United States District Court, W.D. Louisiana, Lake Charles Division
R. SUMMERHAYS, UNITED STATES DISTRICT JUDGE
the court are cross-motions for summary judgment filed by
plaintiff Pegasus Equine Guardian Association
(“Pegasus”) [doc. 96] and defendants the United
States Army and Brigadier General Patrick D. Frank, in his
official capacity as commanding general of Fort Polk and the
Joint Readiness Training Center (“JRTC”) [doc.
101]. Both motions have been fully briefed and the matter is
now ripe for review.
action arises as an administrative appeal of the
defendants' actions under the Administrative Procedure
Act (“APA”), 5 U.S.C. § 701 et
seq., relating to their decision to remove horses from
Fort Polk and the JRTC training areas.
Polk, which also serves as headquarters for the JRTC, is
located on approximately 260, 000 acres of Department of
Defense and United States Forestry Services land in
west-central Louisiana. JRTC-B-000052. The installation
supports at least ten annual training rotations through the
JRTC “under conditions that simulate low- and
mid-intensity conflicts.” Id. Training
activities occur at both the Main Post and nearby Peason
September 1999 the Army Corps of Engineers issued a final
report entitled “Protection of Restored Lands, ”
describing problems with “trespass horses”
roaming over these training grounds and options for their
removal. JRTC-E-002980-JRTC-E-003139. Based on that report
and information from the Forestry Service, the Army compiled
a record of environmental consideration (“REC”)
concerning removal options. JRTC-E-003524-60. There it noted
that, according to the Department of Agriculture
(“USDA”), the animals were not protected by the
Wild and Free Roaming Horses and Burros Protection Act of
1971 (“WHBA”), 16 U.S.C. §§ 1331- 1340.
JRTC-E-003524. The Corps of Engineers then determined that
the horses could be captured and removed without significant
environmental consequences. JRTC-E-003524-25. The Coalition
of Louisiana Animal Advocates (“COLAA”)
challenged the removal plans under the APA, through a lawsuit
filed in the United States District Court for the Eastern
District of Louisiana. After summary judgment briefing, the
court adopted the defendants' finding that the horses
were trespass livestock who had roamed onto the land from
adjacent ranches and farm areas. JRTC-B-000148-50.
Accordingly, it affirmed the defendants' determinations
on WHBA coverage and removal of the trespass horses.
JRTC-B-000139-155. The parties reached a settlement while the
case was on appeal, but the Fifth Circuit nevertheless
affirmed the lower court's decision on WHBA coverage.
Doc. 101, p. 12; JRTC-B-000156; see COLAA v. USDA,
No. 01-31361 (5th Cir. Mar. 11, 2003).
April 2016, the Army completed a draft environmental
assessment (“EA”) on the elimination of trespass
horses from Fort Polk and the Peason Ridge military training
area. JRTC-B-000038-JRTC-B-000138. There it observed that the
Peason Ridge training area had expanded through the purchase
of new lands in 2012, and that an increasing number of
trespass horses populate the training area. JRTC-B-000052,
JRTC-B-000085. It described the impacts of the horses on
training events and the danger they posed to base population
and property. JRTC-B-000054-61. It also found that the base
was an unsuitable environment for the horses, due to the risk
of injury or death they faced from training equipment and
live fire exercise. JRTC-B-000057- 58. It noted that existing
efforts to control the horse population through sterilization
and public capture programs, termed a “no action”
Course of Action (“COA”) under the current
assessment, “would not resolve the personnel safety and
training impacts in the reasonably foreseeable future (more
than 20 years), ” while the other proposed COAs would
resolve those impacts within approximately three years.
JRTC-B-000040-41. It then considered six other COAs,
determined that none would have significant environmental
impacts, and selected the “Cyclic 4 Step (Adopt, Give
Away, Sell, Relocate)” alternative as the least
aggressive course that would satisfy the needs described
above within a reasonable time. JRTC-B-000066-130.
and an associated draft Finding of No. Significant Impact
(“FONSI”) were released for public comment on May
4, 2016. JRTC-A-000003. Based on comments received, the Army
adjusted certain aspects of the adoption program under the
Cyclic 4 Step COA to better accommodate 501(c)(3) agencies.
JRTC-A-000004-5, JRTC-A-000023. It then confirmed the Cyclic
4 Step COA as its chosen plan for dealing with the trespass
horses on August 8, 2016, by FONSI signed by the commanding
is a non-profit regional conservation organization with
members who recreate in and enjoy the landscape of Fort Polk
and the adjoining Kisatchie National Forest. Doc. 1, pp. 4-5.
It filed suit in the United States District Court for the
Middle District of Louisiana, challenging the August 2016
FONSI under the APA as violating the National Environmental
Policy Act (“NEPA”), 42 U.S.C. § 4321 et
seq., and the National Historic Preservation Act
(“NHPA”), 54 U.S.C. § 300101 et seq.
Id. at 6-22. It seeks declaratory and injunctive relief,
as well as an award of costs and attorney fees. Id.
at 22-23. At the defendants' motion, the case was
transferred to this court on August 1, 2017. Docs. 25, 26.
