NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 8 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
FOREST SERVICE EMPLOYEES FOR No. 19-35065 ENVIRONMENTAL ETHICS, D.C. No. 3:17-cv-05747-RBL Plaintiff-Appellant,
v. MEMORANDUM*
UNITED STATES FOREST SERVICE,
Defendant-Appellee.
Appeal from the United States District Court for the Western District of Washington Ronald B. Leighton, District Judge, Presiding
Argued and Submitted December 11, 2019 Seattle, Washington
Before: GRABER and GOULD, Circuit Judges, and EZRA,** District Judge.
Forest Service Employees for Environmental Ethics (FSEEE) challenges the
district court’s grant of summary judgment to the United States Forest Service
(Forest Service) on the question of whether the Forest Service complied with the
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation. National Forest Management Act (NFMA) by granting the Navy a special use
permit to conduct electronic warfare training on National Forest lands. FSEEE
contends that the Forest Service did not comply with the Olympic National Forest
Land and Resource Management Plan (Forest Plan) requirement that special use
permits be granted only “when such use cannot reasonably be accommodated on
private land.” At issue on appeal is whether the district court improperly
supplemented the administrative record in reaching its decision that the Forest
Service had complied with that requirement. We affirm.
1. In 2010, the United States Navy applied for a special use permit to
operate a Mobile Electronic Warfare Training System on Olympic National Forest
lands. After several rounds of public comment and objections, the Forest Service
approved a special use permit for the Navy on July 31, 2017. FSEEE filed a
complaint in the district court challenging the special use permit on several
grounds. On cross-motions for summary judgment, the district court held that the
Forest Service’s decision to grant the special use permit was arbitrary and
capricious “by failing to provide any reason for why the Navy’s training could not
be accommodated on private land, as required by the Forest Plan.”1 However, the
district court reserved the motions for summary judgment as to the NFMA claim so
1 The district court granted USFS’s motion for summary judgment on FSEEE’s other claim, that USFS lacks congressional authorization to grant permits for purposes of military training. That ruling is not before us on appeal.
2 that the Forest Service could submit further briefing on whether its error was
harmless. Along with its supplemental briefing, the Forest Service presented three
declarations, from Forest Service and Navy officials. The district court considered
two of these declarations after determining that the declarations were explanatory
of the agency’s decision—not mere post hoc rationalizations—and, thus, that they
fit into an exception to the general rule that judicial review of agency action be
confined to the administrative record. After supplementing the record with these
declarations, the district court this time held that USFS had complied with the
requirements of NFMA and the Forest Plan, and it granted summary judgment in
favor of the Forest Service. FSEEE timely appealed.
2. We review a district court’s decision to supplement the administrative
record for abuse of discretion, Midwater Trawlers Coop. v. Dep’t of Commerce,
393 F.3d 994, 1002 (9th Cir. 2004), and a grant of summary judgment de novo,
Lands Council v. Powell, 395 F.3d 1019, 1026 (9th Cir. 2004).
Judicial review of agency action is generally limited to the administrative
record in existence at the time the agency made its final decision. Camp v. Pitts,
411 U.S. 138, 142-43 (1973) (per curiam). An exception exists, however, “if
[supplementation is] necessary to determine whether the agency has considered all
relevant factors and has explained its decision.” Midwater, 393 F.3d at 1007
(quoting Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443,
3 1450 (9th Cir. 1996)). Nonetheless, this exception does not permit
supplementation with “post-decision information” that advances a post hoc
rationalization for the agency’s action. Sw. Ctr., 100 F.3d at 1450.
In considering special use permit applications, the Forest Service is required
to “give due deference to the findings of another agency . . . in lieu of another
detailed finding.” 36 C.F.R. § 251.54(g)(2)(iii). The administrative record
contains several references to the fact that the Navy had considered private lands
and found them to be inadequate for the electronic warfare training at issue here.
