United States District Court, D. Idaho
IDAHO STATE SNOWMOBILE ASSOCIATION; and THE BLUERIBBON COALITION, Plaintiffs,
UNITED STATES FOREST SERVICE; U.S. FOREST SERVICE, Northern Region; CLEARWATER NATIONAL FOREST; FAYE KRUGER; Regional Forester, Northern Region; RICK BRAZELL, Forest Supervisor, Clearwater National Forest, Defendants.
MEMORANDUM DECISION AND ORDER
B. LYNN WINMILL, Chief District Judge.
The Court has before it a motion to complete and supplement the Administrative Record. The motion is fully briefed and at issue. For the reasons set forth below, the Court will grant the motion in part, allowing Plaintiffs to take some limited discovery but not deciding at this point whether any of the material uncovered in that discovery will be added to the Administrative Record.
Plaintiffs Idaho State Snowmobile Association and The Blueribbon Coalition represent motorized recreationists. They have sued the Forest Service, challenging the 2012 Clearwater National Forest Travel Plan. That Travel Plan restricts the use of motorized vehicles within recommended wilderness areas of the Clearwater National Forest.
Plaintiffs allege that the Forest Service, in drafting the Travel Plan, applied a policy created by the Forest Service's Northern Region to manage recommended wilderness areas ("RWA"). Plaintiffs allege that this policy - which they call the "Northern Region RWS Policy" - was never discussed in the Administrative Record but played a crucial role in the Forest Service's decision to restrict motorized travel in the Travel Plan. The Plaintiffs now seek to expand the record before the Court to include material regarding the Northern Region RWS Policy, and they challenge that Policy as well as the Travel Plan in this lawsuit.
Prior to filing the motion now before the Court, Plaintiffs asked the Forest Service for any documents regarding this Policy, and the Forest Service provided 17 documents. Plaintiffs' counsel asked for a further search. In response, the Forest Service tasked Peter Zimmerman, a Litigation Specialist in the Northern Region office, to do a search for the documents requested by Plaintiffs. See Zimmerman Declaration (Dkt. No. 28-6) at ¶¶ 1-3. In his search, Zimmerman was assisted by 3 other persons from the Northern Region Office and 6 persons from the Forest Service's Washington D.C. Office. Id. at ¶¶ 2-3. They were able to find 6 more documents for a total of 23. Without waiving any objection to expanding the Administrative Record, the Forest Service has no objection to the Court considering these 23 documents, and the Court will accordingly do so.
Plaintiffs argue that they are entitled to an Order by this Court that the Forest Service conduct a further search for documents and, thereafter, that some limited discovery be authorized. The Forest Service responds that the Administrative Record is complete and should not be expanded. The Court will resolve this dispute after reviewing the legal standards governing the Administrative Record.
In reviewing agency decisions under the APA, judicial review is typically limited to the administrative record already in existence, "not some new record made initially in the reviewing court." Camp v. Pitts, 411 U.S. 138, 142 (1973). A court may consider allowing supplementation of the administrative record in four limited circumstances: (1) supplementation is necessary to determine if the agency has considered all factors and explained its decision; (2) the agency relied on documents not in the record; (3) supplementation is needed to explain technical terms or complex subjects; or (4) plaintiffs have shown bad faith on the part of the agency. Fence Creek Cattle Co. v. U.S. Forest Serv., 602 F.3d 1125, 1131 (9th Cir.2010). These exceptions are narrowly construed:
The scope of these exceptions permitted by our precedent is constrained, so that the exception does not undermine the general rule. Were the federal courts routinely or liberally to admit new evidence when reviewing agency decisions, it would be obvious that federal courts would be proceeding, in effect, de novo rather than with the proper deference to agency process, expertise, and decision-making.
Lands Council v. Powell, 395 F.3d 1019, 1030 (9th Cir.2005). While courts rarely invoke these exceptions, there are instances in which courts "provide limited discovery when serious gaps would frustrate challenges to the agency's action." Pub. Power Council v. Johnson, 674 F.2d 791, 793 (9th Cir.1982). Nonetheless, "[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 . at 794. Indeed, "remand to the agency may satisfy the request for expanding the record in most cases." Id . at 795.
In this case, the Plaintiffs are alleging that the Forest Service considered material outside of the administrative record. In similar circumstances, the Ninth Circuit in Johnson allowed limited discovery. There, plaintiffs alleged that the agency relied on "various memoranda and notes" that were not contained in the Administrative Record. Id. at 794. The Circuit held that (1) plaintiffs' claims were not "frivolous"; (2) remand to the agency would serve no purpose; (3) limited discovery - two depositions and some documentary discovery - would give the plaintiffs an opportunity to determine if the "memoranda and notes" were actually used by the agency; and (4) the decision on whether to expand the record would not be made until after the discovery was completed. Id. at 795.
Johnson provides a blueprint for this Court to resolve the present dispute. Plaintiffs' claims are not frivolous and it is only just to allow them some opportunity to determine if a "Northern Region RWA Policy" existed and was considered by the Forest Service in drafting the Travel Plan. The Forest Service has already searched for documents, and so, like Johnson, ...