District Court, D. Oregon, 2023

Cahill Ranches, Inc. v. Bureau of Land Management

District Court, D. Oregon · Decided July 6, 2023

Trial Court Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON MEDFORD DIVISION CAHILL RANCHES, INC., Case No. 1:21-cv-01363-CL Plaintiff, OPINION AND ORDER V. UNITED STATES BUREAU OF LAND MANAGEMENT, Defendant, and OREGON NATURAL DESERT ASSOCIATION, Intervenor-Defendant.

CLARKE, United States Magistrate Judge: This case comes before the Court on Plaintiff's Motion to Complete and Supplement the Administrative Record (ECF No. 51) (“PI.’s Mot.”). For the reasons below, Plaintiff's motion is DENIED. ] — Opinion and Order DISCUSSION Plaintiff asks the Court for an order: (1) requiring Defendant United States Bureau of Land Management (“BLM”) to search for and complete the administrative record with comments by the Oregon Department of Fish and Wildlife (“ODF W”) on a draft of the 2015 Greater Sage Grouse Resource Management Plan Amendment (“2015 RMPA”); and (2) allowing Plaintiff to supplement the administrative record with two letters submitted by ODFW to BLM concerning the Rahilly-Gravelly Allotment in 2017 and 2022. Pl.’s Mot. 2, ECF No. 51.

1 Motion to Complete the Administrative Record After Plaintiff filed its motion, BLM completed a supplemental search for additional ODFW comments inadvertently omitted from the administrative record and agreed to add several emails and attachments containing comments from ODFW. BLM’s Resp. 1, ECF No. 59.

Plaintiff acknowledges that BLM provided Plaintiff with over 500 pages of additional comments from ODFW on draft versions of the 2015 RMPA. Pl.’s Reply 2, ECF No. 61. BLM argues, and Plaintiff conceded at oral argument, that Plaintiffs request is now moot. See BLM’s Resp. 4, ECF No. 59; see also Pl.’s Reply 2, ECF No. 61. The Court agrees. Accordingly, Plaintiff's motion to complete the administrative record is denied as moot.

IH. Motion to Supplement the Administrative Record In general, review of an agency decision under the Administrative Procedure Act (“APA”) is limited to the administrative record in existence at the time of the decision. San Luis & Delta-Mendota Water Auth. v. Locke, 776 F.3d 971, 992 (th Cir. 2014) (citing Camp v. Pitts, 411] U.S. 138, 142 (1973)). “This rule ensures that the reviewing court affords sufficient deference to the agency’s action.” Jd. ““When a reviewing court considers evidence that was not before the agency, it inevitably leads the reviewing court to substitute its judgment for that of the — Opinion and Order agency.” Asarco, Inc. v. U.S. Envil. Prot. Agency, 616 F.2d 1153, 1160 (9th Cir. 1980). Whena court considers such evidence, “the reviewing court effectively conducts a de novo review of the agency’s action rather than limiting itself to the deferential procedural review that the APA’s arbitrary or capricious standard permits.” Locke, 776 F.3d at 992.

The Ninth Circuit has recognized four exceptions to this general rule, permitting courts 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.”

Lands Council v. Powell, 395 F.3d 1019, 1030 (9th Cir. 2005) (citation and internal quotation marks omitted). “These exceptions are to be narrowly construed, and the party seeking to admit extra-record evidence initially bears the burden of demonstrating that a relevant exception applies.” Locke, 776 F.3d at 992-93.

Here, Plaintiff argues the two ODFW letters fall under the “relevant factors” exception.

PI.’s Mot. 6, ECF No. 51. “Although the relevant factors exception permits a district courtto_ consider extra-record evidence to develop a background against which it can evaluate the integrity of the agency’s analysis, the exception does not permit district courts to use extra- record evidence to judge the wisdom of the agency’s action.” Locke, 776 F.3d at 993 (citing Asarco, 616 F.2d at 1160). In other words, a court “may admit evidence under this exception only to help the court understand whether the agency complied with the APA’s requirement that the agency’s decision be neither arbitrary nor capricious.” Jd. (citations omitted). However, a court “may not look to this evidence as a basis for questioning the agency’s scientific analyses or conclusions.” /d. (citing Asarco, 616 F.2d at 1160-61).

