Newton County Wildlife Ass'n v. Rogers

• Decision Date: 07 July 1998
• Docket Number: No. 97-1852,97-1852
• Parties: , 28 Envtl. L. Rep. 21,125 NEWTON COUNTY WILDLIFE ASSOCIATION, et al., Plaintiffs-Appellants, v. George ROGERS, et al. Defendants-Appellees, Arkansas Forestry Association, et al., Intervenors-Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 803

141 F.3d 803

46 ERC 1694, 28 Envtl. L. Rep. 21,125

NEWTON COUNTY WILDLIFE ASSOCIATION, et al., Plaintiffs-Appellants, v. George ROGERS, et al. Defendants-Appellees Arkansas Forestry Association, et al., Intervenors-Appellees.

No. 97-1852.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 10, 1997.

Decided April 1, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied July

7, 1998. ^*

Stephen C. Volker, San Francisco, CA, argued (John Holleman, Bryant, AR, on the brief), for Plaintiffs-Appellants.

Lisa E. Jones, Washington, DC, argued (Lois J. Schiffer, David C. Shilton, Joel Armstrong, Kelly Mofield, Robin Richardson, Ethan Shenkman, Washington, DC, on the brief), for Appellees Neff, USFS, et al.

Joseph Michael Klise, Washington, DC, argued (Steven P. Quarles, Thomas R. Lundquist, Washington, DC, Searcy W. Harrell, Jr., Camden, AR, on the brief), for Appellees Southern Timber, et al.

Before FAGG, FLOYD R. GIBSON, and LOKEN, Circuit Judges.

LOKEN, Circuit Judge.

Newton County Wildlife Association, the Sierra Club, and certain individuals (collectively "the Wildlife Association") sued the United States Forest Service and four of its employees (collectively the "Forest Service") to enjoin or set aside four timber sales in the Ozark National Forest. The district court ¹ denied a preliminarily injunction under the Wild and Scenic Rivers Act, 16 U.S.C. §§ 1271, et seq., or the Migratory Bird Treaty Act, 16 U.S.C. §§ 703 et seq., and we affirmed. Newton County Wildlife Ass'n v. United States Forest Service, 113 F.3d 110 (8th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1035, 140 L.Ed.2d 102 (1998). The Wildlife Association now appeals the district court's decision to limit its review to the administrative record, Newton County Wildlife Ass'n v. Rogers, 948 F.Supp. 50 (E.D.Ark.1996), and its subsequent grant of summary judgment in favor of the Forest Service. We affirm.

I. Background.

The Forest Service manages the national forests for "outdoor recreation, range, timber, watershed, and wildlife and fish purposes." 16 U.S.C. § 528. The National Forest Management Act, 16 U.S.C. §§ 1600, et seq. ("NFMA"), requires the Forest Service to develop Land and Resource Management Plans ("Forest Plans") for the management of national forests. See 16 U.S.C. § 1604. Individual projects, including timber sales, are assessed in light of the Forest Plan. See 16 U.S.C. § 1604(i); Sierra Club v. Robertson, 28 F.3d 753, 755 (8th Cir.1994). The Forest Service issued a ten-year Forest Plan for the 1,118,500-acre Ozark National Forest in 1986. The Plan was accompanied by an Environmental Impact Statement ("EIS") analyzing the environmental consequences of timber sales, including the impact of harvesting and road construction on water quality, wildlife and fish, wilderness areas, and threatened, endangered, and sensitive wildlife and plant species.

In the early 1990's, the Forest Service proposed four timber sales in "general" areas of the Buffalo Ranger District (areas administered under the Plan to yield a high level of timber). The proposed sales--Sand Gap, Round Hill, Junction, and Sandy Springs-- involve timber harvesting on a total of 3,011 acres of forest and require 13.64 miles of logging road reconstruction and 5.08 miles of new road. For each proposed sale, the Forest Service mailed notices to affected and interested members of the public, including the Wildlife Association, describing the proposal and soliciting comments. After receiving responses, the Forest Service studied site-specific environmental effects and developed Environmental Assessments ("EAs") evaluating the environmental impacts of various sale alternatives, including the "no action" alternative. Biological evaluations were prepared analyzing likely effects on species known to inhabit the Forest. The District Ranger circulated the EAs with requests for public comment prior to issuing Decision Notices.

The Forest Service issued Decision Notices for Sand Gap and Round Hill on May 27, 1994. Administrative appeals were rejected by September 1994, and the sales took place that fall. Purchasers commenced road construction and logging in the spring of 1995. The Forest Service issued Decision Notices for Junction and Sandy Springs on June 19 and May 22, 1995, and rejected administrative appeals in the fall of 1995. The Wildlife Association filed this lawsuit on December 20, 1995. The second amended complaint alleges that plaintiffs "seek judicial review of final agency action in approving" the four timber sales. Counsel for the Forest Service advised at oral argument that approximately three-fourths of road work and timber harvesting in the four sale areas is now completed.

