1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 CONSERVATION CONGRESS and the No. 2:13-cv-00934-JAM-DB

CITIZENS FOR BETTER FORESTRY,

10 Plaintiffs, 11 ORDER GRANTING IN PART AND v. DENYING IN PART PLAINTIFFS’ 12 MOTION TO SUPPLEMENT THE

UNITED STATES FOREST SERVICE, ADMINISTRATIVE RECORD

13 and the UNITED STATES FISH

AND WILDLIFE SERVICE,

14 Defendants. 15 16 In 2012, Conservation Congress and the Citizens for Better 17 Forestry sued the United States Forest Service and the United 18 States Fish and Wildlife Service. Compl., ECF No. 1. Plaintiffs 19 alleged that by approving the “Pettijohn Project,” a fuel- 20 reduction project that would require cutting down trees in 21 Shasta-Trinity National Forest, the two agencies violated the 22 Endangered Species Act (ESA), the National Environmental Policy 23 Act (NEPA), the National Forest Management Act (NFMA), and the 24 Administrative Procedure Act (APA). See Compl. ¶¶ 2, 10. 25 The parties stipulated to stay the proceedings after the 26 Forest Service requested additional consultation with the Fish 27 and Wildlife Service on the project. Six years later, the Forest 28 Service issued a Supplemental Information Report (“2019 SIR”). 1 First Am. Compl. (FAC) ¶ 60, ECF No. 32. The 2019 SIR considered 2 new information and modified the Pettijohn Project accordingly. 3 Id. In response, Plaintiffs filed an amended complaint, alleging 4 the project still violated the ESA, NEPA, NFMA, and APA. See 5 FAC, ECF No. 32. Plaintiffs also filed a motion to supplement 6 the administrative record. See Memo. ISO Mot. to Supp. Admin. 7 Record (“Mot.), ECF No. 39.1 8 Plaintiffs seek to supplement the record with the following 9 documents: 10 1. Future of America’s Forests and Rangelands – Update to 11 the Forest Service 2010 Resources Planning Act 12 Assessment, Chapter 6 “Forest Carbon” (USDA Sept. 2016), 13 cited in 2012 FEIS, USFS AR Record No. 34 at PAR-00054 14 (Exhibit A, Declaration of Sean Malone (Malone Decl.)); 15 2. Brandt, Leslie; Shultz, Courtney (June 2016). Climate 16 Change Considerations in National Environmental Policy 17 Act Analysis. U.S. Department of Agriculture, Forest 18 Service, Climate Change Resource (Exhibit B, Malone 19 Decl.); and 20 3. Process Paper for the Interim Baseline Adjustment for 21 Northern Spotted Owl and its Critical Habitat: 2008 22 through 2018 Wildfires (USFWS Dec. 20, 2018) (Exhibit C, 23 Malone Decl.). 24 Mot. at 3. 25 /// 26

