Silverton Mountain Guides LLC v. U.S. Forest Service

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WO IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
SILVERTON MOUNTAIN GUIDES LLC,
an Alaska limited liability company,
Plaintiff,
vs.
U.S. FOREST SERVICE, an agency of the
U.S. Department of Agriculture,
Defendant,
and
PULSELINE ADVENTURE LLC,
Defendant-Intervenor.
No. 3:22-cv-00048-HRH
O R D E R
Motion to Supplement Administrative Record
Plaintiff Silverton Mountain Guides LLC moves1 to supplement the administrative
record (“Administrative Record”) that defendant U.S. Forest Service (the “Forest
Service” or the “Service”) filed in this case concerning a challenge to an agency action
pursuant to the Administrative Procedure Act (the “APA”).2 The Forest Service and
defendant-intervenor Pulseline Adventure LLC (“Pulseline”) oppose the motion.3 Oral
1 Docket No. 32.
2 Docket No. 23.
3 Docket Nos. 38, 39.
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argument was not requested and is not deemed necessary.
Background
Plaintiff is Silverton Mountain Guides LLC, an Alaska limited liability company.4
Defendants are the Forest Service, an agency of the U.S. Department of Agriculture, and
intervenor Pulseline, an Idaho limited liability company.5
In November 2020, the Forest Service issued a prospectus (the “Prospectus”)
soliciting proposals from interested parties to apply for special use permits to provide
guided helicopter skiing services on the Cordova Ranger District of the Chugach National
Forest.6 The Forest Service’s stated goals in issuing the Prospectus were to address a
growing demand for guided helicopter skiing activities (i.e., winter recreation activities
like skiing, snowboarding, and snowshoeing where a helicopter is used to provide up-hill
transportation to participants) in the Chugach National Forest and select applicants “best
qualified to provide visitors with a safe, satisfying recreation experience that promotes
enjoyment, understanding, and appreciation of the Chugach National Forest while
minimizing impacts to resources and other forest users.”7 The Prospectus identifies
several categories of selection criteria used to evaluate applications: (1) business model,
(2) client experience, (3) workplace practices, (4) operations, (5), resource protection, and
4 Complaint at 1, Docket No. 1.
5 Id. at 19, ¶ 79.
6 Administrative Record at 2753-2823, Docket No. 23. The Forest Service’s initial filing
of the Administrative Record was “corrupt and incomplete,” so it filed several errata at
Docket Nos. 24, 25, and 42 with corrected files. This order’s citations to the
Administrative Record refer to the corrected Bates-stamped page numbers as displayed in
the index to the Administrative Record filed at Docket No. 43.
7 Id. at 2702-03.
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(6) local community benefits.8 Forest Service regulations and policies establish
additional, more generalized criteria, including an applicant’s experience, qualifications,
and technical and economic feasibility, among others. 36 C.F.R. § 251.54(e)(5);
FS Manual 2712.1, Prospectus (U.S.D.A. 2022).
In response to the Prospectus, the Forest Service received seven applications,
including one from plaintiff and one from Pulseline.9 The Forest Service convened a
panel of four individuals to review the applications, all of whom the Service represents it
“screened to ensure their objectivity” and “selected for their substantial experience with
special use permits, helicopter skiing operations, and other winter sports and outdoor
recreation services.”10 According to the Forest Service, the panel members conducted
their own independent reviews of the applications before convening twice to review and
rank the applications and make a joint recommendation to District Ranger Steve Namitz
on which applications warranted “further processing.”11
It is against this backdrop that plaintiff submitted what the Forest Service
characterized as a “good,” but ultimately lacking, proposal.12 After reviewing the panel’s
evaluation materials—consisting of an application evaluation form, a score and rank
associated with each applicant, notes, a recommendation on which applicants to select for
further processing, and email correspondence documenting limited background checks
8 Id. at 2763.
9 Id. at 1890.
10 Id. at 3146.
11 Id. at 3144-46.
12 Id. at 1890.
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performed by the Forest Service—and conducting his own review of the Prospectus
applications, District Ranger Namitz selected three applicants for further processing:
Points North Heli-Adventures, Inc., which received a score of 54.50 points (out of a
maximum possible score of 60 points); Pulseline, which received a score of 52.50 points;
and Valdez Heli-Ski Guides, LLC, which received a score of 51.00 points.13 Plaintiff
ranked fourth with 48.75 points, 2.25 points below the third-ranked applicant.14
District Ranger Namitz notified plaintiff of his decision in a two-page letter dated
March 1, 2021 (the “Namitz Initial Decision”), communicating the scores and ranks of
the top four applicants and a three-sentence synopsis from the evaluation panel
summarizing its assessment of plaintiff’s application:
It was a good proposal but not nearly as thorough as others. Appears they
would be a good permit holder and a good partner on the land, however
more detail was needed. Appreciated some of the approaches they use that
are consistent with ski area management.15
Plaintiff then exercised the administrative review procedures of 36 C.F.R. § 214 to
appeal District Ranger Namitz’s decision.16 In its appeal, Plaintiff requested that the
Forest Service process its application in place of Pulseline’s application.17 Plaintiff’s
appeal compared and contrasted Pulseline and plaintiff, offering several supporting
13 See Revised Administrative Record Index at 3, Docket No. 43-1 (identifying
documents generated from or reviewed during the evaluation panel process);
Administrative Record at 1890, Docket No. 23 (disclosing the applications’ scores and
ranks).
14 Administrative Record at 1890, Docket No. 23.
15 Id.
16 Id. at 4-51.
17 Id. at 13.
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arguments: (1) plaintiff is better qualified than Pulseline; (2) the selection of Pulseline
over plaintiff violates the Forest Service’s policy to protect the public health and safety;
(3) Pulseline is not qualified for a special use permit; and (4) a federal district court will
reverse the Forest Service’s decision.18
On June 9, 2021, District Ranger Namitz responded to plaintiff’s appeal with a 14-
page letter (the “Namitz Responsive Letter”) requesting that Forest Supervisor Jeff
Schramm, the Forest Service’s designated “Appeal Deciding Officer,” issue his own
decision on plaintiff’s appeal.19 In that letter, District Ranger Namitz defended his
March 1 decision to select Pulseline’s application for further processing over plaintiff’s
application, citing the “weight of the evidence” generated during the application review
and appeal process (including the Prospectus applications and additional materials
plaintiff provided with its appeal), the selection criteria the Forest Service established at
the outset of the process, and the evaluation panel’s recommendations.20
Forest Supervisor Schramm issued a written decision on the appeal on
August 9, 2021 (the “Schramm Decision”).21 The Schramm Decision affirmed District
Ranger Namitz’s March 1 decision and denied the relief plaintiff requested through
a 13-page response expressly based on the materials generated throughout the Prospectus
process, plaintiff’s appeal, the Forest Service’s selection criteria, and the Namitz
18 Id. at 4-51.
19 Id. at 2897-2910.
20 Id. at 2897-98, 2909.
21 Id. at 3144-56.
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Responsive Letter.22 After receiving the Schramm Decision, the Forest Service’s
“Discretionary Reviewing Officer,” David Schmid, declined further review of plaintiff’s
appeal on September 7, 2021, rendering the Schramm Decision the Forest Service’s final
action on plaintiff’s Prospective application and appeal.23
While the Prospectus application appeal process played out, plaintiff’s owner,
Aaron Brill, submitted a Freedom of Information Act (“FOIA”) request to the Forest
Service seeking information related to the evaluation panel’s review process, including
Pulseline’s application and the panel’s score reports for plaintiff and Pulseline.24 The
Forest Service provided partially redacted documentation in response to Brill’s request,
claiming exemptions under FOIA, 5 U.S.C. § 552(b)(4)-(6).25 Brill later appealed the
Service’s FOIA response but as of the filing of plaintiff’s complaint was not satisfied
with the agency’s efforts to respond to his appeal.26
Plaintiff commenced this action on March 14, 2022. In its complaint, plaintiff
asserts the following causes of action against the Forest Service: (1) arbitrary and
capricious final agency action under the APA, and (2) unlawful withholding of
information subject to disclosure under FOIA.27 Plaintiff requests: (1) a declaration that
the Schramm Decision violated the Forest Service’s special use regulations and the APA,
(2) vacatur of the Schramm Decision to the extent it ranked Pulseline ahead of plaintiff,
22 Id. at 3145.
23 Id. at 3157.
24 Id. at 3003-04.
25 Id. at 3008-75.
26 Complaint at 27-28, ¶¶ 107-12, Docket No. 1.
27 Id. at 34-37, ¶¶ 137-54.
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(3) an order remanding the matter to the Forest Service with instructions to advance
plaintiff’s application for “further processing,” (4) a declaration that the Forest Service’s
failure to produce the names of the evaluation panel members violated FOIA, (5) an order
directing the Forest Service to produce the names of the evaluation panel members, (6) an
order awarding plaintiff its attorneys’ fees and costs, and (7) such other relief that the
court deems appropriate.28
On July 18, 2022, the Forest Service filed its Administrative Record, the
sufficiency of which plaintiff challenges through its present motion due to alleged
improper redactions and omissions that purportedly would fill an information gap.29
Plaintiff specifically takes issue with the Forest Service’s redaction of significant portions
of the Administrative Record’s content to protect what the Service maintains is
information subject to the deliberative process privilege or which warrants confidential
treatment for business or privacy concerns.30 Plaintiff now moves for the court to order
the Forest Service to “supplement” the Administrative Record by adding: (1) unredacted
versions of the evaluation panel’s findings, recommendations, notes, and checklists (the
“Evaluation Panel Materials”); (2) unredacted versions of plaintiff and Pulseline’s
Prospectus applications (the “Prospectus Applications”); (3) unredacted versions of the
law enforcement records, incident reports, and other documents related to the Forest
Service’s background checks on the Prospectus applicants (the “Law Enforcement
28 Id. at 37.
29 Motion to Supplement the Administrative Record, Docket No. 32.
30 Defendant Forest Service’s Opposition to Plaintiff’s Motion to Supplement the
Administrative Record, Docket No. 39.