For example, the Forest Service’s final decision notice states that the special use is
consistent with Forest Plan requirements because “the Navy considered
alternatives and determined that the actions cannot be accommodated on private
lands,” and the Navy’s August 2013 draft Environmental Assessment gives some
explanation of why private lands are inadequate.
Although these references in the administrative record are curt, they suggest
that the Forest Service and the Navy considered and rejected the use of private
lands. As a result, these statements in the record belie FSEEE’s claim that the
supplemental declarations at issue in this case—which pertain to pre-decisional
discussions between the Forest Service and the Navy—are merely post hoc
4 rationalizations.2 Instead, the district court had a reasonable basis to conclude that
the declarations were relevant to determining “whether the agency has considered
all relevant factors and has explained its decision.” Sw. Ctr., 100 F.3d at 1450; see
Midwater, 393 F.3d at 999–002, 1008 (upholding use of supplemental declarations
that permitted the agency to “further explain” its decision); Presidio Golf Club v.
Nat’l Park Serv., 155 F.3d 1153, 1165 (9th Cir. 1998) (“district court did not err”
in considering a litigation affidavit that “explained the Park Service’s prior
analyses”). And because the administrative record was sparse enough “to frustrate
effective judicial review,” the district court had discretion to supplement the record
with “such additional explanation of the reasons for the agency action” as was
necessary. Camp, 411 U.S. at 142–43. Although the exception allowing
supplementation of the record is to be used sparingly, we conclude that the district
court did not abuse its discretion in considering the supplemental declarations
under the unusual circumstances here.
3. In light of the supplemental declarations explaining the agency’s
2 The parties dispute which agency decision is being reviewed—the Response to Objections by Forest Supervisor Reta LaFord or the final Decision Notice by Forest Ranger Dean Millett. Although LaFord had authority with respect to pre- decisional administrative review, 36 C.F.R. § 218.1, Millett was the “responsible official,” 36 C.F.R.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 8 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
FOREST SERVICE EMPLOYEES FOR No. 19-35065 ENVIRONMENTAL ETHICS, D.C. No. 3:17-cv-05747-RBL Plaintiff-Appellant,
v. MEMORANDUM*
UNITED STATES FOREST SERVICE,
Defendant-Appellee.
Appeal from the United States District Court for the Western District of Washington Ronald B. Leighton, District Judge, Presiding
Argued and Submitted December 11, 2019 Seattle, Washington
Before: GRABER and GOULD, Circuit Judges, and EZRA,** District Judge.
Forest Service Employees for Environmental Ethics (FSEEE) challenges the
district court’s grant of summary judgment to the United States Forest Service
(Forest Service) on the question of whether the Forest Service complied with the
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation. National Forest Management Act (NFMA) by granting the Navy a special use
permit to conduct electronic warfare training on National Forest lands. FSEEE
contends that the Forest Service did not comply with the Olympic National Forest
Land and Resource Management Plan (Forest Plan) requirement that special use
permits be granted only “when such use cannot reasonably be accommodated on
private land.” At issue on appeal is whether the district court improperly
supplemented the administrative record in reaching its decision that the Forest
Service had complied with that requirement. We affirm.
1. In 2010, the United States Navy applied for a special use permit to
operate a Mobile Electronic Warfare Training System on Olympic National Forest
lands. After several rounds of public comment and objections, the Forest Service
approved a special use permit for the Navy on July 31, 2017. FSEEE filed a
complaint in the district court challenging the special use permit on several
grounds. On cross-motions for summary judgment, the district court held that the
Forest Service’s decision to grant the special use permit was arbitrary and
capricious “by failing to provide any reason for why the Navy’s training could not
be accommodated on private land, as required by the Forest Plan.”1 However, the
district court reserved the motions for summary judgment as to the NFMA claim so
1 The district court granted USFS’s motion for summary judgment on FSEEE’s other claim, that USFS lacks congressional authorization to grant permits for purposes of military training. That ruling is not before us on appeal.
