Idaho State Snowmobile Association et al v. United States Forest Service et al

Filing 33

MEMORANDUM DECISION AND ORDER The motion to complete and supplement the administrative record (docket no. 25) is GRANTED IN PART AND DENIED IN PART. (Plaintiffs shall file a discovery plan within 10 days from the date of this decision: Case Management deadline set for 3/22/2014.). Signed by Judge B. Lynn Winmill. (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

IDAHO STATE SNOWMOBILE
ASSOCIATION; and THE
BLUERIBBON COALITION,

Case No. 3:12-CV-447-BLW
MEMORANDUM DECISION AND
ORDER

Plaintiffs,
v.

UNITED STATES FOREST SERVICE;
U.S. FOREST SERVICE, Northern
Region; CLEARWATER NATIONAL
FOREST; FAYE KRUGER; Regional
Forester, Northern Region; RICK
BRAZELL, Forest Supervisor,
Clearwater National Forest,
Defendants.

INTRODUCTION
The Court has before it a motion to complete and supplement the Administrative
Record. The motion is fully briefed and at issue. For the reasons set forth below, the
Court will grant the motion in part, allowing Plaintiffs to take some limited discovery but
not deciding at this point whether any of the material uncovered in that discovery will be
added to the Administrative Record.
LITIGATION BACKGROUND
Plaintiffs Idaho State Snowmobile Association and The Blueribbon Coalition
represent motorized recreationists. They have sued the Forest Service, challenging the
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2012 Clearwater National Forest Travel Plan. That Travel Plan restricts the use of
motorized vehicles within recommended wilderness areas of the Clearwater National
Forest.
Plaintiffs allege that the Forest Service, in drafting the Travel Plan, applied a
policy created by the Forest Service’s Northern Region to manage recommended
wilderness areas (“RWA”). Plaintiffs allege that this policy – which they call the
“Northern Region RWS Policy” – was never discussed in the Administrative Record but
played a crucial role in the Forest Service’s decision to restrict motorized travel in the
Travel Plan. The Plaintiffs now seek to expand the record before the Court to include
material regarding the Northern Region RWS Policy, and they challenge that Policy as
well as the Travel Plan in this lawsuit.
Prior to filing the motion now before the Court, Plaintiffs asked the Forest Service
for any documents regarding this Policy, and the Forest Service provided 17 documents.
Plaintiffs’ counsel asked for a further search. In response, the Forest Service tasked Peter
Zimmerman, a Litigation Specialist in the Northern Region office, to do a search for the
documents requested by Plaintiffs. See Zimmerman Declaration (Dkt. No. 28-6) at ¶¶ 13. In his search, Zimmerman was assisted by 3 other persons from the Northern Region
Office and 6 persons from the Forest Service’s Washington D.C. Office. Id. at ¶¶ 2-3.
They were able to find 6 more documents for a total of 23. Without waiving any
objection to expanding the Administrative Record, the Forest Service has no objection to
the Court considering these 23 documents, and the Court will accordingly do so.

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Plaintiffs argue that they are entitled to an Order by this Court that the Forest
Service conduct a further search for documents and, thereafter, that some limited
discovery be authorized. The Forest Service responds that the Administrative Record is
complete and should not be expanded. The Court will resolve this dispute after
reviewing the legal standards governing the Administrative Record.
LEGAL STANDARDS
In reviewing agency decisions under the APA, judicial review is typically limited
to the administrative record already in existence, “not some new record made initially in
the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142 (1973). A court may consider
allowing supplementation of the administrative record in four limited circumstances: (1)
supplementation is necessary to determine if the agency has considered all factors and
explained its decision; (2) the agency relied on documents not in the record; (3)
supplementation is needed to explain technical terms or complex subjects; or (4)
plaintiffs have shown bad faith on the part of the agency. Fence Creek Cattle Co. v. U.S.
Forest Serv., 602 F.3d 1125, 1131 (9th Cir.2010). These exceptions are narrowly
construed:
The scope of these exceptions permitted by our precedent is constrained, so
that the exception does not undermine the general rule. Were the federal
courts routinely or liberally to admit new evidence when reviewing agency
decisions, it would be obvious that federal courts would be proceeding, in
effect, de novo rather than with the proper deference to agency process,
expertise, and decision-making.
Lands Council v. Powell, 395 F.3d 1019, 1030 (9th Cir.2005). While courts rarely
invoke these exceptions, there are instances in which courts “provide limited discovery
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when serious gaps would frustrate challenges to the agency’s action.” Pub. Power
Council v. Johnson, 674 F.2d 791, 793 (9th Cir.1982). Nonetheless, “[w]hen there is a
need to supplement the record to explain agency action, the preferred procedure is to
remand to the agency for its amplification.” Id. at 794. Indeed, “remand to the agency
may satisfy the request for expanding the record in most cases.” Id. at 795.
In this case, the Plaintiffs are alleging that the Forest Service considered material
outside of the administrative record. In similar circumstances, the Ninth Circuit in
Johnson allowed limited discovery. There, plaintiffs alleged that the agency relied on
“various memoranda and notes” that were not contained in the Administrative Record.
Id. at 794. The Circuit held that (1) plaintiffs’ claims were not “frivolous”; (2) remand to
the agency would serve no purpose; (3) limited discovery – two depositions and some
documentary discovery – would give the plaintiffs an opportunity to determine if the
“memoranda and notes” were actually used by the agency; and (4) the decision on
whether to expand the record would not be made until after the discovery was completed.
Id. at 795.
Johnson provides a blueprint for this Court to resolve the present dispute.
Plaintiffs’ claims are not frivolous and it is only just to allow them some opportunity to
determine if a “Northern Region RWA Policy” existed and was considered by the Forest
Service in drafting the Travel Plan. The Forest Service has already searched for
documents, and so, like Johnson, a remand would serve little purpose and some limited
discovery would be appropriate.