27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 28 scheduled for April 21, 2020. 1 In Plaintiffs’ opening brief, they requested to supplement 2 the administrative record on all three of their ESA claims 3 (Claims I, II, III) with all three exhibits. Mot. at 3. They 4 also sought to supplement the record on their two NEPA claims 5 (Claims VII, IX) with Exhibits A and B. Mot. at 10. 6 Ultimately, the parties agreed to supplement the administrative 7 record of Plaintiffs’ failure-to-reinstate-consultation claim 8 and Plaintiffs’ failure-to-supplement claim with Exhibit C. See 9 Opp’n at 1, ECF No. 43; Reply at 2, ECF No. 44. Moreover, 10 Plaintiffs withdrew their request to supplement the record of 11 their ESA claims with Exhibits A and B.2 Bearing these 12 developments in mind, the Court is left to review the following: 13 (1) Plaintiffs’ request to supplement the administrative record 14 of Claims I and II with Exhibit C, and (2) Plaintiffs’ request 15 to supplement the administrative record of Claims VII and IX 16 with Exhibits A and B. 17 For the reasons set forth above, the Court grants in part 18 and denies in part plaintiffs’ motion to supplement the 19 administrative record. The Court grants Plaintiffs’ motion to 20 supplement the record of their NEPA failure-to-supplement claim 21 with Exhibits A and B. The Court also grants Plaintiffs’ motion 22 2 Plaintiffs’ reply brief states they “withdraw[] [their] request 23 to add Exhibits A and B to the administrative record in support of [their] NEPA claims under the Ninth Circuit’s ESA citizen suit 24 exception.” Reply at 3 (emphasis added). The Court infers that Plaintiffs intended to withdraw their request to add Exhibits A 25 and B to the administrative record of their ESA claims, not their NEPA claims. Plaintiffs’ opening brief argued that the ESA 26 citizen suit exception only applies to their ESA claims. Mot. at 27 3-9. Moreover, pages 4-6 of Plaintiffs’ reply brief suggests they still want to supplement the administrative record for their 28 NEPA claims with Exhibits A and B. 1 to supplement the administrative record of their ESA claims with 2 Exhibit C. The Court, however, denies Plaintiffs’ motion to 3 supplement the record of their NEPA hard-look claim with Exhibit 4 A or B. 5 I. OPINION 6 The APA “provides a right to judicial review of all ‘final 7 agency action for which there is no other adequate remedy in a 8 court.’” Bennett v. Spear, 520 U.S. 154, 175 (1997). 9 Generally, “courts reviewing an agency decision are limited to 10 the administrative record.” Lands Council v. Powell, 395 F.3d 11 1019, 1029 (9th Cir. 2005) (citing Fla. Power & Light Co. v. 12 Lorion, 470 U.S. 729, 743-44 (1985)). A “records review” case 13 “typically focuses on the administrative record in existence at 14 the time of the [agency’s] decision and does not encompass any 15 part of the record that is made initially in the reviewing 16 court.” Id. at 1029-30 (quoting Southwest Ctr. For Biological 17 Diversity v. United States Forest Serv., 100 F.3d 1443, 1450 18 (9th Cir. 1996)). But this general rule is not without 19 exception. Id. at 1030. 20 A. NEPA Claims 21 It is well-established that “district courts are permitted 22 to admit extra-record evidence: (1) if admission is necessary to 23 determine ‘whether the agency has considered all relevant 24 factors and has explained its decision,’ (2) if ‘the agency has 25 relied on documents not in the record,’ (3) ‘when supplementing 26 the record is necessary to explain technical terms or complex 27 subject matter,’ or (4) ‘when plaintiffs make a showing of 28 agency bad faith.’” Id. (quoting Southwest Ctr., 100 F.3d at 1 1450). The “Lands Council exceptions” are “widely accepted” but 2 “narrowly construed.” Id. District courts only employ these 3 exceptions when necessary to “identify and plug holes in the 4 administrative record.” Id. 5 Plaintiffs request the Court supplement the record of 6 Claims VII and IX with Exhibits A and B under Lands Council’s 7 “all relevant factors” exception. Exhibit A is a September 2016 8 update to the Forest Service’s Resource Planning Act Assessment 9 and Exhibit B, published in June 2016, is a Forest Service 10 resource that details how to account for climate change when 11 conducting a NEPA analysis. See Exs. A-B to Mot. As Defendants 12 argue, different administrative records apply to these claims 13 “because Plaintiffs’ hard-look claim challenges final agency 14 action . . . while their failure-to-supplement claim seeks to 15 compel agency action unlawfully withheld or unreasonably delayed 16 under the APA.” Opp’n at 12. Defendants contend it is improper 17 to supplement Plaintiffs’ hard-look claim because Exhibits A and 18 B both post-date the 2012 agency action challenged. Id. at 13- 19 14. And supplementing Plaintiffs’ failure-to-supplement claim 20 is improper, Defendants argue, because (1) the agencies did not 21 consider Exhibits A and B in issuing the SIR, and (2) both 22 exhibits are irrelevant to Plaintiffs’ claims. Opp’n at 16. 23 1. Hard-look Claim (Claim VII) 24 The Court agrees that it is inappropriate to supplement the 25 record of Plaintiffs’ hard-look claim with Exhibits A or B. In 26 support of their hard-look claim, Plaintiffs allege, “[t]he 27 Record of Decision for the Pettijohn Project violates NEPA 28 because it fails to adequately analyze and disclose the direct, 1 indirect, and cumulative effects of the Pettijohn Project.” FAC 2 ¶ 171. As both parties acknowledge, the Forest Service issued 3 the Record of Decision (“2013 ROD”) in March 2013. Mot. at 2; 4 Opp’n at 2. Both parties also agree that Exhibits A and B post- 5 date the 2013 ROD. Mot. 10-12; Opp’n at 13-14. Defendants 6 contend that this fact alone precludes judicial consideration of 7 the proffered documents—even under the Lands Council exceptions. 8 Opp’n at 13-14; see also Tri-Valley CAREs v. U.S. Dept. of 9 Energy, 671 F.3d 1113, 1130 (9th Cir. 2012) (finding the Lands 10 Council exceptions “only appl[y] to information available at the 11 time [of the decision], not post-decisional information.”). 12 Plaintiffs, on the other hand, seem to argue that the agencies’ 13 2019 SIR was tantamount to an amended ROD. See Mot. at 10-11; 14 Reply at 5-6. Under this framework, the relevant timestamp is 15 not the 2013 ROD, but the 2019 SIR. The Court does not, 16 however, find any legal basis for Plaintiffs’ proposed timeline. 