The Forest Service approved the timber sales acting under NFMA. That Act "provides the mechanism for obtaining judicial review." See Defenders of Wildlife v. Administrator, E.P.A., 882 F.2d 1294, 1303 (8th Cir.1989). Though the Wildlife Association argues that the timber sales violate no less than six substantive federal statutes, it persistently fails to relate those arguments to the standard for judicial review set forth in the Administrative Procedure Act, which provides that this type of final agency action may be set aside if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 414-15, 91 S.Ct. 814, 822-23, 28 L.Ed.2d 136 (1971); 5 U.S.C. § 706(2)(A). Thus, we deal here primarily with a single cause of action for APA review--not, as the Wildlife Association pleaded, with multiple statutory claims for relief.

II. The Record on Review.

APA review of agency action is normally confined to the agency's administrative record. See Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973). If the agency record is for some reason inadequate, "the proper course, except in rare circumstances, is to remand to the agency for additional investigation." Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598, 1607, 84 L.Ed.2d 643 (1985). When as here there is a contemporaneous administrative record and no need for additional explanation of the agency decision, "there must be a strong showing of bad faith or improper behavior" before the reviewing court may permit discovery and evidentiary supplementation of the administrative record. Overton Park, 401 U.S. at 420, 91 S.Ct. at 825-26; see Cronin v. United States Dep't of Agric., 919 F.2d 439, 444 (7th Cir.1990); Maxey v. Kadrovach, 890 F.2d 73, 77 (8th Cir.1989), cert. denied, 495 U.S. 933, 110 S.Ct. 2176, 109 L.Ed.2d 505 (1990).

We conclude the district court did not abuse its discretion by conducting its judicial review on the voluminous administrative record compiled by the Forest Service for the four timber sales. See Missouri Coalition for the Env't v. Corps of Engineers, 866 F.2d 1025, 1031 (8th Cir.) (standard of review), cert. denied, 493 U.S. 820, 110 S.Ct. 76, 107 L.Ed.2d 42 (1989). The court properly excluded the Wildlife Association's voluminous evidence concerning post-sale logging and road construction because its lawsuit challenges the Forest Service's timber sales decisions, not post-sale activities implementing the sales. On appeal, the Wildlife Association argues this evidence should be admitted by the reviewing court under the bad faith exception to record review because of the discrepancy between the actual logging and road construction taking place, and the environmentally less damaging activity studied in the pre-sale Environmental Assessments (an asserted discrepancy the agency emphatically denies). Like the district court, we find this threshold showing of bad faith woefully inadequate to justify going outside the administrative record.

The Wildlife Association further argues that it must be allowed to go outside the agency record to demonstrate that the Forest Service violated its duty under the National Environmental Policy Act ("NEPA") to consider all relevant environmental factors. See 42 U.S.C. § 4332. We need not decide whether to adopt the Second Circuit's view that courts should be more willing to go outside the administrative record in considering NEPA challenges. See National Audubon Soc'y v. Hoffman, 132 F.3d 7, 14-16 (2d Cir.1997); County of Suffolk v. Secretary of the Interior, 562 F.2d 1368, 1384-85 (2d Cir.1977), cert. denied, 434 U.S. 1064, 98 S.Ct. 1238, 55 L.Ed.2d 764 (1978). Here, the Wildlife Association wishes to supplement the record with evidence of post-sale implementation activity, information that was not available to the Forest Service when it prepared the Environmental Assessments. As we said in Lockhart v. Kenops, 927 F.2d 1028, 1036 (8th Cir.), cert. denied, 502 U.S. 863, 112 S.Ct. 186, 116 L.Ed.2d 148 (1991):

This court's task is to make sure the Forest Service considered the information available at the time it made its decision; if the agency's decision was proper at the time it was made, our inquiry is at an end.

Accord Roanoke River Basin Ass'n v. Hudson, 940 F.2d 58, 63-64 (4th Cir.1991), cert. denied, 502 U.S. 1092, 112 S.Ct. 1164, 117 L.Ed.2d 411 (1992). To the extent the Wildlife Association's extra-record proffers consisted of expert opinions and studies analyzing environmental impacts and conditions known prior to the sales, the Association failed to provide adequate justification for its failure to present those materials to the agency during its decision-making process. See Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 553-54, 98 S.Ct. 1197, 1216-17, 55 L.Ed.2d 460 (1978).

Finally, the Wildlife Association argues that it should be entitled to go outside the administrative record because it has invoked the citizen-suit provisions of the Endangered Species Act, 16 U.S.C. § 1540(g)(1) ("ESA"), and the Clean Water Act, 33 U.S.C. § 1365(a)(1). We disagree....