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Pegasus Equine Guardian Assoc. v. United States Army

United States District Court, W.D. Louisiana, Lake Charles Division

March 9, 2018

PEGASUS EQUINE GUARDIAN ASSOC.
v.
UNITED STATES ARMY, ET AL.

          REPORT AND RECOMMENDATION

          KATHLEEN KAY, UNITED STATES MAGISTRATE JUDGE

         Before the court is a Motion for Partial Preliminary Injunction filed by plaintiff Pegasus Equine Guardian Association (“Pegasus”). Doc. 43. Defendants, the United States Army and Brigadier General Gary M. Brito in his official capacity as Commanding General of Fort Polk (together “the Army”), oppose the motion. Doc. 51. Also before the court is the Army's Motion in Limine to Exclude Expert Testimony and Unproduced Evidence from Preliminary Injunction Hearing [doc. 57] which plaintiff opposes. Doc. 65.

         This matter has been referred to the undersigned for the purpose of issuing a Report and Recommendation. Doc. 47. A preliminary injunction hearing was held on January 30, 2018. Doc. 60. Plaintiff and defendants have filed post-hearing memoranda. Docs. 64, 66, respectively. The motions are now ripe for decision. For the following reasons, IT IS RECOMMENDED that plaintiff's Motion to Submit Extra-Record Evidence [doc. 49] be GRANTED insofar as that material is considered in our review of the request for injunctive relief, and that the defendants' Motion to Strike and Motion in Limine [docs. 52, 57] be DENIED. IT IS ALSO RECOMMENDED that plaintiff's Motion for Partial Preliminary Injunction [doc. 43] be DENIED.

         I.

         Background

         This litigation arises from the Army's plan to remove undomesticated horses from Fort Polk and surrounding areas. Doc. 3, att. 1, p. 1. Pegasus filed suit in the Middle District of Louisiana to prevent the Army from removing any horses until it conducts a more thorough review of its plan under the National Environmental Protection Act (“N E PA ”), 42 U.S.C. § 4321 et seq., and the National Historic Preservation Act (“NHPA”), 54 U.S.C. § 300101 et seq. Doc. 3, att. 1, pp. 22-23. The case was subsequently transferred to this court. Doc. 25.

         For more than two decades, the Army has sought solutions to safety issues presented by “trespass horses” on Fort Polk and the Peason Ridge area where the Army conducts training operations. See JRTC-E-002984.[1] According to the records presented the horses have caused traffic accidents [JRTC-F-000004-72, 98-259], entered business and residential properties [JRTCJRTC-B-000038, -56, -157-180; JRTC-F-000098-259], and prevented soldiers from conducting training exercises or threatened their safety during operations. JRTC-B-000055, -181- 191; JRTC-F-000082, -98-259. The Army conducts “live fire and maneuver” operations in the training areas [JRTC-B-000100], which have “concertina wire, earthworks such as tank ditches, ” and other man-made obstacles [JRTC-B-0086] that put the horses “at continuous[] risk of injury or death.” JRTC-B-000057. Some horses are also malnourished due to inadequate forage [JRTC-B-000112] and may spread infectious diseases. JRTC-B-000054.

         In 2015, after previous efforts failed, [2] the Army again considered how to remove the horses from training areas. JRTC-B-000022. The current plan, by which it seeks to eventually remove all horses from the training areas, was implemented in August 2016. JRTC-A-000001-6. From October 2016 through January 2018, the Army removed more than one hundred horses and placed them with non-profit organizations. Doc 51, att. 2, pp. 3-4. On January 19, 2018, it estimated that between five hundred and seven hundred horses remained on the base and training grounds. Doc. 51, att. 2, p. 7. The Army expects to be able to capture only between ninety and one hundred twenty horses in the next six to nine months and that it will take approximately three years to remove all the horses. Id. at 6-7.

         Pegasus asks the court to consider extra-record evidence when determining whether to grant a preliminary injunction. See doc. 49. As we note above the Army filed a motion to strike and motion in limine asking that we exclude any evidence that does not appear in the administrative record. Thus, before we reach the issue of whether to enjoin the Army from removing horses, we examine what evidence we may consider.

         II.

         Law & Analysis

         A. Extra-Record Evidence

         This matter comes before the court as a review of a final agency action under the Administrative Procedure Act. See doc. 1. In the Fifth Circuit the “record rule” is a “bedrock principle of judicial review that a court reviewing an agency decision should” consider only the administrative record but not evidence presented for the first time in the court proceeding. Goonsuwan v. Ashcroft, 252 F.3d 383, 390 n. 15 (5th Cir. 2001) (citation omitted). There are several recognized exceptions where the court may consider extra-record evidence, however, including “in cases where relief is at issue, especially at the preliminary injunction stage.” Esch v. Yeutter, 876 F.2d 976, 991 (D.C. Cir. 1989).

         The Army has moved the court to exclude plaintiff's extra-record materials and the testimony presented at the hearing. Docs. 52, 57. Defendants contend that the court's consideration of extra-record evidence would “subvert the entire administrative review process.” Doc. 57, att. 1, p. 3. They state that “[t]estimony that merely disputes the substance of analysis in the Administrative Record is inadmissible” and that extra-record cannot be used “to determine the correctness or wisdom of [an] agency's decision.” Id. at 4 (citations omitted). Defendants also argue that the court should focus solely on the administrative record because Pegasus “has not identified an applicable exception to the record rule” which allows the court to consider the testimony and evidence presented at the hearing. Id. Pegasus opposes ...


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