reaching the challenged decisions.
Plaintiffs seek to strike ten documents: five affidavits and five charts. The five tables
describe motor vehicle use routes in the Leadville, Pikes Peak, Salida, San Carlos, and South
Park Ranger Districts of the Pike and San Isabel National Forests. The tables also contain
signatures verifying that many of the routes have been in public use, managed, maintained, and
signed for over fifteen years. The five affidavits contain testimony from Forest Service
employees detailing their personal knowledge of the historical designation of specified routes in
the Pikes Peak, Salida, and San Carlos Ranger Districts. This information directly relates to
Defendants’ rationale in adopting the challenged Motor Vehicle Use Maps.
Because the challenged documents post-date the challenged decisions and contain
information or testimony plausibly relating to the rationale underlying Defendants’ adoption of
the challenged Motor Vehicle Use Maps, Plaintiffs have rebutted the presumption of regularity
and the government bears the burden of establishing that these documents are properly included
in the administrative record. To be clear, however, I have not conclusively determined that these
documents constitute impermissible post hoc rationalizations. I only find that Plaintiffs have
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produced clear evidence rebutting the presumption of regularity. Defendants are free to file
motions to include these documents in the administrative record via either completion and/or
supplementation.
CONCLUSION
Because Plaintiffs have adduced clear evidence that Defendants designation of the
administrative record was irregular, their Motion to Strike Documents from the Administrative
Record (doc. 39) is GRANTED. Defendants may seek inclusion of the challenged documents
via completion or supplementation, but any motion to that end must be filed no later than April
13, 2012.
Dated: March 30, 2012
BY THE COURT:
/s/ John L. Kane
Senior U.S. District Court Judge
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