Silverton Mountain Guides LLC v. U.S. Forest Serv.

• Decision Date: 31 October 2022
• Docket Number: 3:22-cv-00048-HRH
• Parties: SILVERTON MOUNTAIN GUIDES LLC, an Alaska limited liability company, Plaintiff, v. U.S. FOREST SERVICE, an agency of the U.S. Department of Agriculture, Defendant, and PULSELINE ADVENTURE LLC, Defendant-Intervenor.
• Court: U.S. District Court — District of Alaska

SILVERTON MOUNTAIN GUIDES LLC, an Alaska limited liability company, Plaintiff,
v.
U.S. FOREST SERVICE, an agency of the U.S. Department of Agriculture, Defendant,

and PULSELINE ADVENTURE LLC, Defendant-Intervenor.

No. 3:22-cv-00048-HRH

United States District Court, D. Alaska

October 31, 2022

ORDER

H. Russel Holland, United States District Judge

Motion to Supplement Administrative Record

Plaintiff Silverton Mountain Guides LLC moves^[1] to supplement the administrative record (“Administrative Record”) that defendant U.S. Forest Service (the “Forest Service” or the “Service”) filed in this case concerning a challenge to an agency action pursuant to the Administrative Procedure Act (the “APA”).^[2] The Forest Service and defendant-intervenor Pulseline Adventure LLC (“Pulseline”) oppose the motion.^[3] Oral

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argument was not requested and is not deemed necessary.

Background

Plaintiff is Silverton Mountain Guides LLC, an Alaska limited liability company.^[4]Defendants are the Forest Service, an agency of the U.S. Department of Agriculture, and intervenor Pulseline, an Idaho limited liability company.^[5]

In November 2020, the Forest Service issued a prospectus (the “Prospectus”) soliciting proposals from interested parties to apply for special use permits to provide guided helicopter skiing services on the Cordova Ranger District of the Chugach National Forest.^[6] The Forest Service's stated goals in issuing the Prospectus were to address a growing demand for guided helicopter skiing activities (i.e., winter recreation activities like skiing, snowboarding, and snowshoeing where a helicopter is used to provide up-hill transportation to participants) in the Chugach National Forest and select applicants “best qualified to provide visitors with a safe, satisfying recreation experience that promotes enjoyment, understanding, and appreciation of the Chugach National Forest while minimizing impacts to resources and other forest users.”^[7] The Prospectus identifies several categories of selection criteria used to evaluate applications: (1) business model, (2) client experience, (3) workplace practices, (4) operations, (5), resource protection, and

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(6) local community benefits.^[8] Forest Service regulations and policies establish additional, more generalized criteria, including an applicant's experience, qualifications, and technical and economic feasibility, among others. 36 C.F.R. § 251.54(e)(5); FS Manual 2712.1, Prospectus (U.S.D.A. 2022).

In response to the Prospectus, the Forest Service received seven applications, including one from plaintiff and one from Pulseline.^[9] The Forest Service convened a panel of four individuals to review the applications, all of whom the Service represents it “screened to ensure their objectivity” and “selected for their substantial experience with special use permits, helicopter skiing operations, and other winter sports and outdoor recreation services.”^[10] According to the Forest Service, the panel members conducted their own independent reviews of the applications before convening twice to review and rank the applications and make a joint recommendation to District Ranger Steve Namitz on which applications warranted “further processing.”^[11]

It is against this backdrop that plaintiff submitted what the Forest Service characterized as a “good,” but ultimately lacking, proposal.^[12] After reviewing the panel's evaluation materials-consisting of an application evaluation form, a score and rank associated with each applicant, notes, a recommendation on which applicants to select for further processing, and email correspondence documenting limited background checks

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performed by the Forest Service-and conducting his own review of the Prospectus applications, District Ranger Namitz selected three applicants for further processing: Points North Heli-Adventures, Inc., which received a score of 54.50 points (out of a maximum possible score of 60 points); Pulseline, which received a score of 52.50 points; and Valdez Heli-Ski Guides, LLC, which received a score of 51.00 points.^[13] Plaintiff ranked fourth with 48.75 points, 2.25 points below the third-ranked applicant.^[14]

District Ranger Namitz notified plaintiff of his decision in a two-page letter dated March 1, 2021 (the “Namitz Initial Decision”), communicating the scores and ranks of the top four applicants and a three-sentence synopsis from the evaluation panel summarizing its assessment of plaintiff's application:

It was a good proposal but not nearly as thorough as others Appears they would be a good permit holder and a good partner on the land, however more detail was needed. Appreciated some of the approaches they use that are consistent with ski area management.^[15]

