Partners in Forestry Coop. v. U.S. Forest Serv., Case No. 2:12–CV–184.

CourtUnited States District Courts. 6th Circuit. United States District Court (Western District Michigan)
Writing for the CourtROBERT HOLMES BELL, District Judge.
Citation45 F.Supp.3d 677
PartiesPARTNERS IN FORESTRY COOPERATIVE, et al., Plaintiffs, v. UNITED STATES FOREST SERVICE, et al., Defendants.
Docket NumberCase No. 2:12–CV–184.
Decision Date09 September 2014

45 F.Supp.3d 677

PARTNERS IN FORESTRY COOPERATIVE, et al., Plaintiffs
v.
UNITED STATES FOREST SERVICE, et al., Defendants.

Case No. 2:12–CV–184.

United States District Court, W.D. Michigan, Northern Division.

Signed Sept. 9, 2014.


45 F.Supp.3d 680

Marianne Guenevere Dugan, Eugene, OR, for Plaintiffs.

John P. Tustin, U.S. Department of Justice, Washington, DC, Michael L. Shiparski, U.S. Attorney, Grand Rapids, MI, Michael Kirk Pope, Dean & Pope PC, Ironwood, MI, for Defendants.

OPINION

ROBERT HOLMES BELL, District Judge.

In this action for declaratory and injunctive relief, Plaintiffs allege that the United States Forest Service's proposed exchange of federal land for private land violates the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321 –4370(d), and its implementing regulations, 40 C.F.R. Pts. 1500–1508. (ECF No. 18, Am. Compl.) This matter is before the Court on Plaintiffs' motion for summary judgment (ECF No. 58), Plaintiffs' motion for extension of time to file reply (ECF No. 70), and on the Federal Defendant's motion to strike affidavit (ECF No. 73). For the reasons that follow, Plaintiffs' motion for extension of time will be granted, Defendant's motion to strike will be granted, Plaintiffs' motion for summary judgment will be denied, and judgment will be entered in favor of Defendants.

I.

This is a request for review under the Administrative Procedures Act (“APA”), 5 U.S.C. §§ 551 –706, of a decision by the Forest Supervisor for the Ottawa National Forest to approve the Delich Land Exchange Project (the “Project”), a project involving the conveyance of a single 421–acre parcel of private land owned by Robert D. Delich and Lisa Delich adjacent to the southern boundary of the Porcupine Mountains Wilderness State Park in exchange for five1 comparatively small scattered parcels of federal land in Ontonagon County totaling 240 acres. (DN/FONSI, AR 1889).2

In January 2010, the Forest Service issued an Environmental Assessment (“EA”) for the Delich Land Exchange Project. (AR 1202.) In February 2011, the Acting Forest Supervisor entered a Decision Notice and Finding of No Significant Impact (“DN/FONSI”). (AR 1292.) An administrative appeal was taken, and the decision was reversed. (AR 1370.) In October–November 2011, the Forest Service issued a Revised EA. (AR 1554.) In December 2011 the Forest Supervisor issued a revised DN/FONSI, approving the Delich Land Exchange based upon his determination that it would serve the public interest, would further goals of the Ottawa National Forest and the U.S. Forest Service, and would have no significant impact on the environment. (AR 1890–95.) The Forest Supervisor specifically found that

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“[o]wnership consolidation of this land will reduce complexity of the land ownership pattern, decrease land management costs, and offer additional semi-primitive, non-motorized dispersed recreation opportunities.” (Rev. EA 3, AR 1891.) Five administrative appeals were taken. (AR 1928, 1942, 1959, 2016, 2059.) On April 12, 2012, the Regional Forester affirmed the Forest Supervisor's DN/FONSI. (AR 1940, 1957, 2014, 2045, 2075.)

Plaintiffs are two nonprofit organizations and seven individuals who are concerned with the public lands at issue.3 Plaintiffs filed this action against the United States Forest Service, Robert D. Delich, and Lisa Delich, challenging the Forest Service's approval of the Delich Land Exchange Project (“Project”).4 Plaintiffs seek an order declaring that the Forest Service failed to comply with NEPA and enjoining Defendants from undertaking the land exchange unless and until the Forest Service complies with NEPA and the APA. Plaintiffs have filed a motion for summary judgment in their favor on their claim.

II.

