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

Filing 37

ORDER granting 31 Motion to Strike Signed by Magistrate Judge Jeremiah C. Lynch on 3/20/2018. (TCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
NATIVE ECOSYSTEMS COUNCIL,
and ALLIANCE FOR THE WILD
ROCKIES,
Plaintiffs,

CV 17-47-M-DLC-JCL

ORDER

vs.
LEANNE MARTEN, Regional
Forester of Region One of the U.S.
Forest Service, UNITED STATES
FOREST SERVICE, and UNITED
STATES FISH & WILDLIFE
SERVICE,
Defendant.
Before the Court is Defendants’ Motion to Strike a document that Plaintiffs
filed in support of their summary judgment motion. The document at issue is the
revised biological opinion dated March 11, 2016, authored by Jodi L. Bush, Field
Supervisor, United States Fish Wildlife Service (“FWS”), regarding an unrelated
United States Forest Service (“USFS”) project known as the Lonesome Wood 2
Vegetation Management Project (“Lonesome Wood Biological Opinion”). (Doc.
28-1.) For the reasons discussed, the Court deems it appropriate to grant
Defendants’ motion and strike the Lonesome Wood Biological Opinion.

I.

Background
Plaintiffs Native Ecosystems Council and Alliance for the Wild Rockies

commenced this action advancing claims under federal environmental laws against
Defendants Leanne Marten, the USFS, and the FWS. The claims arise from
Defendants’ decisions regarding the USFS’s proposed Telegraph Vegetation
Project (“Telegraph Project”) in the Helena-Lewis and Clark National Forest.
This action is governed by the Administrative Procedures Act (“APA”), 5
U.S.C. § 701 et seq., and the parties agree Plaintiffs’ claims can be resolved on
summary judgment motions based upon the Court’s review of the administrative
record on which the Defendants relied to make their Telegraph Project decisions.
(Doc. 4 at 2.) To that end, the Court imposed a deadline of June 16, 2017, by
which any party could file a motion to supplement or challenge the administrative
record. (Doc. 6 at 1.)
During the course of Defendants’ analysis of the Telegraph Project the
USFS engaged the FWS to obtain its biological opinion as to the effects of the
Telegraph Project for certain wildlife species. On January 4, 2017, the FWS issued
its biological opinion concerning the Telegraph Project (“Telegraph Biological
Opinion”) as required by the Endangered Species Act (“ESA”), 16 U.S.C. § 1531
et seq. And on January 9, 2017, the USFS issued its Record of Decision
authorizing implementation of Alternative 4 identified in the USFS’s Final
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Environmental Impact Statement for the Telegraph Project.
One of the claims advanced by Plaintiffs under the ESA challenges the
sufficiency of the detail with which the FWS discussed “the effects of the action on
listed species” in the Telegraph Biological Opinion as required by 50 C.F.R. §
402.14(h)(2). Plaintiffs note the USFS identified five categories of effects the
Telegraph Project would have on grizzly bears, and they complain that the FWS
did not engage in a detailed discussion of each of the five effects. (Doc. 12 at 1822 of 38.)
Plaintiffs further assert that the limited programmatic biological opinions the
FWS had previously issued in 2014 and 2016 also failed to address the identified
effects on grizzly bears caused by the Telegraph Project. Therefore, Plaintiffs
argue the FWS cannot merely rely upon a tiered analysis that is based upon those
prior biological opinions.
Plaintiffs suggest the circumstances of this case and the FWS’s alleged
failure to analyze all effects of the Telegraph Project are analogous to the
circumstances in an unrelated USFS project discussed in Native Ecosystems
Council v. Krueger, 63 F. Supp. 3d 1246 (D. Mont. 2014). (Doc. 12 at 23-24 of
38.) In Krueger the FWS had relied upon a prior tiered programmatic biological
opinion issued relative to a forest travel plan, but the Court found that prior opinion
did not address all the effects of the subsequent specific forest project at issue in
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Krueger. Therefore, the Court remanded the matter to the USFS to obtain a more
complete biological opinion that addressed all the effects on grizzly bears caused
by the subject forest activity. The USFS was to obtain a sufficiently detailed, sitespecific biological opinion from the FWS that analyzed the effects of a specific
activity – “all logging associated activities” – because those effects were not
addressed in the prior, first-tier biological opinion the FWS issued relative to the
forest travel plan. Krueger, 63 F. Supp. 3d at 1253. As a result of that remand the
FWS prepared the Lonesome Wood Biological Opinion that is the subject of
Defendants’ motion to strike.
Based on the record in this case, Plaintiffs contend USFS personnel had
identified the Lonesome Wood Biological Opinion as an exemplar of a proper,
complete biological opinion that adequately addressed all effects of a proposed
action as required by 50 C.F.R. § 402.14(h)(2). After the FWS issued its Telegraph
Biological Opinion on January 4, 2017, USFS personnel raised questions about the
Telegraph Biological Opinion based on the Lonesome Wood Biological Opinion.
On January 5, 2017, USFS General Counsel Alan Campbell wrote an email to
USFS Forest Supervisor Jennifer Swiader stating that he found the Lonesome
Wood Biological Opinion contained “more detail [...] for grizzly bear” than the
Telegraph Biological Opinion, and he called Jodi Bush to discuss the issue.
(FWS_000330.)
