Case 1:19-cv-00118-CWD Document 86 Filed 06/30/20 Page 1 of 37
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`UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF IDAHO
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`Case No. 1:19-cv-0118-CWD
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`MEMORANDUM DECISION AND
`ORDER RE: PLAINTIFFS’ SECOND
`MOTION FOR PRELIMINARY
`INJUNCTION
`(DKT. 62)
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`SAWTOOTH MOUNTAIN RANCH
`LLC, LYNN ARNONE, and DAVID
`BOREN,
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`Plaintiffs,
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`
`v.
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`UNITED STATES OF AMERICA;
`UNITED STATES DEPARTMENT OF
`AGRICULTURE; SONNY PERDUE,
`Secretary of Agriculture; UNITED
`STATES FOREST SERVICE;
`SAWTOOTH NATIONAL FOREST;
`JIM DEMAAGD, Forest Supervisor;
`SAWTOOTH NATIONAL
`RECREATION AREA; KIRK
`FLANNIGAN, Area Ranger; FEDERAL
`HIGHWAY ADMINISTRATION,
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`Defendants.
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`
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`INTRODUCTION
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`Pending before the Court is a second expedited motion for a preliminary
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`injunction filed by Plaintiffs Sawtooth Mountain Ranch LLC, Lynn Arnone, and David
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`Boren against Defendants. (Dkt. 62.) Plaintiffs again challenge the approval of and any
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`actions associated with the proposed Stanley to Redfish Trail (“Stanley/Redfish Trail” or
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`MEMORANDUM DECISION AND ORDER – 1
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`UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF IDAHO
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`
`
`
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`
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`Case No. 1:19-cv-0118-CWD
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`MEMORANDUM DECISION AND
`ORDER RE: PLAINTIFFS’ SECOND
`MOTION FOR PRELIMINARY
`INJUNCTION
`(DKT. 62)
`
`
`SAWTOOTH MOUNTAIN RANCH
`LLC, LYNN ARNONE, and DAVID
`BOREN,
`
`
`Plaintiffs,
`
`
`v.
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`UNITED STATES OF AMERICA;
`UNITED STATES DEPARTMENT OF
`AGRICULTURE; SONNY PERDUE,
`Secretary of Agriculture; UNITED
`STATES FOREST SERVICE;
`SAWTOOTH NATIONAL FOREST;
`JIM DEMAAGD, Forest Supervisor;
`SAWTOOTH NATIONAL
`RECREATION AREA; KIRK
`FLANNIGAN, Area Ranger; FEDERAL
`HIGHWAY ADMINISTRATION,
`
`
`Defendants.
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`
`
`
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`INTRODUCTION
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`Pending before the Court is a second expedited motion for a preliminary
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`injunction filed by Plaintiffs Sawtooth Mountain Ranch LLC, Lynn Arnone, and David
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`Boren against Defendants. (Dkt. 62.) Plaintiffs again challenge the approval of and any
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`actions associated with the proposed Stanley to Redfish Trail (“Stanley/Redfish Trail” or
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`MEMORANDUM DECISION AND ORDER – 1
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`Case 1:19-cv-00118-CWD Document 86 Filed 06/30/20 Page 2 of 37
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`“Trail”), as described in the Decision Memo signed by Kirk Flannigan on June 6, 2017,
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`and seek to halt construction. This motion is premised upon claims asserted under the
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`Environmental Species Act and the Clean Water Act, first alleged in Plaintiffs’ Second
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`Amended Complaint filed on May 8, 2020. (Dkt. 59, 50.)
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`The parties had a full and fair opportunity to provide briefing supported by several
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`declarations. (Dkt. 62, 66.) Defendants submitted also the Amended Administrative
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`Record (AR), and Plaintiffs filed supplemental materials.1
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`The Court conducted a video hearing on June 19, 2020, at which the parties
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`appeared and presented their arguments.2 After carefully considering the parties’
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`arguments, written memoranda, exhibits, the Amended Administrative Record, and
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`relevant case law, and for the reasons that follow, the Court will deny the motion for
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`preliminary injunction. The Court is not persuaded on the present record that Plaintiffs
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`have demonstrated a likelihood of success on the merits of either their Environmental
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`Species Act claim or their Clean Water Act claim.