Before considering Plaintiffs' motion for summary judgment, the Court will address the two procedural motions. First, Plaintiffs have moved for a one-day extension of the deadline for filing their reply brief. (ECF No. 70.) The motion is not opposed and will be granted.

Second, Defendant's have moved to strike Plaintiffs' submission of an appraisal and declaration of counsel. (ECF No. 73.) In their reply brief, Plaintiffs cited for the first time to an appraisal (the “Appraisal”) that is not part of the Administrative Record filed by Defendant. (Reply Br. 9–10, ECF No. 71.) Plaintiffs subsequently submitted excerpts from the Appraisal and a declaration of counsel in support. (ECF No. 72.) Defendant has moved to strike Plaintiffs' submission because (1) it is untimely, (2) it violates Local Court Rule 7.1, and (3) Plaintiffs have not met their burden to show that the Administrative Record should be supplemented. (ECF No. 73.)

Plaintiffs filed the Appraisal seven and a half months after the deadline set in the Case Management Order (ECF No. 30) for raising objections to the Administrative Record, and they did not file a motion to extend the deadline or to expand the Administrative Record. Plaintiffs' only explanation is that they did not realize that the Appraisal was not in the 5,000+ page Administrative Record until they attempted to cite to it. (Pl. Reply at 10, n. 2.) The Court declines to address these procedural issues, and turns instead to Defendant's third argument, which addresses the merits of Plaintiffs' request to supplement the Administrative Record.

There is no dispute that the Appraisal was prepared for the Forest Service for purposes of the Delich Land Exchange and was reviewed by individuals within the Forest Service as part of the decision-making process concerning the Delich Land Exchange. The Appraisal is referenced in the Revised Environmental Assessment

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prepared by Defendant.5 Defendant nevertheless contends that the Appraisal should not be made part of the Administrative Record because it was not considered by the Forest Supervisor when he approved the Project; he considered the Regional Review Appraisers' evaluations of the full Appraisal, and those evaluations are in the Administrative Record. (AR 680–734; 1489–92.) Plaintiffs respond that the Appraisal is part of the “whole record” that was before the Forest Service, and that they are not seeking to supplement the Administrative Record, but rather to complete the record to include materials that should have been there from the start.

The APA provides that in reviewing agency action, “the court shall review the whole record or those parts of it cited by a party.” 5 U.S.C. § 706 ; Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) (noting that review is to be based on “the full administrative record” that was before the agency at the time of the decision). The court's review is “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 administrative record includes “all materials ‘compiled’ by the agency that were ‘before the agency at the time the decision was made.’ ” Sierra Club v. Slater, 120 F.3d 623, 638 (6th Cir.1997) (quoting James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1095 (D.C.Cir.1996) ). The agency's designation of the Administrative Record is entitled to a presumption of regularity. Bar MK Ranches v. Yuetter, 994 F.2d 735, 740 (10th Cir.1993) (“[D]esignation of the Administrative Record, like any established administrative procedure, is entitled to a presumption of administrative regularity.”). “The court assumes the agency properly designated the Administrative Record absent clear evidence to the contrary.” Id. See also United States v. Martin, 438 F.3d 621, 634 (6th Cir.2006) (noting that agency action is entitled to a presumption of regularity that may be overcome only by “clear evidence”).

As a general rule, judicial review of agency action is limited to a review of the administrative record.See Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973) (per curiam) (“[T]he focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.”). There are exceptions to this rule. See, e.g., Esch v. Yeutter, 876 F.2d 976, 991 (D.C.Cir.1989) (listing 8 exceptions, including “when an agency considered evidence which it failed to include in the record.”). However, before invoking an exception, a plaintiff is generally required to make “a strong showing of bad faith.” Sierra Club, 120 F.3d at 638 (quoting James Madison, 82 F.3d at 1095 ) (internal quotations omitted); see also Fund for Animals v. Williams, 391 F.Supp.2d 191, 198 (D.D.C.2005) (noting that before invoking an exception, “the plaintiff must demonstrate bad faith or improper behavior on the part of the agency, or that, ‘the record is so bare that it prevents effective judicial review.’ ”).

Plaintiffs are not challenging the valuation of the property, so the Appraisal has little relevance to the issues on review. Although the Appraisal was cited in documents considered by the Forest Supervisor, there is no requirement that the administrative

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record...

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