Hollingsworth et al v. Vilsack et al

MOTION for Summary Judgment

W.D. La.June 30, 2017

1 PD.21812058.1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA ALEXANDRIA DIVISION ROBERT TRENT HOLLINGSWORTH, ET AL VERSUS TOM VILSACK, ET AL CIVIL ACTION NO. 16-675 JUDGE DRELL MAGISTRATE JUDGE PEREZ- MONTES MOTION FOR SUMMARY JUDGMENT NOW INTO COURT, though undersigned counsel, comes Plaintiffs Robert Trent Hollingsworth, Jonathan Cade Pilcher, Jerry Traylor, and Louisiana Sportsmen Alliance, LLC and move this Court for the entry of Summary Judgment in their favor. This matter involves the U.S. Forest Service’s decision to ban the historical practice of hunting deer with dogs in the Kisatchie National Forest. Because the Forest Service’s administrative decision is not supported by substantial evidence, is arbitrary and capricious, and violates federal law and the generally applicable regulations, the decision is both substantively and procedurally invalid and should be permanently enjoined for the reasons stated more fully in the attached memorandum in support of this motion. Plaintiffs’ further request that the Court award them the reasonable attorneys’ fees and costs incurred in bringing this lawsuit pursuant to 28 U.S.C. § 2412. WHEREFORE, Plaintiffs respectfully request that the Court award them the declaratory and injunctive relief prayed for in the Complaint, attorneys’ fees and costs, and all other relief to which they may be entitled. Respectfully submitted, PHELPS DUNBAR LLP BY: /s/ Christopher K. Ralston Christopher K. Ralston, (Bar #26706) Jeremy T. Grabill, (Bar #34924) Case 1:16-cv-00675-DDD-JPM Document 27 Filed 06/30/17 Page 1 of 2 PageID #: 137 2 PD.21812058.1 Arthur R. Kraatz, (Bar #35194) Canal Place | 365 Canal Street, Suite 2000 New Orleans, Louisiana 70130-6534 Telephone: 504-566-1311 Telecopier: 504-568-9130 Email: ralstonc@phelps.com jeremy.grabill@phelps.com arthur.kraatz@phelps.com ATTORNEYS FOR PLAINTIFFS ROBERT TRENT HOLLINGSWORTH, JONATHAN CADE PILCHER, JERRY TRAYLOR, AND LOUISIANA SPORTSMEN ALLIANCE, LLC CERTIFICATE OF SERVICE I do hereby certify that on this 30th day of June, 2017, I electronically filed the foregoing pleading with the Clerk of Court by using the CM/ECF system, which will send a notice of electronic filing to all participating counsel of record. /s/ Christopher K. Ralston Case 1:16-cv-00675-DDD-JPM Document 27 Filed 06/30/17 Page 2 of 2 PageID #: 138 PD.21784888.3 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA ALEXANDRIA DIVISION ROBERT TRENT HOLLINGSWORTH, ET AL VERSUS TOM VILSACK, ET AL CIVIL ACTION NO. 16-675 JUDGE DRELL MAGISTRATE JUDGE PEREZ- MONTES MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Case 1:16-cv-00675-DDD-JPM Document 27-1 Filed 06/30/17 Page 1 of 29 PageID #: 139 ii PD.21784888.3 TABLE OF CONTENTS TABLE OF CONTENTS ............................................................................................................ ii TABLE OF AUTHORITIES ..................................................................................................... iii I. INTRODUCTION AND FACTUAL BACKGROUND ............................................. 1 II. LEGAL STANDARD.................................................................................................. 6 A. APA Review .................................................................................................... 6 B. The Statutory and Regulatory Framework for the Forest Service’s Decision ........................................................................................................... 7 III. THIS COURT HAS JURISDICTION OVER THIS MATTER .................................. 8 A. All Three Individual Plaintiffs Have Standing. ............................................... 9 B. The LSA Also Has Standing to Challenge the Ban. ...................................... 11 IV. THIS COURT SHOULD REVERSE THE FOREST SERVICE’S DECISION ................................................................................................................. 12 A. The Forest Service’s Decision Is Not Supported by Substantial Evidence......................................................................................................... 12 B. The Forest Service’s Decision Is Arbitrary and Capricious. ......................... 16 1. The ban violated the Reviewing Officer’s decision. .......................... 17 2. The Forest Service fails to explain its inconsistent decision to permit dog hunting, including Dog-Deer Hunting, in other contexts. ................................................................. 18 3. The Forest Service failed to consider an important aspect of the problem. ................................................................................... 20 C. The Forest Service’s Finding of No Significant Impact Is Invalid. ............... 21 V. PLAINTIFFS ARE ENTITLED TO ATTORNEYS’ FEES AND COSTS UNDER THE EQUAL JUSTICE ACT ..................................................................... 24 VI. CONCLUSION .......................................................................................................... 24 Case 1:16-cv-00675-DDD-JPM Document 27-1 Filed 06/30/17 Page 2 of 29 PageID #: 140 iii PD.21784888.3 TABLE OF AUTHORITIES Cases Alabama Power Co. v. F.C.C., 773 F.2d 362 (D.C. Cir. 1985). ......................................................................................... 14 Am. Trucking Associations, Inc. v. Fed. Motor Carrier Safety Admin., 724 F.3d 243 (D.C. Cir. 2013). ........................................................................................... 7 Amerijet Int’l, Inc. v. Pistole, 753 F.3d 1343 (D.C. Cir. 2014). ......................................................................................... 7 Ass’n of Am. Physicians & Surgeons, Inc. v. Texas Med. Bd., 627 F.3d 547 (5th Cir. 2010). ........................................................................................... 11 Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87 (1983). ......................................................................................................... 7, 8 Butte Cty., Cal. v. Hogen, 613 F.3d 190 (D.C. Cir. 2010). ......................................................................................... 12 Coastal Conservation Ass’n v. Gutierrez, No. 4:05-CV-1214, 2008 WL 4450313 (S.D. Tex. Sept. 30, 2008). ................................ 24 Cty. of Los Angeles v. Shalala, 192 F.3d 1005 (D.C. Cir. 1999). ......................................................................................... 7 E.P.A. v. EME Homer City Generation, L.P., 134 S. Ct. 1584 (2014). ....................................................................................................... 7 Foster v. Mabus, 103 F. Supp. 3d 95 (D.D.C. 2015). ............................................................................... 6, 12 Friends of Boundary Waters Wilderness v. Bosworth, 437 F.3d 815 (8th Cir. 2006). ........................................................................................... 14 Hunt v. Washington State Apple Advert. Comm’n, 432 U.S. 333 (1977). ......................................................................................................... 11 In re Zurko, 258 F.3d 1379 (Fed. Cir. 2001)......................................................................................... 12 Kadia v. Gonzales, 501 F.3d 817 (7th Cir. 2007) .............................................................................................. 6 Knapp v. U.S. Dep’t of Agric., 796 F.3d 445 (5th Cir. 2015). ........................................................................................... 12 Lilliputian Sys., Inc. v. Pipeline & Hazardous Materials Safety Admin., 741 F.3d 1309 (D.C. Cir. 2014). ................................................................................. 18, 19 Louisiana Sportsmen All., L.L.C. v. Vilsack, 583 F. App’x 379 (5th Cir. 2014). ............................................................................ 5, 9, 11 Case 1:16-cv-00675-DDD-JPM Document 27-1 Filed 06/30/17 Page 3 of 29 PageID #: 141 iv PD.21784888.3 Louisiana Sportsmen All., LLC v. Vilsack, 984 F. Supp. 2d 600 (W.D. La. 2013)............................................................................. 2, 5 Markle Interests, L.L.C. v. United States Fish & Wildlife Serv., 827 F.3d 452 (5th Cir. 2016). ................................................................................. 6, 11, 12 Medina Cty. Envtl. Action Ass'n v. Surface Transp. Bd., 602 F.3d 687 (5th Cir. 2010). ........................................................................................... 16 Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983). ..................................................................................................... 17, 20 Native Vill. of Chickaloon v. Nat’l Marine Fisheries Serv., 947 F. Supp. 2d 1031 (D. Alaska 2013). .......................................................................... 14 O'Reilly v. U.S. Army Corps of Engineers, 477 F.3d 225 (5th Cir. 2007). ................................................................................. 6, 22, 23 Safe Extensions, Inc. v. F.A.A., 509 F.3d 593 (D.C. Cir. 2007). ......................................................................................... 13 St. James Hosp. v. Heckler, 760 F.2d 1460 (7th Cir. 1985). ......................................................................................... 14 Texas Comm. on Nat. Res. v. Van Winkle, 197 F. Supp. 2d 586 (N.D. Tex. 2002). .............................................................................. 6 Transactive Corp. v. United States, 91 F.3d 232 (D.C. Cir. 1996). ........................................................................................... 18 Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519 (1978). ........................................................................................................... 7 W. Deptford Energy, LLC v. F.E.R.C., 766 F.3d 10 (D.C. Cir. 2014). ........................................................................................... 