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`1 The United States Forest Service lodged the Revised Administrative Record with the Court on
`June 10, 2020, at Docket 65. In comparing the Administrative Record lodged at Docket 14 with
`Docket 65, the AR contains identical documents up through AR 2498. Docket 65 adds
`documents marked AR 2499 – 2647, and which specifically relate to Plaintiffs’ claims brought
`pursuant to the Endangered Species Act and the Clean Water Act. (Dkt. 59, 50.) The parties cite
`also to documents with the Bates prefix SAW, which refer to documents Plaintiffs filed with the
`Court at Docket Nos. 58-3 and 58-4.
`2 The Court denied Plaintiffs’ request to present witness testimony during the hearing. (Dkt. 75.)
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`MEMORANDUM DECISION AND ORDER – 2
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`Case 1:19-cv-00118-CWD Document 86 Filed 06/30/20 Page 3 of 37
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`FACTUAL BACKGROUND3
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`Redfish Lake and Little Redfish Lake are popular summer destinations located
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`within the Sawtooth National Recreation Area (SNRA) six miles south of the town of
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`Stanley. AR 1127. Visitation to the City of Stanley and the Redfish Lake area occurs
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`primarily between mid-June to Labor Day. AR 0992. During that time, the Redfish Lake
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`Recreation Complex, with its seven campgrounds, boat ramp, rustic lodge and cabins,
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`and day-use facilities serve up to 2,200 people and becomes the largest community in the
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`otherwise sparsely populated area. AR 1127. State Highway 75 connects Redfish Lake to
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`Stanley, with high speed traffic and heavy traffic volumes. AR 1128. There currently is
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`no alternative transportation route connecting Stanley and Redfish Lake, although a
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`snowmobile trail connects the two areas during the winter. AR 1128, 1126.
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`In the early to mid-1990’s, SNRA staff began discussing the idea of constructing a
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`trail connecting Stanley and Redfish Lake to provide an alternate means of travel
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`between the two areas. AR 1126. At that time, the Forest Service envisioned a trail that
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`would provide non-motorized travel, and serve pedestrians, bicyclists, and equestrians.
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`AR 0938. In 2005, the Forest Service purchased a 30-foot-wide “Public Trail Easement”
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`3 Additional factual background is set forth in the Court’s June 13, 2019 Order. (Dkt. 24.)
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`MEMORANDUM DECISION AND ORDER – 3
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`Case 1:19-cv-00118-CWD Document 86 Filed 06/30/20 Page 4 of 37
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`from the prior owners of Plaintiffs’ Property4 to connect the proposed trail route between
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`Stanley and Redfish Lake. AR 0698.
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`In 2012, the Forest Service initiated internal scoping, see, e.g., AR 1126, and in
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`early 2014, began external scoping to solicit feedback on the proposed trail project. AR
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`0921. During the scoping process, public feedback was received in several ways, through
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`surveys circulated by the City of Stanley and the Forest Service, at a public meeting
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`attended by approximately 25 people, and through sixteen (16) written comments.
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`Decision Memo at 9-10. AR 0296 - 0304. Survey results indicated “overall public
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`opinion is greatly in support of a trail between Stanley and the Redfish Lake area.” AR
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`1048. The Stanley/Redfish Trail is supported by the City of Stanley, the Idaho
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`Conservation League, the Sawtooth Association, the Stanley-Sawtooth Chamber of
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`Commerce, and the Idaho Department of Transportation. Phillips Decl. ¶¶ 8-12 and Exs.
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`C-F. (Dkt. 17-2.) Brief of Amicus Curiae. (Dkt. 18.)
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`The Forest Service’s internal and external scoping involved analyzing the potential
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`effects of trail construction on species listed as threatened or endangered under the
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`Endangered Species Act. On April 16, 2014, the Forest Service completed its biological
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`assessment and evaluation of the effects of the Stanley/Redfish Trail on terrestrial
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`4 The Plaintiffs’ property (“Property”) is located within the SNRA and consists of approximately
`1,781.07 acres adjacent to the southern end of the town of Stanley, and westward of State
`Highway 75. Decl. of Boren ¶ 3. (Dkt. 11-2.) The Property is situated between Redfish Lake and
`Stanley. The Stanley/Redfish Trail would be about 4.4 miles long, of which about 1.5 miles
`would traverse the Property within the boundaries of the Public Trail Easement. Proposed
`Action, Boren Decl. ¶¶ 17-19; Exs. F - H. (Dkt. 11-2.)
