Conservation Cong. v. U.S. Forest Serv., 2:13-cv-00934-JAM-DB
| Decision Date | 27 May 2020 |
| Docket Number | No. 2:13-cv-00934-JAM-DB,2:13-cv-00934-JAM-DB |
| Parties | CONSERVATION CONGRESS and the CITIZENS FOR BETTER FORESTRY, Plaintiffs, v. UNITED STATES FOREST SERVICE, and the UNITED STATES FISH AND WILDLIFE SERVICE, Defendants. |
| Court | U.S. District Court — Eastern District of California |
In 2012, Conservation Congress and the Citizens for Better Forestry sued the United States Forest Service and the United States Fish and Wildlife Service. Compl., ECF No. 1. Plaintiffs alleged that by approving the "Pettijohn Project," a fuel-reduction project that would require cutting down trees in Shasta-Trinity National Forest, the two agencies violated the Endangered Species Act (ESA), the National Environmental Policy Act (NEPA), the National Forest Management Act (NFMA), and the Administrative Procedure Act (APA). See Compl. ¶¶ 2, 10.
The parties stipulated to stay the proceedings after the Forest Service requested additional consultation with the Fish and Wildlife Service on the project. Six years later, the Forest Service issued a Supplemental Information Report ("2019 SIR"). First Am. Compl. (FAC) ¶ 60, ECF No. 32. The 2019 SIR considered new information and modified the Pettijohn Project accordingly. Id. In response, Plaintiffs filed an amended complaint, alleging the project still violated the ESA, NEPA, NFMA, and APA. See FAC, ECF No. 32. Plaintiffs also filed a motion to supplement the administrative record. See Memo. ISO Mot. to Supp. Admin. Record ("Mot.), ECF No. 39.1
Plaintiffs seek to supplement the record with the following documents:
/// In Plaintiffs' opening brief, they requested to supplement the administrative record on all three of their ESA claims (Claims I, II, III) with all three exhibits. Mot. at 3. They also sought to supplement the record on their two NEPA claims (Claims VII, IX) with Exhibits A and B. Mot. at 10. Ultimately, the parties agreed to supplement the administrative record of Plaintiffs' failure-to-reinstate-consultation claim and Plaintiffs' failure-to-supplement claim with Exhibit C. See Opp'n at 1, ECF No. 43; Reply at 2, ECF No. 44. Moreover, Plaintiffs withdrew their request to supplement the record of their ESA claims with Exhibits A and B.2 Bearing these developments in mind, the Court is left to review the following: (1) Plaintiffs' request to supplement the administrative record of Claims I and II with Exhibit C, and (2) Plaintiffs' request to supplement the administrative record of Claims VII and IX with Exhibits A and B.
For the reasons set forth above, the Court grants in part and denies in part plaintiffs' motion to supplement the administrative record. The Court grants Plaintiffs' motion to supplement the record of their NEPA failure-to-supplement claim with Exhibits A and B. The Court also grants Plaintiffs' motionto supplement the administrative record of their ESA claims with Exhibit C. The Court, however, denies Plaintiffs' motion to supplement the record of their NEPA hard-look claim with Exhibit A or B.
The APA "provides a right to judicial review of all 'final agency action for which there is no other adequate remedy in a court.'" Bennett v. Spear, 520 U.S. 154, 175 (1997). Generally, "courts reviewing an agency decision are limited to the administrative record." Lands Council v. Powell, 395 F.3d 1019, 1029 (9th Cir. 2005) (citing Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985)). A "records review" case "typically focuses on the administrative record in existence at the time of the [agency's] decision and does not encompass any part of the record that is made initially in the reviewing court." Id. at 1029-30 ). But this general rule is not without exception. Id. at 1030.
It is well-established that "district courts are permitted to admit extra-record evidence: (1) if admission is necessary to determine 'whether the agency has considered all relevant factors and has explained its decision,' (2) if 'the agency has relied on documents not in the record,' (3) 'when supplementing the record is necessary to explain technical terms or complex subject matter,' or (4) 'when plaintiffs make a showing of agency bad faith.'" Id. (quoting Southwest Ctr., 100 F.3d at1450). The "Lands Council exceptions" are "widely accepted" but "narrowly construed." Id. District courts only employ these exceptions when necessary to "identify and plug holes in the administrative record." Id.