18 Statutes 5 U.S.C. § 706 ............................................................................................................................... 16 28 U.S.C. § 2412 ........................................................................................................................... 24 42 U.S.C. § 4321 ............................................................................................................................. 7 42 U.S.C. § 4331 ............................................................................................................................. 7 42 U.S.C. § 4332 ....................................................................................................................... 8, 21 Regulations 40 C.F.R. § 1500.1 .......................................................................................................................... 7 40 C.F.R. § 1501.4 .......................................................................................................................... 8 40 C.F.R. § 1502.22 ...................................................................................................................... 14 40 C.F.R. § 1502.24 ...................................................................................................................... 14 40 C.F.R. § 1508.9 .......................................................................................................................... 8 40 C.F.R. § 1508.27 ................................................................................................................ 22, 23 Case 1:16-cv-00675-DDD-JPM Document 27-1 Filed 06/30/17 Page 4 of 29 PageID #: 142 1 PD.21784888.3 MAY IT PLEASE THE COURT: Plaintiffs, Robert Trent Hollingsworth, Jonathan Cade Pilcher, Jerry Traylor, and the Louisiana Sportsmen Alliance, LLC (collectively “Plaintiffs”) respectfully submit this Memorandum in Support of their Motion for Summary Judgment on their claims for declaratory and injunctive relief. This matter involves the U.S. Forest Service’s decision to ban the historical practice of hunting deer with dogs (“Dog-Deer Hunting”) in the Kisatchie National Forest. Because the Forest Service’s administrative decision is not supported by substantial evidence, is arbitrary and capricious, and violates federal law and the generally applicable regulations, the decision is both substantively and procedurally invalid and should be permanently enjoined for the reasons stated herein. I. INTRODUCTION AND FACTUAL BACKGROUND The Kisatchie National Forest (“KNF”) is Louisiana’s only national forest and consists of over 604,000 acres spread across seven parishes in western Louisiana.1 The KNF is managed by the United States Forest Service, which is an agency of the United States Department of Agriculture. The Forest Service’s management of KNF is governed by the 1999 “Revised Land and Resource Management Plan” for KNF (the “Forest Plan”).2 Prior to the administrative action challenged in this case, the Forest Plan for KNF allowed the age-old tradition of Dog-Deer Hunting. Dog-Deer Hunting has been a traditional method of hunting in the Southeast and in Louisiana since at least colonial times.3 Indeed, Dog-Deer Hunting is not just a recreational activity; it is an activity that is passed on between generations and is a part of the culture and 1 See generally U.S. Forest Service – Kisatchie National Forest, http://www.fs.usda.gov/kisatchie. 2 [A003-KNF_1999b.Plan] Bracketed references throughout this brief refer to the administrative record filed by Defendants. The Administrative Record is contained on a CD that is in the possession of the Court. This CD consists of a series of .pdf and .xls files that have been given specific file names. Citations to documents in the Administrative Record will be cited in the following format: [File Name], [page number]. 3 [G001-EA-2012-02-13, p. 32] Case 1:16-cv-00675-DDD-JPM Document 27-1 Filed 06/30/17 Page 5 of 29 PageID #: 143 2 PD.21784888.3 heritage of Louisiana, as it is in other States. Simply put, Dog-Deer Hunting is a “time-honored tradition” in Louisiana.4 Historically, the Forest Service cooperated with the Louisiana Department of Wildlife and Fisheries (“LDWF”) to set the Dog-Deer Hunting season on an annual basis.5 In recent years, however, the Forest Service has incrementally reduced the number of days in the Dog- Deer Hunting season, such that in 2012 the Dog-Deer Hunting season lasted for only seven days in December.6 The recent shortening of the Dog-Deer Hunting season was a precursor to the Forest Service’s eventual outlawing of Dog-Deer Hunting in KNF altogether. In order to amend the Forest Plan and institute the ban, the Forest Service must comply with the National Environmental Policy Act (“NEPA”). Accordingly, in August 2009, the Regional Forester announced a proposal to ban Dog-Deer Hunting in KNF via the mailing of “scoping” letters and the publication of a “scoping” notice in several newspapers.7 During the 2009 scoping process, the Forest Service received approximately 1,237 comments and, unsurprisingly, 917 of the commenters objected to the proposed elimination of Dog-Deer Hunting in KNF while only 320 supported the ban.8 A complete ban of Dog-Deer Hunting would severely curtail Louisianans’ ability to engage in an important historical and social activity. Indeed, many of the comments received by the Forest Service lamented the potential loss of a key part of the social fabric of the State. Pursuant to NEPA, an Environmental Assessment (“EA”) was prepared by the Forest Service in April 2010 identifying three alternatives: (1) take no action and continue to allow 4 [Id.] 5 [Id. at p. 5] 6 Louisiana Sportsmen All., LLC v. Vilsack, 984 F. Supp. 2d 600, 604 (W.D. La. 2013). 7 [B001-DD1-SCOPE-FS-Letter-2009-08-14] 8 Louisiana Sportsmen All, 984 F. Supp. 2d at 604. Case 1:16-cv-00675-DDD-JPM Document 27-1 Filed 06/30/17 Page 6 of 29 PageID #: 144 3 PD.21784888.3 Dog-Deer Hunting in KNF, (2) implement the proposed amendment to the Forest Plan banning Dog-Deer Hunting in KNF, or (3) designate specific areas of KNF for Dog-Deer Hunting.9 In December 2010, Regional Forester Elizabeth Agpaoa issued a “Decision Notice” officially selecting alternative #2, the complete ban: “I have chosen Alternative 2, the proposed action, which prohibits the use of dogs to hunt deer on the entire Kisatchie National Forest. The use of dogs for hunting other wildlife such as squirrel, game bird, raccoon, and rabbit will continue.”10 Over 1,000 administrative appeals were filed, however, and the Regional Forester’s decision was eventually reversed by a Reviewing Officer in July 2011.11 The Reviewing Officer’s reversal was based on two deficiencies. First, the Reviewing Officer found that the Regional Forester failed to disclose how certain issues were considered: Most notable in its absence is the required documentation of conclusions drawn based on the supporting record. The recitation of effects analysis does not, by itself, describe what conclusions the Responsible Official drew from that analysis and does not explain how the issues and factors other than environmental consequences were weighed and balanced in making the decision. Each of the alternatives have beneficial and adverse aspects to them, but it is not possible to tell how you evaluated the tradeoffs associated with each to arrive at the conclusion that Alternative 2 was the appropriate decision to make. This is not to say that another alternative should have been selected; rather, it is not clear from the [Decision Notice] why and how you arrived at your particular decision.12 Second, the Reviewing Officer found that the Regional Forester failed to “address the significance of [the] action in several contexts such as society as a whole, the affected region, the affected interests, and the locality,” as required by the applicable regulations.13 The Reviewing Officer also found fault with the EA, and particularly with the section that addressed the number 9 [B010-DD1-EA-2010-12-15, pp. 14-15] 10 [B011-DD1-DN-FONSI-2010-12-16] 11 [B013-DD1-APPEAL-WO-Decision-2011-07-11] 12 [B013-DD1-APPEAL-WO-Decision-2011-07-11, p. 4] 13 [Id.] Case 1:16-cv-00675-DDD-JPM Document 27-1 Filed 06/30/17 Page 7 of 29 PageID #: 145 4 PD.21784888.3 of alleged violations of law that occurred during the Dog-Deer Hunting season. The Reviewing Officer concluded that the EA violated 40 C.F.R. § 1502.24 because the EA and the appeal record did “not clearly show which violations are directly attributed to dog-deer hunters or how many dog-deer hunters there are on the KNF.”14 Following this reversal, the Regional Forester reinitiated the scoping process in the fall of 2011, again issuing scoping letters and publishing in local newspapers a scoping notice informing the public of her intent to ban Dog-Deer Hunting in the KNF.15 During the second round of public comment, the Forest Service received approximately 1,279 letters (only 5 of which supported the proposed ban on Dog-Deer Hunting) and at least 106 e-mails (approximately 95 of which supported the ban).16 The April 2010 EA was then revised in December 201117 and again in February 2012.18 Both revisions identify the same three alternatives.19 On February 29, 2012 the Regional Forester issued a new “Decision Notice” again selecting alternative #2, the complete ban.20 Once again, over 1,000 administrative appeals were filed by various parties (including Plaintiffs) in response to the 2012 decision, which suffered from many of the same flaws as the original decision.21 The Reviewing Officer agreed and again found flaws with the Revised EA and Decision Notice and ordered that the ban could not be implemented until the Forest Service complied with certain instructions.22 Of particular importance, the Reviewing Officer found, 14 [Id., Attachment 1, p. 7] 15 [D001-DD2-SCOPE-LETTER-2011-08-24] 16 [G001-EA-2012-02-13, p. 11] 17 [B015-DD1-EA-Revised-2011-12-21] 18 [G001-EA-2012-02-13] 19 References in this brief to the “Revised EA” refer to the February 2012 revision. 