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Documents”); (4) an unredacted version of the “appeal file” cited by Forest Supervisor
Schramm in his August 9, 2021, decision; and (5) a declaration from Brill and documents
attached as exhibits thereto (the “Brill Submission”), which plaintiff posits would fill a
“gap” in the Administrative Record.31
The Forest Service and Pulseline oppose plaintiff’s motion.32 The Forest Service
maintains that, except for the Brill Submission, all of the documents described above
exist in the Administrative Record, subject to appropriate redactions to protect privileged
and confidential information.33 In an apparent effort to compromise, the Forest Service
has offered to make available to the parties the Prospectus Applications and Law
Enforcement Documents, but not the Evaluation Panel Materials, subject to an
“attorneys’-eyes-only” restriction under the parties’ Stipulated Protective Order.34 The
Forest Service also offered to submit the Evaluation Panel Materials to the court for in
camera review to determine whether its redactions are appropriate.35 Pulseline’s response
is limited to opposing plaintiff’s requested disclosure of Pulseline’s Prospectus
application.36 Plaintiff replied to both defendants’ responses, reiterating its request for
the inclusion of all of the above materials in the Administrative Record in unredacted
form, although it is willing to accept the Prospectus Applications and Law Enforcement
31 Motion to Supplement the Administrative Record, Docket No. 32.
32 Docket Nos. 38, 39.
33 Defendant Forest Service’s Opposition to Plaintiff’s Motion to Supplement the
Administrative Record, Docket No. 39.
34 Id. at 20-21; see generally Stipulated Protective Order, Docket No. 31.
35 Defendant Forest Service’s Opposition to Plaintiff’s Motion to Supplement the
Administrative Record at 17, Docket No. 39.
36 Docket No. 38.
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Documents on a “confidential,” but not attorneys’-eyes-only, basis pursuant to the
Stipulated Protective Order.37
Legal Standard
The administrative record “consists of all documents and materials directly or
indirectly considered by agency decision-makers.” Alaska v. Fed. Subsistence Bd., No.
3:20-cv-00195-SLG, 2021 U.S. Dist. LEXIS 253661, at *4 (D. Alaska May 4, 2021)
(quoting Thompson v. U.S. Dep’t of Lab., 885 F.2d 551, 555 (9th Cir. 1989) (emphasis
omitted)). This collection of documents is the “focal point” of a court’s review of an
administrative decision, as courts are not to create a “new record” during the course of
judicial review. Camp v. Pitts, 411 U.S. 138, 142 (1973) (per curiam). An agency must
designate a “full and complete administrative record.” Alaska v. EPA, 244 F.3d 748, 751
(9th Cir. 2001) (citations omitted), aff’d sub nom. Alaska Dep’t of Env’t Conservation v.
EPA, 540 U.S. 461 (2004); see also Portland Audubon Soc’y v. Endangered Species
Comm., 984 F.2d 1534, 1548 (9th Cir. 1993) (“‘The whole record’ includes everything
that was before the agency pertaining to the merits of its decision”) (quoting Thompson,
885 F.2d at 555-56). Courts presume that agencies have designated the administrative
record completely. Bruce v. Azar, 826 F. App'x 643, 645 (9th Cir. 2020) (citing In re
United States, 875 F.3d 1200, 1206 (9th Cir. 2017), vacated on other grounds, 138 S. Ct.
443 (2017)).
Notwithstanding the general requirement to designate in the administrative record
37 Reply in Support of Motion to Supplement the Administrative Record, Docket No. 41.
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every document considered by agency decisionmakers, agencies may withhold from
disclosure privileged or confidential information under certain circumstances. One
prominent privilege is the deliberative process privilege, which is intended to “prevent
injury to the quality of agency decisions.” NLRB v. Sears, Roebuck & Co., 421 U.S.
132, 151 (1975). Another justification given for withholding or redacting information
from an administrative record is the need to protect confidential business information.
See, e.g., Ctr. for Biological Diversity v. U.S. Army Corps of Eng’rs, No. CV 14-1667
PSG (Cwx), 2015 U.S. Dist. LEXIS 76653, at *25 (C.D. Cal. Feb. 4, 2015) (noting
agency’s redaction of a letter and attachments in the administrative record to protect
confidential business information concerning oil and gas leases).
A subject of voluminous litigation since its inception, the deliberative process
privilege protects from disclosure “documents that reflect advisory opinions,
recommendations and deliberations comprising part of a process by which government
decisions and policies are formulated.” FTC v. Warner Commc’ns, Inc., 742 F.2d 1156,
1161 (9th Cir. 1984) (citing Sears, 421 U.S. at 150); see also Shilpa Narayan, Proper
Assertion of the Deliberative Process Privilege: The Agency Head Requirement,
77 Fordham L. Rev. 1183, 1187 (2008) (providing history of the deliberative process
privilege dating back to its inception in 1958) (citing Kaiser Aluminum & Chem. Corp. v.
United States, 157 F. Supp. 939 (Ct. Cl. 1958)). The privilege’s purpose is to ensure the
integrity of an agency’s “‘consultative functions . . . by maintaining the confidentiality of
advisory opinions, recommendations, and deliberations comprising part of a process by
which governmental decisions and policies are formulated.’” Nat’l Wildlife Fed’n v.
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U.S. Forest Serv., 861 F.2d 1114, 1117 (9th Cir. 1988) (quoting Jordan v. U.S. Dep’t of
Justice, 591 F.2d 753, 772 (D.C. Cir. 1978) (en banc), superseded in part by statute, Pub.
L. No. 99-570, 100 Stat. 3207, as recognized in ACLU of N. Cal. v. FBI, 881 F.3d 776
(9th Cir. 2018)).
Despite its well-recognized nature, courts narrowly construe the deliberative
process privilege. Cook v. Watt, 597 F. Supp. 545, 549 (D. Alaska 1983). It applies only
if “‘disclosure of [the] materials would expose an agency's decisionmaking process in
such a way as to discourage candid discussion within the agency and thereby undermine
the agency's ability to perform its functions.’” Maricopa Audubon Soc'y v. U.S. Forest
Serv., 108 F.3d 1089, 1093 (9th Cir. 1997) (quoting Assembly of Cal. v. U.S. Dep’t of
Com., 968 F.2d 916, 920 (9th Cir. 1992), amended by No. 92-15217, 1992 U.S. App.
LEXIS 22208). For a document to qualify for the deliberative process privilege, it must
be both predecisional and deliberative. Carter v. U.S. Dep’t of Com., 307 F.3d 1084,
1089-91 (9th Cir. 2002) (citations omitted). Ninth Circuit courts take a holistic approach
to this evaluation, homing in on the process during which the agency generates the
allegedly deliberative document. Nat’l Wildlife Fed’n, 861 F.2d at 1118.
When evaluating privilege claims in an APA case, many courts look to the body of
law resulting from FOIA litigation, where agencies oftentimes assert identical privileges
to withhold information from disclosure. See generally U.S. Dep’t of the Interior v.
Klamath Water Users Protective Ass’n, 532 U.S. 1 (2001) (evaluating the government’s
assertion of the deliberative process privilege to justify withholding documents under
FOIA’s “Exemption 5”); Ctr. for Biological Diversity v. Office of the U.S. Trade
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Representative, 450 Fed. Appx. 605 (9th Cir. 2011) (same); Nat’l Wildlife Fed’n, 861
F.2d 1115 (same). Indeed, federal courts have determined that FOIA’s “Exemption 5,”
codified at 5 U.S.C. § 552(b)(5), is “effectively co-extensive” with the common law
deliberative process privilege. All. for the Wild Rockies v. Pena, No. 2:16-CV-294-
RMP, 2017 U.S. Dist. LEXIS 220958, at *5 (E.D. Wash. Dec. 12, 2017) (citing CACI
Field Servs. v. United States, 12 Cl. Ct. 680, 686 n.7 (1987), aff'd, 854 F.2d 464 (Fed.
Cir. 1988)). The court may therefore look to FOIA and non-FOIA cases alike in
evaluating the Forest Service’s claim that the deliberative process privilege justifies its
redactions.
Beyond challenging documents withheld from the administrative record based on
a privileged or confidential status, a challenger may rebut the presumption of a complete
administrative record by presenting “clear evidence” that the record omits materials
necessary to evaluate fully an agency’s decision. In re United States, 875 F.3d at 1206
(citations omitted); Alegre v. United States, No. 16-cv-2442-AJB-KSC, 2021 U.S. Dist.
LEXIS 211670, at *15 (S.D. Cal. July 29, 2021) (citations omitted). Courts in this circuit
will consider supplementing the administrative record with “extra-record evidence” only
when: (1) it 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. Forester of Region One of the U.S. Forest Serv., 395 F.3d
1019, 1030 (9th Cir. 2004), amended by sub nom. Lands Council v. Powell, 395 F.3d
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1019 (9th Cir. 2005) (quoting Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100
F.3d 1443, 1450 (9th Cir. 1996). These exceptions are “widely accepted” but “narrowly
construed and applied.” Lands Council, 395 F.2d at 1030 (citations omitted). Courts
must afford “sufficient deference” to the agency and avoid conducting a de novo review
of its decision. San Luis & Delta-Mendota Water Auth. v. Locke, 776 F.3d 971, 992-93
(9th Cir. 2014) (citing Marsh v. Or. Nat. Res. Def. Council, 490 U.S. 360, 378 (1989));
see also River Runners for Wilderness v. Martin, 593 F.3d 1064, 1070 (9th Cir. 2010)
(per curiam) (describing the “deferential” standard pursuant to which “[t]he court’s task
is not to make its own judgment about” the agency’s decision).
