Forest Serv. Emps. for Envtl. Ethics v. U.S. Forest Serv., CASE NO. 3:17-cv-5747-RBL

• Decision Date: 22 January 2019
• Docket Number: CASE NO. 3:17-cv-5747-RBL
• Court: U.S. District Court — Western District of Washington
• Parties: FOREST SERVICE EMPLOYEES FOR ENVIRONMENTAL ETHICS, Plaintiff, v. UNITED STATES FOREST SERVICE, Defendant.

FOREST SERVICE EMPLOYEES FOR ENVIRONMENTAL ETHICS, Plaintiff, v. UNITED STATES FOREST SERVICE, Defendant.

CASE NO. 3:17-cv-5747-RBL

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA

January 22, 2019

HONORABLE RONALD B. LEIGHTON

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

INTRODUCTION

THIS MATTER comes before the Court on Defendant United States Forest Service's Supplemental Brief in Support of Cross-Motion for Summary Judgment. Dkt. #27. The parties previously filed cross motions for summary judgment, and the Court ruled in favor of the Defendant on all claims except one: whether the Forest Service violated the NFMA and APA by granting a special use permit to the Navy without considering if there were reasonable private land alternatives. The Court stated that "the Forest Service committed an error by failing to provide any reason for why the Navy's training could not be accommodated on private land, as required by the Forest Plan." Dkt. #26, at 17. However, the Court went on to order additional briefing on the issues of whether the Forest Service's error was harmless and, if not, what the appropriate remedy would be. Id.

DISCUSSION

With its supplemental brief, the Forest Service submitted three declarations. Two, the declarations of John Mosher and Dean R. Millet, shed light on the Navy and Forest Service's process of ruling out private land. Mosher, a Navy Environmental Program Manager, states that he worked with a Navy Range Team starting in 2009 to evaluate sites for the Navy's mobile emitters.¹ He explains that the team reviewed a variety of maps and mapping programs to determine that private land would not be a suitable option for the mobile emitters. The reasons include the small amount of private land beneath the Olympic Military Operations Areas ("MOA"), its non-contiguous nature, the variety of owners, vegetation obstructions, lack of cliffs and ridges near roads, and a general absence of maintained roads. Dkt. #27-1, at 5-6. Mosher also states that he attended a meeting with Millet and other Forest Service personnel in November 2014, at which there was a "group discussion" of the private land requirement and the Navy's analysis. Id. at 7-8; Dkt. #27-3, at 2.

Millett, a District Ranger for the Olympic National Forest, ultimately approved the Navy's special use permit application. Dkt. #27-3, at 1. In addition to attending the November 2014 meeting, Millet also states that he and other staff "reviewed the application and justificationwhy other lands would not be suitable." Id. at 3. In granting the permit, Millet was also "guided" by his personal knowledge of the area, in which most of the industrial private land within the MOA is at a lower elevation and flatter than Forest Service land, while the non-industrial holdings consist of small farms or ranches that would be unsuitable for mobile emitter activities. Id. at 4.

FSEEE argues that the Court may not consider these declarations because they do not satisfy any of the exceptions to the general rule that courts must confine themselves to the administrative record in an APA review. FSEEE also contends that the Forest Service's declarations do not really address whether the agency's error was harmless, but whether the agency erred at all. The Forest Service responds that the declarations are admissible to explain the agency's decision. It also adds that there is no Ninth Circuit authority stating that a court may not consider extra-record documents to determine whether a harmless error occurred or to fashion a remedy.

The Forest Service seems to have misconstrued the Court's prior order. The Court did not determine that the agency committed some procedural error by failing to "memorialize" its reasoning. Dkt. #27, at 6. FSEEE's claims were based on the NFMA's substantive requirements, not NEPA's procedural ones. See Native Ecosystems Council v. U.S. Forest Serv., an agency of U.S. Dep't of Agric., 418 F.3d 953, 958 n.4 (9th Cir. 2005). Therefore, the Court's conclusion that the record did not explain the Forest Service's reasons for ruling out private land amounted to a conclusion that the agency did not come up with reasons at all. See California Communities Against Toxics v. U.S. E.P.A., 688 F.3d 989, 993 (9th Cir. 2012) (the court's review focuses on the reasoning employed by the agency); Native Ecosystems, 418 F.3d at 965 n.11 (finding that the Forest Service had "not ensured the project [was] in compliance with" forest planrequirements because it had failed to adequately explain its reasoning in the record). This is a result of APA review's epistemological limitations. Because courts cannot get inside agency officials' heads, evaluating an agency's decision-making process inevitably requires identifying a stand-in for the bureaucratic mind. That stand-in is generally the administrative record.