20 [H001-DD2-DN-FONSI-2012-02-29] 21 [J008a-DD2-APPEAL-WO-Decision-2012-09-28, p. 1] 22 [J008a-DD2-APPEAL-WO-Decision-2012-09-28,p.2;J008b-DD2-APPEAL-WO-Decision-Attachment1] Case 1:16-cv-00675-DDD-JPM Document 27-1 Filed 06/30/17 Page 8 of 29 PageID #: 146 5 PD.21784888.3 among other deficiencies, that the Revised EA continued to “violate[ ] 40 CFR 1502.24 because the information in the EA and appeal record does not clearly show which violations are directly attributed to dog-deer hunters.”23 Surprisingly, however, faced with the Reviewing Officer’s instructions, the Forest Service did not further amend the Revised EA at all. The Regional Forester merely issued an “errata” sheet that did not address the Reviewing Officer’s instructions with respect to the discussion of “Public Safety.”24 Nevertheless, the Reviewing Officer rubber- stamped the “errata” sheet and found that the Regional Forester had purportedly complied with the Officer’s instructions and the ban on Dog-Deer Hunting decision became final.25 After exhausting its administrative remedies as discussed above, Plaintiff Louisiana Sportsmen Alliance L.L.C. (“LSA”) filed a suit in the United States District Court for the Western District of Louisiana on November 16, 2012 challenging the Forest Service’s arbitrary and capricious decision to outlaw the long-practiced historic tradition of hunting deer using dogs in KNF. Because the members of the LSA desire to continue to hunt deer with dogs in KNF, the Alliance sought injunctive and declaratory relief to prevent the Forest Service from implementing the amendment to the Forest Plan permanently banning Dog-Deer Hunting in KNF. This Court granted summary judgment to the government in the first suit but, on appeal, the Fifth Circuit found that the Alliance had failed to establish its standing and, thus, this Court’s subject matter jurisdiction.26 On remand the Court dismissed the case without prejudice. Shortly thereafter, Plaintiffs filed this suit challenging the ban. As described below, any doubts regarding this Court’s subject matter jurisdiction have been resolved and the Court may 23 [J008a-DD2-APPEAL-WO-Decision-2012-09-28, p. 3] 24 [K002-DD2-APPEAL-DIRECTION-Errata-2012-11-02] 25 [K003-DD2-APPEAL-DIRECTION-WO-Lettter-2012-11-05-Errata] 26 See Louisiana Sportsmen All. v. Vilsack, 984 F. Supp. 2d 600 (W.D. La. 2013) (district court decision); Louisiana Sportsmen All., L.L.C. v. Vilsack, 583 F. App’x 379, 380 (5th Cir. 2014) (appellate decision). Case 1:16-cv-00675-DDD-JPM Document 27-1 Filed 06/30/17 Page 9 of 29 PageID #: 147 6 PD.21784888.3 properly give full consideration to the Forest Service’s decision. II. LEGAL STANDARD A. APA Review While a motion for summary judgment is the correct procedural mechanism to obtain a ruling in a case brought pursuant to the Administrative Procedure Act (“APA”), the Court employs a standard different from the familiar Rule 56 standard.27 “In reviewing administrative agency decisions, the function of the district court is to determine whether as a matter of law, evidence in the administrative record permitted the agency to make the decision it did.”28 “When reviewing agency action under the APA, [the] court must set aside agency action, findings, and conclusions found to be—(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; [or] (C) in excess of statutory jurisdiction, authority, or limitations.”29 While APA review is undoubtedly deferential, it is by no means superficial. Indeed, as the Seventh Circuit has stated, “[d]eference must be earned.”30 Moreover, this deference “does not turn judicial review into a rubber stamp.” Instead, the Court “must make a searching and careful inquiry into the facts and review whether the decision was based on consideration of the relevant factors and whether there has been a clear error of judgment.”31 Thus, the “courts retain a role, and an important one, in ensuring that agencies have engaged in reasoned decisionmaking.”32 “Where the agency has failed to provide a reasoned explanation, or where the record 27 Texas Comm. on Nat. Res. v. Van Winkle, 197 F. Supp. 2d 586, 595 (N.D. Tex. 2002). 28 Id. 29 Markle Interests, L.L.C. v. United States Fish & Wildlife Serv., 827 F.3d 452, 460 (5th Cir. 2016). 30 Kadia v. Gonzales, 501 F.3d 817, 821 (7th Cir. 2007). 31 O'Reilly v. U.S. Army Corps of Engineers, 477 F.3d 225, 230 (5th Cir. 2007). 32 Foster v. Mabus, 103 F. Supp. 3d 95, 108 (D.D.C. 2015). Case 1:16-cv-00675-DDD-JPM Document 27-1 Filed 06/30/17 Page 10 of 29 PageID #: 148 7 PD.21784888.3 belies the agency’s conclusion, [the Court] must undo its action.”33 In reviewing an agency decision, courts embark on “a searching and careful inquiry into the facts” and uphold the agency decision only if the agency has articulated “a rational connection between the facts found and the choice made.”34 “At bottom, an agency must explain why it chose to do what it did. And to this end, conclusory statements will not do; an agency’s statement must be one of reasoning.”35 Finally, if an agency changes its position with respect to an issue, it must “[give] a reasonable explanation for doing so.”36 B. The Statutory and Regulatory Framework for the Forest Service’s Decision The Forest Service’s decision to ban Dog-Deer Hunting was made pursuant to the procedure established by the National Environmental Policy Act (“NEPA”)37 and its implementing regulations.38 NEPA has two basic goals. First, it requires government agencies “to consider every significant aspect of the environmental impact of a proposed action.”39 Second, it ensures that an agency will “inform the public that it has indeed considered environmental concerns in its decision making process.”40 Of critical importance to the present dispute, NEPA provides that agencies should “assure for all Americans safe, healthful, productive, and aesthetically and culturally pleasing surroundings” and “attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences.”41 33 Cty. of Los Angeles v. Shalala, 192 F.3d 1005, 1021 (D.C. Cir. 1999). 34 Am. Trucking Ass’ns, Inc. v. Fed. Motor Carrier Safety Admin., 724 F.3d 243, 249 (D.C. Cir. 2013). 35 Amerijet Int’l, Inc. v. Pistole, 753 F.3d 1343, 1350 (D.C. Cir. 2014) (emphasis in original) (internal citations omitted). 36 E.P.A. v. EME Homer City Generation, L.P., 134 S. Ct. 1584, 1602 (2014). 37 42 U.S.C. § 4321, et seq. 38 40 C.F.R. § 1500.1, et seq. 39 Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 553 (1978). 40 Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97 (1983). 41 42 U.S.C. § 4331(b) (emphasis added). Case 1:16-cv-00675-DDD-JPM Document 27-1 Filed 06/30/17 Page 11 of 29 PageID #: 149 8 PD.21784888.3 NEPA requires all federal agencies to consider the environmental consequences of “major Federal actions significantly affecting the quality of the human environment.”42 If an agency is uncertain as to whether its proposed action constitutes a “major Federal action affecting the quality of the human environment,” it must prepare a preliminary “environmental assessment” to determine whether an environmental impact statement is needed.43 The environmental assessment is a “concise public document” that serves to “briefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact.”44 If an agency chooses to produce an environmental assessment before, or in lieu of, a full environmental impact statement, the environmental assessment “[s]hall include brief discussions of the need for the proposal, of alternatives as required by section 102(2)(E) [of NEPA], of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted.”45 The agency must involve the public “to the extent practicable” in preparing the environmental assessment.46 Finally, NEPA requires that agencies take a “hard look” at the consequences of an action before pursuing it.47 Here, the Regional Forester failed to take a “hard look” at the consequences of an outright ban on Dog-Deer Hunting and its frustration of the government’s goal of encouraging the “widest range of beneficial uses” of the KNF. Accordingly, for the reasons described in detail below, her decision should be set aside. III. THIS COURT HAS JURISDICTION OVER THIS MATTER In connection with the first suit challenging the Forest Service’s ban, the Fifth Circuit 42 42 U.S.C. § 4332(c). 43 See 40 C.F.R. § 1501.4. 44 40 C.F.R. § 1508.9(a)(1). 45 40 C.F.R. § 1508.9(b). 46 40 C.F.R. § 1501.4(b). 47 Baltimore Gas & Elec. Co., 462 U.S. at 97. Case 1:16-cv-00675-DDD-JPM Document 27-1 Filed 06/30/17 Page 12 of 29 PageID #: 150 9 PD.21784888.3 held that the LSA (the only plaintiff in that suit) had failed to establish its standing to challenge the ban.48 The Fifth Circuit explained that, to establish standing: the Alliance must show (1) the plaintiff organization’s asserted legally protected interest is germane to the purposes of the plaintiff organization; (2) any of the plaintiff organization’s members has standing to sue on his or her own behalf'; and (3) the participation of individual members in the lawsuit is not required. An individual member must therefore satisfy the familiar requirements of Lujan: First, the plaintiff must have suffered an “injury in fact”—an invasion of a legally protected interest which is (a) concrete and particularized; and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be “fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court.” Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.”49 As the Fifth Circuit explained, the standing inquiry for individual plaintiffs and the Alliance are overlapping. First, Plaintiffs must demonstrate that at least one of the individual plaintiffs satisfies Lujan’s standing requirements. Second, Plaintiffs must further show that the LSA meets the associational standing requirements. The evidence submitted with this motion meets both tests. A. All Three Individual Plaintiffs Have Standing. To demonstrate that they have standing, Mr. Hollingsworth, Mr. Pilcher, and Mr. Traylor must individually demonstrate that they have each (1) suffered a concrete injury, (2) as a result of the Forest Service’s ban, and (3) that a favorable decision from this Court will redress that injury. Each Plaintiff easily meets that standard. Mr. Hollingsworth, through his attached declaration, has offered testimony that, prior to 48 Louisiana Sportsmen All., 583 F. App’x at 380. 