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Swiader forwarded Campbell’s email to USFS Forest Supervisor Heather
Degeest, and on January 6, 2017, Degeest wrote an email identifying two primary
differences between the Telegraph Biological Opinion and the Lonesome Wood
Biological Opinion: (1) a difference in the format and structure of, and the
headings used in the two opinions; and (2) a difference in the two opinions’
discussion of all the effects of each project. (FWS_000328.) She noted that the
Lonesome Wood Biological Opinion addressed all effects of the forest activity on
grizzly bears including the effects of logging and all activities associated with
logging. (FWS_000328.) But she complained that although the Telegraph
Biological Opinion discussed the effects of logging for bull trout, it failed to
address the effects of logging for lynx or other wildlife. (FWS_000329.) Degeest
then suggested the FWS’s Telegraph Biological Opinion should contain the same
degree of discussion of all effects on all wildlife as the discussion the FWS
included in its Lonesome Wood Biological Opinion. She stated “[t]he 2016
Lonesome Wood BO is consistent with what we’re asking them to do for
Telegraph.” (FWS_000329.) Swiader received Degeest’s January 6, 2017 email
and forwarded it to Jodi Bush – the person who authored the cover letter for the
Telegraph Biological Opinion.
USFS Wildlife Biologist Denise Pengeroth was similarly concerned about
the sufficiency of the FWS’s discussion of effects in the Telegraph Biological
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Opinion. On January 5, 2017, she wrote an email in which she expressed her
concern about the way in which the Telegraph Biological Opinion separated out
the effects of the Telegraph Project, and suggested the FWS should have instead
discussed all of the “effects of the project as a whole” and made a determination
“for the entire project.” (FWS_000356.)
In response to Pengeroth’s concerns, on January 6, 2017, FWS Biologist
Tom Olenicki wrote an email in which he explained the FWS’s discussion of the
effects of the Telegraph Project in the Telegraph Biological Opinion, and
confirmed that the FWS’s “determination IS for the entire project.”
(FWS_000337.)
On January 12, 2017, Pengeroth replied to Olenicki’s email acknowledging
that in light of Olenicki’s explanation she was satisfied with the FWS’s discussion
of the effects of the Telegraph Project. She stated she found nothing to indicate
“that there are additional adverse effects that have not already been addressed[,
and] [t]herefore, no additional analyses or changes in determinations need to be
made.” (FWS_000337.)
In their response brief, the Defendants addressed the issues Plaintiffs raised
concerning the Lonesome Wood Biological Opinion. Defendants identified and
summarized the same emails Plaintiffs referenced, and acknowledged that the FWS
and USFS personnel discussed the differences between the Lonesome Wood
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Biological Opinion and the Telegraph Biological Opinion. Those discussions are
documented in a “note to file” email dated January 13, 2017, written by FWS
Officer Katrina Dixon. (Doc. 19 at 57-58 of 74; FWS_000326.) Dixon wrote that
the FWS acknowledged the formatting differences in the structure of the two
biological opinions, but explained that the format of the Telegraph Biological
Opinion was consistent with other formal, tiered consultations, and that the format
of the Lonesome Wood Biological Opinion was different because it was tailored to
satisfy the Court’s remand order in Krueger. (FWS_000326.) Despite the different
formats, the FWS confirmed that the two opinions contained consistent
information, i.e. they contained a biological opinion as to whether the respective
actions will jeopardize a species. (FWS_000326.)
The FWS also explained the different terminology used in the Lonesome
Wood Biological Opinion. The Court in Krueger directed the FWS to address the
specific effects of the forest project, including the effects of “logging and
associated activities.” (FWS_000326.) The FWS explained that it generally does
not employ that terminology, and instead it generally analyzes the effects in terms
of “vegetation management, harvesting, etc.[,]” or “treatment of acres”, to be
consistent with the USFS’s use of that same terminology in its biological
assessments. (FWS_000326.) Nonetheless, the FWS asserted that the discussion of
the effects in the Telegraph Biological Opinion is consistent with the discussion of
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the effects in the Lonesome Wood Biological Opinion. (FWS_000326; Doc. 19 at
59 of 74.)
Because Defendants argued that the substance of the discussions of the
project effects in the two biological opinions is consistent, Plaintiffs decided to
submit a copy of the Lonesome Wood Biological Opinion to support their
contention that the FWS’s discussion of effects in the Telegraph Biological
Opinion is not legally sufficient. Plaintiffs argue that the Telegraph Biological
Opinion lacks the legally required degree of detailed analysis of project effects like
that which was employed in the Lonesome Wood Biological Opinion. The parties
argue over the proper interpretation of the emails exchanged between USFS and
FWS personnel concerning the sufficiency of the Telegraph Biological Opinion as
compared to the Lonesome Wood Biological Opinion. And Plaintiffs contend the
discussions in the emails make the Lonesome Wood Biological Opinion part of the
administrative record and admissible as evidence in this case.
II.