Discussion
After plaintiff filed its motion to supplement the Administrative Record, the
parties appear to have made some concessions and clarifications that simplify the issues
now in front of the court. The Forest Service agreed to produce unredacted versions of
the Prospectus Applications and Law Enforcement Documents, although the parties
disagree on whether those documents should be disclosed only to the parties’ attorneys or
to the parties themselves.38 The Forest Service also clarified that the “appeal file”
referenced in the Schramm Decision exists in the Administrative Record in its entirety,
although significant portions thereof remain redacted to protect what the Service
considers to be deliberative or confidential business information.39 The parties continue
38 Defendant Forest Service’s Opposition to Plaintiff’s Motion to Supplement the
Administrative Record at 2, Docket No. 39.
39 Declaration of Forest Supervisor Jeff Schramm at 2, ¶ 3, Docket No. 44.
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to disagree on whether the Evaluation Panel Materials currently in the Administrative
Record should be redacted and whether the Brill Submission should be included in the
Administrative Record. Accordingly, there are three primary issues for the court’s
consideration: (1) whether the Forest Service appropriately redacted the Evaluation Panel
Materials pursuant to the deliberative process privilege; (2) whether the Prospectus
Applications and Law Enforcement Documents should receive attorneys’-eyes-only or
confidential treatment under the Stipulated Protective Order; and (3) whether a gap exists
in the Administrative Record that warrants inclusion of the Brill Submission. A fourth
issue, relating to the adequacy of the Forest Service’s response to plaintiff concerning the
“appeal file,” is subsumed within the first two issues described above since the only
components of the “appeal file” that appear to be at issue are the Evaluation Panel
Materials, Prospectus Applications, and Law Enforcement Documents.
A. The Evaluation Panel Materials
The Evaluation Panel Materials—namely, the evaluation panel’s final decision and
recommendation to District Ranger Namitz, the panel’s notes, and “Yes/No” checklists
indicating whether the panel determined that an application “adequately addressed” the
information requested in the Prospectus—fit squarely within the confines of the
deliberative process privilege.40 As noted above, the privilege covers predecisional and
deliberative “‘documents reflecting advisory opinions, recommendations and
deliberations comprising part of a process by which governmental decisions and policies
40 Administrative Record at 1932-66, Docket No. 23.
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are formulated.’” Carter, 307 F.3d at 1089 (quoting Klamath, 532 U.S. at 8). A
document is predecisional when developed by a subordinate employee to assist an agency
decisionmaker in arriving at a decision. Kowack v. U.S. Forest Serv., 766 F.3d 1130,
1135 (9th Cir. 2014) (citing Maricopa Audubon Soc’y, 108 F.3d at 1093). A document is
deliberative when it consists of recommendations and suggestions, from an inferior to a
superior, that reflect the “‘personal opinions of the writer rather than the policy of the
agency.’” Maricopa Audubon Soc'y, 108 F.3d at 1095 (quoting Coastal States Gas Corp.
v. Dep’t of Energy, 617 F.2d 854, 866 (1980)). If a document would “expose ‘the
decision-making process itself’ to public scrutiny by revealing the agency’s ‘evaluation
and analysis of the multitudinous facts,’” a document is deliberative in nature. Nat’l
Wildlife Fed’n, 861 F.2d at 1118 (quoting Montrose Chem. Corp. of Cal. v. Train, 491
F.2d 63, 68 (D.C. Cir. 1974)).
Here, the Evaluation Panel Materials predated the Forest Service’s ultimate
decision on which applications to select for further processing. The materials contain the
opinions, recommendations, and suggestions by a group of subordinate employees tasked
with providing their thoughts to help Forest Service decisionmakers decide which
applications they should choose. The Evaluation Panel Materials therefore are both
predecisional and deliberative. Additionally, the evaluation panel generated them
through the government’s overall deliberative process of selecting which Prospectus
applications would move forward, so applying the privilege to these materials is
consistent with the process-oriented approach outlined above. See Am. Petrol. Tankers
Parent, LLC v. United States, 952 F. Supp. 2d 252, 270-71 (D.D.C. 2013) (finding the
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deliberative process privilege applies to adjudicative proceedings involving a
determination of whether or not a party is eligible for government credit, funds, or other
benefits); Nat. Res. Def. Council, Inc. v. Doremus, No. 20-cv-1150 (CRC), 2021 U.S.
Dist. LEXIS 105921, at *12-15 (D.D.C. June 7, 2021) (finding reviewers’ scoresheets
protected by the deliberative process privilege); Comprehensive Cmty. Dev. Corp. v.
Sebelius, 890 F. Supp. 2d 305, 313 (S.D.N.Y. 2012) (same). The court need not review
these documents in camera to make this straightforward determination, as the parties’
depictions of the redacted materials and their relationship to the unredacted information
that surrounds them in the Administrative Record make clear that these documents are
both “predecisional” and “deliberative.”41 Other district courts similarly have concluded
that government actors’ individual evaluations and scoring records generated during
competitive proposal and bidding processes fall squarely under the deliberative process
privilege’s umbrella when they represent an initial evaluation from reviewers who lack
authority to issue a final decision. See, e.g., Challenger Transp., Inc. v. Wash. Metro.
Area Transit Auth., Civil Action No. TDC-14-3322, 2017 U.S. Dist. LEXIS 201613 at
*58-69 (D. Md. Nov. 28, 2017) (shielding transportation agency members’ technical
evaluation and scores of proposals for the provision of transportation services to persons
with disabilities); Brownstein Zeidman & Schomer v. U.S. Dep’t of the Air Force, 781 F.
Supp. 31, 34 (1991) (shielding an Air Force report containing an advisory council’s
analysis and rating of proposals for a computer procurement contract); SMS Data Prods.
41 See id. at 1929-66 (providing cover memorandum to panel evaluation members
outlining review process and redacted checklist forms and notes).
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Grp., Inc. v. U.S. Dep’t of the Air Force, Civil Action No. 88-0481-LFO, 1989 U.S. Dist.
LEXIS 3156, at *2-3 (Mar. 31, 1989) (shielding technical scoring and ranking reports
resulting from an Air Force source selection evaluation board’s review of proposals for a
computer procurement contract); Pro. Rev. Org., Inc. v. U.S. Dep’t of Health & Hum.
Servs., 607 F. Supp. 423, 427 (1985) (shielding statistical information and panel
members’ point scores, evaluations, opinions, and recommendations concerning bids to
operate a physicians’ professional standards review organization for the State of Florida);
Comprehensive Cmty. Dev. Corp, 890 F. Supp. 2d at 313 (shielding draft summary
statements and individual reviewers’ worksheets and initial score sheets concerning
application for health center grant funding); Dumont v. U.S. Dep’t of the Air Force, No.
5:13-cv-73, 2014 U.S. Dist. LEXIS 199024, at *21 (D. Vt. Mar. 5, 2014) (shielding Air
Force scores and ranks of potential base sites for new fighter aircraft).
Plaintiff acknowledges that the deliberative process privilege applies to the
Evaluation Panel Materials.42 However, plaintiff argues that the Forest Service cannot
invoke the privilege to protect the Evaluation Panel Materials because the Schramm
Decision expressly adopted the panel’s findings and conclusions and both District Ranger
42 See Motion to Supplement the Administrative Record at 8, Docket No. 32 (“The only
privilege potentially applicable to the panel’s ‘notes’ and ‘adequately demonstrated’
checklists, and the panel’s final decision and recommendation, is the deliberative process
privilege. . .”). The court notes that plaintiff argues that some of the materials the
evaluation panel considered, the Law Enforcement Documents, are “factual” and
therefore not covered by the deliberative process privilege. However, because the Forest
Service agreed to designate unredacted versions of these materials in the Administrative
Record, the court need not determine whether the deliberative process privilege applies to
those documents.
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Namitz and Forest Supervisor Schramm disclosed portions of the materials in their
respective letters.43 And, even if the Forest Service did not expressly adopt or waive the
privilege, plaintiff argues that its need for the information outweighs the government’s
interest in nondisclosure.44 The court addresses these arguments in turn, finding none of
them persuasive enough to risk chilling the “candid discussion” necessary to produce
defensible agency decisions rooted in reasoned analysis and robust debate. See
Assembly of Cal., 968 F.2d at 920 (citation omitted).
i. The Forest Service did not expressly adopt or incorporate by reference the
Evaluation Panel Materials, nor did it impermissibly rely on them while
withholding them as privileged.
Plaintiff contends it is “indisputable” that the Forest Service relied upon and
adopted the panel evaluations in the Schramm Decision, thereby nullifying the
deliberative process privilege according to precedent established by the Supreme Court in
NLRB v. Sears, Roebuck & Co.:
[W]e hold that, if an agency chooses expressly to adopt or incorporate by
reference an intra-agency memorandum previously covered by [the
deliberative process privilege] in what would otherwise be a final opinion,
that memorandum may be withheld only on the ground that it falls within
the coverage of some [other] exemption . . .
421 U.S. 132, 161 (1975). To support its argument, plaintiff directs the court’s attention
to numerous references to the Evaluation Panel Materials and language in the Namitz
Initial Decision and Namitz Responsive Letter where District Ranger Namitz noted that
he “agreed with” the panel’s evaluation and made his decision “[b]ased on the panel’s
43 Id. at 8-12.
44 Id. at 5.
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recommendations.”45 Similarly, plaintiff notes that Forest Supervisor Schramm
acknowledges “District Ranger Namitz’s reliance on the evaluation panel” and refers to
the evaluation panel’s findings many times in his written decision.46 Plaintiff also argues
that the Forest Service’s disclosure of portions of the Evaluation Panel Materials in its
letters prevents the Service from concealing the undisclosed portions, since the
government cannot “use the privilege as both a sword and a shield.” Pac. Gas & Elec. Co
v. Lynch, No. C-01-3023 VRW, 2002 U.S. Dist. LEXIS 28773, at *10 (N.D. Cal.
Aug. 19, 2002).