Pegasus moved for a partial preliminary injunction, which the
court denied after a hearing on January 30, 2018. Docs. 43,
67, 81. The claims have now been fully briefed through the
pending cross-motions for summary judgment [docs. 96, 101]
and the matter is ripe for review.
suit challenges the August 2016 FONSI, a final agency action,
and is thus governed by the Administrative Procedure Act. APA
review requires a court to consider “the whole record
or those parts of it cited by a party.” 5 U.S.C. §
706. “[T]he focal point for judicial review should be
the administrative record already in existence, not some new
record made initially in the reviewing court.” Camp
v. Pitts, 411 U.S. 138, 142 (1973). Under this
principle, known as the “record rule, ”
“[a]gency action is to be upheld, if at all, on the
basis of the record before the agency at the time it made its
decision.” Indep. Turtle Farmers of La., Inc. v.
United States, 703 F.Supp.2d 604, 610 (W.D. La. 2010)
(quoting Louisiana ex rel. Guste v. Verity, 853 F.2d
322, 327 n. 8 (5th Cir. 1988)). The record rule is not
absolute, however, and courts within this circuit have
recognized several exceptions. Id. at 611. Generally,
extra-record evidence may be used to support a claim that the
agency ignored relevant factors that it was required to
consider. Triplett, 2009 WL 792799 at *8; see
also Coalition of Concerned Citizens to MakeARTsmart v. Fed.
Trans. Admin. of U.S. Dep't of Transp., 843 F.3d
886, 899-900 (10th Cir. 2016). Under this exception, a NEPA
claim in particular may invite consideration of extra-record
evidence. Coliseum Square Ass'n, Inc. v.
Jackson, 465 F.3d 215, 247 (5th Cir. 2006).
Application to this case
makes no challenge to the documents already lodged by the
defendants as part of the administrative record, nor does it
challenge the completeness of that record. Instead, it argues
that certain documents that are not part of the
administrative record should nonetheless be considered by the
court. See doc. 99, p. 14 (adoption and
reassertion of arguments raised in motions regarding
extra-record evidence in preliminary injunction proceedings).
It seeks to introduce testimony adduced at the court's
January 2018 hearing on Pegasus's motion for preliminary
injunction, in support of all claims for relief. Doc. 65;
doc. 49, att. 1, p. 27. It argues that the above documents
are relevant to determining the sufficiency of the
defendants' analysis of the proposed actions under NEPA
and/or the NHPA. The defendants oppose the inclusion of this
material, arguing that Pegasus is improperly seeking its
inclusion to second-guess the agency decision rather than
review the procedures leading up to that decision. Doc. 101,
requires that an agency take a “hard look at
environmental consequences” before making a decision,
but only “prescribes the necessary process for
preventing uninformed-rather than unwise-agency
action.” Robertson v. Methow Valley Citizen
Council, 490 U.S. 332, 350-51 (1989). Accordingly, a
NEPA claim attacks the agency's procedures in considering
the environmental impact of a project. “The omission of
technical scientific information is often not obvious from
the record itself, and a court may therefore need a
plaintiff's aid in calling such omissions to
attention.” Nat'l Audubon Soc'ty v.
Hoffman, 132 F.3d 7, 15 (2d Cir. 1997). Thus,
“deviation from the record rule to review procedural
integrity in a NEPA claim is a logical conclusion.”
Save Our Wetlands, Inc. v. Conner, 1999 WL 508365,
at *2 (E.D. La. Jul. 15, 1999) (citing Sierra Club v.
Hassell, 636 F.2d 1095, 1097-98 (5th Cir. 1981)).
NHPA also imposes procedural rather than substantive
requirements on agency action. Coliseum Square
Ass'n, 465 F.3d at 225. Under NHPA § 106, the
government must “take into account the effect any
federal undertaking might have on [a historic site].”
Id. (quoting United States v. 162.20 Acres of
Land, 639 F.2d 299, 302 (5th Cir. 1981)); see
also 54 U.S.C. § 306108 (the government
“shall take into account the effect of the undertaking
on any historic property”). Accordingly, the agency
must identify historic properties that are eligible for
listing on the National Register and assess the proposed
project's effects on any qualifying properties. 54 U.S.C.
§§ 306108, 300320. To this end the agency may need
to consult with other interested parties, in a process known
as “Section 106 consultation.” See 36
C.F.R. §§ 800.3-800.6.
under the NEPA exception or the general exception relating to
consideration of relevant factors is not automatic. Instead,
the court should only consider extra-record evidence where
“the administrative record is so inadequate as to
prevent the reviewing court from effectively determining
whether the agency considered all environmental consequences
of its proposed actions.” Little Traverse Lake
Prop. Owners Ass'n v. Nat'l Park Svc., 883 F.3d
644, 658 (6th Cir. 2018) (quoting Hoffman, supra,
132 F.3d at 15). Where those documents are cumulative of the
administrative record, their admission should be denied.
