United States District Court, D. Montana, Missoula Division
OPINION AND ORDER
W. MOLLOY, DISTRICT JUDGE
case concerns previously adjudicated road closures in the
Kootenai National Forest. In October 2013, Plaintiff Alliance
for the Wild Rockies ("Alliance") brought an action
under the National Environmental Policy Act
("NEPA"), National Forest Management Act
("NFMA"), and Endangered Species Act
("ESA"), arguing that the Pilgrim Creek Timber Sale
Project ("Pilgrim Project") would create a net
increase in linear miles of total roads in violation of
Standard 11(B) of the 2011 Access Amendments to the Kootenai
National Forest Plan. Judge Christensen ultimately held that
the Project complied with the Access Amendments, see All. for
the Wild Rockies v. Bradford, 35 F.Supp.3d 1246 (D.
Mont. 2014), and the Ninth Circuit affirmed, All. for the
Wild Rockies v. Bradford, 856 F.3d 1238 (9th Cir.
2017). The Ninth Circuit deferred to the Forest Service's
interpretation of the Access Amendments, concluding it was
reasonable for the agency to exclude roads closed to
motorized access by berms or barriers from "linear miles
of total roads." Id. at 1243. The court warned,
however, that "any closure that fails to effectively
prevent motorized access fails to comply with Standard 11(B)
of the Access Amendments." Id. (emphasis
added). This case arises out of that cautionary language.
on allegations of illegal use precipitated by ineffective
closures, Alliance brought claims under NEPA, NFMA, and the
ESA. Alliance's NFMA claims and part of its NEPA claim
have been dismissed. (See Order, Doc. 23.) The remaining
issues are: (1) whether the agencies must reinitiate ESA
Section 7 consultation regarding the Access Amendments and/or
Pilgrim Project; (2) whether there is unpermitted ESA Section
9 take regarding the Access Amendments and/or the Pilgrim
Project; and (3) whether the Forest Service must prepare a
supplemental environmental impact statement ("EIS")
for the Pilgrim Project.
are three motions before the Court. Alliance first seeks to
supplement the administrative record with, or have the Court
take judicial notice of, two documents: (1) a 2016 journal
article on the population status of the Cabinet-Yaak grizzly
bear population (the "Kendall article") and (2) the
documents listed in the "Literature Cited" section
of the United States Fish and Wildlife Service's 2011
Biological Opinion on grizzly bears for the Access
Amendments. (Doc. 32.) The parties have also filed
cross-motions for summary judgment. (Docs. 36, 40.)
Alliance's motion to supplement is denied but its motion
for summary judgment is granted.
November 2011, the Forest Service amended the Forest Plans of
the Kootenai, Idaho Panhandle, and Lolo National Forests to
include wheeled motorized vehicle access and security
guidelines. AR283:001790. The "Access Amendments"
set standards for open and total roads,  and security
areas for Bear Management Units ("BMUs") within the
Selkirk Recovery Zone on the Idaho Panhandle National Forest
and the Cabinet-Yaak Recovery Zone on the Kootenai, Idaho
Panhandle, and Lolo National Forests. AR283:001790-91.
Individual open and total motorized access density and core
area standards were set for each of the thirty BMUs.
AR284:001564-66. More specific to the present case, the
Access Amendments also set limits on linear miles of open and
total roads, known as the "2010 baseline," for each
of the seven "Bear Outside Recovery Zone" polygons
("BORZ areas"). AR283:001790. These areas are
outside the Recovery Zones but experience recurring use by
grizzly bears. AR283:001790. The Priest Lake, Pack River, and
Mission-Moyie BORZ areas fall within the Idaho Panhandle
National Forest, while the Cabinet Face, Clark Fork, West
Kootenai, and Tobacco BORZ areas fall within the Kootenai
National Forest. See AR283:001792-93.
