Case 2:17-cv SU Document 52 Filed 02/02/18 Page 1 of 11

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1 Case 2:17-cv SU Document 52 Filed 02/02/18 Page 1 of 11 Oliver J. H. Stiefel, OSB # Tel: (503) oliver@crag.org Christopher G. Winter, OSB # Tel: (503) chris@crag.org 917 SW Oak St., Suite 417 Portland, Oregon Fax: (503) Attorneys for Plaintiff Central Oregon LandWatch UNITED STATES DISTRICT COURT DISTRICT OF OREGON PENDLETON DIVISION CENTRAL OREGON LANDWATCH, an Oregon non-profit corporation; v. Plaintiff, SHANE JEFFRIES, in his official capacity as Ochoco National Forest Supervisor; JAMES M. PEÑA, in his official capacity as Regional Forester for Region 6 of the United States Forest Service; and the UNITED STATES FOREST SERVICE, a federal agency of the United States Department of Agriculture, Defendants, OCHOCO TRAIL RIDERS, OREGON MOTORCYCLE RIDERS ASSOCIATION; PACIFIC NORTHWEST 4 WHEEL DRIVE ASSOCIATION, DESCHUTES COUNTY 4 WHEELERS; and THE BLUERIBBON COALITION, Intervenor-Defendants. Case No. 2:17-cv SU (Lead) (Trailing) Case No. 2:17-cv (Trailing) CENTRAL OREGON LANDWATCH S MOTION TO SUPPLEMENT Oral Argument Requested

2 Case 2:17-cv SU Document 52 Filed 02/02/18 Page 2 of 11 Plaintiff Central Oregon LandWatch ( LandWatch ) hereby submits its Motion to Supplement. Pursuant to LR 7.1 the undersigned certifies that the Parties made a good faith effort to resolve the dispute but were unable to do so. Pursuant to this Court s Order of December 8, 2017, ECF32 [01091], 1 the Parties conferred by and telephone on several occasions but were unable to come to a full resolution regarding the propriety of extra-record materials. INTRODUCTION In the concurrently filed Motion for Summary Judgment and Memorandum in Support, LandWatch asks this Court to hold unlawful and set aside the approval by the United States Forest Service ( Forest Service or agency ) of the Ochoco Summit Trail System Project ( OHV Project ). LandWatch claims that, inter alia, the agency s analysis of the amount and distribution of elk habitat remaining after implementation was arbitrary and contrary to the National Environmental Policy Act ( NEPA ), 42 U.S.C et seq., the National Forest Management Act ( NFMA ), 16 U.S.C et seq., and the Endangered Species Act, 16 U.S.C et seq. In support of its Motion for Summary Judgment, LandWatch hereby respectfully asks the Court to supplement the Administrative Record with two maps showing elk security habitat in the OHV Project Area. The elk security habitat maps attached as Exhibits B and C to the concurrently filed declaration of Deborah L. Quinlan are illustrations of Forest Service Graphic Information System ( GIS ) data used by the agency during the administrative process for the OHV Project. These maps are admissible for review of LandWatch s claims under NEPA and NFMA because they depict relevant factors the Forest Service failed to consider in its decisionmaking process, and help explain technical subject matter. See Lands Council v. Powell, 395 F.3d 1019, 1030 (9th Cir. 2004). The maps are also admissible for review of LandWatch s claim under the ESA, which is not limited to the Administrative Record. See W. Watersheds Project v. Kraayenbrink, 632 F.3d 472 (9th Cir. 2011). 1 Citations to the docket are generally to the lead case, except where otherwise noted. MOTION TO SUPPLEMENT 1

3 Case 2:17-cv SU Document 52 Filed 02/02/18 Page 3 of 11 BACKGROUND I. The Forest Service s Analysis of Elk Security Habitat is Central to this Case. The OHV Project involves the construction and operation of a 137-mile network of OHV routes that include roads and trails for motorized vehicles. 2 In addition to the designated OHV trail system, there are 659 miles of roads in the Project Area open to OHV use. AR OHV routes and their ongoing use by motorized vehicles are known to disturb big game species like Rocky Mountain elk, including by forcing elk to leave areas that lack sufficient hiding cover. AR The energetic costs from moving away from disturbance can be substantial, AR5710, reducing the probability of winter survival, SUPP429, and potentially causing population-level effects. AR Elk are the primary prey of endangered Gray wolves, a species known to be dispersing through the Project Area. See AR In its Supplemental Final Environmental Impact Statement ( SFEIS ), the Forest Service analyzed the OHV Project s impacts on elk and their habitat. The primary metric the Forest Service used to measure the degree of disturbance to elk was the amount of elk security habitat remaining after implementation. AR Relying on Hillis (1991), the agency defined security habitat as forested stands at least 250 acres in size and greater than ½ mile from an open motorized route. AR25511, According to the agency s analysis, 42,431 acres of the Project Area would qualify as elk security habitat after implementation of Alternative 5. AR25520 (t. 143); In the concurrently filed Motion for Summary Judgment and Memorandum in Support, LandWatch challenges the agency s analysis of elk security habitat. In particular, LandWatch claims that the 2 Off-highway Vehicles ( OHVs) are any motor vehicle designed for or capable of crosscountry travel on or immediately over land, water, sand, snow, ice, marsh, swampland, or other natural terrain. AR This Motion uses the same citation format as LandWatch s Motion for Summary Judgment and Memorandum in Support: citations are to the Administrative Record ( AR ) and the Supplemental Administrative Record ( SUPP ). MOTION TO SUPPLEMENT 2