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The Plaintiffs have not proposed a discovery plan, and the Court will direct them
to do so. To give some guidance to Plaintiffs, the Court will analyze the search the
Forest Service has already done in light of the discovery to which Plaintiffs are entitled
under Johnson.
Plaintiffs are entitled to have the Forest Service search for documents concerning
(1) the existence of a Northern Region RWA Policy, and (2) whether that Policy was
considered in the drafting of the Travel Plan. The Court commends the Forest Service for
conducting a search for documents in response to Plaintiffs’ request. It is not clear,
however, that the search was broad enough to cover the two areas listed above.
For example, Plaintiffs are entitled to have the Forest Service search for
documents concerning the existence of the Policy. On this issue, the Forest Service’s
Litigation Specialist, Zimmerman, states that “the search focused on questions asked by
Plaintiffs’ counsel related to Exhibits 1, 8, and 17 of the Declaration of Paul Turcke (ECF
No. 27) . . . .” See Zimmerman Declaration (Dkt. No. 28-6) at ¶ 2. From this description,
the search looked for documents to answer specific questions posed by counsel regarding
three exhibits – it was not the broader search to which Plaintiffs are entitled, a search for
documents concerning the existence of the Policy.
Zimmerman also noted that the Forest Service searched for documents “related to
communication between” the Region and the line officers. That is certainly a helpful
search but is not broad enough to encompass all documents concerning whether the
Policy was considered in drafting the Travel Plan.

Memorandum Decision & Order – page 5

Under Johnson, Plaintiffs are entitled to propose a limited discovery plan that is
focused on uncovering evidence, if any, of the existence of the Policy and its use in the
Travel Plan. An appropriate discovery plan might contain proposed search terms for a
further document search by the Forest Service and, if necessary, a proposal to take a
deposition or two of specific Forest Service personnel.
The Court will direct Plaintiffs to propose such a discovery plan. After allowing a
response by the Forest Service, the Court will determine what discovery will be allowed.
Finally, the Court will follow Johnson and not decide at this time whether any material
uncovered in this discovery shall be considered in this case. That decision will await the
results of the discovery and a further round of briefing by the parties.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motion to complete and
supplement the administrative record (docket no. 25) is GRANTED IN PART AND
DENIED IN PART. The motion is granted to the extent that (1) it asks the Court to
consider the 23 documents provided by the Forest Service, and (2) it requests
authorization to propose a discovery plan governing discovery limited to the issue
whether a Northern Region RWA Policy exists and was considered by the Forest Service
in drafting the 2012 Clearwater National Forest Travel Plan. It is denied in all other
respects.
IT IS FURTHER ORDERED, that the Plaintiffs shall file a discovery plan within
ten (10) days from the date of this decision that (1) contains a proposal for taking a few
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depositions and conducting some limited documentary discovery concerning the issue set
forth above. The Forest Service shall file a response within ten (10) days after receipt of
the Plaintiffs’ discovery plan. The Court will review the material and determine how
discovery shall proceed.

DATED: March 12, 2014

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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