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`MEMORANDUM DECISION AND ORDER – 4
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`Case 1:19-cv-00118-CWD Document 86 Filed 06/30/20 Page 5 of 37
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`wildlife species. AR 2612. The Forest Service concluded the Trail may affect, but would
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`not likely adversely affect, the Canada lynx. AR 2612 – 2639. The United States Fish and
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`Wildlife Service (FWS) concurred. AR 0254 – 0255.
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`On April 14, 2014, Mark Moulton, the SNRA hydrologist and fisheries and
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`watershed program manager, completed a biological assessment (BA) addressing the
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`effects of the Stanley/Redfish Trail upon listed aquatic species, identified as Snake River
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`sockeye, Snake River spring and summer chinook, Snake River steelhead, Columbia
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`River bull trout, and westslope cutthroat trout. AR 2551 – 2606; 0238 – 0245; Decl. of
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`Mitchell ¶ 3. (Dkt 66-8 at 2.) The BA identified three segments of the proposed trail that
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`would intersect riparian conservation areas (RCAs). AR 0244, 2596. The first segment,
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`located on the Property, would “cross a minor, essentially isolated, seasonally wet area.”
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`AR 0244, 2596.
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`The second segment impacting an RCA, located on national forest service land,
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`was described similarly, but was noted as having existing fill associated with a former
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`roadway. AR 0244, 2596. “Both of the wet segments are non-forested, and are separated
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`from critical habitat in the Salmon River by substantial distance, complex wetlands, and
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`Highway 75. This isolation would preclude any measurable influence to the RCA of the
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`Salmon River.” AR 0244, 2596. The third segment intersecting an RCA would pass
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`through the RCA “near the confluence of Redfish Lake Creek and the Salmon River,”
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`and would “follow the existing treads of a former roadway and the Rock Shelter
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`MEMORANDUM DECISION AND ORDER – 5
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`interpretive trail, and cross Redfish Lake Creek on the existing footbridge.” AR 0244,
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`2596.
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`In sum, the BA describes the trail as follows:
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`The trail would be non-motorized, with lengthy segments
`established on existing treads of former roadways. With only
`a few short exceptions, the proposed trail would also reside
`on dry, gentle, terrain far from habitats utilized by the species
`considered here. The intended practices, gentle terrain, and
`substantial typical separation from habitats would preclude
`any measurable influence to individuals of the species
`consider [sic] here, or their designated critical habitat. Where
`3 short trail segments would intersect RCAs, either the
`segments are isolated from critical habitat with minimal
`construction activities anticipated, or the crossings already
`exist.
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`AR 0244, 2596. The BA concludes the Trail will have “no effect” on individual fish
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`species or their designated critical habitat. AR 2597. The fisheries biologist for the
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`National Marine Fisheries Service (NMFS) concurred. Mitchell Decl. ¶ 5. (Dkt. 66-8.)
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`The Administrative Record contains also information regarding wetlands found on
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`the Property. Prior to the Government’s purchase of the Public Trail Easement, a wetland
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`and floodplain assessment of the Property was prepared. In October of 2003, a
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`reconnaissance level inventory of wetlands existing on the Property was conducted. A
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`report dated February 20, 2004, identified the wetlands based on hydrophytic vegetation,
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`hydric soils, and evidence of wetland hydrology. AR 0591. Wetlands were then mapped.
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`AR 0591. According to the survey, the predominant classification of wetlands on the
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`Property is PEMC based upon the U.S. Fish and Wildlife Classification system. Wetland
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`MEMORANDUM DECISION AND ORDER – 6
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`extent is affected by “irrigation activities that regularly occur on the site….some areas
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`would likely convert to upland if irrigation is discontinued.” AR 0591.
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`In February of 2014, the Forest Service sought scoping comments from the
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`Department of the Army Corps of Engineers regarding the Stanley/Redfish Trail. AR
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`0251. The Corps responded that the development of recreational trails may require an
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`authorization for the discharge of dredged or fill material into waters of the United States,
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`including wetlands, and informed the Forest Service that the proposed project area for the
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`Stanley/Redfish Trail may require a permit. AR 0251 – 52.
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`After completing internal and external scoping and reviewing public comments,
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`the Forest Service issued a Decision Memo on June 6, 2017, authorizing construction of
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`the Stanley/Redfish Trail. AR 0296 - 0304. The Decision Memo indicated also that the
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`impacts to wetlands would be consistent with Executive Order 11990.5 AR 0301.