Discussion
Defendants move to strike the Lonesome Wood Biological Opinion from the

record in this case. They argue the document is not part of the formal
administrative record on which the FWS formulated its Telegraph Biological
Opinion, and that Plaintiffs failed to move to supplement the administrative record
by the June 16, 2017 deadline for supplementation.
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The Court agrees Plaintiffs missed the deadline for supplementation. Thus
the remaining question raised by Defendants’ motion is whether the Lonesome
Wood Biological Opinion is nonetheless properly included as part of the “whole
record”, or if it should otherwise be admissible as evidence in this action.
A.

Whole Record – Administrative Record

Defendants argue that the Lonesome Wood Biological Opinion is not part of
the “whole record” which the Court may consider in making legal determinations
as permitted under the APA. 5 U.S.C. § 706. The “whole record” “consists of all
documents and materials directly or indirectly considered by agency decisionmakers[.]” Thompson v. United States Department of Labor, 885 F.2d 551, 555 (9th
Cir. 1989). It is “everything that was before the agency pertaining to the merits of
its decision.” Portland Audubon Society v. Endangered Species Committee, 984
F.2d 1534, 1548 (9th Cir. 1993).
But in assessing what is properly within the “whole record” the timing of the
existence of certain materials in the record is significant. Courts review the full
administrative record that was before the particular agency “when it made its
decision.” Thompson, 885 F.2d at 556 (emphasis in original). “[T]he critical
inquiry is whether [the materials] were before the Secretary at the time of the
decision.” Id.
Defendants assert the Lonesome Wood Biological Opinion was not before
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the FWS by the time it issued the Telegraph Biological Opinion. Tom Olenicki
(the FWS biologist who prepared the Telegraph Biological Opinion), Jodi Bush
(the FWS Field Supervisor who reviewed and signed the Telegraph Biological
Opinion), and William Avey (the USFS Forest Supervisor who signed the Record
of Decision for the Telegraph Project) each filed an affidavit stating that they did
not directly or indirectly consider, rely upon, or refer to the Lonesome Wood
Biological Opinion prior to the time the Telegraph Biological Opinion was issued
on January 4, 2017. (Doc. 32-1 at 2; Doc. 35-1 at 2; Doc. 35-2 at 2-3.) Thus, the
record undisputedly demonstrates that the Lonesome Wood Biological Opinion
was not considered by Defendants for purposes of the FWS’s decision-making
process in rendering its Telegraph Biological Opinion.
In response to Defendants’ motion to strike, Plaintiffs still assert the
Lonesome Wood Biological Opinion is part of the administrative record as a
matter considered by the USFS and the FWS. In doing so, however, Plaintiffs rely
solely upon the referenced emails originated by USFS personnel after the
Telegraph Biological Opinion was issued on January 4, 2017. Plaintiffs point to
USFS General Counsel Alan Campbell’s January 5, 2017 email, and USFS Forest
Supervisor Heather Degeest’s January 6, 2017 email. Again, these emails raised
questions based upon comparisons with, and references to, the Lonesome Wood
Biological Opinion. But it is undisputed that those questions and concerns were
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generated and presented to Olenicki and Bush after they prepared the FWS’s
January 4, 2017 Telegraph Biological Opinion. Therefore, the Lonesome Wood
Biological Opinion is not properly included within the “whole record” that was
before, and considered by, the FWS prior to its January 4, 2017 Telegraph
Biological Opinion.
Although exceptions to the rule limiting what constitutes the “whole record”
or administrative record exist (Lands Council v. Powell, 395 F.3d 1019, 1030 (9th
Cir. 2005)), Plaintiffs do not argue for the application of any exception.
B.