The D.C. Circuit has summarized the evolving jurisprudence evaluating the
concept of express adoption or incorporation since Sears, making clear that the Forest
Service’s references to the evaluation panel’s work in this case do not invalidate its
privilege claim. In Electronic Frontier Foundation v. U.S. Department of Justice, 739
F.3d 1, 10 (2014), the court noted that the express adoption exception to the deliberative
process privilege applies only when it is “evident” that the agency adopted a document’s
reasoning. Id. (citing Renegotiation Bd. v. Grumman Aircraft Eng’g Corp., 421 U.S.
168, 184 (1975)) (emphasis added). The D.C. Circuit opined that agreement with a
privileged document’s conclusions does not by itself eviscerate the privilege. Id.
Similarly, “casual allusion in a post-decisional document to subject matter discussed in
some pre-decisional, intra-agency memoranda is not the express adoption or
incorporation by reference which . . . would remove the protection of” the privilege.
45 Administrative Record at 1890, 2903, Docket No. 23.
46 Id. at 3146.
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Common Cause v. IRS, 646 F.2d 656, 660 (D.C. Cir. 1981). Although no court has
established a bright-line rule or magic words for determining what constitutes express
adoption or incorporation by reference, the examples where an agency has lost its ability
to claim the privilege show that the Forest Service’s references do not fall victim to the
same ills. For example, in National Council of La Raza v. U.S. Department of Justice,
411 F.3d 350, 358 (2d Cir. 2005), the Attorney General repeatedly invoked a
memorandum from the U.S. Department of Justice’s Office of Legal Counsel to “justify
and explain” a new Justice Department immigration policy and “assure” officials that the
policy was “legally sound.” In that case, the Attorney General and other Justice
Department staff issued a number of public statements intended to “state clearly the
policy of the Department [of Justice]” on the issue and to defend the government’s policy
and its legal basis. Id. at 357.
It is true that the documents authored by District Ranger Namitz and Forest
Supervisor Schramm make multiple references to the Evaluation Panel Materials and—
unsurprisingly, considering the decisions they ultimately made—speak favorably of the
panel’s process and scoring decisions. In some sense, the Forest Service did “rely” on
the evaluation panel process to formulate its decision, and it defended publicly the
integrity of that process, albeit in response to plaintiff’s attacks. It is also true that the
Namitz Initial Decision, Namitz Responsive Letter, and Schramm Decision make more
than just casual allusion to the panel evaluation materials. The references to the
Evaluation Panel Materials, however, are a far cry from reliance on the evaluation panel
members’ reasoning or a public invocation of their reasoning with no additional
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justification for the ultimate selection. The more substantive letters—the Namitz
Responsive Letter and Schramm Decision—contain a combined 27 pages of fulsome
analysis of the individual decisionmakers’ review of the applications and their
independent reasoning for selecting Pulseline’s application above plaintiff’s. They do not
parrot the evaluation panel members’ reasoning in full, if at all. Instead, most of the
Schramm Decision’s references to the evaluation panel simply note how the panel scored
an application on a given metric before leading into Forest Supervisor Schramm’s own
assessment of whether the scoring was supported by the facts in front of him.47 Even the
brief Namitz Initial Decision remarks that District Ranger Namitz completed his own
review of the applications and that he himself, not the evaluation panel, decided to select
the top three applications for further processing.48 Public restatement of the evaluation
panel’s scores, ranks, and short synopsis of its conclusions—all of which the Forest
Service intended to release at the outset of the Prospectus process—does not rise to
express adoption or incorporation by reference of the evaluation panel members’ notes,
checklists, decisions, or recommendations. The Forest Service has not offered the
Evaluation Panel Materials as a repeated, public justification of its decision, as in La
Raza. Nor do the authors’ acceptance of, reliance on, and repeated references to the
47 See, e.g., Administrative Record at 3149 (“. . . I also find the panel’s scoring indicating
that Pulseline has a better system for tracking employee licensure, certifications, and
training to be fully supported.”), 3150 (“Given the variety of potential risks in heli-skiing,
some of which may not be dramatically reduced by the presence of an additional guide, I
do not find that SMG’s argument about guide ratio is a reason to change the panel’s
scores.”), 3151 (“I find the panel’s evaluation that SMG and Pulseline would provide
similar levels of community benefit to be fully supported.”).
48 Id. at 1890.
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panel’s materials, conclusions, and process equate to the express adoption or
incorporation by reference of the materials themselves. See Advocs. for the W. v. U.S.
Dep’t of Justice, 331 F. Supp. 3d 1150, 1171 (D. Idaho 2018) (postulating that the White
House’s acceptance of the conclusions of a deliberative memorandum does not constitute
adoption of the memorandum or its reasoning).
The court also notes that the bulk of the Forest Service’s public statements in the
Namitz Responsive Letter and Schramm Decision concerning the Evaluation Panel
Materials appear to have stemmed from a defensive posture following plaintiff’s attacks
on the panel’s non-binding decision. District Ranger Namitz and Forest Supervisor
Schramm “used” the panel evaluation materials in their letters when responding to
plaintiff’s appeal to explain why plaintiff’s challenges to the panel evaluation process
were lacking, not to justify the decision Schramm ultimately made. This is not a case
where an agency issued public statements invoking otherwise deliberative materials as
evidence supporting its action and simultaneously redacted those materials from the
public’s view. See Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227, 238-39 (2008)
(ruling that the Federal Communications Commission expressly cited in a rulemaking,
but impermissibly redacted, internal scientific studies to show a lack of harmful
interference potential to licensed radio services from a new network system). The Forest
Service referenced the Evaluation Panel Materials at a high level in the Namitz Initial
Decision, diving deeper only upon plaintiff’s challenges to the integrity of the panel’s
process. Additionally, the Service did not shield those materials through redaction until
plaintiff requested them months later through Brill’s FOIA request and, ultimately, when
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designating the Administrative Record. Plaintiff’s briefing appears to miss this
distinction. See Elec. Frontier Found., 739 F.3d at 11 (distinguishing an agency’s
references to a deliberative opinion raised in response to inquiries from instances in
which the agency affirmatively raises a document to justify its policy). Far from using
the Evaluation Panel Materials as a sword, the Forest Service decisionmakers fashioned
their sword from independent reasoning and review separate and apart from those of the
evaluation panel.
ii. The Forest Service did not waive the deliberative process privilege.
Plaintiff next argues that the Forest Service waived its privilege by “disclosing
portions of the panel evaluations in the administrative appeal process and in the
[Schramm] Decision.”49 Plaintiff provides examples of this alleged disclosure in its
motion, but the examples provided reflect either general references to the evaluation
panel’s review process (e.g., “. . . they compared the applications and discussed positive
qualities and deficiencies . . .”) or a recitation of the scores awarded to plaintiff and
Pulseline on various criteria (e.g., “Pulseline received partial points for their staff
experience working with state and federal agencies managing the H2O Guides, Inc.
permits . . .”).50 These examples show that the Forest Service disclosed to plaintiff what
it had otherwise provided to plaintiff in unredacted form through the Prospectus process.
Moreover, the Namitz Responsive Letter and Schramm Decision do not reveal any of the
deliberative materials contained in the documents plaintiff requests (e.g., the evaluation
49 Motion to Supplement the Administrative Record at 11, Docket No. 32.
50 Administrative Record at 2903-04, Docket No. 23.
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panel members’ notes, checklists, and decision and recommendation to District Ranger
Namitz). The Forest Service appropriately withheld these documents, as it need not
include in the Administrative Record “every scrap of paper that could or might have been
created.” Pinnacle Armor, Inc. v. United States, 923 F. Supp. 2d 1226, 1237 (E.D. Cal.
2013) (quoting Taxpayers of Mich. Against Casinos v. Norton, 193 F. Supp. 2d 182, 195
(D.D.C. 2002)).
The cases plaintiff cites in support of its waiver argument are irrelevant. Walker
v. Regan, No. 13-7556, 2019 U.S. Dist. LEXIS 25517 (E.D. Pa. Feb. 14, 2019), discusses
a theoretical waiver of a document that was produced in its entirety in litigation, which
the Forest Service did not do in this case. The Forest Service disclosed only the
evaluation panel’s overall scores and heavily redacted versions of the checklist, not the
evaluation panel’s notes, decisions, or recommendations or the deliberative components
of the checklist. Similarly, in Coleman v. Schwarzenegger, No. CIV S-90-0520 LKK
JFM P, 2007 U.S. Dist. LEXIS 102305, at *41 (E.D. Cal. Dec. 6, 2007), the district court
found “ample evidence” that the government defendants planned to disclose internal,
deliberative materials to defend a lawsuit. Here, the Forest Service has not disclosed the
specific materials plaintiff requested or expressed its intent to do so in the future. Its
disclosure of documents that “merely referenced or cited” the Evaluation Panel Materials
does not automatically necessitate their inclusion in the Administrative Record. Save the
Colo. v. U.S. Dep’t of the Interior, 517 F. Supp. 3d 890, 899 (D. Ariz. 2021).
Contrary to plaintiff’s suggestion, courts addressing comparable situations have
found that the deliberative process privilege is not subject to the subject matter waiver
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often applied to defeat claims of attorney-client privilege. Challenger Transp., Inc., 2017
U.S. Dist. LEXIS at *63 (citing In re Sealed Case, 121 F.3d 729, 741 (D.C. Cir. 1997);
Murray Energy Corp. v. McCarthy, 5:14-cv-39, 2016 U.S. Dist. LEXIS 170017, at *15
(N.D. W.Va. July 20, 2016). In other words, disclosure of some portions of deliberative
memoranda or technical evaluation sheets, such as averaged numerical scores and a
summary of evaluators’ written comments, does not waive the deliberative process
privilege for the entire document, including undisclosed evaluators’ scores and written
comments. Id. at *68-69; cf. Del. Dep’t of Nat. Res. & Env’t Control v. U.S. Army Corp
of Eng'rs, 722 F. Supp. 2d 535, 544 (D. Del. 2010) (deciding that documents’ prior
disclosure pursuant to a FOIA request does not “necessarily mandate[] the addition of
such documents to the administrative record”); Callahan v. U.S. Dep’t of Health and
Hum. Servs., 434 F. Supp. 3d 1319, 1356 (N.D. Ga. 2020) (finding waiver of the
deliberative process privilege for the purpose of the discovery does not trigger automatic
inclusion in the administrative record).