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`In or about August of 2017, and in partnership with the Forest Service, the
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`Western Federal Lands Highway Division (FHWA) lead the Clean Water Act permitting
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`effort. Chariarse Decl. ¶¶ 2-3. (Dkt. 66-11.) Jennifer Chariarse, Senior Technical
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`Environmental Specialist for the FHWA, Western Division, was assigned to the trail
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`project. Id. ¶ 2. Chariarse attended a scoping trip in September of 2017, completed a
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`wetland and waters delineation, and in January of 2018, prepared a permit application for
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`submittal to the United States Army Corps of Engineers for the CWA Section 404
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`5 Executive Order 11990 may be found at: https://www.fema.gov/executive-order-11990-
`protection-wetlands-1977.
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`MEMORANDUM DECISION AND ORDER – 7
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`permitting process. Id. ¶ 4. (Dkt. 66-11). SAW0086.6 The application requested
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`concurrence from the Corps that a nationwide permit applied to the Stanley/Redfish Trail
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`project. SAW0087. The application explained that the Trail “crosses through five small
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`wetland areas in an area of the trail that is located within the US Forest Service-owned
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`easement on private land.” SAW0091. On February 2, 2018, the Corps verified that
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`Nationwide Permit 42 applied to the construction of the Trail, and that the activity
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`complies with all terms and conditions of the permit. SAW0141-0148.
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`On April 12, 2018, the Forest Service entered an intra-agency agreement with the
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`FHWA to design the trail. Decl. of Matthew Phillips (“Phillips Decl.”) ¶ 5. (Dkt. 17-3.)
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`In July of 2018, FHWA solicited bids for the project and the project was awarded in
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`September of 2018, to Hobble Creek Services, LLC. Phillips Decl. ¶ 6. (Dkt. 17-3.)
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`Construction was to begin in May of 2019.
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`As a result of this litigation, the Government issued a stop work order on May 3,
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`2019. Second Decl. of Hurst ¶ 3. (Dkt. 66-1.) Full operations resumed on June 17, 2019.
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`Id. Hobble Creek did not complete the project by the original fixed completion date of
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`6 The permit application is dated January 9, 2017, and submitted by Scott Smithline,
`Environmental Manager for the FHWA Western Federal Lands Highway Division. SAW 0086-
`87.
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`MEMORANDUM DECISION AND ORDER – 8
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`September 5, 2019,7 which date was thereafter extended. Id. ¶ 4. Hobble Creek resumed
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`construction on or about May 1, 2020, and is expected to complete construction of the
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`Stanley/Redfish Trail by late September or early October of 2020. Id. ¶ 5, 7.
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`PROCEDURAL BACKGROUND
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`Plaintiffs filed a complaint on April 9, 2019, seeking declaratory and injunctive
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`relief under the Sawtooth National Recreation Area Act, 16 U.S.C. § 460aa et. seq.
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`(“SNRA Act”); the National Forest Management Act, 16 U.S.C. § 1600 et. seq.
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`(“NFMA”); the National Environmental Policy Act, 42 U.S.C. § 4331, et. seq.
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`(“NEPA”); the Administrative Procedure Act, 5 U.S.C. § 551, et. seq. (the “APA”); and
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`the Declaratory Judgment Act, 28 U.S.C. § 2201.
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`On May 10, 2019, Plaintiffs filed their first motion for preliminary injunction,
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`claiming they could demonstrate a likelihood of success on the merits of three of their
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`claims.8 The Court on June 13, 2019, issued an order denying Plaintiffs’ motion for
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`preliminary injunction, finding Plaintiffs had not demonstrated a likelihood of success on
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`7 Defendants indicate also that Hobble Creek halted construction activity in response to a letter
`from Plaintiffs’ counsel dated August 6, 2019, stating Plaintiffs are “continuing forward with its
`lawsuit against the Forest Service and others and has requested that the Forest Service delay
`construction until next summer, at least as to construction of trail segments located on
`[Plaintiffs’] property….Hobble Creek Services may suffer significant financial loss if it has
`invested in…purchase of materials for portions of the Trail that cross the Ranch’s property….”
`Decl. of Hurst Ex. A. (Dkt. 66-2.)
`8 The motion sought a preliminary injunction based upon the merits of Counts Two, Three, and
`Four, asserting that the SNRA’s actions violated NEPA, NFMA, and were contrary to the scope
`of the Conservation Easement.