3 — Opinion and Order Here, Plaintiff seeks to supplement the record with two ODF W letters that post-date BLM’s decision. See Declaration of Aaron Bruner, Exs. 1-2, ECF Nos. 52-1, 52-3. The Court finds that existing comments in the administrative record mirror the substantive contents of the two ODFW letters.! The commenters’ identities are immaterial because the substance of those comments is the same as the substance of the two ODF W letters. Additionally, the State of Oregon’s consolidated comments reflect that “[t]he Oregon Department of Fish and Wildlife, through our Cooperating Agency status, has coordinated the attached comments from all state agencies.” OR_0034325, Hamilton Decl. at 384, ECF No. 59-3. There is no reason for this Court to admit two letters from the same state agency that were sent after BLM’s decision when ODFW submitted comments that are already contained in the record. If the Court were to admit these two letters, it would be effectively opening the administrative record as a forum to debate ' See, e.g., BLM’s Resp., Ex.3 (Declaration ofEmma L. Hamilton), ECF No. 59-3 (‘Hamilton Decl.”); id. at 128 (OR_0003102) (‘The BLM elim inated cattle grazing in the Hart Refuge 30 years ago. Since then, we havenotseen an increase in the sage grouse population onthe Hart Refuge. There is no rational reason, □□ scientifically defensbk position, in expanding this failed natura] resource experiment to more land near Hart Refuge. This action will devastate the Adel and Plush ranchers, as well □□ the tax base they provide for the Lakeview community asa whole.”); id. at 132(OR_0003106) (“[A]t least for the Lakeview Resource Area, many of the roads going through these ACEC/RNA’s are the only access roads available to get to other parts of the Resource Area....”); id at 197 (OR_0003171) (Specifically, the Hart Mountain and Sheldon National Refuges, both have been ungrazed since the 1990’s. Both refuges are within 30 and 10 miles of the Rahilly-Gravelly allotment respectively. In our view, it makes scientific sense to advance research studies on sage-grouse habitat on therefuges where cattle grazing has been not permitted for nearly 20 years.”); id, at384 (OR_0034325) (“The Oregon Department of Fish and Wildlife, through ourCooperating Agency status, has coordinated the attached comments from allstate agencies.”); id at 400-01 (OR_0034341-42) (“[T]he State is not opposedto restrictions on livestock grazing where site-specific evidence supports that approach. But generalized ap proaches raise concern, andthe State believes further analysis is warranted in evaluating whetherretiring permits would positively impact GRSG and what thesocialand economic impacts of closures and restrictions would be.”); id. at404 (OR_0034345 ) (“Removing livestock grazing from RNAs can increase grazing pressure on other areas which would be detrimental to the overall landscape and rangeland healthas wellas cause negative economic impacts to the affected communities.”); id. at 474 (OR_0165951) (“Studies haveshown that properly managed light-moderate livestock grazing has little effectto Sage-grouse habitat. Hart Min. and Sheldon Antelope Reserve currently provide a large scale study area for comparing the effects of no livestock grazing with grazed areas on BLMallotments throughout eastem Oregon.

Studies ha ve shown that when compared to similar elevations of these two reserves, there is no difference in sa ge~- grouse population numbers.”); id at 478 (OR_0165955) (“The economic loss to the permittee would be about | 200 AUMS in loss grazing ca pacity and that wouldbe significant to boththe permittee and the localcommunity.”).

4 -— Opinion and Order the wisdom of BLM’s decision. See Locke, 776 F.3d at 993. As such, Plaintiffs motion to supplement the record is denied.

ORDER For the reasons set forth above, Plaintiffs Motion to Complete and-Sapplement the Administrative Record (ECF No. 51) is DENIED.

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