Consequently, supplementing the record with the Forest Service's declaration would necessarily involve revisiting the merits of the decision-making process itself. Expanding the universe of what went into the agency's decision by including all required considerations would render any error not just harmless but nonexistent. Indeed, this is likely the reason that neither party could find a Ninth Circuit case supplementing the record to decide the issue of harmless error - all of the exceptions identified by the Ninth Circuit are only relevant to whether an error occurred at all. See Southwest Center, 100 F.3d at 1450. Furthermore, allowing an agency to say through retrospective declarations that its error was harmless because it would have reached the same conclusion if it had done the required analysis would amount to a post-hoc rationalization. See Ctr. for Biological Diversity v. U.S. Bureau of Land Mgmt., 698 F.3d 1101, 1124 (9th Cir. 2012). The Ninth Circuit has rejected such attempts in the past. Nw. Res. Info. Ctr., Inc. v. Nw. Power & Conservation Council, 730 F.3d 1008, 1019 (9th Cir. 2013) (rejecting the agency's "post-hoc litigation position" that its error was harmless because "no amount of public comment" would have led it to adopt a different methodology).

However, the fact that the Court cannot consider the Forest Service's declarations to decide harmless error does not change the fact that the declarations exist. If they did fall within one of the recognized exceptions allowing extra-record documents, the only reason for ignoring them would be their untimely submission after the initial Motion for Summary Judgment. Furthermore, as the Forest Service points out, these declarations may compel the conclusion thatany action the Court may require from the agency on remand would be a duplicative waste of time. Faced with a choice between mandating a wasteful outcome and revisiting an earlier conclusion, the latter option is clearly superior.

As a general rule, a court reviewing an agency action must limit itself to "scrutinizing the administrative record at the time the agency made its decision." Asarco, Inc. v. U.S. Envtl. Prot. Agency, 616 F.2d 1153, 1159 (9th Cir. 1980). However, this circuit has recognized several exceptions to this rule. Extra-record materials may be considered "(1) if necessary to determine 'whether the agency has considered all relevant factors and has explained its decision,' (2) 'when the agency has relied on documents not in the record,' or (3) 'when supplementing the record is necessary to explain technical terms or complex subject matter.' Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1450 (9th Cir. 1996) (quoting Inland Empire Pub. Lands Council v. Glickman, 88 F.3d 697, 703 (9th Cir. 1996)). These exceptions do not alter the principle that "review of an administrative agency's decision begins and ends with the reasoning that the agency relied on in making that decision." California Communities Against, 688 F.3d at 993.

The first exception is the only one potentially relevant here, but "this exception is so broad in its formulation, courts have been reluctant to invoke it." Pub. Power Council v. Johnson, 674 F.2d 791, 794 (9th Cir. 1982). Instead, "[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. There are, nonetheless, some instances where courts have reviewed "affidavits or testimony" to obtain "such additional explanation of the reasons for the agency decision as may prove necessary." Id.; Camp v. Pitts, 411 U.S. 138, 143 (1973). Where there is "no substantial basis" to conclude that an agency's explanation is "simply an after-the-factrationalization," affidavits or other testimony may be used to show that an agency's action was not an abuse of discretion. See San Luis & Delta-Mendota Water Auth. v. United States, 672 F.3d 676, 714-15 (9th Cir. 2012); see also Midwater Trawlers Coop. v. Dep't of Commerce, 393 F.3d 994, 1008 (9th Cir. 2004) (affirming order to supplement the record with documents and declarations to permit the Fisheries Service to "more fully explain . . . its adoption of the sliding scale methodology"); San Diego Navy Broadway Complex Coal. v. U.S. Coast Guard, No. 10CV2565-IEG RBB, 2011 WL 1212888, at *6 (S.D. Cal. Mar. 30, 2011) (supplementing the record with a declaration from the Coast Guard explaining the agency's reasons for eliminating the security zone around cruise ships).

Typically, when courts supplement the administrative record, they do so in response to a motion from the agency or sua sponte after determining its necessity for effective judicial review. See, e.g., Dunn v. F.D.I.C., No. CV 08-06652 MMM AJWX, 2012 WL 1986042, at *7 (C.D. Cal. May 31, 2012) (ordering supplementation sua...