Plaintiffs request the Court supplement the record of Claims VII and IX with Exhibits A and B under Lands Council's "all relevant factors" exception. Exhibit A is a September 2016 update to the Forest Service's Resource Planning Act Assessment and Exhibit B, published in June 2016, is a Forest Service resource that details how to account for climate change when conducting a NEPA analysis. See Exs. A-B to Mot. As Defendants argue, different administrative records apply to these claims "because Plaintiffs' hard-look claim challenges final agency action . . . while their failure-to-supplement claim seeks to compel agency action unlawfully withheld or unreasonably delayed under the APA." Opp'n at 12. Defendants contend it is improper to supplement Plaintiffs' hard-look claim because Exhibits A and B both post-date the 2012 agency action challenged. Id. at 13-14. And supplementing Plaintiffs' failure-to-supplement claim is improper, Defendants argue, because (1) the agencies did not consider Exhibits A and B in issuing the SIR, and (2) both exhibits are irrelevant to Plaintiffs' claims. Opp'n at 16.
The Court agrees that it is inappropriate to supplement the record of Plaintiffs' hard-look claim with Exhibits A or B. In support of their hard-look claim, Plaintiffs allege, "[t]he Record of Decision for the Pettijohn Project violates NEPA because it fails to adequately analyze and disclose the direct,indirect, and cumulative effects of the Pettijohn Project." FAC ¶ 171. As both parties acknowledge, the Forest Service issued the Record of Decision ("2013 ROD") in March 2013. Mot. at 2; Opp'n at 2. Both parties also agree that Exhibits A and B post-date the 2013 ROD. Mot. 10-12; Opp'n at 13-14. Defendants contend that this fact alone precludes judicial consideration of the proffered documents—even under the Lands Council exceptions. Opp'n at 13-14; see also Tri-Valley CAREs v. U.S. Dept. of Energy, 671 F.3d 1113, 1130 (9th Cir. 2012) (). Plaintiffs, on the other hand, seem to argue that the agencies' 2019 SIR was tantamount to an amended ROD. See Mot. at 10-11; Reply at 5-6. Under this framework, the relevant timestamp is not the 2013 ROD, but the 2019 SIR. The Court does not, however, find any legal basis for Plaintiffs' proposed timeline.
Plaintiffs cite Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, 255 F. Supp. 3d 101, 124 (D.D.C. 2017) for the undisputed proposition that when an agency's extended decision-making process results in successive decisions, documents that post-date one decision may nonetheless be part of a later decision's administrative record. Mot. at 11. But Standing Rock Sioux Tribe, 255 F. Supp. 3d at 124 does not answer the question this motion poses. Rather, the issue is whether this Court can properly interpret Plaintiffs' hard-look claim as a challenge to the 2019 SIR, instead of (or in addition to) a challenge to the 2013 ROD. Phrased differently: is the 2019 SIR a "final agency action" challengeable under NEPA?Plaintiffs do not identify any cases where a court has granted an SIR this designation. Indeed, SIRs are intended to play a "limited role within NEPA's procedural framework." Idaho Sporting Congress Inc. v. Alexander, 222 F.3d 562, 566 (9th Cir. 2000). Agencies use these reports to assess the significance of new information. Id. But agencies may not use SIRs "as a substitute" for NEPA-mandated reports if they ultimately find the new information significant. Id. Absent binding authority to the contrary, the Court finds that equating the 2019 SIR with an amended ROD would categorically push SIRs beyond their intended limits. The Court views Plaintiffs' hard-look claim as a challenge to the 2013 ROD and finds Exhibits A and B both post-date the decision challenged. The Court therefore denies Plaintiffs' motion to supplement the administrative record on this claim.
Unlike Plaintiffs' hard-look claim, Plaintiffs' failure-to-supplement claim "is not a challenge to a final agency decision, but rather an action . . . to 'compel agency action unlawfully withheld or unreasonably delayed.'" Friends of the Clearwater v. Dombeck, 222 F.3d 552, 560 (9th Cir. 2000). Consequently, "review is not limited to the record as it existed at any point in time, because there is no final agency action to demarcate the limits of the record." Id. Under these circumstances, courts may even consider extra-record evidence prepared after the onset of litigation. See id. at 560-61....
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