49 Id. at 380-81 (internal citations omitted). Case 1:16-cv-00675-DDD-JPM Document 27-1 Filed 06/30/17 Page 13 of 29 PageID #: 151 10 PD.21784888.3 the Forest Service’s ban, he regularly went Dog-Deer Hunting in the KNF.50 As part of his long family tradition of Dog-Deer Hunting, Mr. Hollingsworth owns 21 hunting dogs and has spent nearly $40,000 over the past five years caring for his dogs.51 As a result of the ban, he is no longer able to take his two daughters into his backyard to continue the family tradition of Dog- Deer Hunting and he must incur substantial additional costs to travel to Mississippi and/or Arkansas, where Dog-Deer Hunting is permitted on Forest Service land, if he wishes to go Dog- Deer Hunting.52 There can, therefore, be no question that he has been injured by the Forest Service’s ban. Moreover, it should go without saying that a favorable decision (reversing the ban and reinstating Dog-Deer Hunting in the Forest) would redress his injury. If the Court orders that Dog-Deer Hunting must be permitted in the Forest, Mr. Hollingsworth will once again be able to take his daughters Dog-Deer Hunting in the Forest and will not have to incur the costs of travelling to Mississippi or Arkansas to hunt on public land. Accordingly, Mr. Hollingsworth clearly has standing to challenge the ban. The analysis is identical with respect to both Mr. Pilcher and Mr. Traylor. Like Mr. Hollingsworth, both regularly went Dog-Deer Hunting in the KNF prior to the ban.53 They have also been similarly injured in that they are totally unable to go Dog-Deer Hunting as a result of the ban.54 Of course, just like Mr. Hollingsworth, a favorable decision from this Court will go a long way in redressing their injury. Thus, Mr. Pilcher and Mr. Traylor also have standing to challenge the ban. 50 See Declaration of Robert Trent Hollingsworth, attached hereto as Exhibit A, ¶ 5. 51 Id. at ¶¶ 6-8. 52 Id. at ¶ 22. 53 See Declarations of Jonathan Cade Pilcher and Jerry Traylor, attached hereto as Exhibits B and C, respectively, ¶¶ 4-10. 54 See Exhibits B and C at ¶ 21. Case 1:16-cv-00675-DDD-JPM Document 27-1 Filed 06/30/17 Page 14 of 29 PageID #: 152 11 PD.21784888.3 B. The LSA Also Has Standing to Challenge the Ban. The Fifth Circuit previously explained that, to establish associational standing, the LSA must show that (1) its interest in the lawsuit is relevant to its purposes as an association, (2) at least one individual LSA member has standing, and (3) that the participation of the individual members is not required.55 As the declarations establish, the LSA’s stated goal is to preserve the traditions and rights of Louisiana sportsmen, including the preservation of hunting lands for its members.56 This purpose goes directly to the heart of the LSA’s interest in this lawsuit, which is to reopen the KNF to Dog-Deer Hunting. The declarations further establish that each of the individual Plaintiffs are members of the LSA.57 Because each of the individual Plaintiffs have standing and are members of the LSA, the second prong is clearly satisfied. As to the final prong, whether participation of the individual members is required, the Fifth Circuit has explained that “[t]he third prong focuses importantly on matters of administrative convenience and efficiency.”58 Generally speaking, the third element is met where the association’s case on the merits does not require individualized proof from each member.59 Such is clearly the case here. The Court’s merits-review of the Forest Service’s decision is confined to the administrative record. Accordingly, not only is individualized proof not required from the individual Plaintiffs, it is generally not permitted.60 Because the LSA satisfies all three requirements for associational standing, there can be no doubt that any lingering questions as to this Court’s subject-matter jurisdiction are satisfied. 55 Louisiana Sportsmen All., 583 F. App’x at 380. 56 See e.g. Exhibit A, ¶ 19 57 Exhibit A, ¶ 18; Exhibit B, ¶ 17; Exhibit C, ¶ 17. 58 Ass’n of Am. Physicians & Surgeons, Inc. v. Texas Med. Bd., 627 F.3d 547, 551 (5th Cir. 2010). 59 Hunt v. Washington State Apple Advert. Comm’n, 432 U.S. 333, 344 (1977). 60 Markle Interests, 40 F. Supp. 3d at 754. Case 1:16-cv-00675-DDD-JPM Document 27-1 Filed 06/30/17 Page 15 of 29 PageID #: 153 12 PD.21784888.3 IV. THIS COURT SHOULD REVERSE THE FOREST SERVICE’S DECISION As explained above, this “[C]ourt must set aside agency action, findings, and conclusions found to be—(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; [or] (C) in excess of statutory jurisdiction, authority, or limitations.”61 Remarkably, there are three separate reasons that the Court should set aside the Forest Service’s ban, each of which would independently justify a decision in Plaintiffs’ favor. Namely, (1) the decision is not supported by substantial evidence, (2) the decision was arbitrary and capricious, and (3) the Forest Service’s Finding of No Significant Impact (“FONSI”) was invalid and the decision was, therefore, procedurally flawed. A. The Forest Service’s Decision Is Not Supported by Substantial Evidence. At its core, the Forest Service’s decision rested on its conclusion that Dog-Deer Hunting poses a significant and disproportionate threat to public safety.62 That decision must be reversed by this Court if the Forest Service’s factual finding is not supported by substantial evidence.63 “Substantial evidence is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”64 “A review under this standard involves an examination of the record as a whole, taking into consideration evidence that both justifies and detracts from the agency’s decision.”65 Thus, the agency’s decision must demonstrate that it considered all of the evidence, including that contrary to its position.66 “[A]n agency’s declaration of fact that is capable of exact proof but is unsupported by 61 Markle Interests, 827 F.3d at 460. 62 [H001-DD2-DN-FONSI-2012-02-29, p. 4] 63 Foster, 103 F. Supp. 3d at 109. 64 Knapp v. U.S. Dep’t of Agric., 796 F.3d 445, 453–54 (5th Cir. 2015). 65 In re Zurko, 258 F.3d 1379, 1384 (Fed. Cir. 2001). 66 Butte Cty., Cal. v. Hogen, 613 F.3d 190, 194 (D.C. Cir. 2010). Case 1:16-cv-00675-DDD-JPM Document 27-1 Filed 06/30/17 Page 16 of 29 PageID #: 154 13 PD.21784888.3 any evidence is insufficient to make the agency’s decision non-arbitrary.”67 The Forest Service’s factual finding that Dog-Deer Hunters pose a unique and significant threat to public safety was supported only by the Forest Service’s reliance on “citation data” that purportedly demonstrated that Dog-Deer Hunters were more likely to violate the law than still deer hunters. This factual finding is, however, wholly unsupported by the record, as observed by the Reviewing Officer on two separate occasions. In connection with the first appeal, the Reviewing Officer noted that the Forest Service’s “data” merely compared the number of citations issued during the dog-deer season with the number of citations issued during the rest of the hunting season, without making any effort to attribute specific citations to Dog-Deer Hunters: Nothing was found in the appeal record indicating the number of violation notices issued to dog-deer hunters versus other types of hunters during the dog-deer hunting season. Other explanations for a higher number of violations during dog- deer hunting could be that more officers were in the field during that time or that more people are hunting; however, there is no way for the reader to ascertain the real meaning in the numbers presented. . . . I find the EA violates 40 CFR 1502.24 because the information in the EA and appeal record does not clearly show which violations are directly attributed to dog-deer hunters or how many dog-deer hunters there are on the KNF. The environmental analysis document must provide information regarding violations that were committed directly by dog-deer hunters during the dog-deer hunting season.68 The Forest Service made no effort to remedy these deficiencies in its second attempt to enact the ban. Indeed, in connection with the second appeal, the Reviewing Officer again noted that the decision was invalid because the Forest Service failed to provide any reliable 67 Safe Extensions, Inc. v. F.A.A., 509 F.3d 593, 605 (D.C. Cir. 2007). 68 [B013-DD1-APPEAL-WO-DECISION-2011-07-11, p. 6–7]. Case 1:16-cv-00675-DDD-JPM Document 27-1 Filed 06/30/17 Page 17 of 29 PageID #: 155 14 PD.21784888.3 information attributing the alleged increase in citations to Dog-Deer Hunters.69 The Forest Service’s continued failure to provide evidentiary support for its conclusion is fatal to the ban. Several courts have emphasized that “[i]t is an agency’s duty to establish the statistical validity of the evidence before it prior to reaching conclusions based upon that evidence.”70 Where an agency attempts to use data to support its conclusion, the agency has the responsibility to ensure that the data is accurate and that it actually measures what the agency seeks to measure.71 Courts have not hesitated to reverse agency decisions that were based on inaccurate or incomplete data.72 Those decisions are completely consistent with the NEPA regulations, which require agencies to insure the scientific integrity of their decisions.73 Moreover, where the data on which the agency relies is incomplete, NEPA requires that the agency obtain the data before rendering a decision.74 If such evidence is genuinely unavailable, the agency may proceed in the absence of the data, but only if it includes specific detailed information regarding the unavailability of the data.75 In an effort to avoid its obligation to provide reliable data, the Forest Service offers a halfhearted justification for its failure to obtain proper data: “Incident reports, warnings, notices, 69 [J008b-DD2-APPEAL-WO-Decision-Attachment1, p. 2–3] 70 Friends of Boundary Waters Wilderness v. Bosworth, 437 F.3d 815, 825 (8th Cir. 2006) (holding that unreliability of survey data required reversal of agency decision). 