Idaho Wool Growers Association et al v. Vilsack et al

Filing 32

MEMORANDUM DECISION AND ORDER granting 26 Motion. The Court shall allow the plaintiffs to submit declarations from Drs. Donald P. Knowles, Margaret A. Highland, and Mark C. Thurmond. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
IDAHO WOOL GROWERS ASSOCIATION,
AMERICAN SHEEP INDUSTRY
ASSOCIATION, PUBLIC LANDS COUNCIL,
COLORADO WOOL GROWERS
ASSOCIATION, WYOMING WOOL
GROWERS ASSOCIATION, CARLSON
COMPANY, INC., and SHIRTS BROTHERS
SHEEP,

Case No. 1:12-CV-469-BLW

MEMORANDUM DECISION AND
ORDER

Plaintiffs,
v.
TOM VILSACK, in his official capacity as the
Secretary of the United States Department of
Agriculture; TOM TIDWELL, in his official
capacity as the Chief of the United States Forest
Service; KEITH LANNOM, in his official
capacity as the Forest Supervisor of the Payette
National Forest; and UNITED STATES
FOREST SERVICE,
Defendants.

INTRODUCTION
The Court has before it a motion by plaintiffs (referred to collectively as Idaho
Wool Growers) to expand the administrative record. The motion is fully briefed and at
issue. For the reasons explained below, the Court will grant the motion.
LITIGATION BACKGROUND
About five years ago, WWP sued the Forest Service to enjoin sheep grazing on

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allotments within the Payette and Nez Perce National Forests. See WWP v U.S. Forest
Service, CV-07-151-BLW. In that lawsuit, WWP claimed that domestic sheep were
spreading a fatal disease to bighorn sheep whose numbers are declining dramatically.
Eventually, as a result of that litigation, grazing was restricted on some allotments,
and the Forest Service proceeded to study the disease transmission issue. In 2010, the
Forest Service issued its final Record of Decision, requiring closure of certain allotments
over a three year period.
When the Forest Service failed to fully implement that decision, WWP sued the
agency to force it to act. See WWP v. U.S. Forest Service, CV-12-286-BLW. That action
was settled when the Forest Service agreed to implement its decision.
When the Forest Service moved to close the allotments, the Idaho Wool Growers
responded by filing this lawsuit to challenge the agency’s decision under the
Administrative Procedures Act (APA). The Court later allowed WWP to intervene.
The Idaho Wool Growers have now filed a motion to expand the administrative
record. They want to obtain declarations, and offer live testimony, of two Government
scientists and a professor. The government scientists are Drs. Donald P. Knowles and
Margaret A. Highland. Drs. Knowles and Highland are employed by the U.S.
Department of Agriculture (USDA), Agricultural Research Service (ARS). ARS serves
as the USDA’s chief scientific in-house research agency. Dr. Knowles is a veterinary
medical officer. He heads the ARS Animal Disease Research Unit in Pullman,
Washington. Dr. Highland is an ARS veterinarian. Idaho Wool Growers also seek
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testimony from Dr. Mark C. Thurmond, a Professor Emeritus in veterinary epidemiology
at the University of California, Davis.
The Idaho Wool Growers seek this testimony to show that the Forest Service failed
to consider all relevant factors when it decided to close certain allotments. More
specifically, the evidence will show, they allege, that the Forest Service failed to consider
flaws in the modeling it used to estimate the risk of contact between domestic sheep and
the bighorn sheep.
ANALYSIS
A court can discern an agency’s compliance with the APA’s standards, as a
general rule, by looking only at the administrative record. See Nw. Envtl. Advocates v.
Nat’l Marine Fisheries Serv., 460 F.3d 1125, 1144 (9th Cir. 2006). Nevertheless, a
reviewing court may look beyond the administrative record for the limited purposes of
ascertaining whether the agency considered all the relevant factors or fully explained its
decision. Center for Biological Diversity v. BLM, 698 F.3d 1101, 1123 at n. 14 (9th Cir.
2012).
That exception applies here. The Idaho Wool Growers seek this evidence to show
that the Forest Service failed to consider all relevant factors – specifically, that it failed to
consider flaws in its modeling. An expanded record is often necessary to show an agency
omission, particularly when the omission involves a technical issue: “It will often be
impossible, especially when highly technical matters are involved, for the court to
determine whether the agency took into consideration all relevant factors unless it looks
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outside the record to determine what matters the agency should have considered but did
not.” Asarco, Inc. v. EPA, 616 F.2d 1153, 1160 (9th Cir.1980).
The Court finds that the exception discussed in Asarco applies here. The Forest
Service argues, however, that opposing counsel will need to have ex parte contacts with
the two agency scientists to prepare their declarations or testimony, and that such contacts
are improper. But counsel for the Idaho Wool Growers resolved that issue by
representing that no ex parte contact will occur.
The Forest Service argues that its regulations prohibit its own employees from
testifying against the agency. There is, however, an exception for court-ordered
testimony. See 7 C.F.R. § 1.216(b)(1). This decision will trigger that exception.
The Court will therefore grant the motion to expand the record to include
testimony from Drs. Donald P. Knowles, Margaret A. Highland, and Mark C. Thurmond.
The Court will allow the Idaho Wool Growers to submit declarations from each of these
three witnesses. However, the Court has not yet determined if an evidentiary hearing will
be necessary and so will reserve ruling on whether it will allow live testimony from these
witnesses.
Finally, allowing these three witnesses opens the door to rebuttal testimony from
Forest Service and the intervenors. True rebuttal testimony is limited to responding to the
testimony of the three witnesses.
ORDER
In accordance with the Memorandum Decision set forth above,
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NOW THEREFORE IT IS HEREBY ORDERED, that the motion to expand the
administrative record (docket no. 26) is GRANTED and the Court shall allow the
plaintiffs to submit declarations from Drs. Donald P. Knowles, Margaret A. Highland,
and Mark C. Thurmond.

DATED: March 25, 2013

Honorable B. Lynn Winmill
Chief U. S. District Judge

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