4 Case 2:17-cv SU Document 52 Filed 02/02/18 Page 4 of 11 agency failed to present an accurate and complete picture of the actual amount of elk security habitat remaining after implementation because the agency failed to consider important aspects of the problem. Significantly, in the SFEIS, the agency identified all habitat patches at least 250 acres in size and more than ½ mile from an open road as security habitat regardless of whether those areas were forested. The agency s own definition of security habitat, however, includes only forested stands. The Forest Service provides no explanation for why it treats un-forested stands, such as open scabland and grasslands, as security habitat for elk. LandWatch alleges that the agency s analysis was arbitrary and contrary to law because the agency did not consider (1) the impact to security habitat from past, present, and reasonably foreseeable future vegetation management projects (which the agency acknowledged reduce the amount of forested cover, see AR25531); and (2) the actual habitat type of the identified security habitat (much of the Project Area is non-forested scabland, see AR25610). LandWatch also challenges the agency s determination that the OHV Project would pose no effect to wolves, given the impacts to elk, the wolf s primary prey. II. The Maps Show Relevant Factors Influencing the Amount and Distribution of Elk Security Habitat in the OHV Project Area. The two maps proffered by LandWatch show the habitat patches the agency defined as security habitat in the SFEIS, overlaid with relevant information as to whether those habitat patches are, in fact, forested, i.e., whether they actually provide security habitat. The first map, Past, Present, and Future Actions and Alt 5 Elk Security Habitat, depicts GIS data on past, present, and future vegetation management projects that the agency identified in its cumulative effects analysis, see AR25530 (Howard Elliot Johnson, Jackson, Gap, Wolf, Canyon, Spears, Black Mountain, and Blue Mountains), layered over the GIS data for Alternative 5 Elk Security Habitat (i.e., the elk security habitat remaining after implementation). See Decl. of Quinlan, 5 (concurrently filed). This map shows that nearly every acre of the security habitat (shown as red cross-hatch sections on the map) MOTION TO SUPPLEMENT 3

5 Case 2:17-cv SU Document 52 Filed 02/02/18 Page 5 of 11 has or will be impacted by the vegetation management projects, which include logging activities. See Exhibit B to the Decl. of Quinlan. The second map, Special Habitats and Alt 5 Elk Security Habitat, depicts GIS data on Ochoco Forest Plan special habitats layered over the Alternative 5 Elk Security habitat. See Decl. of Quinlan, 6. The map shows that many of the elk security habitat patches are comprised of nonforested habitats, including Sage/Scab, Grassland, and Rock. See Exhibit B to the Decl. of Quinlan. III. The Maps Were Prepared Using the Forest Service s Own Data. Deborah L. Quinlan, GIS Consultant for Deschutes Geographics, created the two elk security habitat maps using Forest Service GIS data layers. See Decl. of Quinlan, 2 4. The data used for these maps was provided in response to a request submitted under the Freedom of Information Act ( FOIA ), 5, U.S.C. 552, to the Ochoco National Forest by LandWatch. See AR24614, AR28517, Ex LandWatch attempted to obtain GIS data on past, present, and future projects and special habitats in July and September of 2016 during the administrative process. See AR24614, AR25130, AR The agency had expressly relied on data on past, present and future projects in the NEPA analysis. See AR (disclosing the acreage of past, present, and reasonably foreseeable future projects). But this data was not provided to LandWatch until mid-april of 2017, more than six months after FOIA requests and well after the final opportunity for public comments had closed. See AR24614; AR The Ochoco National Forest never provided LandWatch with GIS data on special habitats, requiring LandWatch to file a FOIA appeal. See AR28691, The agency, however, had expressly relied on special habitat GIS data in the SFEIS, AR25616, and specifically mapped the special habitats in portions of the Project Area. AR27821, In response to the FOIA appeal, 3 Exhibit 1 is the Signed Final Response to FOIA Control Number 2016-FS-R F. MOTION TO SUPPLEMENT 4