71 Alabama Power Co. v. F.C.C., 773 F.2d 362, 367 (D.C. Cir. 1985) (“We will therefore judge the validity of the order by examining whether the Commission in fact calculated that which it sought to calculate.”). 72 St. James Hosp. v. Heckler, 760 F.2d 1460, 1469 (7th Cir. 1985) (unreliability of statistical evidence required reversal of decision); Native Vill. of Chickaloon v. Nat’l Marine Fisheries Serv., 947 F. Supp. 2d 1031, 1057 (D. Alaska 2013) (combining inconsistent sets of survey data to arrive at agency conclusion was arbitrary and capricious). 73 40 C.F.R. § 1502.24. 74 40 C.F.R. § 1502.22(a). 75 40 C.F.R. § 1502.22(b). The regulation specifically requires: “(1) A statement that such information is incomplete or unavailable; (2) a statement of the relevance of the incomplete or unavailable information to evaluating reasonably foreseeable significant adverse impacts on the human environment; (3) a summary of existing credible scientific evidence which is relevant to evaluating the reasonably foreseeable significant adverse impacts on the human environment, and (4) the agency’s evaluation of such impacts based upon theoretical approaches or research methods generally accepted in the scientific community.” Case 1:16-cv-00675-DDD-JPM Document 27-1 Filed 06/30/17 Page 18 of 29 PageID #: 156 15 PD.21784888.3 and violation notices that specifically differentiate dog-deer hunters from other Forest users during the KNF dog-deer season is unavailable. A means to accurately identify the type of Forest user (dog-deer or non-dog-deer) that actually committed each violation is unknown.”76 This statement, however, is demonstrably false. In connection with this lawsuit, the Forest Service has submitted information as part of the administrative record that was not submitted in the first suit.77 That supplemental submission is composed entirely of the “citation data” that underlies the Forest Service’s decision. A review of the citation data reveals that the Forest Service’s statement that “[a] means to accurately identify the type of Forest user (dog-deer or non-dog-deer) that actually committed each violation is unknown” is false.78 Specifically, the 2009 “citation data” is comprised mostly of “incident reports” (many of which do not even identify a specific person) that purport to contain documentation of alleged offenses occurring during Dog-Deer Hunting season.79 At the bottom of some of the incident reports is a notation that the incident report is “related to deer dog hunting.”80 This, of course, demonstrates that there is in fact a means to accurately identify whether a violation was committed by a Dog-Deer Hunter: the Forest Service could instruct its officers to simply include a notation on each citation regarding whether the hunter was using dogs. The Forest Service was, apparently, able to do this at least during the 2009 season. Accordingly, it appears that the missing data is not unavailable but rather that the Forest Service has chosen not to collect it. The Forest Service’s failure to collect evidence supporting its contention that Dog-Deer Hunters pose a threat to public safety is fatal to its ban. 76 [G001-EA-2012-02-13, p. 25] 77 [AR-16-675-2of2/Supplemental Materials] 78 [G001-EA-2012-02-13, p. 25] 79 [AR-16-675-2of2/Supplemental Materials/FY2009Redacted] 80 [Id. at p. 1]. Case 1:16-cv-00675-DDD-JPM Document 27-1 Filed 06/30/17 Page 19 of 29 PageID #: 157 16 PD.21784888.3 Moreover, the small amount of data actually collected by the Forest Service, and now disclosed for the first time, reveals suspiciously little evidentiary support for the Forest Service’s purported public safety concern. The “citation data” reveals that the vast majority of “violations” cited by the Forest Service are not citations at all. That is, most of the “data” is comprised of incident reports, many of which do not even identify a specific person. There is no evidence that any person was ever cited for an offense with respect to the majority of these reports. Additionally, none of the actual citations in the record are specifically attributable to Dog-Deer Hunters. Therefore, the record is devoid of any (let alone substantial) evidence that Dog-Deer Hunters pose a threat to public safety. Finally, it is also telling that the overwhelming majority of the incident reports relied upon by the Forest Service were created during the 2009 season—the first season after the Forest Service announced its intent to ban Dog-Deer Hunting in the KNF. Thus, what little evidence purportedly supported the Forest Service’s decision appears to have been manufactured by the Forest Service after it made the decision to ban Dog-Deer Hunting. This is hardly the sort of substantial evidence demanded by NEPA or the APA. Thus, this Court should find that the Forest Service’s decision was not supported by substantial evidence and reverse the decision. B. The Forest Service’s Decision Is Arbitrary and Capricious. As discussed above, the Court should set aside the Forest Service’s ban if it finds that the decision is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.81 An agency’s action is arbitrary and capricious when the agency has relied on factors which Congress has not intended, entirely failed to consider an important aspect of the problem, offered an explanation that runs counter to the evidence, or is so implausible that it could not be 81 5 U.S.C. § 706(2)(A); see also Medina Cty. Envtl. Action Ass’n v. Surface Transp. Bd., 602 F.3d 687, 699 (5th Cir. 2010). Case 1:16-cv-00675-DDD-JPM Document 27-1 Filed 06/30/17 Page 20 of 29 PageID #: 158 17 PD.21784888.3 ascribed to a difference in view or the product of agency expertise.82 For several reasons discussed below, the Regional Forester’s decision to ban dog-deer hunting in the KNF is arbitrary and capricious. 1. The ban violated the Reviewing Officer’s decision. After the Forest Service re-issued its decision to ban Dog-Deer Hunting in the KNF, that decision was appealed administratively. On appeal, the Reviewing Officer again found flaws with the Revised EA and Decision Notice and ordered that the ban could not be implemented unless the Forest Service complied with certain instructions.83 The Reviewing Officer found, among other deficiencies, that the Revised EA still “violates 40 CFR 1502.24 because the information in the EA and appeal record does not clearly show which violations are directly attributed to dog-deer hunters.”84 The Reviewing Officer instructed the Regional Forester for a second time to revise the EA because it must “provide information regarding violations that were committed directly by dog-deer hunters during the dog-deer hunting season or fully fulfill the requirement of 40 CFR 1502.22.”85 The Reviewing Officer pointedly directed the Regional Forester to do the following: [I]n addition to stating that … information is incomplete or unavailable, the EA must also include a statement of the relevance of the incomplete or unavailable information to evaluating reasonable foreseeable significant adverse impacts on the human environment. I instruct the Responsible Official to include in the environmental analysis document information regarding violations that were committed directly by dog-deer hunters during the dog-deer season or to fully fulfill the requirements of 40 CFR 1502.22 and explain the relevance of the unavailable information to evaluating reasonably foreseeable adverse impacts on the human environment.86 82 Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). 83 [J008a-DD2-APPEAL-WO-Decision-2012-09-28,p.2;J008b-DD2-APPEAL-WO-Decision-Attachment1] 84 [J008a-DD2-APPEAL-WO-Decision-2012-09-28, p. 3] 85 [Id.] 86 [J008b-DD2-APPEAL-WO-Decision-Attachment1, at pp. 3 – 4] Case 1:16-cv-00675-DDD-JPM Document 27-1 Filed 06/30/17 Page 21 of 29 PageID #: 159 18 PD.21784888.3 The Reviewing Officer’s second decision on appeal was issued on September 28, 201287 and the Forest Service issued an “errata” notice on November 2, 2012 purporting to correct the continued flaws in its decision.88 The Reviewing Officer, after receipt and review of the errata sheet, incorrectly determined that the Regional Forester complied with his instructions and that the Forest Service could implement the ban on Dog-Deer Hunting.89 As described above, however, the decision still woefully fails to offer any evidence as to which violations are attributable to Dog-Deer Hunters. This is a failure that the Reviewing Officer found significant on both the first and second appeal.90 The Forest Service’s continued failure to remedy this pervasive flaw in its analysis, despite its own recognition of that flaw, is arbitrary and capricious and alone warrants reversal of the ban. 2. The Forest Service fails to explain its inconsistent decision to permit dog hunting, including Dog-Deer Hunting, in other contexts. “It is textbook administrative law that an agency must provide a reasoned explanation for departing from precedent or treating similar situations differently.”91 “[A]n agency cannot treat similarly situated entities differently unless it supports the disparate treatment with a reasoned explanation and substantial evidence in the record.”92 “A long line of precedent has established that an agency action is arbitrary when the agency offered insufficient reasons for treating similar situations differently.”93 Thus, to pass muster under APA review, an agency decision that treats 87 [J008-DD2-APPEAL-WO-Decision-2012-09-28, p. 1] 88 [K002-DD2-APPEAL-DIRECTION-ERRATA-2012-11-02] 89 [K003-DD23-APPEAL-DIRECTION-WO-Letter-2012-11-05] 90 [B013-DD1-APPEAL-WO-DECISION-2011-07-11, p. 7 (first decision); J008-DD2-APPEAL-WO- Decision-2012-09-28, p. 3 (second decision)] 91 W. Deptford Energy, LLC v. F.E.R.C., 766 F.3d 10, 20 (D.C. Cir. 2014). 92 Lilliputian Sys., Inc. v. Pipeline & Hazardous Materials Safety Admin., 741 F.3d 1309, 1313 (D.C. Cir. 2014). 