Finally, plaintiff argues that the Forest Service failed to satisfy its burden for
claiming the privilege by providing only a “blanket and unsupported claim of
privilege.”51 Plaintiff is correct to point out that the Forest Service provided only a
rudimentary privilege log in the form of the index to the Administrative Record.52 The
index fails to identify the particular privilege claim or the basis for such claim associated
51 Motion to Supplement the Administrative Record at 5, Docket No. 32.
52 Defendant U.S. Forest Service’s Notice of Filing Corrected Administrative Record
Index at Docket 23-2, Docket No. 43.
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with each withheld document. Many district courts in this circuit have required the
government to provide a privilege log or submit documents to the court for in camera
review in order to support claims of privilege. See, e.g., Friends of the Clearwater v.
Higgins, 523 F. Supp. 3d 1213, 1227 (D. Idaho 2021); Washington v. U.S. Dep’t of State,
2019 U.S. Dist. LEXIS 45125, 2019 WL 1254876, at *11 (W.D. Wash. Mar. 19, 2019);
Mickelsen Farms, LLC v. Animal & Plant Health Inspection Serv., 2017 U.S. Dist.
LEXIS 76180, 2017 WL 2172436, at *12 (D. Idaho May 17, 2017); Gill v. U.S. Dep’t of
Justice, No. 14-cv-03120-RS (KAW), 2015 U.S. Dist. LEXIS 170347, at *23 (N.D. Cal.
Dec. 18, 2015). Nationally, the federal circuit courts have not agreed on whether
assertion of the deliberative process privilege requires submission of a formal privilege
log, but some courts have determined that deliberative materials do not even warrant
inclusion in the administrative record. See, e.g., Oceana, Inc. v. Ross, 920 F.3d 855, 865
(D.C. Cir. 2019) (quotations and citations omitted). The Ninth Circuit, meanwhile, has
upheld a district court’s requiring a privilege log in a case involving the deliberative
process privilege (although the court did not go so far as to require a log in all
circumstances). In re United States, 875 F.3d 1200, 1210 (9th Cir. 2017), rev’d on other
grounds, 138 S. Ct. 443 (2017). Here, the Forest Service provided a lackluster privilege
log in the form of the index to the Administrative Record, but through its opposition to
plaintiff’s motion eventually did provide the basis for its withholding documents and the
grounds justifying application of the deliberative process privilege. On balance, given
Forest Supervisor Schramm’s declaration that the Administrative Record is complete, the
limited number of disputed documents withheld on the basis of the deliberative process
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privilege (i.e., the Evaluation Panel Materials, which appear to encompass fewer than 40
pages in the Administrative Record), and the reasons the Forest Service offered in favor
of applying the privilege, the court finds that the Service has not waived the privilege.
See Oceana, Inc. v. Ross, No. 19-cv-03809-LHK (SVK), 2020 U.S. Dist. LEXIS 78955,
at *14 (N.D. Cal. May 5, 2020) (finding the government’s initial failure to provide an
adequate privilege log overcome by the court’s subsequent determination that the
privilege applies); cf. Gill, 2015 U.S. Dist. LEXIS 170347, at *23 (requiring a privilege
log because defendants failed to provide a privilege log, the basis for their withholding
documents, or the grounds justifying their assertion of the deliberative process privilege).
iii. Plaintiff’s need for the Evaluation Panel Materials does not outweigh the
Forest Service’s interest in nondisclosure.
Even if the deliberative process privilege applies to the Evaluation Panel
Materials, plaintiff argues that its need for the materials outweighs the government’s
interest in withholding them. Both plaintiff and the Forest Service briefed the court on
the application of the so-called Warner factors to the case at hand. In FTC v. Warner
Commc’ns, Inc., 742 F.2d 1156, 1161 (9th Cir. 1984), the Ninth Circuit distilled four
factors for courts to consider when determining whether a litigant’s need for accurate
fact-finding outweighs the government’s interest in nondisclosure of deliberative
materials: “1) the relevance of the evidence, 2) the availability of other evidence, 3) the
government's role in the litigation, and 4) the extent to which disclosure would hinder
frank and independent discussion regarding contemplated policies and decisions.”
The first factor does not necessarily weigh in favor of disclosure. The evidence—
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the Evaluation Panel Materials leading to the scores and ranks assigned to the Prospectus
Applications—is related to plaintiff’s claims that the Forest Service acted arbitrarily and
capriciously when it selected Pulseline’s application over its own application. See
Roberts v. City of Fairbanks, No. 4:17-cv-00034-SLG, 2022 U.S. Dist. LEXIS 54774, at
*17 (D. Alaska Mar. 25, 2022) (finding information relevant under the first Warner factor
when it sheds light on the government’s motivations for taking action). The Forest
Service decisionmakers reviewed and considered the panel’s materials when making their
own decisions. However, as noted above, both District Ranger Namitz and Forest
Supervisor Schramm conducted their own independent review of the Prospectus
materials, including all of the materials upon which the evaluation panel relied and
additional evidence raised during the appeal process. Both decisionmakers also
explained fully their own reasons for selecting Pulseline over plaintiff. Although the
Evaluation Panel Materials are related to the decision ultimately made, they were not
adopted by the decisionmakers in their separate analyses. Additionally, the panel
members’ decision is not the decision that plaintiff challenges here. To the contrary,
Plaintiff challenges the Schramm Decision, which represents the final agency action on
the matter. Although the APA’s judicial review procedures allow a court to look into
prior decisions and materials related to the ultimate decision, access to the Evaluation
Panel Materials is not critical to determining whether the Forest Service violated in the
APA in reaching the Schramm Decision, which is the decision with “‘real operative
effect.’” U.S. Fish & Wildlife Serv. v. Sierra Club, Inc., 141 S. Ct. 777, 786 (2021)
(quoting Sears, 421 U.S. at 150, 160). In other words, the focus of the court’s judicial
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review is on “the facts and information considered by the [agency], not deliberative
documents and process-based papers that are one or two steps removed from the actual
agency decision makers and formal decisions.” Hampton Univ. v. Accreditation Council
for Pharmacy Educ., Civil Action No. 4:20cv118 (RCY), 2021 U.S. Dist. LEXIS 140353,
at *45 (E.D. Va. July 27, 2021); cf. Karnoski v. Trump, 926 F.3d 1180, 1206 (9th Cir.
2019) (querying whether adoption of a new policy renders an earlier policy irrelevant to a
plaintiff’s case).
The second factor weighs heavily against disclosure. Plaintiff already has access
to the full, unredacted copies of the Namitz Responsive Letter and, more importantly, the
Schramm Decision. Those documents contain the reasoning that plaintiff seeks to
challenge in its APA claim and that on which the court would focus its review if deciding
the merits of plaintiff’s challenge. Plaintiff argues that the evaluation panel’s scores and
recommendations were “carried forward” and that the Namitz Initial Decision and
Schramm Decision “were based almost entirely” on them.53 The text of those letters
belies this assertion, though. As noted above, both District Ranger Namitz and Forest
Supervisor Schramm conducted their own analyses of the Prospectus materials and
formed their own conclusions. Their review of the Evaluation Panel Materials does not
supersede their own analyses; otherwise, the entire selection process functionally would
have no point, and the evaluation panel itself would have been charged with making the
selection. That the Forest Service characterized plaintiff’s appeal as a “disagreement”
53 Reply in Support of Motion to Supplement the Administrative Record at 4, Docket No.
41.
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between plaintiff and the evaluation panel is equally unavailing. It may be the case that
plaintiff brought this challenge because it disagreed with the evaluation panel members’
findings, but plaintiff is in fact challenging the Schramm Decision, not the evaluation
panel’s findings, in this action. Thus, the evidence underlying the Schramm Decision is
the focal point of this case, not a non-binding decision three decisions removed from the
final agency action.
This also is not a case where a party lacks readily available evidence to address a
point critical to its challenge. Following entry of this order, plaintiff or its attorneys will
have access to all of the purely factual information underlying the Forest Service’s
selection of Pulseline over plaintiff, including the Prospectus Applications, which are the
most important factual documents in this case, and the law enforcement records. As the
parties have noted, this is not a complicated case from a technical standpoint. All of the
factual evidence will be at plaintiff’s disposal as the litigation proceeds. The need for
non-factual, deliberative materials that did not form the primary basis for the agency’s
decision is miniscule when the complete assemblage of facts is at hand.
Plaintiff is correct that the third factor weighs heavily in favor of disclosure. The
government plays a key role in this action, as plaintiff has brought the Forest Service to
court and directly challenged the Service’s adjudication of its Prospectus proposal.
See Toomey v. Arizona, No. CV 19-0035-TUC-RM (LAB), 2021 U.S. Dist. LEXIS
76038, at *10 (D. Ariz. Apr. 20, 2021) (“Where the government is itself a defendant, the
reason for the privilege evaporates.”) (citing In re Subpoena Duces Tecum Served on
Office of Comptroller of Currency, 145 F.3d 1422, 1424 (D.C. Cir. 1998), on reh’g in
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part, 156 F.3d 1279 (D.C. Cir.)). The Forest Service notes accurately that review of the
Evaluation Panel Materials is not necessary for the court to rule on the merits of this case,
but that alone does not reduce the government’s essential role in this litigation. See
Karnoski, 926 F.3d at 1206 (concluding that the third Warner factor favors a plaintiff
when the government “is a party to and the focus of the litigation”).
