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Pegasus Equine Guardian Association v. United States Army

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

March 27, 2019

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

          KAY, MAGISTRATE JUDGE

          MEMORANDUM RULING

          ROBERT R. SUMMERHAYS, UNITED STATES DISTRICT JUDGE

         Before 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.

         I.

         Background

         This 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.

         Fort 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 Ridge. JRTC-B-000053-54.

         In 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).

         In 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.

         The EA 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 general. JRTC-A-000001-6.

         Pegasus 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.

         II.

         Law & Application

         A. Record Challenges

         1. Applicable law

         Pegasus's 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.[1] 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).

         2. Application to this case

         Pegasus 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.[2] 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, pp. 30-31.

         NEPA 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)).

         The 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.

         Admission 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.

         a. Extra-record evidence offered in support of NEPA claims

         In 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.

         i. Beranger and Sponenberg letters

         Pegasus 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.[3] 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, att. 1.

         These 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 considered.

         ii. Dorson declaration

         Pegasus 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.

         iii. FOIA responses

         Pegasus 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.

         iv. ...


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