Alliance for the Wild Rockies et al v. Marten et al

Filing 50

ORDER re 19 MOTION to Supplement &/or Complete the Administrative Record, for Judicial Notice, and for Leave to Conduct Limited Discovery filed by Alliance for the Wild Rockies, Native Ecosystems Council, 49 Order on Motion to Supplement. Signed by Judge Donald W. Molloy on 10/3/2016. (DLE)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

ALLIANCE FOR THE WILD ROCKIES,
and NATIVE ECOSYSTEMS COUNCIL,
Plaintiffs,

CV 16–35–M–DWM

OPINION
and ORDER

vs.
LEANNE MARTEN, Regional Forester
of Region One of the U.S. Forest Service;
UNITED STATES FOREST SERVICE,
an agency of the U.S. Department of
Agriculture, and JACK HIRSCHY
LIVESTOCK, INC.
Defendants.
Plaintiffs Alliance for the Wild Rockies and Native Ecosystems Council
(collectively “Alliance”) request declaratory and injunctive relief on the grounds
that the defendants (collectively “the Forest Service”) failed to comply with
environmental regulatory procedures when they approved the Moosehorn Ditch
Timber Sale (“Timber Sale”). On September 30, 2016, Alliance’s request to
supplement the administrative record, for judicial notice, and for leave to seek
limited discovery, (Doc. 19), was granted-in-part and denied-in-part, (Doc. 49).
The Court’s reasoning for that decision is outlined below.
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I.

Motion to Supplement
Alliance seeks to supplement the record with seventeen documents it

contends are relevant to whether the Forest Service should have conducted
analysis under the National Environmental Policy Act (“NEPA”). The admission
of the three documents is not contested, including Exhibit 10 (Lynx Direction),
Exhibit 14 (Timber Sale area map), and Exhibit 15 (Revised Forest Plan).
Alliance’s motion to supplement is therefore granted as to those three exhibits.
The Forest Service opposes Alliance’s motion as to the fourteen remaining
documents, insisting they were not part of the administrative process and were not
considered by the agency in making its decision.
Section 706(1) allows courts to “compel agency action unlawfully withheld
or unreasonably delayed.” 5 U.S.C. § 706(1). A claim under Section 706(1) can
proceed “where a plaintiff asserts that an agency failed to take a discrete agency
action that it is required to take.” Norton v. S. Utah Wilderness Alliance, 542 U.S.
55, 64 (2004) (emphasis omitted). In reviewing failure-to-act cases, “the court
shall review the whole record or those parts of it cited by a party.” 5 U.S.C. § 706.
The “whole record” language refers to the administrative record. Seattle Audubon
Soc’y v. Norton, 2006 WL 1518895, at *3 (W.D. Wash. May 25, 2006) (citing Fla.
Power & Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985)). While there is a
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presumption that the agency properly designated its record absent clear evidence
to the contrary, Bar MK Ranches v. Yuetter, 994 F.2d 735, 739-40 (10th Cir.
1993), the Ninth Circuit has held that the “whole administrative record” is “not
necessarily those documents that the agency has compiled and submitted as the
administrative record” but also includes “all documents and materials directly or
indirectly considered by agency decision-makers and includes evidence contrary to
the agency’s position,” Thompson v. U.S. Dep’t of Labor, 885 F.2d 551, 555 (9th
Cir. 1989) (internal quotation marks and emphasis omitted). The Ninth Circuit
also allows a broader temporal consideration of what comprises the administrative
record in failure-to-act cases. Independence Mining Co., Inc. v. Babbitt, 105 F.3d
502, 511 (9th Cir. 1997); S. F. Baykeeper v. Whitman, 297 F.3d 877, 887 (9th Cir.
2002) (noting no final agency action to demarcate the limits of the record).
Failure-to-act claims, however, “are not manifestations of a precedential
preference for unlimited discovery.” Seattle Audubon Soc’y , 2006 WL 1518895,
at *3. Rather, the Administrative Procedure Act limits courts to considering the
documents the agency considered directly or indirectly that fall under a record
review exception, merely allowing courts to go beyond the point at which the
agency considered the record closed. As explained in Sierra Club v. McLerran:

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It is one thing for a court to allow supplementation of the
administrative record in a case where there has been alleged agency
inaction—it is another to allow the plaintiff the full arsenal of discovery
proceedings under the Federal Rules of Civil Procedure. Courts must
strike the proper balance between adequate judicial review and respect
for agency decisions and process.
2012 WL 5449681, at *4 (W.D. Wash. Nov. 6, 2012) (instructing the plaintiff to
first pursue supplementation with the agency). Accordingly, a court may inquire
outside the record in the following “four narrowly construed circumstances”:
a. when necessary to explain the agency’s action;
b. when it appears that the agency decision-maker relied on materials or
documents the agency did not include in its administrative record;
c. when necessary to explain technical terms or complex subject matter
involved in the agency action; or
d. when the plaintiff makes a “strong showing of bad faith or improper
behavior.”
Animal Def. Council v. Hodel, 840 F.2d 1432, 1436-38 (9th Cir. 1988), as
amended by 867 F.2d 1244 (9th Cir. 1989); Fence Creek Cattle Co. v. U.S. Forest
Serv., 602 F.3d 1125, 1131 (9th Cir. 2010). The first, second, and fourth
exceptions are relevant here.
A.