Finally, the fourth factor weighs heavily against disclosure. Plaintiff seeks to pull
back the curtain from the very type of deliberations on which the government relies to
function each day. As other courts have recognized by refraining from mandating the
disclosure of individual, non-decisionmaking panel members’ notes, scores,
recommendations, and preliminary decisions, disclosure of predecisional and deliberative
materials to any disappointed litigant would put those panel members, and the internal
deliberation process itself, in the spotlight. See cases cited supra Section A of this
discussion; see also Ctr. for Env’t Health v. Perdue, No. 18-cv-01763-RS (TSH), 2019
U.S. Dist. LEXIS 200706, 2019 WL 6114513, at *3 (N.D. Cal. Nov. 18, 2019) (citing
Desert Survivors v. U.S. Dep’t of the Interior, 231 F. Supp. 3d 368, 379 (N.D. Cal.
2017)) (noting that disclosure of “preliminary staff views or tentative opinions ‘might
chill speech’”). The evaluation panel members’ materials contained preliminary and
tentative views expressed early in the overall decisionmaking process that otherwise
would never see the light of day. The spotlight appropriately belongs on the final
decision and the reasoning underlying it. It is unquestionable that disclosure of the
Evaluation Panel Materials would “stifle creative debate and candid consideration of
alternatives and undermine the integrity of the decision making process itself since
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agency officials are to be judged by what they finally decide.” Ctr. for Biological
Diversity v. Norton, No. CIV 01-409 TUC ACM, 2002 U.S. Dist. LEXIS 27617, at *10
(D. Ariz. July 23, 2002) (citing Warner, 742 F.2d at 1162).
On balance, the court finds that the risk of chilling the government’s deliberative
process by revealing the Evaluation Panel Materials is greater than the theoretical harm to
plaintiff’s ability to accurately discover facts. Accordingly, the Forest Service
appropriately redacted the Evaluation Panel Materials designated within the
Administrative Record.
B. Prospectus Applications and Law Enforcement Documents
The parties agree that the Prospectus Applications and Law Enforcement
Documents must be included in the Administrative Record, but they dispute whether
those documents should be restricted for viewing by just the parties’ counsel or available
to the parties themselves under a confidential designation pursuant to the Stipulated
Protective Order. The basis for any restriction concerning the materials is due to their
allegedly sensitive nature: The Prospectus Applications contain confidential business
information produced by plaintiff and Pulseline, two competitors in a small market. The
Law Enforcement Documents contain violation notices, incident reports, and possibly
related materials or summaries associated with the Prospectus applicants and their owners
and managers.
Plaintiff requests that the court designate both the Prospectus Applications and
Law Enforcement Documents as confidential but would agree to a restriction authorizing
just one representative of each party to view the Prospectus Applications. Plaintiff makes
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a number of arguments in favor of disclosure to the parties. It contends that its inability
to review these documents, even if its attorneys can review them, would hinder its efforts
to prosecute its claims. Next, plaintiff claims that the Forest Service and Pulseline
already have seen Pulseline’s application in full, and so its inability to review Pulseline’s
application puts it on unequal footing. Plaintiff also argues that attorneys’-eyes-only
restrictions are more appropriate in highly technical cases, such as patent infringement
cases. Lastly, plaintiff claims that the information in Pulseline’s Prospectus Application
is not confidential from a practical standpoint since any customer essentially would have
access to it by participating in a Pulseline helicopter skiing trip. With respect to the Law
Enforcement Records specifically, plaintiff additionally argues that the public has an
interest in information potentially identifying a violation of federal lands law by a
Prospectus applicant.
The Forest Service makes only abbreviated arguments in favor of its proposed
attorneys’-eyes-only restriction on the Prospectus Applications and Law Enforcement
Documents, arguing that both sets of documents have “sensitive content” and that
plaintiff has made only a conclusory showing of its alleged need.54 Pulseline, for its part,
dedicated its entire response to advocating for an attorneys’-eyes-only limitation to its
Prospectus application. It maintains that Pulseline is on an equal playing field with
plaintiff since neither party has seen the other’s application; the matter concerns non-
technical information that attorneys are equipped to digest; and Pulseline would be
54 Defendant Forest Service’s Opposition to Plaintiff’s Motion to Supplement the
Administrative Record at 17, Docket No. 39.
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harmed if plaintiff were to see the “highly sensitive confidential information” resulting
from Pulseline’s “hundreds of hours of intense effort” spent putting together its
application.55 Pulseline also points to a number of cases in which courts have limited
proposals for government contracts to attorneys’ eyes only.
i. The competitive harm that could result from disclosure of the Prospectus
Applications, coupled with their non-technical nature, justifies an
attorneys’-eyes-only restriction.
When a litigant seeks a protective order to protect confidential business
information, courts require the party seeking protection to make a showing of more than
just conclusory statements of alleged harm. Claridge v. I-Flow Corp., No. 2:18-cv-
01654-GMN-BNW, 2021 U.S. Dist. LEXIS 152686, at *3 (D. Nev. Aug. 13, 2021)
(citing Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1182 (9th Cir. 2006)). In
cases involving a proposal or bid submitted to the government, courts may look for an
“explanation regarding how disclosure . . . would allow competitors to discern [a party’s]
bidding methods, or cause . . . other alleged harms.” San Diego Navy Broadway
Complex Coal. v. U.S. Dep’t of the Navy, No. 07-CV-909 W (POR), 2008 U.S. Dist.
LEXIS 22484, at *14 (S.D. Cal. Mar. 21, 2008). The Forest Service makes only
conclusory statements in support of its proposed restriction of the Prospectus
Applications, but Pulseline alleges that disclosure of its application to plaintiff’s
representatives would allow plaintiff to “submit an operating plan of the same quality as
55 Defendant-Intervenor Pulseline’s Opposition to Motion to Supplement the
Administrative Record at 5, Docket No. 38.
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Pulseline’s without investing any significant time or cost.”56 Pulseline argues that
plaintiff could copy the plans and approaches in which it invested and undercut Pulseline
in future competitions where success is based in large part on the quality of an
application’s contents.57
The court finds that the intense nature of competition among the relatively few
businesses providing helicopter skiing services in and around the Chugach National
Forest justifies an attorneys’-eyes-only restriction on the Prospectus Applications.
Pulseline articulated a reasonable circumstance in which plaintiff’s obtaining its
Prospectus application could directly and severely hurt Pulseline: Plaintiff could use the
information in Pulseline’s application to improve its future applications and win
opportunities over Pulseline. For example, plaintiff could look to Pulseline’s more
detailed operating or safety plans to improve its own plans that Forest Supervisor
Schramm found were “brief” and missing detail or additional insight into the business’s
perspectives.58 Plaintiff could learn Pulseline’s conflict minimization strategies and
system for resolving public complaints, using this information to improve future
applications or its day-to-day operations.59 Pulseline’s application also contains “detailed
and thorough” descriptions of materials and procedures that likely required investments
of time and financial resources to produce and which could give the business a
56 Defendant-Intervenor Pulseline’s Opposition to Motion to Supplement the
Administrative Record at 7, Docket No. 38.
57 Id.
58 Administrative Record at 2903-04, Docket No. 23.
59 Id. at 2904.
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competitive advantage over its peers.60 These descriptions outline Pulseline’s risk
management processes as well as procedures for navigating landing zones, selecting pick-
up locations, understanding impacts to wildlife and other backcountry users, sorting
through land ownership issues, briefing clients on safety, caring for clients, training and
certifying employees, and contributing to local economies.61
Plaintiff does not expressly dispute that it could not, or would not, use the
information in Pulseline’s application to gain a competitive advantage. Instead, plaintiff
merely suggests that the information Pulseline compiled is easily obtainable and does not
contain trade secrets.62 Plaintiff contends that it or anyone else could glean some insight
into Pulseline’s inner workings by becoming a Pulseline customer. The record does not
support this contention, however. Most of the Prospectus Applications total over 100
pages in the Administrative Record, with plaintiff and Pulseline’s totaling about 60 pages
each.63 It defies logic that a customer could glean the equivalent of dozens of pages of
consolidated planning and procedural information from taking a Pulseline trip. Even if
that were possible, having access to the entirety of Pulseline’s written depictions presents
a real risk that plaintiff could use that information to its advantage, and Pulseline’s
disadvantage, in the future. This risk is not outweighed by the negligible impact of an
attorneys’-eye-only designation on plaintiff’s ability to prosecute its case considering that
60 Id. at 2905.
61 Id.
62 Reply in Support of Motion to Supplement the Administrative Record at 7, Docket No.
41.
63 Revised Administrative Record Index at 1-2, Docket No. 43-1.
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its counsel will have full access to this information.
As further support for its argument, plaintiff observes that the Prospectus
Applications (or at least those portions it requested) do not contain sensitive information,
such as sales or profit information, bids pricing, company forecasts, customer lists, or
computer source code. That type of information warrants protection in many cases. See,
e.g., Siniouguine v. Mediachase Ltd., No. CV 11-06113-JFW (AGRx), 2012 U.S. Dist.
LEXIS 199464, at *13 (C.D. Cal. Apr. 30, 2012) (citations omitted); 3B Med., Inc. v.
ResMed Corp., No. 16-CV-2050-AJB-JMA, 2016 U.S. Dist. LEXIS 163037, at *2 (S.D.
Cal. Oct. 11, 2016). Here, Pulseline’s application contains written depictions of its
operating plans, safety plans, internal and external procedures, and strategies to
effectively manage operational, marketing, and administrative opportunities and
challenges. Although not financial or technical material, these written depictions are not
unlike other documents to which parties or courts have applied attorneys’-eyes-only
restrictions. See, e.g., Hill Phx., Inc. v. Classic Refrigeration SoCal Inc., No. 8:19-cv-
00695-DOC-JDEx, 2019 U.S. Dist. LEXIS 236113, at *7 (C.D. Cal. Aug. 13, 2019)
(applying an attorneys’-eyes-only restriction after finding disclosure of bidding
proposals, among other documents, could cause plaintiff competitive harm); Columbia
Pictures Indus. v. Galindo, No. 2:20-cv-03129-SVW-GJSx, 2020 U.S. Dist. LEXIS
138932, at *7 (C.D. Cal. July 31, 2020) (entering protective order limiting to attorneys’
eyes only “current or future marketing plans,” “current or future business plans or
strategies,” and “planning information”); Hill Int’l v. Nat’l R.R. Passenger Corp., 957 F.