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`MEMORANDUM DECISION AND ORDER – 9
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`the merits of their NEPA and NFMA claims. (Dkt. 24.)9 The Court found that Plaintiffs
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`did not “make a sufficient showing of irreparable injury sufficient to grant injunctive
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`relief” and that the public interest and balance of equities did “not tip in favor” of an
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`injunction. (Dkt. 24 at 52, 54.)
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`Following the Court’s ruling, Plaintiffs proceeded to amend the complaint.
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`Plaintiffs’ first amended complaint, filed on August 8, 2019, added three claims alleging
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`violation of the Quiet Title Act, one of which was later dismissed for lack of jurisdiction.
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`(Dkt. 29, 32, and Order granting motion to dismiss dated January 13, 2020, Dkt. 44.) In
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`December of 2019, Plaintiffs submitted notices of intent to sue to the Forest Service and
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`various other federal agencies under the Clean Water Act and Endangered Species Act, in
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`anticipation of filing a second amended complaint. SAW0001, SAW0047. (Dkt. 58-2 at
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`1, 47.) Additional motions were filed related to the proposed second amended complaint.
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`On May 8, 2020, the court permitted Plaintiffs to file the second amended complaint,
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`which adds a claim under the Endangered Species Act, 16 U.S.C. § 1531, et. seq.
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`(“ESA”) and a claim under the Clean Water Act, 33 U.S.C. § 1251, et. seq. (“CWA”).
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`On May 20, 2020, Plaintiffs filed this second motion for preliminary injunction,
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`based entirely upon the new ESA and CWA claims. (Dkt. 62.) On June 10, 2020,
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`Plaintiffs filed a motion for temporary restraining order. (Dkt. 67.) Plaintiffs asserted
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`9 The Court found also that Plaintiffs failed to state a claim for relief under the APA with respect
`to their claim that the trail project exceeded the scope of the Conservation Easement, because the
`Quiet Title Act is the exclusive means by which adverse claimants can challenge the United
`States’ claim to real property.
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`MEMORANDUM DECISION AND ORDER – 10
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`court intervention was “urgent,” because Plaintiffs have “begun moving wildlife nests
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`and conducting vegetation clearing and management activities on Plaintiffs’ property and
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`intend to move forward with bulldozing and further construction of the Trail on
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`Plaintiffs’ real property immediately.” (Dkt. 67.) On June 12, 2020, the Court denied
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`Plaintiffs’ motion for temporary restraining order, expedited the deadline for Plaintiffs to
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`file a reply memorandum in support of the motion for preliminary injunction, and
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`scheduled a hearing for June 19, 2020. (Dkt. 70.)10
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`STANDARD FOR PRELIMINARY INJUNCTION
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`A preliminary injunction is “an extraordinary remedy never awarded as of right.”
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`Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008). It is not an
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`adjudication on the merits, “but a device for preserving the status quo and preventing
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`irreparable loss of rights before a judgment.” Idaho Rivers United v. Probert, No. 3:16-
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`CV-00102-CWD, 2016 WL 2757690, at *6 (D. Idaho May 12, 2016). While courts are
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`given considerable discretion in deciding whether a preliminary injunction should enter,
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`injunctive relief should not be granted unless the movant, by a clear showing, carries the
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`burden of persuasion. Idaho Rivers United, at *6 (citing Sampson v. Murray, 415 U.S. 61
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`10 Before the Court issued this Order, Defendants filed a motion for temporary restraining order
`and preliminary injunction, and a motion to amend the answer. Defendants allege Plaintiffs and
`proposed third-party defendants Michael Boren and Obsidian Aircraft, LLC, engaged in conduct
`constituting trespass and nuisance, endangering construction crew workers and threatening
`continued construction of the Stanley/Redfish Trail. The Court on June 29, 2020, issued an order
`denying Defendants’ motion for TRO, and expediting proceedings with respect to the
`Defendants’ motion for preliminary injunction and motion to amend answer. (Dkt. 85.)
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`MEMORANDUM DECISION AND ORDER – 11
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`(1974); Brotherhood of Locomotive Eng'rs v. Missouri-Kansas-Texas R. Co., 363 U.S.
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`528 (1960); Stanley v. Univ. of S. California, 13 F.3d 1313 (9th Cir. 1994)).