The First Exception

The “broadest exception” to the general rule “is one which permits
expansion of the record when necessary to explain agency action.” Public Power
Council v. Johnson, 674 F.2d 791, 793 (9th Cir. 1982). The court’s inquiry

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outside the record is limited to determining whether the agency “has considered all
relevant factors” or has “fully explicated its course of conduct or grounds of
decision.” Friends of the Earth v. Hintz, 800 F.2d 822, 829 (9th Cir. 1986).
Applying this exception here, admission as to Exhibits 1, 3, 4, and 5 is denied.
The Forest Service concedes that it did not perform any NEPA analysis and the
FOIA requests and responses included in Exhibits 1, 3, 4, and 5 provide no further
information on this point.
Exhibits 2, 6, 7, 8, & 9 are admitted, however. Exhibit 2 elicits strong
questions as to whether the agency considered the scope of the clearcutting in
relation to allowable cutting for routine maintenance. Although the Forest Service
could not have considered the photos themselves because they were taken by
Native Ecosystem Council after the clearcutting was almost completed, it may be
necessary to explain the agency’s actions. Similarly, Exhibits 6, 7, and 8 are
relevant to whether the agency adequately investigated or explained its decision
not to conduct NEPA analysis. Exhibit 9 is an internal email regarding the
implementation of the Project.
B.

The Third Exception

The third exception allows supplementation of the record when “necessary
to explain technical terms or complex subject matter involved in the agency
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action.” Animal Defense Council, 804 F.2d at 1436. As a general rule, a court
must defer to the agency on matters within its expertise. See Natural Resource
Defense Council v. Kempthorne, 506 F. Supp. 2d 322, 348 (E.D. Cal 2007).
However, “[t]he deference accorded an agency’s scientific or technical expertise is
not unlimited” and “is not owed when the agency has completely failed to address
some factor consideration of which was essential to [making an] informed
decision.” Nat’l Wildlife Fed. v. Nat’l Marine Fisheries Serv., 422 F.3d 782, 798
(9th Cir. 2005). Alliance contends that Exhibits 11, 12, 13, and 16 are scientific
papers that should be considered to explain technical terms or complex subject
matter. Alliance fails to identify any specific term or subject matter for which
these documents are necessary for reviewing the agency’s action. The admission
of Exhibits 11, 12, 13, and 16 is denied.
C.

The Fourth Exception

Under the fourth exception, Alliance must make a “strong showing of bad
faith or improper behavior before the court may inquire into the thought processes
of administrative decisionmakers.” Animal Defense Council, 840 F.2d at 1436
(citing Public Power Council, 674 F.2d at 795). Because Exhibit 2 is properly
admitted under the first exception, only Exhibit 17 is relevant to Alliance’s bad
faith argument. Because Exhibit 17 merely indicates that certain documents do
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not exist, and not that the agency acted in bad faith, the requisite “strong showing”
has not been made; its admission is denied.
II.

Judicial Notice
Federal Rule of Evidence 201 states: “The court may judicially notice a fact

that is not subject to reasonable dispute because it . . . can be accurately and
readily determined from sources whose accuracy cannot reasonably be
questioned.” This applies to adjudicative facts only. See Fed. R. Evid 201(a).
“Extreme caution should be used in taking of adjudicative facts” because the
“taking of evidence, subject to established safeguards, is the best way to resolve
controversies involving disputes of adjudicative facts.” Banks v. Schweiker, 654
F.2d 637, 640 (9th Cir. 1981). And, “a party cannot circumvent the rules
governing record supplementation by asking for judicial notice rather than
supplementation.” Native Ecosys. Council v. Weldon, 848 F. Supp. 2d 1207, 1228
(D. Mont. 2012) vacated as moot, 2012 WL 5986475 (D. Mont. 2012).
Here, the contested exhibits do not constitute anything that the agency
would routinely consider in deciding whether NEPA analysis is necessary and
both the facts and their sources may be disputed. The Forest Service does not
object, however, to judicial notice of Exhibit 14, because “official government
maps are generally an acceptable source for taking judicial notice.” (Doc. 37
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(citing United States v. Burch, 169 F.3d 666, 672 (10th Cir. 1999). Further,
Exhibits 10 (USFS Record of Decision—Northern Rockies Lynx Management
Direction) and 15 (Beaverhead-Deerlodge Revised Forest Plan) may be judicially
noticed as both parties have agreed on supplementation and qualify as documents
that the Forest Service routinely considers in its decisions. Judicial notice is
granted as to Exhibits 10, 14, and 15 and denied in all other respects.
III.

Motion for Leave to Seek Limited Discovery
“Jury trials and civil discovery are not permitted in APA proceedings,” 42

C.F.R. § 137.309 (emphasis added), unless the plaintiff makes a strong showing of
bad faith or improper behavior, see NVE, Inc. v. Dep’t of Health & Human Servs.,
436 F.3d 182, 195 (3d Cir. 2006). “[I]n the absence of clear evidence to the
contrary, courts presume that [government agents] have properly discharged their
official duties.” Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 174
(2004) (citing United States v. Armstrong, 517 U.S. 456, 464 (1996)). Here,
Alliance argues discovery is the only reasonable means for determining whether
the agency is implementing other similar timber sales in violation of NEPA. The
Forest Service argues that Alliance failed to show that the Forest Service
conducted various secret logging operations, and that Alliance’s claims are
conclusory and speculative. The mere suggestion of other violations of NEPA
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does not amount to a strong showing of bad faith or improper behavior as to
justify discovery. Alliance’s motion to allow discovery is denied.
CONCLUSION
Accordingly, IT IS ORDERED that Alliance’s motion to supplement is
GRANTED as to Exhibits 2, 6, 7, 8, 9, 10, 14, & 15 and DENIED in all other
respects.
IT IS FURTHER ORDERED that Alliance’s motion for judicial notice is
GRANTED as to Exhibits 10, 14 & 15 and DENIED in all other respects.
IT IS FURTHER ORDERED that Alliance’s request for limited discovery is
DENIED.
Dated this 3rd day of October, 2016.

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