NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FOREST SERVICE EMPLOYEES FOR 

ENVIRONMENTAL ETHICS, 

Plaintiff-Appellant, 

 v. 

UNITED STATES FOREST SERVICE, 

Defendant-Appellee.

No. 19-35065 

D.C. No. 3:17-cv-05747-RBL 

MEMORANDUM*

Appeal from the United States District Court

for the Western District of Washington

Ronald B. Leighton, District Judge, Presiding

Argued and Submitted December 11, 2019

Seattle, Washington

Before: GRABER and GOULD, Circuit Judges, and EZRA,** District Judge.

Forest Service Employees for Environmental Ethics (FSEEE) challenges the 

district court’s grant of summary judgment to the United States Forest Service 

(Forest Service) on the question of whether the Forest Service complied with the 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable David A. Ezra, United States District Judge for the 

District of Hawaii, sitting by designation.

FILED

JAN 8 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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National Forest Management Act (NFMA) by granting the Navy a special use 

permit to conduct electronic warfare training on National Forest lands. FSEEE 

contends that the Forest Service did not comply with the Olympic National Forest 

Land and Resource Management Plan (Forest Plan) requirement that special use 

permits be granted only “when such use cannot reasonably be accommodated on 

private land.” At issue on appeal is whether the district court improperly 

supplemented the administrative record in reaching its decision that the Forest 

Service had complied with that requirement. We affirm.

1. In 2010, the United States Navy applied for a special use permit to 

operate a Mobile Electronic Warfare Training System on Olympic National Forest 

lands. After several rounds of public comment and objections, the Forest Service

approved a special use permit for the Navy on July 31, 2017. FSEEE filed a 

complaint in the district court challenging the special use permit on several 

grounds. On cross-motions for summary judgment, the district court held that the 

Forest Service’s decision to grant the special use permit was arbitrary and 

capricious “by failing to provide any reason for why the Navy’s training could not 

be accommodated on private land, as required by the Forest Plan.”1 However, the 

district court reserved the motions for summary judgment as to the NFMA claim so 

1 The district court granted USFS’s motion for summary judgment on FSEEE’s 

other claim, that USFS lacks congressional authorization to grant permits for 

purposes of military training. That ruling is not before us on appeal.
3 

that the Forest Service could submit further briefing on whether its error was 

harmless. Along with its supplemental briefing, the Forest Service presented three 

declarations, from Forest Service and Navy officials. The district court considered 

two of these declarations after determining that the declarations were explanatory 

of the agency’s decision—not mere post hoc rationalizations—and, thus, that they 

fit into an exception to the general rule that judicial review of agency action be 

confined to the administrative record. After supplementing the record with these 

declarations, the district court this time held that USFS had complied with the 

requirements of NFMA and the Forest Plan, and it granted summary judgment in 

favor of the Forest Service. FSEEE timely appealed.

2. We review a district court’s decision to supplement the administrative 

record for abuse of discretion, Midwater Trawlers Coop. v. Dep’t of Commerce, 

393 F.3d 994, 1002 (9th Cir. 2004), and a grant of summary judgment de novo, 

Lands Council v. Powell, 395 F.3d 1019, 1026 (9th Cir. 2004).

Judicial review of agency action is generally limited to the administrative 

record in existence at the time the agency made its final decision. Camp v. Pitts, 

411 U.S. 138, 142-43 (1973) (per curiam). An exception exists, however, “if 

[supplementation is] necessary to determine whether the agency has considered all 

relevant factors and has explained its decision.” Midwater, 393 F.3d at 1007 

(quoting Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 
4 

1450 (9th Cir. 1996)). Nonetheless, this exception does not permit

supplementation with “post-decision information” that advances a post hoc 

rationalization for the agency’s action. Sw. Ctr., 100 F.3d at 1450.

In considering special use permit applications, the Forest Service is required 

to “give due deference to the findings of another agency . . . in lieu of another 

detailed finding.” 36 C.F.R. § 251.54(g)(2)(iii). The administrative record 

contains several references to the fact that the Navy had considered private lands 

and found them to be inadequate for the electronic warfare training at issue here. 

For example, the Forest Service’s final decision notice states that the special use is 

consistent with Forest Plan requirements because “the Navy considered 

alternatives and determined that the actions cannot be accommodated on private

lands,” and the Navy’s August 2013 draft Environmental Assessment gives some

explanation of why private lands are inadequate. 

Although these references in the administrative record are curt, they suggest 

that the Forest Service and the Navy considered and rejected the use of private 

lands. As a result, these statements in the record belie FSEEE’s claim that the

supplemental declarations at issue in this case—which pertain to pre-decisional 

discussions between the Forest Service and the Navy—are merely post hoc 
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rationalizations.2 Instead, the district court had a reasonable basis to conclude that 

the declarations were relevant to determining “whether the agency has considered 

all relevant factors and has explained its decision.” Sw. Ctr., 100 F.3d at 1450; see 

Midwater, 393 F.3d at 999–002, 1008 (upholding use of supplemental declarations 

that permitted the agency to “further explain” its decision); Presidio Golf Club v. 

Nat’l Park Serv., 155 F.3d 1153, 1165 (9th Cir. 1998) (“district court did not err” 

in considering a litigation affidavit that “explained the Park Service’s prior 

analyses”). And because the administrative record was sparse enough “to frustrate 

effective judicial review,” the district court had discretion to supplement the record 

with “such additional explanation of the reasons for the agency action” as was 

necessary. Camp, 411 U.S. at 142–43. Although the exception allowing

supplementation of the record is to be used sparingly, we conclude that the district 

court did not abuse its discretion in considering the supplemental declarations

under the unusual circumstances here.

3. In light of the supplemental declarations explaining the agency’s 

2 The parties dispute which agency decision is being reviewed—the Response to 

Objections by Forest Supervisor Reta LaFord or the final Decision Notice by 

Forest Ranger Dean Millett. Although LaFord had authority with respect to predecisional administrative review, 36 C.F.R. § 218.1, Millett was the “responsible 

official,” 36 C.F.R. § 220.3, who made the final decision to approve the special use 

permit, so we review his decision. See 5 U.S.C. § 704 (judicial review is available 

for final agency action). Because Millett was present for the discussions attested to 

in the supplemental declarations, those declarations are relevant to explaining what 

information he considered in making his decision.
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decision, the district court correctly held that the Forest Service’s approval of the 

special use permit was not “arbitrary, capricious, an abuse of discretion, or 

otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).

AFFIRMED.