6 Case 2:17-cv SU Document 52 Filed 02/02/18 Page 6 of 11 the requested data was finally provided in August 2017, approximately one year after the FOIA request, and after the final OHV Project decision had been issued. See Exhibit 1 (correspondence between Washington Office and counsel for LandWatch). The agency s untimely responses to LandWatch s FOIA requests foreclosed LandWatch from preparing the elk security habitat maps and submitting them to the agency during the administrative process. I. Administrative Procedure Act LEGAL FRAMEWORK LandWatch s NEPA and NFMA claims in this case are brought under the Administrative Procedure Act ( APA ), 5 U.S.C. 701 et seq. The Court must determine whether the agency s decision was arbitrary, capricious * * * or otherwise not in accordance with law. 5 U.S.C. 706(2). Under this standard, the court must decide whether the agency considered the relevant factors and articulated a rational connection between the facts found and the choice made. Pac. Coast Fed n of Fishermen s Ass ns v. NMFS, 265 F.3d 1028, 1034 (9th Cir. 2001). In general, judicial review under the APA is limited to the administrative record that was before the agency at the time it made its decision. See Camp v. Pitts, 411 U.S. 138, (1973). The Ninth Circuit recognizes exceptions to the record review rule, however, because it is both unrealistic and unwise to straightjacket the reviewing court with the administrative record. It will often be impossible, especially when highly technical matters are involved, for the court to determine whether the agency took into consideration all relevant factors unless it looks outside the record to determine what matters the agency should have considered but did not. The court cannot adequately discharge its duty to engage in a substantial inquiry if it is required to take the agency s word that it considered all relevant matters. Asarco v. U.S. EPA, 616 F.2d 1153, 1160 (9th Cir. 1980). To properly evaluate agency decisionmaking under the APA, the reviewing court therefore may go outside the record (1) if 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 MOTION TO SUPPLEMENT 5

7 Case 2:17-cv SU Document 52 Filed 02/02/18 Page 7 of 11 necessary to explain technical terms or complex subject matter; or (4) when plaintiffs make a showing of agency bad faith. Lands Council, 395 F.3d at These exceptions operate to identify and plug holes in the administrative record. Id. While courts are not permitted to reach outside the administrative record to judge the wisdom of the agency s decision, extra-record materials may be used to help a court understand whether the agency failed to consider certain factors, to develop a sufficient background against which to evaluate the integrity of the agency s decision, or to help understand complex or technical aspects of the agency s analysis and decision. See Nat l Wildlife Fed n v. Nat l Marine Fisheries Serv., No. 3:01-CV SI, 2015 U.S. Dist. LEXIS 11633, at *15 (D. Or. Feb. 2, 2015). II. Endangered Species Act LandWatch also brings a claim under Section 7 of the ESA, pursuant to the ESA s citizen suit provision, 16 U.S.C. 1540(g). The ESA s citizen-suit provision is the way by which private parties may enforce the substantive provisions of the ESA against regulated parties both private entities and Government agencies. Bennett v. Spear, 520 U.S. 154, 173 (1997). Ninth Circuit precedent firmly establishes that while courts apply the APA s standard of review to ESA citizen suits, the scope of review is not dictated by the APA. Kraayenbrink 632 F.3d at 481. This Court recognized the controlling law in Or. Nat. Desert Ass n v. Kimbell, 593 F. Supp. 2d 1213, 1216 (D. Or. 2008), holding that claims arising under the ESA are not limited to the administrative record review restrictions of the APA. ARGUMENT The elk security habitat maps present information that bears directly on this Court s review of whether the Forest Service s analysis of the OHV Project s impacts on elk security habitat was arbitrary and contrary to law. Pursuant to the Lands Council exceptions, the maps are admissible for purposes of reviewing LandWatch s NEPA and NFMA claims because the maps are being offered MOTION TO SUPPLEMENT 6