93 Transactive Corp. v. United States, 91 F.3d 232, 237 (D.C. Cir. 1996). Case 1:16-cv-00675-DDD-JPM Document 27-1 Filed 06/30/17 Page 22 of 29 PageID #: 160 19 PD.21784888.3 similar situations differently must offer a reasoned rationale for the disparate treatment. Of course, that rationale must itself be supported by substantial evidence and not be arbitrary. The D.C. Circuit’s decision in Lilliputian Systems provides an excellent example of the sort of flawed reasoning not permitted by the APA. In Lilliputian Systems, the D.C. Circuit reviewed a decision by the Department of Transportation prohibiting the transportation of certain fuel cell cartridges containing butane in checked baggage on airlines.94 The Department made no effort to explain, however, why it permitted medical and toiletry items containing butane to be transported in checked luggage but not fuel cell cartridges.95 In reversing the Department’s decision, the court explained that the Department had “failed to provide the required reasoned explanation and substantial evidence for this disparate treatment” and that its decision was, therefore, arbitrary and capricious as a matter of law.96 The foundational conclusion underlying the Forest Service’s decision is its assertion that the use of dogs to hunt deer (as opposed to other types of deer hunting) creates a host of unmanageable problems.97 Yet, the same decision expressly permits all other types of hunting with dogs (i.e. squirrel, game bird, raccoon, and rabbit).98 Despite this glaring inconsistency, the Forest Service has made no effort to explain how the other types of hunting with dogs differ from Dog-Deer Hunting or why they should be treated differently. While nothing prohibits the Forest Service from treating different types of dog hunting differently, it must at a minimum provided a reasoned explanation for its decision. The same is true for the Forest Service’s decision to permit Dog-Deer Hunting in other 94 Lilliputian Sys., 741 F.3d at 1313. 95 Id. 96 Id. at 1314. 97 [H001-DD2-DN-FONSI-2012-02-29, p. 6] 98 [H001-DD2-DN-FONSI-2012-02-29, p. 1] Case 1:16-cv-00675-DDD-JPM Document 27-1 Filed 06/30/17 Page 23 of 29 PageID #: 161 20 PD.21784888.3 national forests but to prohibit it in the KNF. The Forest Service specifically admits that Dog- Deer Hunting is permitted in more than half of the Region 8 National Forests.99 The Forest Service further specifically admits that Dog-Deer Hunting is permitted in portions of the Arkansas National Forests and in 11 of the 15 areas managed by the Forest Service in Mississippi.100 The Forest Service has, however, made no ascertainable effort to explain why Mississippi, Arkansas, or the majority of the Region 8 National Forests are different than the KNF. The Forest Service’s decision to permit Dog-Deer Hunting in most of Region 8 but ban it in Louisiana, without any attempt at a reasoned explanation, is arbitrary and capricious and the APA requires that this Court reverse the decision. The Forest Service’s failure to provide any reasoning for its disparate treatment of different types of Dog-Deer Hunting or dog hunting is indistinguishable from the failure of the Department in Lilliputian Systems and, therefore, renders the Forest Service’s decision to ban Dog-Deer Hunting in the KNF arbitrary and capricious. 3. The Forest Service failed to consider an important aspect of the problem. An agency’s decision is also arbitrary and capricious where it fails to consider an important aspect of the problem.101 In connection with the first appeal, the Reviewing Officer recognized that the social and cultural impacts of a ban on Dog-Deer Hunting were important and merited consideration.102 Indeed, one of the reasons that the Reviewing Officer reversed the first decision was that it failed to adequately consider this aspect of the problem.103 Nonetheless, the Forest Service apparently ignored this admonishment in connection with its second attempt 99 [K002-DD2-APPEAL-DIRECTION-Eratta-2012-11-02, p. 1 (“Within the regional context (US Forest Service Region 8), hunting deer with dogs is permitted on eight of the fifteen National Forests.”)] 100 (“[I]n Arkansas . . . the Ouachita NF is open to dog-deer hunting. . . . In Mississippi there are 15 wildlife management areas on NFS lands; 11 of them have deer dog seasons of some length.”) [Id.] 101 Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43. 102 [B013-DD1-APPEAL-WO-Decision-2011-07-11, p. 3-4] 103 [Id. at p. 4] Case 1:16-cv-00675-DDD-JPM Document 27-1 Filed 06/30/17 Page 24 of 29 PageID #: 162 21 PD.21784888.3 to enact the ban. The consideration of this important issue in the second decision spans precisely 14 words: “[t]he selected alternative will not preserve the tradition and culture of dog-deer hunting.”104 The Forest Service’s conclusory rejection of the importance of this centuries-old cultural tradition falls far short of giving serious consideration to the issue. There is substantial evidence that Dog-Deer Hunting plays a vital role in the cultural fabric of Louisiana. For example, Plaintiffs’ declarations indicate that they can trace the tradition of Dog-Deer Hunting as far back as the 1800s.105 In response to similar evidence indicating that this ancient cultural tradition is a crucial part of the social fabric of the state, the Reviewing Officer chastised the Forest Service for failing to engage in a serious consideration of this important issue. Nonetheless, the Forest Service continues to ignore the importance of this age-old cultural tradition merely because that fact does not support its desired outcome. Of course, the APA does not permit this type of results-driven analysis and the Forest Service’s decision is, therefore, also arbitrary and capricious for failing to consider this issue. C. The Forest Service’s Finding of No Significant Impact Is Invalid. Even if the Forest Service can somehow demonstrate that its decision is not arbitrary and capricious, this Court may still invalidate the ban if it is contrary to law. As the Forest Service concedes, its attempt to amend the Forest Plan to ban Dog-Deer Hunting must comply with NEPA. At its core, NEPA imposes a procedural requirement on agencies contemplating action likely to affect the quality of the human environment.106 “NEPA’s central requirement is that federal agencies must, except in certain qualifying situations, complete a detailed environmental impact statement (“EIS”) for any major federal action significantly affecting the quality of the 104 [H001-DD2-DN-FONSI-2012-02-29, p. 5] 105 Exhibit B, ¶ 9. 106 See generally, 42 U.S.C. § 4332. Case 1:16-cv-00675-DDD-JPM Document 27-1 Filed 06/30/17 Page 25 of 29 PageID #: 163 22 PD.21784888.3 human environment.”107 If an agency undertakes an action that is not likely to have a significant impact on the human environment it may conduct the NEPA-mandated analysis in an Environmental Assessment (“EA”), a significantly less comprehensive document.108 “Where an EA results in a determination that an EIS is not required, however, the agency must issue a Finding of No Significant Impact (“FONSI”).”109 The FONSI must state the reasons why the proposed action will not have a significant impact on the human environment.110 An agency’s decision to forgo the preparation of an EIS is unreasonable if it incorrectly issued an FONSI.111 To determine whether an agency action will have a “significant” impact on the human environment, the agency must consider the ten factors outlined in 40 C.F.R. § 1508.27(b).112 The Forest Service’s discussion of the ten factors is reduced to a series of conclusory statements at the end of its Decision Notice.113 The Forest Service’s conclusions on these factors do not survive even the most cursory scrutiny. In this regard, it is important to keep in mind that the regulations admonish that “[a] significant effect may exist even if the Federal agency believes that on balance the effect will be beneficial.”114 107 O’Reilly, 477 F.3d at 228. 108 Id. 109 Id. 110 Id. 111 Id. at 239. 112 Those factors are: (1) Impacts that may be both beneficial and adverse; (2) The degree to which the proposed action affects public health or safety; (3) Unique characteristics of the geographic area such as proximity to historic or cultural resources, park lands, prime farmlands, wetlands, wild and scenic rivers, or ecologically critical areas; (4) The degree to which the effects on the quality of the human environment are likely to be highly controversial; (5) The degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks; (6) The degree to which the action may establish a precedent for future actions with significant effects or represents a decision in principle about a future consideration; (7) Whether the action is related to other actions with individually insignificant but cumulatively significant impacts; (8) The degree to which the action may adversely affect significant scientific, cultural, or historical resources; (9) The degree to which the action may adversely affect an endangered or threatened species or its habitat that has been determined to be critical under the Endangered Species Act of 1973; and (10) Whether the action threatens a violation of Federal, State, or local law or requirements imposed for the protection of the environment. 