Hells Canyon Preservation Council v. Jacoby

• Decision Date: 08 May 1998
• Docket Number: No. CIV. 97-1722-AA.,CIV. 97-1722-AA.
• Citation: 9 F.Supp.2d 1216
• Parties: HELLS CANYON PRESERVATION COUNCIL, et al., Plaintiffs, v. Carol H. JACOBY, et al., Defendants.
• Court: U.S. District Court — District of Oregon

Page 1216

9 F.Supp.2d 1216

HELLS CANYON PRESERVATION COUNCIL, et al., Plaintiffs, v. Carol H. JACOBY, et al., Defendants.

No. CIV. 97-1722-AA.

United States District Court, D. Oregon.

May 8, 1998.

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Adam J. Berger, Patti Goldman, Attorneys at Law, Seattle, WA, Jack K. Sterne, Jr., Attorney at Law, Camp Sherman, OR, for Plaintiffs.

Kristine Olson, United States Attorney, Thomas C. Lee, Arno Reifenberg, Asst. United States Attorneys, James F. Zotter, Attorney at Law, Federal Highway Administration, Portland, OR, for Defendants.

OPINION AND ORDER

AIKEN, District Judge.

Plaintiffs bring this action challenging the decision of Carol H. Jacoby, Division Engineer of the Western Federal Lands Highway Division of the Federal Highway Administration, the Federal Highway Administration (FHWA), and the United States Forest Service (USFS) to proceed with the reconstruction of the Gumboot Creek portion of Forest Development Road 39 (FR 39) in the Hells Canyon National Recreation Area (HCNRA) without first preparing either an environmental assessment (EA) or an environmental impact statement (EIS). Plaintiffs are also challenging the USFS's decision to deny plaintiffs access under the Freedom of Information Act to cost estimates for the repair and/or replacement of FR 39. Plaintiffs allege that defendants' decisions violate the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq., the Freedom of Information Act, 5 U.S.C. § 552, and the Administrative Procedures Act, 5 U.S.C. §§ 701-706. Plaintiffs seek declaratory and injunctive relief, costs, and attorney's fees.

Before the court is plaintiffs' motion for summary judgment and permanent injunction (# 11). Plaintiffs seek a declaration that the decision to proceed with the reconstruction and/or repair of FR 39 without first preparing either an EA or an EIS, and without considering a reasonable range of alternatives, is arbitrary and capricious, because the reconstruction may have significant direct, indirect, cumulative, and long-term impacts to populations of chinook salmon and steelhead, which are listed as threatened species under the Endangered Species Act (ESA). Plaintiffs also seek a permanent injunction prohibiting the advertisement, award, or construction of the FR 39 project pending compliance with NEPA.

Also before the court is defendants' motion for summary judgment (# 34). Defendants contend that they have complied with NEPA and properly found that a Categorical Exclusion (CE) applied and that there were no unusual circumstances. Defendants request that the court grant their motion for summary judgment and deny plaintiffs' motion for summary judgment and their request for a permanent injunction.

Consideration of Materials Outside the Administrative Record

Defendants object to plaintiffs' submission of evidence outside the administrative record. Generally, judicial review of an agency decision is limited to review of the administrative record before the agency at the time of the decision. Thompson v. U.S Dept. of Labor, 885 F.2d 551, 555 (9th Cir. 1989). This standard of review is applicable to the review of agency actions in NEPA cases. Animal Defense Council v. Hodel, 840 F.2d 1432, 1436 (9th Cir.1988), amended, 867 F.2d 1244 (9th Cir.1989).

Certain circumstances may justify expanding review beyond the record. National Audubon Society v. U.S. Forest Service, 46 F.3d 1437, 1447 (9th Cir.1993). The reviewing court may go outside the record to consider evidence relevant to the substantive merits of an agency decision: 1) to determine whether the agency considered all relevant factors, Thompson, 885 F.2d at 555; 2) to determine whether the agency's "course of inquiry was sufficient or inadequate," Alpine Lakes Protection Society v. U.S. Forest Service, 838 F.Supp. 478, 481 (W.D.Wash.1993) (citations omitted); 3) when it is necessary to explain the agency's action; 4) when the agency has relied on evidence outside the record; 5) to explain technical terms or complex subject matter; or 6) when there is a showing of agency bad faith, National Audubon Society, 46 F.3d at 1447 fn. 9. "[A]llegations that an EIS has failed to mention serious environmental consequences, failed to adequately discuss some reasonable alternative, or otherwise swept `stubborn problems or serious criticisms ... under the rug,' raises issues sufficiently important to permit the introduction of new evidence in the District Court, including expert testimony with respect to technical matters, both in challenges to the sufficiency of an environmental impact statement and in suits attacking an agency determination that no such statement is necessary." County of Suffolk v. Secretary of the Interior, 562 F.2d 1368, 1384-1385 (2nd Cir.1977), cert. denied, 434 U.S. 1064, 98 S.Ct. 1238, 55 L.Ed.2d 764 (1978)(adopted by the Ninth Circuit in Animal Defense Council).

