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Rocky Mountain Wild v. Dallas

United States District Court, D. Colorado

May 19, 2017

ROCKY MOUNTAIN WILD; SAN LUIS VALLEY ECOSYSTEM COUNCIL; SAN JUAN CITIZENS ALLIANCE; WILDERNESS WORKSHOP, Plaintiffs,
v.
DAN DALLAS, in his official capacity as Forest Supervisor; MARIBETH GUSTAFSON, in her official capacity as Deputy Regional Forester; UNITED STATES FOREST SERVICE, a Federal Agency within the U.S. Department of Agriculture; UNITED STATES FISH AND WILDLIFE SERVICE, a federal agency within the Department of the Interior, Defendants, and LEAVELL-McCOMBS JOINT VENTURE, Intervenor.

          ORDER ON MOTION TO SUPPLEMENT ADMINISTRATIVE RECORD

          Richard P. Matsch, Senior Judge

         Plaintiffs' Motion to Supplement the Administrative Record with Extra-Record Evidence (Doc. 53) requests the Court to re-designate much of the administrative record filed by Defendants to be “extra-record” evidence on which only Plaintiffs can rely, and further requests the Court to include additional documents as part of the administrative record as well.

         As relevant here, the administrative record submitted by Defendants consists of evidence on seven DVDs, as follows:

• On November 13, 2015, Defendants filed a “Notice of Lodging of Administrative Record Documents” (Doc. 19). That filing included four DVDs, itemized below, together with affidavits authenticating them and certifying them as the complete administrative record. The DVDs are as follows:
o DVD 1[1]: The Fish and Wildlife Service's Administrative Record, consisting of 7, 183 pages (Bates numbered FWS000001 through FWS007183). This DVD is labeled “USFWS Administrative Record” and dated 11/05/2015.
o DVD 2: Forest Service's “conventional” Administrative Record for the Project, consisting of 18, 142 pages (Bates numbered W00001 through W18142). This DVD is labeled “Volume 1 of 3” and dated November 9, 2015.
o DVD 3: Additional record materials Defendants say was found during an email search conducted “in response to concerns about the administrative record in this matter.” Non-privileged materials collected in that search are on this DVD, Bates numbered C0000001 through C0039506. It is labeled “Forest Service Additional Record materials” and dated November 9, 2015.
o DVD 4: Additional records found during the search referred to concerning DVD 3, but containing materials as to which the Forest Service asserts privilege. This DVD contains an index of the materials as to which privilege is asserted, some redacted documents “where appropriate, ” and some materials “determined during privilege review not to be privileged.” This DVD is labeled “Forest Service Additional Record Materials: Privilege Set” and dated November 13, 2015.
• On July 19, 2016, Defendants filed a “Notice of Lodging of Additional Administrative Record Materials” (Doc. 46). The Notice states that the “supplemental lodging consists of materials that the parties have agreed through conferral should be included in the record.” That filing included three additional DVDs:
o DVD 5: labeled “Administrative Record Vol. 5 of 7”; containing eleven PDF documents, Bates Nos. W18143-W18655; dated July 19, 2016.
o DVD 6: labeled “Administrative Record Vol. 6 of 7”; containing Geographic Information System (“GFS”) files, Bates No. W18656; dated July 19, 2016.
o DVD 7: labeled “Administrative Record Vol. 7 of 7”; containing Geographic Information System (“GFS”) files, Bates No. 18657; dated July 19, 2016.

         Plaintiffs' Motion does not raise any issue with the Fish and Wildlife Service record (DVD 1) or with the Forest Service's “conventional” record (DVD 2). It relates only to the additional Forest Service record materials (DVDs 3 through 7) and to certain additional documents tendered as exhibits with the Motion.[2]

         First, Plaintiffs argue that DVDs 3 through 7 should be considered only as “extra-record” evidence because no sufficient declaration or other evidence was filed to support their use as supplementation” of the Forest Service record contained on DVD 2. Defendants filed declarations with the designated records, stating under oath that the included materials were considered directly or indirectly by the Forest Service in making the decisions challenged in this case. Courts “assume that the agency properly designated its record absent clear evidence to the contrary.” Center for Native Ecosystems v. Salazar, 711 F.Supp.2d 1267, 1275 (D. Colo. 2010) (quoting Bar MK Ranches v. Yuetter,994 F.2d 735, 740 (10th Cir.1993)). Plaintiffs have submitted no evidence showing that the ...


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