113 [H001-DD2-DN-FONSI-2012-02-29, p. 8-9] 114 40 C.F.R. § 1508.27. Case 1:16-cv-00675-DDD-JPM Document 27-1 Filed 06/30/17 Page 26 of 29 PageID #: 164 23 PD.21784888.3 For example, the second factor is “[t]he degree to which the proposed action affects public health or safety.”115 The Forest Service simply states that the ban will not “adversely affect public health or safety.”116 This conclusory examination of only the negative effects of the ban is inconsistent with the regulations. Moreover, given the Forest Service’s conclusion that the ban will significantly improve public safety it cannot plausibly conclude that this fact weighs against a finding of a significant impact. Similarly implausible, under the fourth factor, is the Forest Service’s conclusion that the effects of its decision on the quality of the human environment are likely to be noncontroversial.117 By the time the Forest Service issued its second decision, it had received nearly a thousand public comments insisting that the first ban would have a significant impact on the human environment, the first ban had been reversed by the Reviewing Officer, in part, because of pervasive problems with the Forest Service’s FONSI, and the Forest Service had received well over a thousand comments insisting that the second ban would have a significant impact on the human environment.118 In light of the very significant community reaction insisting that the ban would have severe negative effects on the human environment, the Forest Service could not have plausibly concluded that its FONSI would be noncontroversial. These two examples are merely illustrative of the Forest Service’s complete failure to meaningfully consider the FONSI standard. As the Fifth Circuit has recently held, where an agency only offers conclusory assertions in support of its FONSI, the agency’s decision must be reversed.119 Because conclusory assertions (many of which are facially implausible) are all that 115 Id. 116 [H001-DD2-DN-FONSI-2012-02-29, p. 8] 117 [H001-DD2-DN-FONSI-2012-02-29, p. 8] 118 [G001-EA-2012-02-13, p. 11 (detailing the overwhelming negative response to the ban)] 119 O’Reilly, 477 F.3d at 231 (“[M]ere perfunctory or conclusory language will not be deemed to constitute an adequate record and cannot serve to support the agency's decision not to prepare an EIS.”). Case 1:16-cv-00675-DDD-JPM Document 27-1 Filed 06/30/17 Page 27 of 29 PageID #: 165 24 PD.21784888.3 the Forest Service has offered in support of its FONSI, its decision should be reversed. V. PLAINTIFFS ARE ENTITLED TO ATTORNEYS’ FEES AND COSTS UNDER THE EQUAL JUSTICE ACT 28 U.S.C. § 2412 provides that: Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust. Accordingly, if Plaintiffs prevail on this motion and the Court reverses the Forest Service’s ban on Dog-Deer Hunting, Plaintiffs are entitled to the attorneys’ fees and costs they incurred in bringing this action.120 VI. CONCLUSION There is no doubt that the deferential review accorded to an administrative decision often results in affirmance of the decision. However, the Forest Service’s ban on Dog-Deer Hunting in the KNF is no ordinary decision. The Forest Service’s own internal review process rejected its attempts to institute the ban on two separate occasions, only permitting the ban to go into effect after a third round of appellate review. At each stage of the proceeding, the Reviewing Officer identified multiple failures by the Forest Service to comply with either the procedural or substantive requirements of NEPA. In the face of the Forest Service’s repeated failures, this Court should firmly hold the Forest Service to the standards imposed by NEPA and the APA. The Dog-Deer Hunting ban wilts in the light of those standards. As the foregoing 120 Plaintiffs understand that the Court ordinarily makes a determination as to the entitlement to fees and quantum following a ruling on the merits. See Coastal Conservation Ass’n v. Gutierrez, No. 4:05-CV-1214, 2008 WL 4450313, at *2 (S.D. Tex. Sept. 30, 2008). Plaintiffs only raise the issue here so as to avoid any possible argument that they have somehow waived or otherwise failed to pursue this claim. Case 1:16-cv-00675-DDD-JPM Document 27-1 Filed 06/30/17 Page 28 of 29 PageID #: 166 25 PD.21784888.3 arguments demonstrate, the Forest Service completely failed to comply with numerous procedural and substantive requirements of NEPA. Indeed, this memorandum details multiple separate and independent reasons that this Court should reverse the ban. Accordingly, Plaintiffs respectfully request that this Court hold that Defendants’ adoption of the ban on Dog-Deer Hunting in the KNF is invalid under the APA and NEPA, issue a declaratory judgment to that effect, enjoin Defendants from enforcing the flawed ban, and award Plaintiffs their attorneys’ fees and costs incurred in bringing this lawsuit. Respectfully submitted, PHELPS DUNBAR LLP BY: /s/ Christopher K. Ralston Christopher K. Ralston, (Bar #26706) Jeremy T. Grabill, (Bar #34924) Arthur R. Kraatz, (Bar #35194) Canal Place | 365 Canal Street, Suite 2000 New Orleans, Louisiana 70130-6534 Telephone: 504-566-1311 Telecopier: 504-568-9130 Email: ralstonc@phelps.com jeremy.grabill@phelps.com arthur.kraatz@phelps.com ATTORNEYS FOR PLAINTIFFS ROBERT TRENT HOLLINGSWORTH, JONATHAN CADE PILCHER, JERRY TRAYLOR, AND LOUISIANA SPORTSMEN ALLIANCE, LLC CERTIFICATE OF SERVICE I do hereby certify that on this 30th day of June, 2017, I electronically filed the foregoing pleading with the Clerk of Court by using the CM/ECF system, which will send a notice of electronic filing to all participating counsel of record. /s/ Christopher K. Ralston Case 1:16-cv-00675-DDD-JPM Document 27-1 Filed 06/30/17 Page 29 of 29 PageID #: 167 1 PD.21811076.1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA ALEXANDRIA ROBERT TRENT HOLLINGSWORTH, ET AL VERSUS TOM VILSACK, ET AL CIVIL ACTION NO. 16-675 JUDGE DRELL MAGISTRATE JUDGE PEREZ- MONTES LOCAL RULE 56.1 STATEMENT OF UNCONTESTED MATERIAL FACTS NOW INTO COURT, though undersigned counsel, comes Plaintiffs Robert Trent Hollingsworth, Jonathan Cade Pilcher, Jerry Traylor, and Louisiana Sportsmen Alliance, LLC (“LSA”) and submit this Statement of Uncontested Material Facts, as required by Local Rule 56.1. 1. The Kisatchie National Forest (“KNF”) is Louisiana’s only national forest and consists of over 604,000 acres spread across seven parishes in western Louisiana.1 2. The KNF is managed by the United States Forest Service and governed by the 1999 “Revised Land and Resource Management Plan” for KNF (the “Forest Plan”).2 3. Prior to the administrative action challenged in this case, the Forest Plan for KNF allowed the age-old tradition of Dog-Deer Hunting. 4. Historically, the Forest Service cooperated with the Louisiana Department of Wildlife and Fisheries (“LDWF”) to set the Dog-Deer Hunting season on an annual basis.3 Since 1 See generally U.S. Forest Service – Kisatchie National Forest, http://www.fs.usda.gov/kisatchie. 2 [A003-KNF_1999b.Plan] Bracketed references throughout this brief refer to the administrative record filed by Defendants. The Administrative Record is contained on a CD that is in the possession of the Court. This CD consists of a series of .pdf and .xls files that have been given specific file names. Citations to documents in the Administrative Record will be cited in the following format: [File Name], [page number]. The letter at the beginning of the file name refers to the folder on the CD containing the document. 3 [Id. at p. 5] Case 1:16-cv-00675-DDD-JPM Document 27-2 Filed 06/30/17 Page 1 of 7 PageID #: 168 2 PD.21811076.1 2009, however, the Forest Service has incrementally reduced the number of days in the Dog-Deer Hunting season, with the eventual result of outlawing of Dog-Deer Hunting in KNF altogether. 5. In order to amend the Forest Plan and institute the ban, the Forest Service must comply with the National Environmental Policy Act (“NEPA”). 6. In August 2009, the Regional Forester announced a proposal to ban Dog-Deer Hunting in KNF via the mailing of “scoping” letters and the publication of a “scoping” notice in several newspapers.4 7. During the 2009 scoping process, the Forest Service received approximately 1,237 comments and 917 of the commenters objected to the proposed elimination of Dog-Deer Hunting in KNF while only 320 supported the ban.5 8. Pursuant to NEPA, an Environmental Assessment (“EA”) was then prepared by the Forest Service in April 2010.6 9. The original EA identified three alternatives: (1) take no action and continue to allow Dog-Deer Hunting in KNF, (2) implement the proposed amendment to the Forest Plan banning Dog-Deer Hunting in KNF, or (3) designate specific areas of KNF for Dog-Deer Hunting.7 10. In December 2010, Regional Forester Elizabeth Agpaoa issued a “Decision Notice” officially selecting alternative #2, the complete ban. 4 [B001-DD1-SCOPE-FS-Letter-2009-08-14] 5 Louisiana Sportsmen All, 984 F. Supp. 2d 600, 604 (W.D. La. 2013). 6 [B010-DD1-EA-2010-12-15] 7 [B010-DD1-EA-2010-12-15, pp. 14-15] Case 1:16-cv-00675-DDD-JPM Document 27-2 Filed 06/30/17 Page 2 of 7 PageID #: 169 3 PD.21811076.1 11. Over 1,000 administrative appeals were filed, however, and the Regional Forester’s decision was eventually reversed by a Reviewing Officer in July 2011.8 12. The Reviewing Officer’s reversal was based on two deficiencies. First, the Reviewing Officer found that the Regional Forester failed to disclose how certain issues were considered,9 and second, the Reviewing Officer found that the Regional Forester failed to “address the significance of [the] action in several contexts such as society as a whole, the affected region, the affected interests, and the locality,” as required by the applicable regulations.10 13. The Reviewing Officer also found fault with the EA, in particular the section that addressed the number of alleged violations of law that occurred during the Dog-Deer Hunting season.11 14. The Reviewing Officer concluded that the EA violated 40 C.F.R. § 1502.24 because the EA and the appeal record did “not clearly show which violations are directly attributed to dog-deer hunters or how many dog-deer hunters there are on the KNF.”12 15. Following this reversal, the Regional Forester reinitiated the scoping process in the fall of 2011, again issuing scoping letters and publishing in local newspapers a scoping notice informing the public of her intent to ban Dog-Deer Hunting in the KNF.13 8 [B013-DD1-APPEAL-WO-Decision-2011-07-11] 9 [B013-DD1-APPEAL-WO-Decision-2011-07-11, p. 4] 10 [Id.] 11 [Id., Attachment 1, p. 5] 12 [Id., Attachment 1, p. 7] 13 [D001-DD2-SCOPE-LETTER-2011-08-24] Case 1:16-cv-00675-DDD-JPM Document 27-2 Filed 06/30/17 Page 3 of 7 PageID #: 170 4 PD.21811076.1 16. During the second round of public comment, the Forest Service received approximately 1,279 letters (only 5 of which supported the proposed ban on Dog-Deer Hunting) and at least 106 e-mails (approximately 