The plaintiffs have alleged that the agencies involved in this decision have failed to properly consider relevant environmental consequences and the presence of other unusual circumstances such as: 1) likely significant impacts on threatened chinook and steelhead; 2) substantial controversy between the project proponents and other expert agencies regarding those impacts; 3) the potential inconsistency of the project with the ESA, state and federal water quality laws, and other legal requirements; 4) the existence of reasonable, unexamined alternatives that would reduce the threatened impacts; 5) the presence of steep slopes and highly erosive soils; and 6) the presence of flood plains and wetlands. These allegations are sufficient to allow the introduction of evidence outside the record.

Second Declaration of Jon Rhodes

Defendants, at oral argument, asked the court to disregard the second declaration of Jon Rhodes, arguing that his testimony has not been qualified under the requirements of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

The issue of an expert's qualifications is governed by FRE 104(a) and FRE 702. Hopkins v. Dow Corning Corp., 33 F.3d 1116, 1123 (9th Cir.1994), cert. denied, 513 U.S. 1082, 115 S.Ct. 734, 130 L.Ed.2d 637 (1995).¹ Under Daubert the court must engage in a two-part test to determine the admissibility of scientific expert testimony. Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1315 (9th Cir.), cert. denied, 516 U.S. 869, 116 S.Ct. 189, 133 L.Ed.2d 126 (1995). First, the court must determine whether the expert's testimony reflects scientific knowledge, whether the findings are derived by the scientific method, and whether their work product amounts to good science. Id. Second the court must determine whether the proffered testimony would assist the trier of fact to determine facts at issue in the case. Id.

"[I]n order to qualify as scientific knowledge, an inference or assertion must be derived by the scientific method." Id. at 1316 (citation omitted). To determine whether scientific testimony is derived from the scientific method or is based on scientifically valid principles, the party presenting the expert testimony must show that the expert's findings are based on sound science, which requires some objective, independent validation of the expert's methodology. Id. Several factors the court may consider in making this determination include the following: "1) whether the theory or technique employed by the expert is generally accepted in the scientific community; 2) whether its been subjected to peer review and publication; 3) whether it can be and has been tested; and 4) whether the known or potential rate of error is acceptable." Id. at 1316 (citation omitted).

In determining whether the analysis underlying the expert's testimony falls within the range of accepted standards governing how scientists conduct their research and reach their conclusions, the court should consider "whether experts are proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying." Id. at 1317. The fact that an expert is testifying "based on research that he has conducted independent of the litigation provides important objective proof that the research comports with the dictates of good science." Id.

If the testimony is not based on independent research, the party offering the testimony must come forward with other objective, verifiable evidence that the testimony is based on valid scientific principles. Id. at 1317-1318. One way of showing this is to offer proof that the research and analysis supporting the conclusions have been subject to peer review and publication. Id. at 1318. Another way is for the expert to explain precisely how they went about researching their conclusions and point to some objective source to show that they have followed the scientific method, as practiced by a recognized minority of scientists in their field. Id. at 1318-1319.

Mr. Rhodes incorporates his qualifications from his first declaration into his second declaration. Mr. Rhodes co-authored two papers on the effects of forest management activities on salmon habitat. (Rhodes Declaration at 13). In his first declaration, he also cites a number of other scientific studies and administrative documents which he relied upon in forming his opinions. Id. In his second declaration, he states that he reviewed the updated BA. Based on his review of this document and his own professional work experience, he gave his opinion regarding the deficiencies and flaws contained in the updated biological opinion. It appears that Mr. Rhodes' second declaration, when viewed in conjunction with his first declaration, does meet the Daubert requirements. Daubert, 43 F.3d at 1318-1319. It also...