Friends Clearwater v. Higgins

523 F.Supp.3d 1213

FRIENDS OF THE CLEARWATER ; and Alliance for the Wild Rockies, Plaintiffs,

v. Jeanne HIGGINS, Idaho Panhandle National Forest Supervisor; United States Forest Service, an agency of the U.S. Department of Agriculture; and United States Fish & Wildlife Service, an agency of the U.S. Department of Interior, Defendants,andStimson Lumber Company, Intervenor-Defendant.

Case No. 2:20-cv-00243-BLW

United States District Court, D. Idaho.

Signed March 4, 2021

Rebecca Kay Smith, Public Interest Defense Center, P.C., Missoula, MT, for Plaintiffs.

Emma L. Hamilton, Robert Norway, United States Department of Justice, Washington, DC, for Defendants.

Christopher Michael Bromley, McHugh Bromley, PLLC, Boise, ID, Julie Weis, Pro Hac Vice, Haglund Kelley Horngren Jones & Wilder, Sara Ghafouri, Pro Hac Vice, American Forest Resource Council, Portland, OR, for Intervenor-Defendant.

MEMORANDUM DECISION AND ORDER

B. Lynn Winmill, U.S. District Court Judge

INTRODUCTION

Before the Court are Plaintiffs' Motion for Judicial Notice, Completion of the Administrative Record, and/or Supplementation of the Administrative Record (Dkt. 38) and Supplemental Motion for Judicial Notice (Dkt. 47). Defendants' and Intervenor-Defendant oppose the motions. Dkt. 41, 42, 48, 49. For the reasons that follow the Court will grant Plaintiffs' first motion in part and deny it in part, and deny Plaintiffs' second motion.

BACKGROUND

In this case Plaintiffs are challenging the Forest Services' Brebner Flat logging project under the Endangered Species Act, Administrative Procedures Act, National Environmental Policy Act, Wild and Scenic Rivers Act, and National Forest Management Act. The background of the Brebner Flat project, and this case, are more fully set out in the Court's order denying Plaintiffs' motion for a preliminary injunction. Dkt. 28. Relevant here, the Forest Service issued its Final Environmental Assessment for the project in June 2019 and its Decision Notice and Finding of No Significant Impact (FONSI) on October 3, 2019. The Forest Service determined that no federally endangered or threatened wildlife species were likely to be affected by the project.

Plaintiffs contend that the project will negatively impact grizzly bears and Canada lynx. The parties dispute whether grizzly bears and lynx "may be present" in the project area. If either species may be present the Forest Service has a duty to determine whether the project may affect the species.

Defendants lodged the administrative record on September 21, 2020. Plaintiffs now seek to have the Court consider multiple exhibits related to their ESA claims and supplement the administrative record with a draft environmental assessment.

ANALYSIS

A. Exhibits Related to Plaintiffs' ESA Claims

1. Scope of Review

Plaintiffs seek to have the Court consider 12 exhibits in support of their ESA claims. The exhibits offered by Plaintiffs were not part of the administrative record. Defendants argue that the scope of review in ESA cases is limited to the administrative record, and thus, the Court should not consider the additional exhibits.

Plaintiffs bring their ESA claims under the ESA's citizen suit provision. 16 U.S.C. § 1540(g). Because the ESA contains no internal standard of review, courts have adopted the Administrative Procedures Act's standard of review. Karuk Tribe of California v. U.S. Forest Serv. , 681 F.3d 1006, 1017 (9th Cir. 2012) (en banc); Vill. of False Pass v. Clark , 733 F.2d 605, 609 (9th Cir. 1984). Under this standard, "a court may set aside an agency action if the court determines that the action was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ " Karuk Tribe , 681 F.3d at 1017 (quoting 5 U.S.C. § 706(2)(A) ).

Defendants urge that, under this line of precedent, not only does the APA determine the standard of review, but also the scope of review. The Ninth Circuit explicitly rejected this argument in Western Watersheds Project v. Kraayenbrink , 632 F.3d 472 (9th Cir. 2011). In Kraayenbrink , the court stated:

As we explained in Washington Toxics Coalition [v. Environmental Protection Agency , 413 F.3d 1024 (9th Cir. 2005) ], the APA applies only where there is "no other adequate remedy in a court," 5 U.S.C. § 704, and—because the ESA provides a citizen suit remedy—the APA does not apply in such actions. 413 F.3d at 1034. Therefore, under Washington Toxics Coalition we may consider evidence outside the administrative record for the limited purposes of reviewing Plaintiffs' ESA claim. See id. at 1030, 1034.

Id. at 497.