Fed. R. Evid. 1002 & Fed. R. Civ. P. 56

Plaintiffs argue that the Lonesome Wood Biological Opinion is admissible
under Fed. R. Evid. 1002, and Fed. R. Civ. P. 56. Rule 1002 provides that the best
evidence – the original of a writing – must be admitted “in order to prove its
contents[.]” Plaintiffs argue that because Defendants, in the referenced emails,
suggested the Telegraph Biological Opinion is written “consistent” with the
Lonesome Wood Biological Opinion, the suggestion requires the admission of the
Lonesome Wood Biological Opinion to support Defendants’ suggestion.
But Defendants’ legal defense in this case is not that the analysis and
discussion reflected in the Telegraph Biological Opinion is “consistent” with the
analysis and discussion presented in the Lonesome Wood Biological Opinion.
Instead, their defense is that such analysis and discussion is sufficiently detailed as
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required by 50 C.F.R. §402.14(h)(2). Thus, in their briefs Defendants referred to
the Lonesome Wood Biological Opinion only in the context of their references to
Tom Olenicki and Katrina Dixon’s emails and file notes which Olenicki and Dixon
had written to respond to the USFS’s concerns about the sufficiency of the
Telegraph Biological Opinion. Defendants’ references and arguments do not seek
to establish and prove the “contents” of the Lonesome Wood Biological Opinion.
Similarly, Plaintiffs’ arguments and references to the Lonesome Wood
Biological Opinion also do not seek to prove the “content” of that biological
opinion. Thus, the best evidence requirement in Rule 1002 is not implicated if
evidentiary materials are not presented for the purpose of proving the content of a
writing. United States v. Diaz-Lopez, 625 F.3d 1198, 1202 (9th Cir. 2010).
Therefore, Rule 1002 does not require the admission of the Lonesome Wood
Biological Opinion.
Similarly, Plaintiffs argue Rule 56 requires the admission of the Lonesome
Wood Biological Opinion. They contend Rule 56(c) requires a party to place in the
record all materials on which it relies “as a source of a factual contention,” or to
“support its fact positions.” (Doc. 34 at 13-14 of 17.)
But Defendants do not advance any factual contentions about the content of
the Lonesome Wood Biological Opinion itself. Defendants’ references to the
Lonesome Wood Biological Opinion are merely references to the content of the
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various emails reflecting Campbell, Degeest, Pengeroth, Olenicki, and Dixon’s
subsequent discussions about the Lonesome Wood Biological Opinion. Defendants
do not rely upon the substantive content of the Lonesome Wood Biological
Opinion as grounds in support of any defense they assert in this action. Defendants
also do not assert, and there does not exist, a material factual contention about the
substantive content of the Lonesome Wood Biological Opinion in this case.
Plaintiffs do nothing more than suggest USFS personnel viewed the Lonesome
Wood Biological Opinion as an exemplar of a legally sufficient biological opinion
which the FWS should mimic in the Telegraph Biological Opinion. Therefore,
Rule 56 does not require the admission of the Lonesome Wood Biological
Opinion.
C.

Judicial Notice

Finally, Plaintiffs argue the Court may take judicial notice of the Lonesome
Wood Biological Opinion pursuant to Fed. R. Evid. 201. They argue it is a report
of an administrative body, and that it is also a document made publicly available
because the USFS and FWS filed it in the public record of the Krueger case.
But judicial notice of a document is not warranted if the document is not
relevant to the instant civil action and if it would have no effect on the Court’s
decision in this case. See Alexander v. Underhill, 416 F. Supp. 2d 999, 1014-15 (D.
Nev. 2006) (declining to take judicial notice of an irrelevant document). Evidence
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is only relevant and admissible in a case if “(a) it has any tendency to make a fact
more or less probable than it would be without the evidence; and (b) the fact is of
consequence in determining the action.” Fed. R. Evid. 401.
The substance of Plaintiffs’ ESA claim in this case presents the issue of
whether the Telegraph Biological Opinion properly addresses, analyzes and
discusses, in proper detail, all of the pertinent effects of the Telegraph Project as
required by Krueger and 50 C.F.R. § 402.14(h)(2). The substance of their legal
claim is not, and cannot be, an issue of whether the Telegraph Biological Opinion
is drafted consistent with the degree of discussion set forth in the Lonesome Wood
Biological Opinion. Plaintiffs do not identify any material fact in this case that
would be made more or less probable by the admission of the Lonesome Wood
Biological Opinion. In view of Plaintiffs’ legal claim, the content of the Lonesome
Wood Biological Opinion is of no consequence to the issue of whether the
Telegraph Biological Opinion is written in compliance with the ESA and the legal
requirements identified in Krueger. Therefore, the Lonesome Wood Biological
Opinion is not relevant to this case, and judicial notice of it is not warranted.
III.

Conclusion
Based on the foregoing, IT IS HEREBY ORDERED that Defendants’

motion to strike is GRANTED, and the Lonesome Wood Biological Opinion (doc.
28-1) is STRICKEN from the record as it is not part of the administrative record
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and it is irrelevant.
DATED this 20th day of March, 2018.

________________________________
Jeremiah C. Lynch
United States Magistrate Judge

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