Supp. 548, 551 n.1 (D.N.J. 1996) (observing that “sensitive commercial and bidding
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information” was restricted to attorneys’ eyes only); Tank Connection, LLC v. Haight,
No. 13-cv-1392-JTM-TJJ, 2015 U.S. Dist. LEXIS 73393, at *21 (D. Kan. June 5, 2015)
(noting that “an attorneys’ eyes only provision in a protective order could arguably
address” competitive concerns over the confidentiality of bids). This information also
falls within the scope of the Stipulated Protective Order’s attorneys’-eyes-only
designation, notwithstanding the order’s admonition that the parties should use it “very
sparingly.”64
A non-attorney representative of plaintiff undoubtedly would be able to
incorporate elements of Pulseline’s successful application into plaintiff’s future
applications, regardless of the sincerity of plaintiff’s efforts to limit its use of the
information to this litigation. See FTC v. Exxon Corp., 636 F.2d 1336, 1350 (D.C. Cir.
1980) (“. . . it is very difficult for the human mind to compartmentalize and selectively
suppress information once learned, no matter how well-intentioned the effort may be to
do so.”); Sullivan Mktg., Inc. v. Valassis Commc’ns, Inc., 1994 U.S. Dist. LEXIS 5824,
1994 WL 177795 at *9 (S.D.N.Y. May 5, 1994) (characterizing compartmentalization of
intimate knowledge of a competitor’s pricing policies as “nigh impossible” when
64 See Stipulated Protective Order at 3, ¶ 5, Docket No. 31:
A Party may designate as ‘Attorneys’ Eyes Only’ any Information that
contains highly sensitive private information, non-public business or
financial information, the disclosure of which would, in the good faith
judgment of the party designating the material as ‘Attorneys’ Eyes Only,’
cause serious and irreparable harm to that party’s business if the material is
disclosed to persons allowed to see Confidential material beyond the
persons specified herein. The Parties anticipate that this designation will be
used very sparingly.
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advising a company). This risk is heightened in industries where government
competitions are decided in part due to the quality of the deliverable produced to the
decisionmaker and where employees and contractors move from business to business
with regularity, as is the case here.
The court further finds that plaintiff would not be hindered if its own
representatives cannot see Pulseline’s application. As plaintiff concedes, the Prospectus
Applications do not contain highly technical information. There is no reason that the
sophisticated counsel plaintiff retained cannot review the materials and make the
strongest arguments possible on plaintiff’s behalf. See Intel Corp. v. Via Techs., Inc.,
198 F.R.D. 525, 529 (N.D. Cal. 2000) (“Requiring a party to rely on its competent
outside counsel does not create an ‘undue and unnecessary burden.’”) (quoting A. Hirsh,
Inc. v. United States, 11 Ct. Int’l Trade 208, 216 (1987)). In a case where the court must
decide whether an agency made a rational decision after reviewing non-technical
information, there is little, if anything, that a party’s representatives could provide
separate and apart from its counsel to help the court better understand the substantive
issues at play. Lastly, although Forest Service representatives have access to Pulseline’s
application and plaintiff’s representatives will not, all parties’ counsel will have access to
the full applications, obviating any concerns of unequal footing.
ii. There is no discernible harm that would result from a confidential
designation of the Law Enforcement Documents.
The Forest Service argues that the Law Enforcement Documents are “sensitive”
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and so warrant attorneys’ eyes only protection.65 Based on the parties’ briefing and the
unredacted surrounding text in the Administrative Record, the Law Enforcement
Documents resulted from a search of a Forest Service internal database for “relevant
information for any of the applicant owners and managers,” including reports and
violation notices.66 The Forest Service also specifically requested that its law
enforcement personnel conduct “an internal background check on applicants and provide
any info[rmation] on past convictions, any allowable information on active cases, and
current conditions connected to proposed activities or that may affect the safety of
clients.”67 According to the Namitz Responsive Letter, the search did not include
“complete criminal record histories for applicants.”68 Instead, the focus ostensibly was
tailored to identify information about the applicants and their key personnel that would
reflect potential violations of regulations governing the use of federal lands or
information related thereto.
The Forest Service makes no argument that there is a compelling government
interest in withholding the Law Enforcement Documents, such as risk of harm to a victim
or an opportunity for a future perpetrator to gain insight into law enforcement strategies
leading to the apprehension of criminals. See Doe v. Sutter, No. H-19-0430, 2019 U.S.
Dist. LEXIS 53447, at *4-7 (S.D. Tex. Mar. 29, 2019) (discussing situations warranting
65 Defendant Forest Service’s Opposition to Plaintiff’s Motion to Supplement the
Administrative Record at 17, Docket No. 39.
66 Administrative Record at 1961-63, Docket No. 23.
67 Id. at 1968.
68 Id. at 2901.
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the use of attorneys’-eyes-only or more restrictive designations for law enforcement
records). Nor is there an indication that the parties would use the Forest Service’s
background checks to manipulate the Service, violate federal law, or inappropriately
obtain governmental privileges. Cf. Al Otro Lado, Inc. v. Wolf, No. 3:17-cv-2366-BAS-
KSC, 2020 U.S. Dist. LEXIS 112345, at *13-19 (S.D. Cal. June 26, 2020) (finding that
government defendants failed to allege specific harms to law enforcement and privacy
interests from disclosure of email revoking border-crossing privileges). Indeed, in the
context of law enforcement documents, courts may find attorneys’-eyes-only restrictions
useful to protect government intelligence documents like field reports or analyses of
security vulnerabilities. Adlerstein v. U.S. Customs & Border Prot., No. CIV 19-500-
TUC-CKJ, 2021 U.S. Dist. LEXIS 242329, at *8-*9 (D. Ariz. Dec. 20, 2021).
The Forest Service has not met its burden to demonstrate that any of these
justifications exist here. There may be cases where a greater restriction is warranted for
documents exploring an individual’s criminal or disciplinary history, such as in cases
involving a public servant’s alleged acts of violence, see R.S. v. City of Santa Ana, No.
SACV 14-589 CAS (FFMx), 2015 U.S. Dist. LEXIS 186834, at *10 (C.D. Cal. July 21,
2015), but there is no compelling reason for such a restriction when the subject of the
investigation is a member of the public seeking a permit to use public lands. See
Colonies Partners LP v. Cnty. of San Bernardino, No. 5:18-cv-00420-JGB (SHKx), 2019
U.S. Dist. LEXIS 128874, at *19-*20 (C.D. Cal. May 1, 2019) (citing Kelly v. City of
San Jose, 114 F.R.D. 653, 662 (N.D. Cal. 1987)) (parsing the distinction between the
threat from disclosure of a law enforcement record to the general public versus that from
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disclosure to an individual litigant and counsel).
It is possible that the Law Enforcement Documents may reveal “sensitive”
information about Pulseline or plaintiff’s owners, such as details concerning prior
convictions, interactions with law enforcement agencies, or other information one would
want to keep private. The Forest Service, however, fails to explain how the limited
release of this theoretically sensitive information to the parties could harm them outside
the context of this litigation. A confidential designation, per the Stipulated Protective
Order, restricts use of the information “solely for the prosecution or defense of the Action
. . . and shall not be used for any other purpose.”69 Even assuming the Law Enforcement
Documents revealed that Pulseline’s owner committed a scandalous act, plaintiff would
be barred from revealing or using such information outside of this litigation. Nor is any
competitive harm likely to result from this limited disclosure. Because there is no
discernible harm from limiting disclosure of the Law Enforcement Documents to the
parties and their counsel, the court finds that a confidential designation is appropriate.
C. The Brill Submission
In its Motion to Supplement the Administrative Record, plaintiff argues that the
Schramm Decision “relied upon incomplete and inaccurate information” by citing the
Forest Service’s notes summarizing two statements made during reference checks of
federal and state permit administrators familiar with plaintiff and Brill.70 The first
statement comes from Cliff Larson, a State of Alaska Department of Natural Resources
69 Stipulated Protective Order at 3, ¶ 7, Docket No. 31.
70 Motion to Supplement the Administrative Record at 16, Docket No. 32.
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Permit Administrator with over twenty years of experience. Larson formerly worked for
the Forest Service at the Chugach National Forest. The Forest Service’s notes include the
following statements from Larson about plaintiff:
Starting in 2018, the State has required commercial day use registration
fees (does not require a permit) and Silverton has registered but not paid
fees 2018-2020. The State is working through a backlog now of collecting
those fees from various operators.
Cliff is ‘very cautious’ about Silverton, suspects Silverton may be storing
fuel drums on State lands – they do not have a permit for this. Cliff has no
proof of Silverton unauthorized fuel storage, but has received general
complaint about drums of fuel observed in the backcountry. There is no
way to get from point A to point B where Silverton flies without additional
fuel. He doesn’t know how Silverton is doing it.71
The second statement at issue comes from Monika Adam, a Forest Service Permit
Administrator who has administered permits held by plaintiff since 2018. Adam’s
statements are primarily positive in nature, referring to plaintiff as a “[m]odel operator,”
although Adam notes the following about Brill:
BUT, sometimes get the feeling that he’s manipulating the system a little
bit. For example, funny email exchange with him last fall where Monika
noticed he was posting photos on facebook of them skiing in November,
could not identify if he was on NFS lands. When Monika emailed Aaron a
friendly reminder that his FS operating season starts December 1, she
received a cryptic response like “can’t wait until December 1st” No proof
of any issues.72
Plaintiff contends that Larson and Adam’s statements are “speculative, vague, and
false allegations” that the Schramm Decision “adopted . . . as its rationale for awarding
[plaintiff] less than a perfect permit compliance score . . ., while ignoring specific
71 Administrative Record at 1921-22, Docket No. 23.
72 Id. at 1922.
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information demonstrating [plaintiff]’s perfect safety and permit compliance record.”73
Plaintiff reports that it did not know the basis for these statements until it reviewed the
Administrative Record. Accordingly, plaintiff seeks to supplement the record with
information that puts the statements in what plaintiff believes to be their proper context.