17 Plaintiffs cite Standing Rock Sioux Tribe v. U.S. Army 18 Corps of Engineers, 255 F. Supp. 3d 101, 124 (D.D.C. 2017) for 19 the undisputed proposition that when an agency’s extended 20 decision-making process results in successive decisions, 21 documents that post-date one decision may nonetheless be part of 22 a later decision’s administrative record. Mot. at 11. But 23 Standing Rock Sioux Tribe, 255 F. Supp. 3d at 124 does not 24 answer the question this motion poses. Rather, the issue is 25 whether this Court can properly interpret Plaintiffs’ hard-look 26 claim as a challenge to the 2019 SIR, instead of (or in addition 27 to) a challenge to the 2013 ROD. Phrased differently: is the 28 2019 SIR a “final agency action” challengeable under NEPA? 1 Plaintiffs do not identify any cases where a court has granted 2 an SIR this designation. Indeed, SIRs are intended to play a 3 “limited role within NEPA’s procedural framework.” Idaho 4 Sporting Congress Inc. v. Alexander, 222 F.3d 562, 566 (9th Cir. 5 2000). Agencies use these reports to assess the significance of 6 new information. Id. But agencies may not use SIRs “as a 7 substitute” for NEPA-mandated reports if they ultimately find 8 the new information significant. Id. Absent binding authority 9 to the contrary, the Court finds that equating the 2019 SIR with 10 an amended ROD would categorically push SIRs beyond their 11 intended limits. The Court views Plaintiffs’ hard-look claim as 12 a challenge to the 2013 ROD and finds Exhibits A and B both 13 post-date the decision challenged. The Court therefore denies 14 Plaintiffs’ motion to supplement the administrative record on 15 this claim. 16 2. Failure-to-Supplement Claim (Claim IX) 17 Unlike Plaintiffs’ hard-look claim, Plaintiffs’ failure-to- 18 supplement claim “is not a challenge to a final agency decision, 19 but rather an action . . . to ‘compel agency action unlawfully 20 withheld or unreasonably delayed.’” Friends of the Clearwater 21 v. Dombeck, 222 F.3d 552, 560 (9th Cir. 2000). Consequently, 22 “review is not limited to the record as it existed at any point 23 in time, because there is no final agency action to demarcate 24 the limits of the record.” Id. Under these circumstances, 25 courts may even consider extra-record evidence prepared after 26 the onset of litigation. See id. at 560-61. Notwithstanding 27 this temporal flexibility, the APA still bars extra-record 28 evidence unless it falls within one of the Lands Council 1 exceptions. 2 Plaintiffs invoke the “all relevant factors” exception. 3 Mot. at 9-10. This exception “only applies where supplementing 4 the record is necessary.” ForestKeeper v. LaPrice, 270 F. Supp. 5 3d 1182, 1128 (E.D. Cal. 2017), aff’d, 723 F. App’x 481 (9th 6 Cir. 2018). Supplementing the record is “necessary” when the 7 administrative record fails to “explain how the [agency used the 8 information before it] and why it reached its decision.’” Id. 9 (quoting Ctr. For Biological Diversity v. Skalski, 61 F. Supp. 10 3d 945, 951 (E.D. Cal. 2014), aff’d, 613 Fed. App’x 571 (9th 11 Cir. 2015)) (modifications in original). For example, “[a] 12 court should supplement the record when the agency ‘fail[s] to 13 consider a general subject matter.” Id. 14 Plaintiffs maintain Exhibits A and B are necessary to 15 determine whether the Forest service adequately considered the 16 Pettijohn Project’s greenhouse gas impact when it decided not to 17 issue a supplemental FEIS. Mot. at 10. Defendants concede the 18 2019 SIR does not address greenhouse gas emissions. Opp’n at 19 15. They argue the Court should nonetheless exclude the 20 exhibits because Plaintiffs’ failure-to-supplement claim does 21 not challenge the agency’s consideration of greenhouse gas 22 emissions. Id. at 15-16. But as Plaintiffs refute, their 23 failure-to-supplement claim properly incorporates by reference 24 an earlier allegation. Reply at 6 (citing Fed. R. Civ. Proc. 25 10(c)). In Plaintiffs’ hard-look claim, they alleged that the 26 Forest service failed to consider “the effect and influence of 27 climate change on the [Pettijohn] Project, as well as the effect 28 and influence of the Project on the climate.” Compl. ¶ 194. 1 Paragraph 203 of the complaint then incorporates that allegation 2 into Plaintiffs’ failure-to-supplement claim. Admittedly, 3 Plaintiffs could have more clearly set forth this theory of 4 liability within the relevant section of their complaint. But 5 their decision to incorporate the allegation by refence 6 certainly falls within the realm of permissible pleading 7 options. Fed. R. Civ. Proc. 10(c). 8 Defendants declined to consider the “general subject 9 matter” of greenhouse gas emissions in assessing whether to 10 issue a supplemental SEIS. Insofar as Plaintiffs’ failure-to- 11 supplement claim challenges this decision, Plaintiffs may 12 proffer Exhibits A and B under the “all relevant factors” 13 exception. 14 B. ESA Claims 15 Far less established than the Lands Council exceptions is 16 what Plaintiffs identify as the “ESA citizen suit exception.” 17 See Reply at 3. As the name suggests, this exception arguably 18 permits parties to present extra-record evidence to the 19 reviewing court in support of a claim arising out of the ESA’s 20 citizen suit provision. See Western Watersheds Project v. 21 Kraayenbrink, 632 F.3d 462, 481-82 (9th Cir. 2011); Washington 22 Toxics Coalition v. EPA, 413 F.3d 1024, 1034 (9th Cir. 2005), 23 abrogated on other grounds by Cottonwood Environ. Law Center v. 24 U.S. Forest Service, 789 F.3d 1075, 1089-91 (9th Cir. 2015). In 25 Kraayenbrink, the Ninth Circuit reasoned that the APA’s scope- 26 of-review limitations did not apply to claims brought under the 27 ESA’s citizen suit provision because “the APA applies only where 28 there is ‘no other adequate remedy in a court.’” 632 F.3d at 1 497 (quoting 5 U.S.C. § 704). Finding the ESA’s citizen suit 2 provision provides an adequate remedy in court, the Ninth 3 Circuit found the APA’s limitation inapplicable and permitted 4 plaintiffs’ submission of extra-record evidence. Id. 5 But district courts within the Ninth Circuit apply 6 Kraayenbrink inconsistently. See Northwest Envir. Advocates v. 7 United States Fish and Wildlife Services, No. 3:18-cv-01420-AC, 8 2019 WL 6977406, at *13 (D. Or. Dec. 20, 2019) (collecting 9 cases). Indeed, as Northwest Envir. Advocates helpfully 10 illustrates, Kraayenbrink gave rise to both inter- and intra- 11 district splits regarding the propriety of the ESA citizen suit 12 exception. Id. Adding to this uncertainty, at least two Ninth 13 Circuit opinions since Kraayenbrink have denounced extra-record 14 evidence in cases involving ESA citizen suit claims—neither, 15 however, expressly overruled or even discussed Kraayenbrink. 16 See Karuk Tribe of California v. U.S. Forest Service, 731 F.3d 17 1006, 1017 (9th Cir. 2012) (referring to a suit involving ESA 18 citizen suit claims as a “record review case” and limiting 19 review to the administrative record); San Luis & Delta-Mendota 20 Water Auth. v. Jewell, 747 F.3d 581, 602-04 (9th Cir. 2014) 21 (expressing “serious concerns” that the district court judge 22 considered extra-record evidence in a case involving ESA citizen 23 suit claims). 24 Although both parties present sound arguments, with respect 25 to the instant motion, this Court adopts Kraayenbrink’s citizen 26 suit exception. The reasoning set forth by Judge Acosta in 27 Northwest Envir. Advocates, 2019 WL 6977406, at *12-14 is 28 particularly persuasive, and places this decision in line with WwADS VAIN EY MVOC IR ere FP Aye 44 UI At

