Bark v. Northrop, Case No. 3:13–cv–00828–AA.

• Court: United States District Courts. 9th Circuit. United States District Court (Oregon)
• Writing for the Court: AIKEN
• Citation: 2 F.Supp.3d 1147
• Parties: BARK, et al., Plaintiffs, v. Lisa NORTHROP, et al., Federal Defendants, and RLK and Company, Defendant–Intervenor.
• Docket Number: Case No. 3:13–cv–00828–AA.
• Decision Date: 23 February 2014

2 F.Supp.3d 1147

BARK, et al., Plaintiffs,
v.
Lisa NORTHROP, et al., Federal Defendants,
and
RLK and Company, Defendant–Intervenor.

Case No. 3:13–cv–00828–AA.

United States District Court,
D. Oregon.

Signed Feb. 23, 2014.

[2 F.Supp.3d 1149]

Christopher G. Winter, Ralph O. Bloemers, Portland, OR, for Plaintiffs.

Sean E. Martin, Stephen J. Odell, U.S. Attorney's Office, Portland, OR, for Federal Defendants.

Erika E. Malmen, Robert A. Maynard, Perkins Coie, LLP, Boise, ID, Sarah J. Crooks, Perkins Coie, LLP, Portland, OR, for Defendant–Intervenor.

OPINION AND ORDER
AIKEN, Chief Judge:

Plaintiffs Bark, et al. filed suit alleging that federal defendants Lisa Northrop, et al. violated the National Environmental Policy Act (“NEPA”) and the National Forest Management Act (“NFMA”), Federal defendants and defendant-intervenor RLK and Company (“RLK”) move under Fed.R.Civ.P. 26(c) for a protective order (1) limiting the review of plaintiffs' claims to the administrative record in accordance with the Administrative Procedure Act (“APA”) 5 U.S.C. § 701 et seq., and (2) precluding plaintiffs' discovery requests, including plaintiffs' recent interrogatories, requests for admissions, and requests for production of documents. The motions are granted.

I. BACKGROUND

On May 16, 2013, plaintiffs filed their complaint against federal defendants, challenging the Forest Service's approval of RLK's development proposal for the Timberline Ski Area Mountain Bike Trails and Skills Park (the “Project”). Plaintiffs allege that the Forest Service's decision to approve the Project after conducting an Environmental Assessment (“EA”) and subsequently issuing a Finding of No Significant Impact (“FONSI”) and Decision Notice (“DN”) violated NEPA and was arbitrary and capricious under the APA. 5 U.S.C. § 706(2)(A). Plaintiffs also challenge the Forest Service's failure to prepare any kind of NEPA analysis before accepting RLK's Master Development Plan (“MDP”) and amending RLK's Special Use Permit (“SUP”).

Federal defendants timely answered the complaint and filed the administrative record, comprising nearly 30,000 pages, for judicial review. The current record contains the responses to several Freedom of Information Act (“FOIA”) requests initiated by plaintiffs, as well as a supplemental administrative record of nearly 1,500 pages that defendants filed in response to plaintiffs' concern about missing documents in the record.

On October 16, 2013, plaintiffs served 13 interrogatories, 6 requests for admission, and 7 requests for production on federal defendants and RLK. Plaintiffs did not identify any of the information or documents they now seek during the 45–day period this Court ordered for plaintiffs to identify materials missing from the filed administrative record, nor did they move to compel supplementation of the record with documents concerning the information they now seek.

II. DISCUSSION

In their motions for protective order, federal defendants and RLK argue that

[2 F.Supp.3d 1150]

plaintiffs' discovery requests are wholly inappropriate given the well-established rule that judicial review of APA claims is limited to the administrative record. They argue that plaintiffs fail to show how the extensive administrative record is inadequate, especially when agencies are entitled to a presumption that the administrative record is satisfactory absent clear evidence to the contrary. Additionally, federal defendants and RLK argue that plaintiffs have not shown how their need for discovery fits into any of the four narrow exceptions to the APA record rule articulated by the Ninth Circuit. Thus, they contend that plaintiffs' discovery requests threaten undue delay in the adjudication of this case and place a burden on scarce government resources.

In response, plaintiffs shift their focus from their “arbitrary and capricious” claim alleged under § 706(2)(A) of the APA, Compl. ¶ 16, and maintain that they also asserted a “failure to act” claim under § 706(1). Plaintiffs argue that their discovery requests pertain only to their ninth and tenth claims, which allege that the Forest Service violated NEPA when it failed to conduct any kind of environmental assessment before it accepted RLK's MDP, thus failing to act. Plaintiffs seek limited discovery in order to allow them to develop an adequate factual record “by which to evaluate whether the Forest Service failed to engage in the legally required analysis” of the MDP. Pls.' Resp. at 7. Plaintiffs assert that their discovery requests “concentrate on interrogatory answers and admissions that reveal how much the Forest Service knew about the projects identified in the MDP.” Pls.' Resp. at 8.

Plaintiffs also claim that discovery should be permitted to the full extent allowed by Fed.R.Civ.P. 26(b). Plaintiffs argue that their request for limited discovery is permitted under the APA because the information they seek in discovery is necessary to determine whether the agency's course of action was sufficient and whether the agency acted in bad faith.

A. Plaintiffs' Allegations

Given that NEPA does not have a citizen suit provision, plaintiffs properly bring their claims under the APA, as alleged in their complaint. Compl. ¶ 1 (“This is an Administrative Procedure Act challenge of the approval by Defendants ... of R.L.K. and Company's (“RLK”) proposal to develop the Timberline Ski Area Mountain Bike Trails and Skills Park....”).¹

It is well settled that judicial review of agency action under the APA is generally limited to review of the administrative record. 5 U.S.C. § 706. When reviewing a final agency action under the APA, “[t]he task of the reviewing court is to apply the appropriate APA standard of review, 5 U.S.C. § 706, to the agency decision based on the record the agency presents to the reviewing court.” Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743–44, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985). The Supreme Court has explained that when applying the arbitrary and...