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`A plaintiff seeking preliminary injunctive relief must establish (1) a likelihood of
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`success on the merits; (2) a likelihood of suffering irreparable harm in the absence of
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`preliminary injunctive relief; (3) that the balance of equities is in plaintiff’s favor; and (4)
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`that the injunction is in the public interest. Winter, 555 U.S. at 7. The plaintiff must show
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`suffering irreparable harm is likely, and not just a possibility. Id. In the United States
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`Court of Appeals for the Ninth Circuit, issuance of a preliminary injunction is favored
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`when the merits analysis and hardship balance both tip strongly toward the plaintiff, so
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`long as the plaintiff shows also that there is “a likelihood of irreparable injury and that the
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`injunction is in the public interest.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d
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`1127, 1135 (9th Cir. 2011).
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`ANALYSIS
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`1. Merits of Plaintiffs’ Claim That the Trail Project Violates the Endangered
`Species Act (Claim Eight)
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`Claim Eight alleges that construction of the Trail will require activities directly
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`adjacent to designated critical habitat for the Upper Columbia River bull trout, Snake
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`River spring/summer Chinook salmon, and Snake River Basin Steelhead. Plaintiffs allege
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`that these activities include ground disturbance and changes to critical habitat, such as the
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`filling in of hydrologically connected wetlands.
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`Plaintiffs contend they have raised serious questions as to the merits of their ESA
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`claim. First, Plaintiffs assert Defendants did not complete a biological assessment (BA).
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`MEMORANDUM DECISION AND ORDER – 12
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`Alternatively, they claim there is no support for the Forest Service’s “no effects”
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`determination regarding listed aquatic species, because the assessment was not factually
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`correct in four critical areas: a) it stated the Trail would be “non-motorized;” b) it stated
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`that project activities will occur “far from stream habitats;” c) it stated that the wetlands
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`are “essentially isolated” and only “seasonally wet;” and d) the defined project area upon
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`which the no effect determination was reached was too narrow. Accordingly, Plaintiffs
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`argue the Forest Service’s “no effect” determination was flawed, and instead mandated a
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`“may effect” determination, triggering the consultation requirement under Section 7 of
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`the ESA.
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`A. Standard of Review
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`Plaintiffs’ claim under the ESA involves final agency action by the Forest Service
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`and is therefore subject to review under the Administrative Procedure Act. San Luis &
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`Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 601 (9th Cir. 2014). Under the APA,
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`an agency action must be upheld on review unless it is “arbitrary, capricious, an abuse of
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`discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). “The party
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`challenging an agency’s action as arbitrary and capricious bears the burden of proof.” W.
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`Watersheds Project v. Ashe, 948 F. Supp. 2d 1166, 1174 (D. Idaho 2013) (citing
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`WildEarth Guardians v. Salazar, 741 F.Supp.2d 89, 97 (D.D.C. 2010)).
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`The Court may reverse the agency’s decision as arbitrary and capricious “only if
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`the agency relied on factors Congress did not intend it to consider, entirely failed to
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`consider an important aspect of the problem, or offered an explanation that runs counter
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`MEMORANDUM DECISION AND ORDER – 13
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`to the evidence before the agency or is so implausible that it could not be ascribed to a
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`difference in view or the product of agency expertise.” Cascadia Wildlands v. Bureau of
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`Indian Affairs, 801 F.3d 1105, 1110 (9th Cir. 2015). Conversely, the agency’s decision
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`must be upheld if “there is a rational connection between the facts found and the
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`conclusions made,” and the determination was “not so implausible that it could not be
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`ascribed to a difference in view or the product of agency expertise.” Lands Council v.
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`McNair, 537 F.3d 981, 987 (9th Cir. 2008) (en banc) (overruled in part on other grounds
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`by Winter, supra). The Court must conduct a “substantial inquiry” and “a thorough,
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`probing, in-depth review.” Siskiyou Reg’l Educ. Project v. U.S. Forest Serv., 565 F.3d
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`545, 554 (9th Cir. 2009).
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`The standard of review “requires [the Court] to defer to an agency’s determination
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`in an area involving a ‘high level of technical expertise.’” Lands Council, 537 F.3d at
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`996; see also Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1185 (9th Cir. 2011)
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`(holding that “Forest Service is entitled to rely on the reasoned opinions of its experts”).