That context, according to plaintiff, is the email exchange between Adam and Brill
referenced in Adam’s statement and a declaration from Brill declaring the statements
inaccurate. The Brill Submission also rebukes Larson’s statement that plaintiff had not
paid annual registration fees owed to the State of Alaska and provides what appears to be
a receipt showing that plaintiff did in fact pay the fees.74
Plaintiff further argues that Forest Supervisor Schramm relied on Larson and
Adam’s statements to support his decision while overlooking the other positive
statements disclosed in the reference checks. Because those statements are inaccurate,
according to plaintiff, they create a “gap” in the Administrative Record that warrants
supplementation in the form of the Brill Submission.75 In particular, plaintiff argues that
the Forest Service relied on the Adam/Brill email exchange yet failed to include it in the
Administrative Record. In response, the Forest Service points to the narrow nature of the
exceptions to the general presumption that the Administrative Record is complete,
arguing that plaintiff attempts to use the Brill Submission to obtain de novo review of the
Forest Service’s decision in this court. The Forest Service also notes that plaintiff
73 Motion to Supplement the Administrative Record at 16, Docket No. 32.
74 Brill Submission, Docket No. 32-5.
75 Motion to Supplement the Administrative Record at 4, Docket No. 32.
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provided over 100 pages of additional documents during the administrative appeal
process, all of which Forest Supervisor Schramm considered in issuing his final decision.
Plaintiff has not met the high bar needed to overcome the presumption of
regularity that the Forest Service enjoys. See Cook Inletkeeper v. EPA, 400 Fed. App'x
239, 240 (9th Cir. 2010) (denying motion to supplement the administrative record
because the record contained “sufficient information to explain” the agency’s decision).
Plaintiff argues that supplementation is necessary to address a “‘gap’ in the record” but
expressly points only to one of the four narrow exceptions identified by the Ninth Circuit
to justify supplementation: the Forest Service’s alleged reliance on two documents not in
the record (i.e., the Adam/Brill exchange and the purported registration fee receipt).76
Plaintiff does not provide any documents related to the fuel storage concern raised in the
summary of Larson’s reference check beyond Brill’s declaration. There also is no
indication that the Forest Service relied on documents not presently in the Administrative
Record or that the other exceptions apply.
As for the Adam/Brill email exchange, plaintiff has not made the requisite
showing to supplement the Administrative Record with this document. To make this
showing, plaintiff must “‘identify reasonable, non-speculative grounds for its belief that
the documents [at issue] were considered by the agency and not included in the record.’”
Audubon Soc’y of Portland v. Zinke, No. 1:17-cv-00069-CL, 2017 U.S. Dist. LEXIS
205898, at *12 (D. Or. Dec. 12, 2017) (quoting Pac. Shores Subdivision Cal. Water Dist.
76 Id. (citing Lands Council, 395 F.3d at 1030).
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v. U.S. Army Corps of Eng’rs, 448 F. Supp. 2d 1, 6 (D.D.C. 2006)). Plaintiff identifies
no such grounds. There is no indication that the Forest Service reviewed the Adam/Brill
email exchange in making its decision. Although the summary of the reference check
discussion with Adam mentions the email exchange, the actual document upon which the
Schramm Decision relies is the summary of the reference check discussion, not the
underlying email exchange.77 In all likelihood, Forest Supervisor Schramm, District
Ranger Namitz, and the evaluation panel did not even have ready access to the email
exchange, let alone read or consider it when they made their decisions. See Citizens to
Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971), abrogated on other grounds
by Califano v. Sanders, 430 U.S. 99 (1977) (ruling that judicial review “is to be based on
the full administrative record that was before the [agency] at the time [it] made [its]
decision”) (emphasis added). Plaintiff also fails to advance a colorable argument that
Forest Supervisor Schramm “indirectly” considered the email exchange, since its
contents are not necessary to understand Adam’s high-level, cursory opinion described in
the reference check summary. See Amgen Inc. v. Hargan, 285 F. Supp. 3d 397, 404
(D.D.C. 2017) (“Although it is not entirely clear what it means to indirectly consider
documents or materials, for present purposes the parties agree that this concept captures
77 The Schramm Decision refers to Adam’s statements, citing “Appeal File 0110” at page
4. Administrative Record at 3153, Docket No. 23. The index to the Administrative
Record reveals that “Appeal File No. 0110-SMG” is contained within pages 1918-1923
of the Administrative Record. Revised Administrative Record Index at 3, Docket No. 43-
1. Those pages of the Administrative Record, in turn, contain the summary of the
reference check discussions, not any primary documents, such as the Adam/Brill email
exchange. Administrative Record at 1922, Docket No. 23.
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materials that are necessary to understand the documents that the agency directly relied
upon.”) (emphasis in original).
Additionally, after having had the benefit of reviewing the Adam/Brill exchange,
it is apparent that this brief document does not add any new or substantively different
information that questions the reasons underpinning the Schramm Decision. The
exchange does not provide context essential to understanding Adam’s statements or
necessarily even cast doubt on them, which conceivably could reflect just one of multiple
interactions leading Adam to form an opinion on Brill, which on balance is quite
positive.78
Likewise, there is no indication that Forest Supervisor Schramm reviewed or
relied on the purported State annual registration fee receipt provided in the Brill
Submission. The Schramm Decision makes no reference to Larson’s statements
regarding the registration fees, and it is again unclear whether Forest Supervisor
Schramm, District Ranger Namitz, or the evaluation panel had access to the receipt when
they made their decisions or that having the receipt would have impacted the ultimate
decision. It appears most likely that the Forest Service did not even have a copy of this
receipt anywhere in its electronic files since the receipt would have been generated from
the State of Alaska, not the Forest Service. Even so, the receipt does not necessarily
contradict the summary of Larson’s statement in the Administrative Record. Larson
indicated on February 3, 2021, that plaintiff had not paid the State of Alaska the
78 See Administrative Record at 1922-23 (describing plaintiff as a “[m]odel operator” that
“has always done a really good job” with no known non-compliance or safety issues).
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registration fees it owed form 2018-2020 but in the same sentence acknowledges that the
State is “working through a backlog now of collecting those fees from various
operators.”79 If the receipt shows what Brill declares, it shows that plaintiff paid its fees
on January 19, 2021.80 It is entirely possible that the “backlog” to which Larson referred
may have meant that the State had not yet recognized recent payments at the time Larson
made the statement. Regardless, this information is not necessary for the court to conduct
its review or understand the documents designated in the Administrative Record.
Moreover, Forest Supervisor Schramm did not adjust plaintiff’s score or rank
based on Larson and Adam’s statements. Although noting that “information in the record
raises questions about [plaintiff’s] compliance with state law and/or permit
requirements,” Forest Supervisor Schramm clarified that the statements at issue did not
influence his decision.81 He also recognized that “the record is hazy about [plaintiff’s]
violating state law or its permits,” intimating that he considered the unproven nature of
Adam’s claims.82 The Administrative Record further lacks any indication that either the
evaluation panel or District Ranger Namitz took the statements into account, as the
evaluation panel scored plaintiff perfectly in the categories concerning performance
history and work with regulatory agencies and nearly perfectly in the permit compliance
category. District Ranger Namitz did not adjust the evaluation panel’s scoring, nor did he
79 Id. at 1921.
80 Brill Submission, Docket No. 32-5.
81 See Administrative Record at 3153, Docket No. 23 (“. . . I do not find that this
information is grounds for reducing [plaintiff’s] scores . . .”).
82 Id.
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directly address plaintiff’s background checks in the Namitz Responsive Letter.
Plaintiff has offered no evidence that Forest Supervisor Schramm reviewed or
actually relied upon the Adam/Brill email exchange or purported State annual registration
fee receipt, and Brill’s declaration does not fill any gaps in the Administrative Record.
Accordingly, the court will not direct the Forest Service to supplement the Administrative
Record with the Brill Submission.
Conclusion
Plaintiff’s motion to supplement the Administrative Record is granted in part and
denied in part. Plaintiff’s motion is denied as to its request to supplement the
Administrative Record with unredacted versions of the Evaluation Panel Materials.
Plaintiff’s motion is granted as to its request to supplement the Administrative Record
with plaintiff and Pulseline’s Prospectus Applications, but those documents shall be
unredacted only under an attorneys’-eyes-only designation in accordance with the
Stipulated Protective Order. Plaintiff’s motion is granted as to its request to supplement
the Administrative Record with the unredacted Law Enforcement Records under a
confidential designation in accordance with the Stipulated Protective Order. Plaintiff’s
motion is denied as to its request to supplement the Administrative Record with the Brill
Submission. The court finds that a ruling on plaintiff’s request to supplement the
Administrative Record with an unredacted version of the “appeal file” cited by Forest
Supervisor Schramm is unnecessary based on the court’s understanding that the “appeal
file” consists of the documents described above and the documents already existing in the
Administrative Record in unredacted form.
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The Forest Service shall supplement, serve, and file an amended Administrative
Record in accordance with this order on or before November 7, 2022. In doing so, the
Forest Service shall file the unredacted Prospectus Applications under seal with an
attorneys’-eyes-only limitation that restricts those documents and all information derived
therefrom to the parties’ counsel, their law firms, and the court, consistent with the
Stipulated Protective Order. The Forest Service shall file the unredacted Law
Enforcement Documents under seal with a confidential limitation that restricts those
documents and all information derived therefrom to the parties authorized to access them
pursuant to the Stipulated Protective Order.
Pursuant to Local Civil Rule 16.3(c)(1), plaintiff shall file its opening brief not
later than 30 days following the filing of the amended Administrative Record.
DATED at Anchorage, Alaska, this 31st day of October, 2022.
/s/ H. Russel Holland
United States District Judge
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