Before the court is defendants’ motion to strike the declaration of Kenneth Cole and memorandum in support (#53). Plaintiff responded (#58) and defendants replied (#62).
Defendants approved the Cave Valley and Lake Valley Watershed Restoration Plan Environmental Assessment (“Restoration Plan”) to address the risk of catastrophic wildfire and improve wildlife habitat. The Restoration Plan is intended to reduce fire risk by removing vegetation that is creating hazardous fuel loads for fires. The treatments are also meant to improve habitat for greater sage grouse by removing trees where they are encroaching on sagebrush habitat, removing noxious weeds, and thinning overgrown sagebrush. The rangeland improvements are designed to better distribute livestock and improve rangeland health.
Plaintiff asserts defendants intend to mow, chop, burn, and poison over 146, 000 acres of sagebrush habitat; and construct or reconstruct dozens of range developments (including over 400 miles of fences, pipelines, reservoirs, and wells) within vital habitat for the greater sage-grouse. Plaintiff contends the decisions of defendants violate the National Environmental Policy Act (“NEPA”).
Plaintiff filed a motion for partial summary judgment (#45) that references a simultaneously filed declaration by Kenneth Cole (#46). In his declaration, Cole states he is the NEPA coordinator for plaintiff and his duties include reviewing proposed decisions of the defendants and U.S. Forest Service and “submitting comments . . . and otherwise participating in the comment process for grazing allotments across Nevada and Idaho.” (#46 at ¶ 2).
Defendants move to strike the declaration. They contend the case is brought pursuant to the Administrative Procedures Act (“APA”) and therefore should be decided based on the administrative record submitted by the agency. They further aver the declaration and the accompanying exhibits were created after the administrative process and administrative appeals were completed in this case and therefore are not part of the administrative record. Plaintiff did not move to supplement the record with these materials, but instead submitted them for the first time when it filed its motion for partial summary judgment.
Plaintiff asserts the declaration was filed to fill in gaps in the administrative record, particularly regarding defendants’ failure to adequately relate their approved vegetation treatments to other landscape characteristics in the Cave and Lake valleys, including major vegetation communities, riparian areas, sage-grouse habitat, and the precipitation regime. Plaintiff contends supplementing the administrative record in this manner is appropriate to explain complex matters involved in the agency action. Additionally, plaintiff asserts supplementing defendants’ administrative record to include the declaration is also appropriate because the declaration avoids advancing a new rationale attacking defendants’ decision, and instead consists of background information explaining the original record.
There are three parts to the declaration. In part one, Cole describes twelve maps he created using information from public databases and from the administrative record (Id. at ¶¶ 5-20). In the second part, he describes photographs that he took at different times within or near the Cave valley treatment area in October 2009 and one photograph taken in August 2011 while on a site visit that preceded defendants’ release of the preliminary Restoration Plan Environmental Assessment (“EA”) (Id. at ¶¶ 21-27). In the third part, he analyzes data regarding soil layers in the EA compared to information in the plan as to where certain treatments would be conducted, and concluded that defendants would use prescribed fire in eight locations that receive less than 12 inches of annual rainfall (Id. at ¶¶ 28-29). The plaintiff does not explain why Cole’s declaration was first introduced in its motion for summary judgment.
Judicial review under the APA is limited to the administrative record, which consists of those materials considered by the agency at the time it made the challenged decision. Fla. Power & Light v. Lorion, 470 U.S. 729, 743-44 (1985) (“The task of the reviewing court is to apply the appropriate APA standard of review, 5 U.S.C. § 706, to the agency decision based on the record the agency presents to the reviewing Court.”). In an APA case, “the focal point for judicial review should be 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); see also Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv. 450 F.3d 930, 943 (9th Cir. 2006). The Ninth Circuit has stated, “We normally refuse to consider evidence that was not before the agency because ‘it inevitably leads the reviewing court to substitute its judgment for that of the agency.’” Ctr. for Biological Diversity, 450 F.3d at 943 (quoting Asarco, Inc. v. Envtl. Prot. Agency, 616 F.2d 1153, 1160 (9th Cir. 1980)).
However, in certain narrow circumstances, extra-record evidence may be considered in an APA case. See Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1450 (9th Cir. 1996). Extra-record documents may fit into one of these exceptions to record review:
(1) if admission is necessary to determine whether the agency has considered all relevant factors and has explained its decision, (2) if the agency has relied on documents not in the record, (3) when supplementing the record is necessary to explain technical terms or complex ...