1 other rulings from the Eastern District. See Nat. Res. Def. 2 Council v. Zinke, 347 F.Supp.3d 465, 500-01 (E.D. Cal. 2018); 3 Conservation Congress v. U.S. Forest Service, No. 12-cv-02416- 4 WBS-KJN, 2013 WL 2457481, at *3 (E.D. Cal. June 6, 2013). This 5 | Court declines to wade into the thicket of pronouncing when the 6 | Ninth Circuit has abrogated a prior decision sub silentio. 7 | Accepting Defendants’ position would require that type of 8 endeavor. 9 Plaintiffs seek to supplement their First and Second Claims 10 | with Exhibit C to Malone’s declaration. Both claims arise under 11 the ESA’s citizen suit provision; they therefore fall within 12 Kraayenbrink’s exception. The Court grants Plaintiffs’ motion 13 to supplement the administrative record of these claims. 14 Il. ORDER 15 For the reasons set forth above, the Court GRANTS IN PART 16 and DENIES IN PART Plaintiffs’ motion to supplement the 17 administrative record. The Court GRANTS Plaintiffs’ motion to 18 supplement the record of their NEPA failure-to-supplement claim 19 | with Exhibits A and B. The Court also GRANTS Plaintiffs’ motion 20 to supplement the administrative record of their ESA claims with 21 Exhibit C to their motion. The Court, however, DENIES 22 Plaintiffs’ motion to supplement the record of their NEPA hard- 23 look claim with Exhibit A or B. 24 IT IS SO ORDERED. 25 Dated: May 27, 2020 26 kA 27 teiren staves odermacr 7008 28 11