8 Case 2:17-cv SU Document 52 Filed 02/02/18 Page 8 of 11 to show relevant factors the agency failed to consider when analyzing the OHV Project s impacts on elk security habitat. The maps are also admissible for purposes of reviewing LandWatch s ESA claim because this claim is not limited to the agency s administrative record. I. The Elk Security Habitat Maps Are Admissible Under the Lands Council Exceptions. Where, as here, a plaintiff s claims include assertions that the agency failed to consider relevant factors, disregarded contrary evidence, or failed to adequately explain its decision, it is incumbent on the plaintiff to establish and identify those factors the agency has failed to consider and establish and describe the contrary evidence. Here, the elk security habitat maps show critical information about the amount and distribution of elk security habitat, and will assist this Court in review of LandWatch s claims. See Nat l Wildlife Fed n, No. 3:01-cv SI, 2015 U.S. Dist. LEXIS 11633, at *15 (extra record information may be necessary to identify factors the agency did or did not consider or to explain complex or technical analyses). In its NEPA analysis, the Forest Service did not disclose or consider how the 42,431 acres of elk security habitat could be impacted by past, present, and future vegetation management projects. LandWatch offers the Past, Present, and Future Actions and Alt 5 Elk Security Habitat map to illustrate the consequence of this failure, assisting this Court in the review of whether the agency failed to consider important aspects of the problem. See Exhibit B to the Decl. of Quinlan (showing that nearly every acre of security habitat is or will be impacted by vegetation management projects); cf. Neighbors of Cuddy Mtn. v. U.S. Forest Serv., 137 F.3d 1372, (9th Cir. 1998) (Forest Service failed to address whether other proposed timber sales would affect the same habitat affected by the proposed timber sale). Nor did the agency disclose or consider the actual habitat conditions of the 42,431 acres of supposed elk security habitat. LandWatch offers the Special Habitats and Alt 5 Elk Security Habitat map to show that many of the alleged security habitat patches are actually comprised of MOTION TO SUPPLEMENT 7

9 Case 2:17-cv SU Document 52 Filed 02/02/18 Page 9 of 11 non-forested habitat. Hillis 1991 on which the agency relied for its definition of security habitat specifically states that where cover is poor and the terrain is gentle, distance bands of greater than a ½ mile from motorized routes may be required. AR25513; AR The map thus reveals a significant factor the agency failed to consider, while depicting technical information about habitat types and land cover. See Exhibit C to the Decl. of Quinlan (showing that many of the security habitat patches include non-forested habitat types including scablands, rock, and grassland); cf. Native Ecosystems Council v. U.S. Forest Serv., 418 F.3d 953, 964 (9th Cir. 2005). ( To take the required hard look at a proposed project s effects, an agency may not rely on incorrect assumptions. ) (citing 40 C.F.R (b)). Because the elk security habitat maps are offered to assist the Court in its review of whether the agency has considered all of the relevant factors and explained its decision, and to help explain complex and technical matters, they are admissible under Lands Council, 395 F.3d at II. The Elk Security Habitat Maps are Admissible for Purposes of LandWatch s ESA Claim. The law in this Circuit is clear: courts may consider evidence outside the administrative record for purposes of reviewing ESA claims. See Kraayenbrink, 632 F.3d at 481; Wash. Toxics Coal. v. EPA, 413 F.3d 1024, 1034 (9th Cir. 2005). Here, LandWatch challenges the Forest Service s determination that the OHV Project would have no effect on endangered wolves. In making this determination, the agency claimed that the OHV Project would not affect elk, the wolf s primary prey, referring to the elk security habitat discussion. AR As described above, the elk security habitat maps show that the agency failed to consider important aspects of the problem in its analysis of security habitat, calling into question the finding that the OHV Project would not affect distribution and population size of prey species for wolves. Id. The elk security habitat maps are admissible for the purposes of reviewing LandWatch s ESA claim. See Nw. Envtl. Advocates v. U.S. DOC, No. C JCC, 2017 U.S. Dist. MOTION TO SUPPLEMENT 8

10 Case 2:17-cv SU Document 52 Filed 02/02/18 Page 10 of 11 LEXIS , at *2 (W.D. Wash. Nov. 8, 2017) ( Therefore, adjudication of an ESA citizen-suit claim requires a broader, more searching analysis than the administrative record can provide. Correspondingly, the Court need not limit consideration of such matters to the administrative record. ) CONCLUSION For all of the foregoing reasons, LandWatch respectfully requests that this Court grant the Motion to Supplement the administrative record with the two elk security habitat maps. DATED this 2nd day of February, Respectfully submitted, s/ Oliver J. H. Stiefel Oliver J. H. Stiefel, OSB # Tel: (503) oliver@crag.org Christopher G. Winter, OSB # Tel: (503) chris@crag.org 917 SW Oak St., Suite 417 Portland, Oregon Fax: (503) Attorneys for Plaintiff Central Oregon LandWatch MOTION TO SUPPLEMENT 9

11 Case 2:17-cv SU Document 52 Filed 02/02/18 Page 11 of 11 CERTIFICATE OF SERVICE I hereby certify that on this 2nd day of February 2018, a true and accurate copy of CENTRAL OREGON LANDWATCH S MOTION TO SUPPLEMENT was filed electronically via the CM/ECF system by the United States District Court, District of Oregon. DATED this 2nd day of February, /s/ Oliver J. H. Stiefel Oliver J. H. Stiefel Of Counsel for Plaintiff LandWatch MOTION TO SUPPLEMENT i