2013, the Forest Service approved the Pilgrim Project,
AR14:000969, which authorizes timber harvest on the Kootenai
National Forest in order to "maintain and increas[e]
forest resilience to insects, disease and disturbance ... and
improv[e] big game forage production while providing support
to the local economy through commercial timber harvest,"
AR14:000985. The Project is located entirely within the Clark
Fork BORZ area. AR14:001001. The Forest Service's 2013
Record of Decision authorized the construction of
approximately 4.7 miles of new permanent roads during Project
implementation. AR14:001010. As mentioned above, Alliance
previously challenged the Project on the grounds that
barriered roads should have counted toward linear miles of
total roads. The Ninth Circuit concluded, however, that the
mileage was properly omitted, assuming the closures were
effective. All. for the Wild Rockies, 856 F.3d at
concede that in developing the Access Amendments and
approving the Pilgrim Project, the agencies assumed road
closures were effective and they did not specifically
consider the environmental impacts of illegal use caused by
ineffective closures. Defendants insist, however, that
temporary increases in mileage above baseline levels was
explicitly contemplated in and allowed by the Access
Amendments. Alliance persuasively shows that while the
agencies' assumptions regarding closure effectiveness may
have been reasonable in 2011, data over the last eight years
demonstrates that ineffective closures have contributed to
increases in linear road miles and potentially impacted
grizzly bears in ways not previously considered. Accordingly,
reinitiation of consultation for both the Access Amendments
and the Pilgrim Project is required. It is less clear whether
a supplemental EIS for the Pilgrim Project is required.
Ultimately though, because the original NEPA documents for
the Project incorrectly assumed all closures were effective,
a supplemental EIS is necessary.
and ESA claims are reviewed under the Administrative
Procedure Act ("APA"), which authorizes a court to
"compel agency action unlawfully withheld or
unreasonably delayed," 5 U.S.C. § 706(1), and to
"hold unlawful and set aside agency action, findings and
conclusions found to be . .. arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law,"
5 U.S.C. § 706(2)(A). San Luis & Delta-Mendota
Water Auth. v. Jewell, 747 F.3d 581, 601 (9th Cir.
2014). An agency action is unlawfully withheld if the agency
fails to take a "discrete agency action that it is
required to take," i.e., an action that is
"demanded by law," including "agency
regulations that have the force of law." Norton v.
S. Utah Wilderness All., 542 U.S. 55, 64-65 (2004)
(emphasis omitted). Agency action is arbitrary and capricious
if the administrative record demonstrates that the
"agency has relied on factors which Congress has not
intended it to consider, entirely failed to consider an
important aspect of the problem, [or] offered an explanation
for its decision that runs counter to the evidence before the
agency." Motor Vehicle Mfrs. Ass'n of U.S., Inc.
v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,
an agency's administrative record is complete and
constitutes the whole and undisputed facts underlying agency
decisionmaking, summary judgment is the appropriate vehicle
to address claims under both § 706(1) and (2). City
& Cty. of S.F. v. United States, 130 F.3d 873, 877
(9th Cir. 1997) ("[T]he function of the district court
is to determine whether or not as a matter of law the
evidence in the administrative record permitted the agency to
make the decision it did.").
under the APA is generally limited to the administrative
record that existed at the time the agency made its decision.
See Citizens to Preserve Overton Park, Inc. v.
Volpe, 401 U.S. 402, 420 (1971); 5 U.S.C. § 706.
Here, Alliance proffers additional documents for
consideration: (1) the Kendall article, (Doc. 33-1), and (2)
the documents listed in the "Literature Cited"
section of the United States Fish and Wildlife Service's
2011 Biological Opinion on grizzly bears for the Access
Amendments, (Doc. 33-2). Alliance make three unpersuasive
arguments for their consideration: (1) the record for ESA and
supplemental EIS claims is not limited by the APA, (2) the
proffered documents qualify under certain extra-record
exceptions, and (3) the documents can be judicially noticed.
APA Record Limitations
first seeks to circumvent the standard extra-records analysis
by arguing that both its ESA claim and its claim for a
supplemental EIS are not subject to the APA's record
limitations. Neither argument is compelling.
claims are analyzed under the APA because the ESA contains no
internal standard of review. Village of False Pass v.
Clark, 733 F.2d 605, 609 (9th Cir. 1984). However,
Alliance insists that because ESA claims are actually brought
pursuant to the ESA citizen suit provision, they are not
subject to the administrative record limitation of the APA.