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`Where the agency has relied on “relevant evidence [such that] a reasonable mind might
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`accept as adequate to support a conclusion,” its decision is supported by “substantial
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`evidence.” Bear Lake Watch, Inc. v. FERC, 324 F.3d 1071, 1076 (9th Cir. 2003). Even
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`“[i]f the evidence is susceptible of more than one rational interpretation, [the court] must
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`uphold [the agency’s] findings.” Id. The Court may set aside only those conclusions that
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`do not have a basis in fact, not those with which it disagrees. Arizona Cattle Growers’
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`MEMORANDUM DECISION AND ORDER – 14
`
`
`
`Case 1:19-cv-00118-CWD Document 86 Filed 06/30/20 Page 15 of 37
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`Ass’n v. U.S. Fish & Wildlife, Bureau of Land Mgmt., 273 F.3d 1229, 1236 (9th Cir.
`
`2001).
`
`
`
`Under the ESA, the agency must base its actions on evidence supported by “the
`
`best scientific and commercial data available.” 50 C.F.R. § 402.14(g)(8); 16 U.S.C. §
`
`1536(a)(2). The determination of what constitutes the “best scientific data available”
`
`belongs to the agency’s “special expertise....When examining this kind of scientific
`
`determination, as opposed to simple findings of fact, a reviewing court must generally be
`
`at its most deferential.” Baltimore Gas & Elec. Co., 462 U.S. 87, 103 (1983). “Absent
`
`superior data[,] occasional imperfections do not violate” the ESA best available standard.
`
`Kern Cnty. Farm Bureau v. Allen, 450 F.3d 1072, 1080–81 (9th Cir. 2006).
`
`
`
`Before the Court turns to the merits, however, it must consider whether the extra-
`
`record evidence proffered by both parties is admissible.
`
`B. Supplementation of the Administrative Record
`
`The APA provides that “the court shall review the whole record or those parts of it
`
`cited by a party,” and makes no provision for extra-record review. 5 U.S.C. § 706; see
`
`also Citizens to Pres. Overton Park v. Volpe, 401 U.S. 402, 420 (1971) (stating that
`
`“review is to be based on the full administrative record” that was before the agency at the
`
`time of its decision), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99,
`
`(1977). Accordingly, judicial review is limited to the administrative record underlying the
`
`challenged decision, and in existence at the time of the decision, not some new record
`
`MEMORANDUM DECISION AND ORDER – 15
`
`
`
`Case 1:19-cv-00118-CWD Document 86 Filed 06/30/20 Page 16 of 37
`
`made initially in the reviewing court. Camp v. Pitts, 411 U.S. 138, 142 (1973); Lands
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`Council v. Powell, 395 F.3d 1019, 1030 (9th Cir. 2005).
`
`While Plaintiffs may submit declarations for the purpose of establishing standing,
`
`see Nw. Envtl. Def. Ctr. v. Bonneville Power Admin., 117 F.3d 1520, 1527 (9th Cir.
`
`1997), “consideration of extra-record evidence to determine the correctness ... [or]
`
`wisdom of the agency’s decision is not permitted.” Nw. Envtl. Advocates v. Nat’l Marine
`
`Fisheries Serv., 460 F.3d 1125, 1144 (9th Cir. 2006) (alteration in original) (internal
`
`quotation marks and citation omitted); see also Fla. Power & Light Co. v. Lorion, 470
`
`U.S. 729, 743–44 (1985); Asarco, Inc. v. EPA, 616 F.2d 1153, 1160 (9th Cir. 1980).
`
`The United States Court of Appeals for the Ninth Circuit allows a reviewing court
`
`to consider extra-record materials in an APA case under only four narrow exceptions:
`
`(1) if necessary to determine whether the agency has
`considered all relevant factors and has explained its decision,
`(2) when the agency has relied on documents not in the
`record, or (3) when supplementing the record is necessary to
`explain technical terms or complex subject matter ... [or (4) ]
`where plaintiffs make a showing of agency bad faith.
`
`Sw. Ctr. For Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1450 (9th Cir.
`
`1996). Plaintiffs bear the burden of demonstrating with particularity that the extra-record
`
`evidence they proffer in this case falls within one of the enumerated exceptions. See
`
`Animal Def. Council v. Hodel, 840 F.2d 1432, 1438 (9th Cir. 1988), opinion amended by
`
`867 F.2d 1244 (9th Cir. 1989). The limited exceptions are “narrowly construed and
`
`applied.” Lands Council v. Powell, 395 F.3d 1019, 1030 (9th Cir. 2005).