Defendants argue that Kraayenbrink was silently overruled by the Ninth Circuit in Karuk Tribe . There, the Ninth Circuit noted, under the heading of "Standard of Review," "[b]ecause this is a record review case, we may direct that summary judgment be granted to either party based upon our review of the administrative record." 681 F.3d at 1017. The problem with Defendants' reliance on Karuk Tribe is that this single sentence is the only reference to the scope of review in the entire opinion. The scope of review was not an issue by the time the court heard the case en banc.¹ Further, Karuk Tribe does not mention Kraayenbrink . Accordingly, Karuk Tribe cannot be read as overruling Kraayenbrink . See Nw. Coal. for Alternatives to Pesticides v. U.S. E.P.A. , 920 F. Supp. 2d 1168, 1174 (W.D. Wash. 2013).

Further refuting Defendants' argument, that Karuk Tribe somehow overruled Kraayenbrink , is the Ninth Circuit's recent opinion in National Family Farm Coalition v. U.S. Environmental Protection Agency , 966 F.3d 893 (9th Cir. 2020). There the court recognized that an agency's compliance with the ESA is reviewed under the arbitrary and capricious standard of the APA. Id. at 923. But, the court also considered an interim status report the agencies had submitted to Congress, which was not in the administrative record. Id. at 926 & n. 11 ("Although the Interim Report is not in the administrative record, we can consider it ‘for the limited purpose[ ] of reviewing [Petitioners'] ESA claim.’ " (quoting Kraayenbrink , 632 F.3d at 497 )).

This Court previously relied on Kraayenbrink to allow extra-record evidence to support a plaintiff's ESA citizen suit claim. W. Watersheds Project v. U.S. Fish & Wildlife Serv. , 2013 WL 3270363, at *4 (D. Idaho June 26, 2013). This Court agrees with many other district courts that Kraayenbrink is still good law, and that it allows the Court to consider evidence outside the record in ESA cases.² As the plain language of Kraayenbrink states, the Court "may consider evidence outside the administrative record for the limited purposes of reviewing Plaintiffs' ESA claim." Kraayenbrink , 632 F.3d at 497.

Having determined that the Court may consider evidence outside the record in support of Plaintiffs ESA claim, it must next determine what evidence may be considered.³ Plaintiffs ask the Court to take judicial notice of their proffered exhibits. They have offered no affidavits or foundation that would otherwise make these exhibits admissible. Defendants object to the Court taking judicial notice of Plaintiffs exhibits, arguing that judicial notice cannot be used to establish disputed facts. Further, some of the exhibits were generated after the agency decision at issue. Defendants, relying on APA caselaw, argue these exhibits should be excluded because they were not before the agency at the time of the decision.

Kraayenbrink did not set out a specific standard as to what evidence a court may rely on in considering an ESA claim. Despite this, a discussion of Kraayenbrink is informative to the issue. The plaintiffs in Kraayenbrink challenged the Bureau of Land Management's (BLM) amendments to its grazing regulations. The amendments affected 160 million acres of public lands and made changes to public input in rangelands management, the BLM's enforcement powers, and grazing permittee's ownership rights on public grazing lands. The plaintiffs challenged: 1) BLM's determination that the proposed regulations would have no effect on listed species or their critical habitat, and 2) BLM's failure to consult with the U.S. Fish and Wildlife Service (FWS).

In Kraayenbrink , the Ninth Circuit recognized that § 706 of the APA governs review of the plaintiffs' ESA claims. Thus, "the normal ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law’ standard applies." Id. at 496 (quoting Village of False Pass v. Clark , 733 F.2d 605, 609–10 (9th Cir. 1984) ). Under this standard, "[t]o determine whether the BLM's no effect determination was arbitrary and capricious, we must decide whether the BLM considered the relevant factors and articulated a rational connection between the facts found and the choice made." Id. (quotations omitted). "The BLM's decision to forgo consultation with FWS must be reversed if the BLM entirely failed to consider an important aspect of the problem or offered an explanation that runs counter to the evidence before the agency." Id. (quotations omitted).

In Kraayenbrink , there was significant evidence in the record that BLM's regulations "may affect" listed species. Id. at 497. After discussing the evidence in the record, the court went on to discuss several extra-record expert declarations submitted in support of the plaintiffs' ESA claim. The court relied on the record, and the extra-record declarations, to find that there was "resounding evidence" that the regulations "may affect" listed species. Id. at 498. The court also relied on the extra-record evidence to determine that the regulatory amendments were not purely administrative, but instead would have a substantive effect on listed species. Id.

The court concluded by stating:

Although our review under the arbitrary and capricious standard is deferential, it does not condone a ‘clear error of judgment.’ Because the BLM failed to consider relevant expert analysis or articulate a rational connection between the facts found

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