JAMES SINGLETON, Chief Judge, District
Before the Court is a motion for clarification by Plaintiff Natural Resources Defense Council, et al., ("NRDC"), who sues Defendant United States Forest Service, et al., ("Forest Service") challenging the 1997 Tongass Land Management Plan Revision and the 2003 Woodpecker timber sale under the plan. Docket Nos. 35 (Mot.); 36 (Resp.); 37 (Reply). NRDC has brought two related but not consolidated suits against the Forest Service. See NRDC v. United States Forest Service, J03-0029 CV (" NRDC I"); NRDC v. United States Forest Service, J04-0010 CV (" NRDC II"). NRDC presently seeks clarification of two motions — a motion to strike an affidavit by Forrest Cole and an unopposed motion for leave to amend the answer — filed in reference to NRDC II but addressed by the Court in an order in NRDC I. See NRDC I, Docket No. 81 (Order); NRDC II, Docket Nos. 24 (Pl. Mot. To Strike); 26 (Intervenors' Opp'n); 27 (Federal Def.'s Opp'n); 31 (Reply); 32 (Def.'s Mot. for Lv. to Amd. Ans.); 33 (Resp.).
Per stipulation of the parties, the only issue in NRDC II is Count VI. Docket Nos. 9 (Conf. Rprt.); 16 (Order). Count VI alleges that the Forest Service failed to use current information and was misleading in its presentation of public costs in the Public Investment Analysis of the Final Environmental Impact Statement ("FEIS") in violation of the National Environmental Policy Act. Docket No. 1 at 25. The Forest Service has filed an opposition to the opening brief. Docket No. 21. NRDC argues that it "must be able to understand and respond to [the Cole] declaration in order to disprove the arguments made in the Forest Service's Opposition Brief" before filing its reply. Docket No. 24 at 10. The Court has agreed to allow NRDC to delay filing its reply pending a ruling on the inclusion of the Cole declaration as it pertains to NRDC II. See Docket No. 23.
DISCUSSION
The Court will first address the motion for clarification with respect to the Forest Service's motion for leave to amend its answer before turning to the inclusion of the Cole declaration in the administrative record and NRDC's alternative request for a continuance to conduct limited discovery.
I. Clarification of Leave to Amend Answer
NRDC seeks clarification of the order granting the motion for leave to amend the answer only inasmuch as it relates to NRDC II. The motion was never opposed, and the Court granted it in the NRDC I Order. Docket No. 81 at 2. For purposes of clarification, the Forest Service's motion for leave to amend the answer in this case at Docket No. 32 will be granted.
II. Inclusion of the Cole Affidavit
NRDC seeks clarification of the Court's conclusion in NRDC I that the declaration of Forrest Cole is "sufficiently `explanatory' to earn it a place in the record." NRDC I, Docket No. 81 at 2. In the event the Court holds fast to the conclusion that the Cole declaration belongs in the record, NRDC requests a continuance to conduct limited discovery pursuant to Federal Rule of Civil Procedure 56(f).
Previously the Court considered the Cole declaration in the context of other motions filed in NRDC I. NRDC I, Docket No. 81. Cole is the Forest Supervisor for the Tongass National Forest, Alaska Region. During the time period relevant to NRDC II, Cole was employed as the Director of Forest Management for the Alaska Region of the Forest Service and as the Forest Management Staff Officer for the Tongass National Forest. In considering the motion to strike the Cole declaration in NRDC I the Court stated that the "motion [was] somewhat moot" because it was not considered by the Court in reaching its conclusions. Id. at 2. Recognizing that the appellate court might find the declaration useful, the Court went on to address the merits of the motion:
The parties seem to be in agreement that an agency may supplement the administrative record to explain ambiguous agency actions but may not use the supplementing process as a means of providing
post hoc rationalizations of unjustified aspects of the record. While the issue is not as clear cut as either party contends, the Court is satisfied that the declaration in affidavit form by Cole is sufficiently "explanatory" to earn it a place in the record.
Id.