2 that the Forest Service could submit further briefing on whether its error was
harmless. Along with its supplemental briefing, the Forest Service presented three
declarations, from Forest Service and Navy officials. The district court considered
two of these declarations after determining that the declarations were explanatory
of the agency’s decision—not mere post hoc rationalizations—and, thus, that they
fit into an exception to the general rule that judicial review of agency action be
confined to the administrative record. After supplementing the record with these
declarations, the district court this time held that USFS had complied with the
requirements of NFMA and the Forest Plan, and it granted summary judgment in
favor of the Forest Service. FSEEE timely appealed.
2. We review a district court’s decision to supplement the administrative
record for abuse of discretion, Midwater Trawlers Coop. v. Dep’t of Commerce,
393 F.3d 994, 1002 (9th Cir. 2004), and a grant of summary judgment de novo,
Lands Council v. Powell, 395 F.3d 1019, 1026 (9th Cir. 2004).
Judicial review of agency action is generally limited to the administrative
record in existence at the time the agency made its final decision. Camp v. Pitts,
411 U.S. 138, 142-43 (1973) (per curiam). An exception exists, however, “if
[supplementation is] necessary to determine whether the agency has considered all
relevant factors and has explained its decision.” Midwater, 393 F.3d at 1007
(quoting Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443,
3 1450 (9th Cir. 1996)). Nonetheless, this exception does not permit
supplementation with “post-decision information” that advances a post hoc
rationalization for the agency’s action. Sw. Ctr., 100 F.3d at 1450.
In considering special use permit applications, the Forest Service is required
to “give due deference to the findings of another agency . . . in lieu of another
detailed finding.” 36 C.F.R. § 251.54(g)(2)(iii). The administrative record
contains several references to the fact that the Navy had considered private lands
and found them to be inadequate for the electronic warfare training at issue here.
For example, the Forest Service’s final decision notice states that the special use is
consistent with Forest Plan requirements because “the Navy considered
alternatives and determined that the actions cannot be accommodated on private
lands,” and the Navy’s August 2013 draft Environmental Assessment gives some
explanation of why private lands are inadequate.
Although these references in the administrative record are curt, they suggest
that the Forest Service and the Navy considered and rejected the use of private
lands. As a result, these statements in the record belie FSEEE’s claim that the
supplemental declarations at issue in this case—which pertain to pre-decisional
discussions between the Forest Service and the Navy—are merely post hoc
4 rationalizations.2 Instead, the district court had a reasonable basis to conclude that
the declarations were relevant to determining “whether the agency has considered
all relevant factors and has explained its decision.” Sw. Ctr., 100 F.3d at 1450; see
Midwater, 393 F.3d at 999–002, 1008 (upholding use of supplemental declarations
that permitted the agency to “further explain” its decision); Presidio Golf Club v.
Nat’l Park Serv., 155 F.3d 1153, 1165 (9th Cir. 1998) (“district court did not err”
in considering a litigation affidavit that “explained the Park Service’s prior
analyses”). And because the administrative record was sparse enough “to frustrate
effective judicial review,” the district court had discretion to supplement the record
with “such additional explanation of the reasons for the agency action” as was
necessary. Camp, 411 U.S. at 142–43. Although the exception allowing
supplementation of the record is to be used sparingly, we conclude that the district
court did not abuse its discretion in considering the supplemental declarations
under the unusual circumstances here.
3. In light of the supplemental declarations explaining the agency’s
2 The parties dispute which agency decision is being reviewed—the Response to Objections by Forest Supervisor Reta LaFord or the final Decision Notice by Forest Ranger Dean Millett. Although LaFord had authority with respect to pre- decisional administrative review, 36 C.F.R. § 218.1, Millett was the “responsible official,” 36 C.F.R. § 220.3, who made the final decision to approve the special use permit, so we review his decision. See 5 U.S.C. § 704 (judicial review is available for final agency action). Because Millett was present for the discussions attested to in the supplemental declarations, those declarations are relevant to explaining what information he considered in making his decision.
5 decision, the district court correctly held that the Forest Service’s approval of the
special use permit was not “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).
AFFIRMED.