Rocky Mountain Wild et al v. Dallas et al

Filing 66

ORDER ON MOTION TO SUPPLEMENT ADMINISTRATIVE RECORD 53 the Motion is GRANTED with regard to Docs. 53-8, 53-12, and 53-13; the Motion is DENIED with regard to all other documents; Plaintiffs' standing Declarations, (Docs. 53-1 through 53-4), although not part of the administrative record, are accepted as part of the Courts record in this proceeding, by Judge Richard P. Matsch on 5/19/17. (ktera)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior District Judge Richard P. Matsch
Civil Action No. 15-cv-01342-RPM
ROCKY MOUNTAIN WILD;
SAN LUIS VALLEY ECOSYSTEM COUNCIL;
SAN JUAN CITIZENS ALLIANCE;
WILDERNESS WORKSHOP,
Plaintiffs,
v.
DAN DALLAS, in his official capacity as Forest Supervisor;
MARIBETH GUSTAFSON, in her official capacity as Deputy Regional Forester; UNITED
STATES FOREST SERVICE, a Federal Agency within the U.S. Department of Agriculture;
UNITED STATES FISH AND WILDLIFE SERVICE, a federal agency within the
Department of the Interior,
Defendants,
and
LEAVELL-McCOMBS JOINT VENTURE,
Intervenor.
_____________________________________________________________________
ORDER ON MOTION TO SUPPLEMENT ADMINISTRATIVE RECORD
_____________________________________________________________________
Plaintiffs’ Motion to Supplement the Administrative Record with Extra-Record Evidence
(Doc. 53) requests the Court to re-designate much of the administrative record filed by
Defendants to be “extra-record” evidence on which only Plaintiffs can rely, and further requests
the Court to include additional documents as part of the administrative record as well.
As relevant here, the administrative record submitted by Defendants consists of evidence
on seven DVDs, as follows:


On November 13, 2015, Defendants filed a “Notice of Lodging of Administrative
Record Documents” (Doc. 19). That filing included four DVDs, itemized below,

together with affidavits authenticating them and certifying them as the complete
administrative record. The DVDs are as follows:
o

o

DVD 2: Forest Service’s “conventional” Administrative Record for the
Project, consisting of 18,142 pages (Bates numbered W00001 through
W18142). This DVD is labeled “Volume 1 of 3” and dated November 9,
2015.

o

DVD 3: Additional record materials Defendants say was found during an
email search conducted “in response to concerns about the administrative
record in this matter.” Non-privileged materials collected in that search are on
this DVD, Bates numbered C0000001 through C0039506. It is labeled “Forest
Service Additional Record materials” and dated November 9, 2015.

o



DVD 11: The Fish and Wildlife Service’s Administrative Record,
consisting of 7,183 pages (Bates numbered FWS000001 through
FWS007183). This DVD is labeled “USFWS Administrative Record” and
dated 11/05/2015.

DVD 4: Additional records found during the search referred to concerning
DVD 3, but containing materials as to which the Forest Service asserts
privilege. This DVD contains an index of the materials as to which privilege is
asserted, some redacted documents “where appropriate,” and some materials
“determined during privilege review not to be privileged.” This DVD is
labeled “Forest Service Additional Record Materials: Privilege Set” and dated
November 13, 2015.

On July 19, 2016, Defendants filed a “Notice of Lodging of Additional
Administrative Record Materials” (Doc. 46). The Notice states that the “supplemental
lodging consists of materials that the parties have agreed through conferral should be
included in the record.” That filing included three additional DVDs:
o
o

DVD 5: labeled “Administrative Record Vol. 5 of 7”; containing eleven
PDF documents, Bates Nos. W18143-W18655; dated July 19, 2016.
DVD 6: labeled “Administrative Record Vol. 6 of 7”; containing

The names “DVD 1,” etc., are the Court’s, for shorthand reference in this Order. They are not
actually labeled as such.
2
1

Geographic Information System (“GFS”) files, Bates No. W18656; dated July
19, 2016.
o

DVD 7: labeled “Administrative Record Vol. 7 of 7”; containing
Geographic Information System (“GFS”) files, Bates No. 18657; dated July
19, 2016.

Plaintiffs’ Motion does not raise any issue with the Fish and Wildlife Service record
(DVD 1) or with the Forest Service’s “conventional” record (DVD 2). It relates only to the
additional Forest Service record materials (DVDs 3 through 7) and to certain additional
documents tendered as exhibits with the Motion.2
First, Plaintiffs argue that DVDs 3 through 7 should be considered only as “extra-record”
evidence because no sufficient declaration or other evidence was filed to support their use as
supplementation” of the Forest Service record contained on DVD 2. Defendants filed
declarations with the designated records, stating under oath that the included materials were
considered directly or indirectly by the Forest Service in making the decisions challenged in this
case. Courts “assume that the agency properly designated its record absent clear evidence to the
contrary.” Center for Native Ecosystems v. Salazar, 711 F. Supp. 2d 1267, 1275 (D. Colo. 2010)
(quoting Bar MK Ranches v. Yuetter, 994 F.2d 735, 740 (10th Cir.1993)). Plaintiffs have
submitted no evidence showing that the record designated by Defendants was incomplete or
otherwise improperly designated. Therefore the documents on these DVDs are properly part of
the administrative record and are not “extra-record” evidence.
Second, Plaintiffs seek to include their Declarations supporting standing (Docs. 53-1
through 53-4) as part of the administrative record. Those Declarations are properly included as

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part of the Court’s record in this APA review proceeding, but were not part of the record
reviewed by Defendants in making the challenged decisions and therefore are not properly part of
the administrative record.
Third, Plaintiffs offer certain additional documents to supplement the record that are
duplicates of documents already in the record (Docs. 53-5, 53-6, 53-7, 53-9, 53-10, and 53-11).
Because these are duplicates there is no need for supplementation.
Fourth, Plaintiffs offer three documents the Court finds are appropriate supplementation
of the record. Defendants do not object to Doc. 53-12. Doc. 53-8 contains internal agency
discussion of how to respond to a public question about FOIA, but also includes a forwarded
email from a member of the public concerning the land exchange that is appropriately included
as part of the record. Doc. 53-13, an email with no substantive content, forwarding another email
already in the record, appears to be part of the agency record, or at worst is substantively
harmless.
Fifth, Plaintiffs seek to supplement the record with the August 2016 scoping notice for
the Meadow Lift project proposed for the Wolf Creek Ski Area. Plaintiffs have cited no authority
for including this document, which came into existence after the final agency decision at issue in
this case, as part of the record of the agency decision.
Based on the foregoing, it is
ORDERED that the Motion is GRANTED with regard to Docs. 53-8, 53-12, and 53-13;

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The Motion contests the privilege designation of any of the documents on DVD 4.
4

and it is
FURTHER ORDERED that the Motion is DENIED with regard to all other documents;
and it is
FURTHER ORDERED that Plaintiffs’ standing Declarations, (Docs. 53-1 through 53-4),
although not part of the administrative record, are accepted as part of the Court’s record in this
proceeding.
DATED: May 19, 2017
BY THE COURT:
s/Richard P. Matsch
__________________________
Richard P. Matsch, Senior Judge

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