United States District Court, E.D. California
MEMORANDUM DECISION AND ORDER RE PLAINTIFF'S MOTION TO ADMIT EXTRA RECORD EVIDENCE (Doc. 48)
LAWRENCE J. O'NEILL, District Judge.
Plaintiff Sequoia ForestKeeper ("ForestKeeper") challenges the United States Forest Service's ("Forest Service") Decision Notice and Finding of No Significant Impact ("Decision Notice") for the Hume Roadside and Recreation Site Hazard Tree Project ("Hume Hazard Tree Project" or "Project") in the Giant Sequoia National Monument ("the Monument") under the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq., and the National Forest Management Act ("NFMA"), 1600 U.S.C. §§ 1600 et seq and the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2).
II. PROCEDURAL HISTORY
Plaintiff filed a complaint March 7, 2014 and on March 16 moved for a preliminary injunction ("PI") halting the sale and removal of trees under the authority of the Hume Hazard Tree Project. Doc. No. 10-1. This decision was based on the adoption of "Alternative D" in the Project's Environmental Assessment ("EA"). The Forest Service received no bids for the proposed timber sale. Doc. No. 17. On April 3, 2014, Plaintiff withdrew its PI subject to a stipulation in which parties agreed that the USFS could use its own contractors and employees to fell hazard trees, but would not sell the trees or remove them from the Project Area unless this case is resolved in the Forest Service's favor. Id. at ¶ 2.
On June 4, 2014, Defendant Forest Service District Ranger Teresa Benson issued a decision to withdraw authorization of the decision to sell and remove trees from the Project Area by striking the sentence authorizing this sale from the Decision Notice. Doc. No. 23-2 ("Withdrawal Notice"). In an accompanying document, Benson explained that it was not economically feasible to use a timber sale for the removal of trees the Forest Service felled pursuant to its stipulation. Doc. No. 23-3 ("Withdrawal Memo"). Because the Forest Service had considered this situation under Alternative C in the EA, Benson concluded that she did not need to supplement or revise the EA to accommodate the change in position. Id. Neither document altered the Forest Service's approval of Alternative D as the preferred alternative. Rather, the Withdrawal Memo stated that the "analysis and conclusions in the original Environmental Assessment are still valid." Id.
On June 9, 2014, Defendants moved to dismiss the case pursuant to Federal Rule of Civil Procedure 12(b)(1) on the basis that Benson's withdrawal of the approval to sell and remove trees from the project area mooted Plaintiff's claims. Defs.' Mem. at 1. This Court denied Defendants' Motion to Dismiss on the basis that the Forest Service's voluntary cessation of the timber sale did not moot ForestKeeper's claims and that the EA is a "continuing and brooding presence that looms over Plaintiff's interests." Doc. 37 at 8-11. The Court also held that ForestKeeper had standing to challenge the Monument Management Plan. Id. at 13.
Subsequently, a scheduling order was issued based on the parties' agreement to lodging records and dispositive motions. Doc. 43. Plaintiff timely filed its motion for summary judgment ("MSJ"), Doc. 47, and motion to admit extra-record evidence ("MXRE"), Doc. 48, on January 30, 2015. Plaintiff seeks to admit two declarations which contain the results of scientific analyses Plaintiff alleges the Forest Service should have considered prior to making its decisions. MXRE at 1.
Defendants' deadline to respond to both documents was initially March 13, 2015, but the parties agreed to move up the deadline for Defendants' response so that the Court could rule before Defendants' response to Plaintiff's MSJ and their cross-motion for summary judgment are due. See M.O. 49 & 52. Defendant filed its opposition to the MXRE to February 25, 2015. Defs.' Opposition to Pl.'s Mot. to Admit Extra-Record Evidence ("Opposition"), Doc. 50. Plaintiff replied March 1, 2015. Reply in Supp. of Pl.'s Mot. to Admit Extra-Record Evidence ("Reply"), Doc. 51.
III. STANDARD OF DECISION
"In general, a court reviewing agency action under the APA must limit its review to the administrative record." San Luis & Delta-Mendota Water Auth. v. Locke, No. 12-15144, 2014 WL 7240003, at *9 (9th Cir. Dec. 22, 2014). The purpose of this rule is to ensure that the reviewing court affords the agency sufficient deference. Id. Under the APA, an agency has substantial discretion "to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive." Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378 (1989). The concern with a reviewing court considering evidence that was not before agency is that "it inevitably leads the reviewing court to substitute its judgment for that of the agency." Locke, 2014 WL 7240003, at *9 (quoting Asarco, Inc. v. E.P.A., 616 F.2d 1153, 1160 (9th Cir.1980)). A reviewing court may not perform a de novo review of the agency's action and must "limit[ ] itself to the deferential procedural review that the APA's arbitrary or capricious standard permits." Id.
There are four "narrow exceptions" to the general rule precluding courts from considering extra-record evidence:
(1) if admission is necessary to determine "whether the agency has considered all relevant factors and ...