In its motion for clarification, NRDC claims that "[t]he Cole declaration is the linchpin of the [Count VI] dispute." Docket No. 35 at 2. The Cole declaration, however, relates to only one of the four arguments made by the Forest Service in its opposition to Count VI. The four arguments are as follows: (1) NRDC has waived its objection to the Forest Service's figures by not raising it until now; (2) under NEPA, an EIS cannot be invalidated based on "public investment costs"; (3) the cost figures on which the Forest Service relies are accurate; and (4) regardless of their accuracy, the Forest Service's use of the figures is not such to invalidate the EIS. Docket No. 21. The Cole declaration relates only to the third argument, and as explored more fully below, the argument is not the "linchpin" of Count VI. In short, NRDC has overstated the significance of the Cole declaration. Furthermore, the context in which the declaration is considered — be it Count VI in NRDC II, or the issues addressed in the NRDC I order — is irrelevant to the Court's previous analysis that the declaration falls squarely within an exception to the rule disfavoring supplementation of administrative records. The motion to strike the declaration of Cole at Docket No. 24 will be denied.
II. Continuance to Conduct Discovery
NRDC alternatively seeks a continuance to conduct limited discovery on information contained in the Cole declaration pursuant to Federal Rule of Civil Procedure 56(f). Courts may stay summary adjudication upon a good faith showing through affidavits that a continuance is necessary to discover evidence essential to precluding summary judgment. Fed.R.Civ.P. 56(f); see also California v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998). The affidavit requirement is a loose one — a motion may be sufficient to raise 56(f) consideration. See Garret v. City County of San Francisco, 818 F.2d 1515, 1518 (9th Cir. 1987); Hancock v. Montgomery Ward Long Term Disability Trust, 787 F.2d 1302, 1306 n. 1 (9th Cir. 1986).
Rule 56(f) applies because Defendants' Opposition Brief is the equivalent of a cross-motion for summary judgment on Count VI.
NRDC argues that they cannot effectively respond to certain assertions made in the Cole declaration as there is no supporting documentation for the assertions in the administrative record. See Docket No. 24 at 8 — 11. Specifically, NRDC states that they are unable to respond to the Cole declaration's use of: (1) "budget allocation estimates" used in the Public Investment Analysis section of the FEIS, see Docket No. 24, Ex. 1 at ¶¶ 3 — 5; (2) data collection methods and cost estimates by volume "laid out," or volume "harvested," see Id. at ¶ 4; and (3) "out-year budget planning . . . site-specific timber sale project EISs, briefings, [and] budgetary related requests for information," see Id. at ¶ 7. NRDC argues that these references are to documents not available to them as part of the administrative record and that discovery is therefore necessary. The Forest Service counters that any further delay that would occur due to extended discovery is unwarranted as the Cole declaration is informative but not central to NRDC's argument. It argues that the Cole declaration merely provides useful background information on the mechanics involved in the Forest Service's accounting procedures. See Docket No. 26.
Whether NRDC has satisfied the Rule 56(f) requirement — the facts sought are essential to defeating a motion for summary judgment — is a very close question. See Campbell, 138 F.3d at 779. As noted above, the Cole declaration relates to only one of four arguments advanced by the Forest Service in its opposition — construed for purposes of this analysis as a cross-motion for summary judgment. The argument to which the Cole declaration relates is that the figures the Forest Service relied upon are accurate. It seems to the Court that the declaration essentially shows the scaffolding used by the Forest Service to build cost projections and provides background information on how the Forest Service arrived at cost estimates in years past. If NRDC's entire argument that the Forest Service's cost estimates are inaccurate and misleading rests on a declaration filed after the development of the administrative record, the evidence supporting their argument is lean indeed. However, Count VI is based not on the Cole declaration, but on annual Monitoring Reports that purportedly show that the Forest Service spends significantly more than the budget allocation estimates used to predict public cost.
The existing record likely permits NRDC to respond fully to the Forest Service's response that the challenged figures are accurate. However, the Court notes that the attorneys in this case are highly skilled and responsible. They do not strike the Court as the sort who would propose a continuance only for the circumscribed victory protraction presents in environmental cases. Therefore, in the interest of fairness, the Court will exercise its discretion and permit a sixty-day continuance to allow NRDC to conduct limited discovery.
IT IS THEREFORE ORDERED:
The Forest Service's motion for leave to amend the answer in this case at Docket No. 32 is GRANTED. NRDC's motion to strike the declaration of Forrest Cole at Docket No. 24 is DENIED. NRDC's alternative motion for a continuation to conduct limited discovery, also at Docket No. 24, is GRANTED. NRDC shall have until June 1, 2005, to complete any further discovery. Thereafter, NRDC is directed to file a reply to the Forest Service's opposition to NRDC's opening brief on Count VI on or before June 10, 2005.