Id. at 658-59. Additionally, “exceptions to
the normal rule regarding consideration of extra-record
materials only apply to information available at the time,
not post-decisional information.” Tri-Valley CAREs
v. U.S. Dep't of Energy, 671 F.3d 1113, 1130-31 (9th
Cir. 2012) (internal quotation marks and alterations
omitted). Post-decision information “may not be
advanced as a new rationalization for either sustaining or
attacking an agency's decision.” Sw. Ctr. for
Biological Diversity, 100 F.3d 1443, 1450 (9th Cir.
1996); accord Latin Americans for Social and Econ. Dev.
v. Admin'r of Fed. Hwy. Admin., 858 F.Supp.2d 839,
856 n. 11 (E.D. Mich. 2012) (citing Wisconsin Elec. Power
Co. v. Costle, 715 F.2d 323, 327 (7th Cir. 1983)) &
Coalition of Concerned Citizens to MakeARTSmart v. Fed.
Transit Admin. of U.S. Dep't of Transp., 2016 WL
8919680, at *3 (D.N.M. Jul. 15, 2016); cf. Oceana, Inc.
v. Locke, 674 F.Supp.2d 39, 47 (D.D.C. 2009) (striking
post-decisional testimony but noting that, in a previous
case, a post-decisional letter by a scientist challenging the
manner in which an agency relied on her own research was
properly admitted as extra-record evidence). “Although
[the duty to consider new information] may be true for an
agency, the Court's role . . . is to review the
[agency's] decision to grant [an] application based upon
the materials before the [agency] at the time of its decision
and upon acceptable extra-record materials, if any.”
MakeARTSmart, 2016 WL 8919680 at *3.
Extra-record evidence offered in support of NEPA
support of its NEPA claims, Pegasus moves for consideration
of (1) letters from Jeannette Beranger and Phillip
Sponenberg; (2) a declaration from Jeff Dorson, director of
the Humane Society of Louisiana; (3) FOIA responses from the
USDA and the Army; and (4) a declaration from Bruce Nock.
Doc. 49, att. 1, pp. 18-23. It argues that this evidence is
relevant because the Army's EA failed to make certain
considerations required under NEPA, namely relating to the
effect of its program on the horses themselves and the range
of available alternatives. Id. at 18.
Beranger and Sponenberg letters
seeks introduction of letters from Jeannette Beranger,
programs manager at a livestock conservancy nonprofit, and
Dr. Phillip Sponenberg, a professor of pathology and genetics
at the Virginia-Maryland College of Veterinary
Medicine. Doc. 43, atts. 8 & 9. Beranger and
Sponenberg argue that the trespass horses could be “a
remnant population of a Colonial Spanish strain of horses
known as the Choctaw horse, ” and that if this is the
case, they “could be of genetic, cultural, and
historical importance to the region.” Doc. 43, att. 8,
p. 1; doc. 43, att. 9. They base these suppositions on visual
assessments and the herd's alleged history of isolation,
but acknowledge that a conclusion cannot be reached without
further investigation. Doc. 43, atts. 8 & 9.
Sponenberg's letter is undated while Beranger's is
dated February 12, 2017. Since that time, Sponenberg has also
submitted an amicus curiae brief and attached declaration,
dated April 13, 2018, in which he states that he believes
that “some of the horses at Fort Polk are of the
Choctaw strain and Colonial Spanish type.” Doc. 82,
materials appear to be submitted in support of Pegasus's
contention that the Army's EA did not take relevant
concerns into account. The defendants do not offer any
specific objections to the materials but assert generally
that the extra-record material should be excluded as
post-decisional and second-guessing the merits of the
agency's decision. Doc. 101, p. 30. To the extent that
these opinions were formed after the Army's final
decision in August 2016, they should be excluded. Even if
Pegasus could show that these opinions predate the decision,
it could not demonstrate that they point to some deficiency
in the decision-making process under NEPA. The FONSI relies
on the Eastern District's holding that “the subject
horses are trespass horses that have roamed from adjacent
areas and farm areas onto military and Forest Service lands,
” and that there is no “competent, credible
evidence that [they] are or were ever ‘wild horses'
within the meaning of the WHBA.” JRTC-A-000004. The
record shows that the Army did consider the horses'
origins. The new materials are not enough to support a claim
of procedural deficiencies under NEPA and will not be
also relies on a declaration from Jeff Dorson, director of
the Humane Society of Louisiana. Doc. 43, att. 5. He states
that his organization received anonymous complaints in
January 2018 relating to the round-up of horses at Fort Polk.
Id. This information is clearly post-decisional and
cannot be used to support Pegasus's claim of inadequate
consideration of alternatives or impacts under NEPA.
submits a “no records” response received from the
USDA Natural Resources Conservation Service (USDA-NRCS) and
the Army in response to 2017 and 2015 FOIA requests submitted
to those agencies, seeking recent analyses done on the herd
and other investigations on natural resources at Fort Polk.
Doc. 43, att. 15. It does not cite these documents anywhere
in its briefing on the motions for summary judgment. There is
thus no basis for the court to consider them, regardless of
whether they may be properly admitted as extra-record
evidence. Additionally, the record described below shows that
the agency did rely on multiple government studies of the
herd and the site. Even if Pegasus could show that the FOIA
responses were admissible, they are not enough to show proper
consideration of any relevant issue in this litigation.