See 5 U.S.C. § 704 (action reviewable under the
APA when "there is no other adequate remedy in a
court"). In so arguing, Alliance relies on Western
Watersheds Project v. Kraayenbrink, 632 F.3d 472, 497
(9th Cir. 2011). In Kraayenbrink, the court
determined that because claims under the ESA citizen suit
provision are distinct from claims under the APA, courts
"may consider evidence outside the administrative record
for the limited purposes of reviewing ... ESA claim[s]."
Id. (citing Wash. Toxics Coal. v. Envtl Prot.
Agency, 413 F.3d 1024, 1034 (9th Cir. 2005)). But it is
not that simple.
courts have interpreted Kraayenbrink differently.
Many view it as binding precedent that mandates an open
record in ESA cases. See Natural Res. Def. Council v.
Zinke, 347 F.Supp.3d 465, 500-01 (E.D. Cal. 2018)
("The Court does not make law and cannot ignore an
express holding of the Ninth Circuit that is directly on
point.") (collecting cases); see also Indigenous
Envtl. Network v. U.S. Dep't of State, CV
17-29/31-GF-BMM, 2017 WL 9280323, at *1 (D. Mont. Dec. 12,
2017). However, this Court has consistently taken a more
Kraayenbrink leaves us uncertain whether the panel
discarded the APA record review rule entirely or simply found
that the extra-record documents presented to the district
court in that case fit within one of the four standard
exceptions outlined above. The better view, in the opinion of
this Court, is that the traditional four exceptions still
apply to plaintiffs' requests for supplementation of the
administrative record for ESA claims, but the narrowness of
the construction and application of these exceptions, see
Lands Council v. Powell, 395 F.3d 1019, 1030 (9th Cir.
2005) ("these exceptions are narrowly construed and
applied"), should be relaxed for such claims.
All. for Wild Rockies v. Kruger, 950 F.Supp.2d 1172,
1177 (D. Mont. 2013) (internal quotation marks omitted);
see Native Ecosystems Council v. Marten, 334
F.Supp.3d 1124, 1129 (D. Mont. 2018); Wildwest Inst. v.
Ashe, No. CV 13-6-M-DLC, 2013 WL 12134034, at *2 (D.
Mont. Oct. 18, 2013).
concern, as stated in Lands Council, is that
"[w]ere the federal courts routinely or liberally to
admit new evidence when reviewing agency decisions, it would
be obvious that the federal courts would be proceeding, in
effect, de novo, rather than with the proper deference to
agency processes, expertise, and decision-making." 395
F.3d at 1030; see also Karuk Tribe of Cal. v. U.S. Forest
Serv., 681 F.3d 1006, 1017 (9th Cir. 2012) (en banc)
(describing ESA case as "a record review case").
Alliance's argument is therefore rejected, and its ESA
claims are subject to the same records limitations as other
similarly argues that the extra-record documents may be
considered in conjunction with its supplemental EIS claim
because it seeks to "compel agency action unlawfully
withheld or unreasonably delayed." 5 U.S.C. §
706(1). Alliance is correct that "[i]n such cases,
review is not limited to the record as it existed at any
single point in time, because there is no final agency action
to demarcate the limits of the record." Friends of
the Clearwater v. Dombeck, 222 F.3d 552, 560 (9th Cir.
2000). However, the record is not boundless. While a
challenge under § 706(1) "allow[s] courts to go
beyond the point at which the agency considered the record
closed," the APA "limits courts to considering the
documents the agency considered directly or indirectly that
fall under a record review exception." All. for the
Wild Rockies v. Marten, CV 16-35-M-DWM, 2016 WL 7174671,
at * 1 (D. Mont. Oct. 3, 2016). As was the case with
Alliance's ESA claims, supplementation is limited to
documents that meet one of the accepted extra-record
exceptions discussed below. See Lands Council, 395
F.3d at 1030.
' Extra-Record Exceptions
argues in the alternative that the proffered documents fit
within the recognized extra-record exceptions:
In limited circumstances, district courts are permitted to
admit extra-record evidence: (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
subject matter, or (4) when plaintiffs make a showing of
agency bad faith.
Id. (internal quotation marks omitted). Alliance
relies on (1) and (3).
Alliance's characterization, the third exception is not
at issue because Alliance has not shown the proffered
documents are required to "explain technical terms or
complex subject matter." Id. Rather, Alliance
emphasizes that consideration of the information is necessary
"to determine whether the agency has considered all
relevant factors," id., and provide ...