Plaintiff then exercised the administrative review procedures of 36 C.F.R. § 214 to appeal District Ranger Namitz's decision.^[16] In its appeal, Plaintiff requested that the Forest Service process its application in place of Pulseline's application.^[17] Plaintiff's appeal compared and contrasted Pulseline and plaintiff, offering several supporting

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arguments: (1) plaintiff is better qualified than Pulseline; (2) the selection of Pulseline over plaintiff violates the Forest Service's policy to protect the public health and safety; (3) Pulseline is not qualified for a special use permit; and (4) a federal district court will reverse the Forest Service's decision.^[18]

On June 9, 2021, District Ranger Namitz responded to plaintiff's appeal with a 14-page letter (the “Namitz Responsive Letter”) requesting that Forest Supervisor Jeff Schramm, the Forest Service's designated “Appeal Deciding Officer,” issue his own decision on plaintiff's appeal.^[19] In that letter, District Ranger Namitz defended his March 1 decision to select Pulseline's application for further processing over plaintiff's application, citing the “weight of the evidence” generated during the application review and appeal process (including the Prospectus applications and additional materials plaintiff provided with its appeal), the selection criteria the Forest Service established at the outset of the process, and the evaluation panel's recommendations.^[20]

Forest Supervisor Schramm issued a written decision on the appeal on August 9, 2021 (the “Schramm Decision”).^[21] The Schramm Decision affirmed District Ranger Namitz's March 1 decision and denied the relief plaintiff requested through a 13-page response expressly based on the materials generated throughout the Prospectus process, plaintiff's appeal, the Forest Service's selection criteria, and the Namitz

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Responsive Letter.^[22] After receiving the Schramm Decision, the Forest Service's “Discretionary Reviewing Officer,” David Schmid, declined further review of plaintiff's appeal on September 7, 2021, rendering the Schramm Decision the Forest Service's final action on plaintiff's Prospective application and appeal.^[23]

While the Prospectus application appeal process played out, plaintiff's owner, Aaron Brill, submitted a Freedom of Information Act (“FOIA”) request to the Forest Service seeking information related to the evaluation panel's review process, including Pulseline's application and the panel's score reports for plaintiff and Pulseline.^[24] The Forest Service provided partially redacted documentation in response to Brill's request, claiming exemptions under FOIA, 5 U.S.C. § 552(b)(4)-(6).^[25] Brill later appealed the Service's FOIA response but as of the filing of plaintiff's complaint was not satisfied with the agency's efforts to respond to his appeal.^[26]

Plaintiff commenced this action on March 14, 2022. In its complaint, plaintiff asserts the following causes of action against the Forest Service: (1) arbitrary and capricious final agency action under the APA, and (2) unlawful withholding of information subject to disclosure under FOIA.^[27] Plaintiff requests: (1) a declaration that the Schramm Decision violated the Forest Service's special use regulations and the APA, (2) vacatur of the Schramm Decision to the extent it ranked Pulseline ahead of plaintiff,

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(3) an order remanding the matter to the Forest Service with instructions to advance plaintiff's application for “further processing,” (4) a declaration that the Forest Service's failure to produce the names of the evaluation panel members violated FOIA, (5) an order directing the Forest Service to produce the names of the evaluation panel members, (6) an order awarding plaintiff its attorneys' fees and costs, and (7) such other relief that the court deems appropriate.^[28]

On July 18, 2022, the Forest Service filed its Administrative Record, the sufficiency of which plaintiff challenges through its present motion due to alleged improper redactions and omissions that purportedly would fill an information gap.^[29]Plaintiff specifically takes issue with the Forest Service's redaction of significant portions of the Administrative Record's content to protect what the Service maintains is information subject to the deliberative process privilege or which warrants confidential treatment for business or privacy concerns.^[30] Plaintiff now moves for the court to order the Forest Service to “supplement” the Administrative Record by adding: (1) unredacted versions of the evaluation panel's findings, recommendations, notes, and checklists (the “Evaluation Panel Materials”); (2) unredacted versions of plaintiff and Pulseline's Prospectus applications (the “Prospectus Applications”); (3) unredacted versions of the law enforcement records, incident reports, and other documents related to the Forest Service's background checks on the Prospectus applicants (the “Law Enforcement

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Documents”); (4) an unredacted version of the “appeal file” cited by Forest Supervisor Schramm in his August 9, 2021, decision; and (5) a declaration from Brill and documents attached as exhibits thereto (the “Brill Submission”),...