`
`MEMORANDUM DECISION AND ORDER – 16
`
`
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`Case 1:19-cv-00118-CWD Document 86 Filed 06/30/20 Page 17 of 37
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`Here, Plaintiffs move to admit three declarations of John Stewart to show the
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`Forest Service failed to consider “relevant factors when making its decision and to
`
`explain technical and complex subject matter.” (Dkt. 73 at 2-4); Pls. Reply at 6. (Dkt. 74
`
`at 6.) Stewart, an expert in hydrology and wetland delineation, among other subjects,
`
`opines three points were “lacking in the documents and files submitted for the project.”
`
`Decl. of Stewart ¶ 5. (Dkt. 62-3.) He claims the Forest Service did not address Chinook
`
`or sockeye salmon during the environmental review process; a segment of the Trail is
`
`within the 300-foot critical habitat buffer for Chinook and sockeye salmon; and the
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`wetlands identified as affected by the trail project “have an ecological interconnection
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`with the jurisdictional waters of the Salmon River….” Id. ¶¶ 5 – 7.
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`Defendants object to the introduction of Stewart’s declaration, and argue if
`
`Stewart’s declaration is considered, the Court should consider Defendants’ responsive
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`declarations from Brenda Mitchell and Jennifer Chariarse. Additionally, Defendants
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`object to the opinions set forth in paragraphs 6, 7, 8, and 9 of Stewart’s declaration,
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`pursuant to Fed. R. Evid. 702. Response at 12, n. 6. (Dkt. 66 at 18.)
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`The Court finds that supplementation of the administrative record with Stewart’s
`
`declarations is not necessary for judicial review. Stewart’s declarations are neither
`
`necessary for the Court to determine whether the Forest Service considered all relevant
`
`factors and explained its decision, nor does he explain complex subject matter. The
`
`administrative record contains sufficient information to explain how the Forest Service
`
`used the information before it and why it reached its decision for purposes of this motion.
`
`MEMORANDUM DECISION AND ORDER – 17
`
`
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`Case 1:19-cv-00118-CWD Document 86 Filed 06/30/20 Page 18 of 37
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`Cook Inletkeeper v. EPA, 400 Fed. App’x 239, 240–41 (9th Cir. 2010). See also Native
`
`Ecosystems Council v. Weldon, 232 F. Supp. 3d 1142, 1149 (D. Mont. 2017) (denying
`
`extra-record declarations because “[t]hey do not support the proposition that the agency
`
`failed to consider relevant factors, but rather that its consideration of those factors was
`
`scientifically unsound.”).
`
`Plaintiffs do not object to the Court’s consideration of the Declarations of Michael
`
`Hurst, Brandt Hines, Brenda Mitchell, and Jennifer Chariarse, and “ask the Court to
`
`carefully utilize the declarations as benchmarks for what the Defendants should have
`
`considered before making their decision to authorize the Trail.” Pls.’ Reply at 4. (Dkt. 74
`
`at 4.) (Declarations filed at Dkt. 66-1, 66-6, 66-8, 66-11.) The Court declines Plaintiffs’
`
`invitation consistent with the above authorities. However, the Court will consider the
`
`declaration of Michael Hurst in conjunction with its review of the other Winter factors.
`
`Further, as the Court explains below, the APA does not apply to its review of the CWA
`
`claim, and the Court therefore will consider the Declaration of Jennifer Chariarse and
`
`John Stewart’s opinions concerning the character of the wetlands on the Property to
`
`evaluate Plaintiffs’ CWA claim. (Dkt. 62-3).11
`
`Plaintiffs do object to the Amended Administrative Record lodged by Defendants
`
`at Docket 65. Pls.’ Reply at 2-3, n.1. (Dkt. 74.) Defendants supplemented the
`
`administrative record in response to the addition of Plaintiffs’ claims under the ESA.
`
`
`11 The Court considers the opinions expressed by Mr. Stewart for the purpose of deciding this
`motion only, and makes no findings as to their admissibility under Fed. R. Evid. 702.
`
`MEMORANDUM DECISION AND ORDER – 18
`
`
`
`Case 1:19-cv-00118-CWD Document 86 Filed 06/30/20 Page 19 of 37
`
`“Supplementing the administrative record” mean
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