95 of which supported the ban).14 17. On February 29, 2012 the Regional Forester issued a new “Decision Notice” again selecting alternative #2, the complete ban.15 18. Once again, over 1,000 administrative appeals were filed by various parties (including Plaintiffs) in response to the 2012 decision, which suffered from many of the same flaws as the original decision.16 19. The Reviewing Officer agreed and again found flaws with the Revised EA and Decision Notice and ordered that the ban could not be implemented until the Forest Service complied with certain instructions.17 20. The Reviewing Officer found, among other deficiencies, that the Revised EA continued to “violate[ ] 40 CFR 1502.24 because the information in the EA and appeal record does not clearly show which violations are directly attributed to dog-deer hunters.”18 21. The Forest Service did not further amend the Revised EA at all. The Regional Forester merely issued an “errata” sheet that did not address the Reviewing Officer’s instructions with respect to the discussion of “Public Safety.”19 14 [G001-EA-2012-02-13, p. 11] 15 [H001-DD2-DN-FONSI-2012-02-29] 16 [J008a-DD2-APPEAL-WO-Decision-2012-09-28, p. 1] 17 [J008a-DD2-APPEAL-WO-Decision-2012-09-28, p. 2; J008b-DD2-APPEAL-WO-Decision- Attachment1] 18 [J008a-DD2-APPEAL-WO-Decision-2012-09-28, p. 3] 19 [K002-DD2-APPEAL-DIRECTION-Errata-2012-11-02] Case 1:16-cv-00675-DDD-JPM Document 27-2 Filed 06/30/17 Page 4 of 7 PageID #: 171 5 PD.21811076.1 22. The Reviewing Officer rubber-stamped the “errata” sheet and found that the Regional Forester had purportedly complied with the Officer’s instructions and the ban on Dog- Deer Hunting decision became final.20 23. Plaintiffs have individually been damaged as a result of the Forest Service’s ban. Specifically, they have been deprived of the opportunity to engage in Dog-Deer Hunting on public land in Louisiana, a tradition they previously enjoyed.21 24. The LSA’s stated goal is to preserve the traditions and rights of Louisiana sportsmen, including the preservation of hunting lands for its members is directly related to the interest it asserts in this lawsuit. 25. Each of the individual plaintiffs are members of the LSA. 26. The Forest Service’s decision is not supported by substantial evidence. 27. The Forest Service does not have any evidence that Dog-Deer Hunters pose a disproportionate threat to public safety compared to other types of hunters. 28. The Forest Service’s decision bans Dog-Deer Hunting but permits all other types of hunting with dogs to continue (i.e. squirrel, game bird, raccoon, and rabbit).22 29. The Forest Service has not offered any reason as to how the other types of hunting with dogs differ from Dog-Deer Hunting or why they should be treated differently. 30. Dog-Deer Hunting is permitted in more than half of the Region 8 National Forests.23 31. Dog-Deer Hunting is permitted in portions of the Arkansas National Forests and in 11 of the 15 areas managed by the Forest Service in Mississippi.24 20 [K003-DD2-APPEAL-DIRECTION-WO-Lettter-2012-11-05-Errata] 21 See generally, Exhibits A, B, and C. 22 [H001-DD2-DN-FONSI-2012-02-29, p. 1] 23 [K002-DD2-APPEAL-DIRECTION-Eratta-2012-11-02, p. 1 (“Within the regional context (US Forest Service Region 8), hunting deer with dogs is permitted on eight of the fifteen National Forests.”)] Case 1:16-cv-00675-DDD-JPM Document 27-2 Filed 06/30/17 Page 5 of 7 PageID #: 172 6 PD.21811076.1 32. The Forest Service has not explained why Mississippi, Arkansas, or the majority of the Region 8 National Forests are different than the KNF. 33. The Forest Service failed to meaningfully consider the effect of its ban on the social and cultural fabric of Louisiana. 34. The Forest Service’s ban on Dog-Deer Hunting has a significant impact on the human environment. 35. The Forest Service’s ban violates NEPA. 36. The Forest Service’s ban is arbitrary and capricious, contrary to law, and not based on substantial evidence. Respectfully submitted, PHELPS DUNBAR LLP BY: /s/ Christopher K. Ralston Christopher K. Ralston, (Bar #26706) Jeremy T. Grabill, (Bar #34924) Arthur R. Kraatz, (Bar #35194) Canal Place | 365 Canal Street, Suite 2000 New Orleans, Louisiana 70130-6534 Telephone: 504-566-1311 Telecopier: 504-568-9130 Email: ralstonc@phelps.com jeremy.grabill@phelps.com arthur.kraatz@phelps.com ATTORNEYS FOR PLAINTIFFS ROBERT TRENT HOLLINGSWORTH, JONATHAN CADE PILCHER, JERRY TRAYLOR, AND LOUISIANA SPORTSMEN ALLIANCE, LLC 24 (“[I]n Arkansas . . . the Ouachita NF is open to dog-deer hunting for various periods and locations. . . . In Mississippi there are 15 wildlife management areas on NFS lands; 11 of them have deer dog seasons of some length.”) [Id.] Case 1:16-cv-00675-DDD-JPM Document 27-2 Filed 06/30/17 Page 6 of 7 PageID #: 173 7 PD.21811076.1 CERTIFICATE OF SERVICE I do hereby certify that on this 30th day of June, 2017, I electronically filed the foregoing pleading with the Clerk of Court by using the CM/ECF system, which will send a notice of electronic filing to all participating counsel of record. /s/ Christopher K. Ralston Case 1:16-cv-00675-DDD-JPM Document 27-2 Filed 06/30/17 Page 7 of 7 PageID #: 174 1 PD.21764005.1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA ALEXANDRIA DIVISION ROBERT TRENT HOLLINGSWORTH, ET AL VERSUS TOM VILSACK, ET AL CIVIL ACTION NO. 16-675 JUDGE DRELL MAGISTRATE JUDGE PEREZ- MONTES DECLARATION OF ROBERT TRENT HOLLINGSWORTH I, Robert Trent Hollingsworth, declare under penalty of perjury that the following is true and correct: 1. My name is Robert Trent Hollingsworth. I am over 18 years of age and competent to give testimony in this matter. 2. I am a lifelong resident of Louisiana and a current resident of Dry Prong, Louisiana. My property borders the Kisatchie National Forest (“the Forest”). 3. I have lived within 30 minutes of the Forest for my entire life. 4. I am 39 years old and have been an avid hunter since I was two years old. I first went hunting in the Forest with my father when I was ten. 5. I have enjoyed the tradition of hunting deer with dogs (“Dog-Deer Hunting”) since I was ten and I have been hunting deer in the Forest legally, both with and without dogs, for 28 years. 6. I have raised my own hunting dogs for many years. I currently own 21 hunting dogs, which range in age from two months to nine years. 7. My two youngest dogs, Cloud and Sunshine, are eight weeks old and belong to my two daughters, who named them. 8. Over the last five years, I have spent nearly $40,000 caring for my hunting dogs. Case 1:16-cv-00675-DDD-JPM Document 27-3 Filed 06/30/17 Page 1 of 4 PageID #: 175 2 PD.21764005.1 9. The tradition of Dog-Deer Hunting has been passed down through my family for at least five generations. 10. Most recently, I have begun passing the tradition on to my two daughters, aged 8 and 4. 11. My daughters have joined me on dog-deer hunts in the Forest on many occasions. The girls also participate in the care of the hunting dogs. Like I did when I was a child, my daughters learn important life lessons about responsibility and hard work by assisting me in caring for the dogs. 12. I purchased my home, in large part, because of its proximity to the Forest. The Forest’s proximity to my home made it much easier to involve my young daughters in the important family and cultural tradition of Dog-Deer Hunting. 13. The United States Forest Service’s arbitrary and capricious decision to eliminate Dog-Deer Hunting from the Forest has directly and negatively affected me and my family. 14. My large family and I have, for over 50 years, organized large family gatherings around our annual Dog-Deer Hunting trips to the Forest. 15. Prior to the ban, I regularly went Dog-Deer Hunting with my grandfather, father, uncles, cousins, and daughters in the Forest. 16. I have never been cited for a violation of any state, local, or federal law or regulation while Dog-Deer Hunting. 17. My community has long embraced Dog-Deer Hunting as an important social and cultural tradition that we trace back for generations. 18. I am a founding member of the Louisiana Sportsmen Alliance, LLC (“LSA”) and have been a member continuously since its founding. Case 1:16-cv-00675-DDD-JPM Document 27-3 Filed 06/30/17 Page 2 of 4 PageID #: 176 3 PD.21764005.1 19. The LSA is an organization of Louisiana sportsmen with a common goal of preserving the traditions and rights of the Louisiana sportsman. Louisiana has been known as the “Sportsman’s Paradise” for many years. LSA values that distinction and is dedicated to defending it. The LSA’s purposes include the preservation of hunting lands for its members. 20. The LSA actively participated in the notice and comment process prior to the Forest Service’s decision to ban Dog-Deer Hunting in the Forest. 21. I know that, in addition to myself, multiple other members of the LSA have been directly injured by the Forest Service’s decision to eliminate Dog-Deer Hunting from the Forest. 22. The Forest Service’s decision to ban Dog-Deer Hunting has adversely impacted me and my family in many ways, including, but not limited to: a. I am no longer able to take my daughters into my backyard to enjoy Dog-Deer Hunting in the Forest. b. If I wish to enjoy Dog-Deer Hunting now, I must incur substantial costs to travel to Mississippi and/or Arkansas, where the Forest Service still permits Dog-Deer Hunting in the National Forests. c. When I travel to other states to engage in Dog-Deer Hunting, I am forced to incur the substantial cost of purchasing a non-resident hunting license, which generally costs several hundred dollars more than a Louisiana hunting license. 23. I, both individually and through the LSA, actively participated in the notice and comment process and in the agency and the administrative appeals that resulted from the Forest Service’s decision to eliminate Dog-Deer Hunting from the Forest. I, both individually and through the LSA, exhausted all administrative remedies available to me with respect to the Forest Service’s decision. Case 1:16-cv-00675-DDD-JPM Document 27-3 Filed 06/30/17 Page 3 of 4 PageID #: 177 4 PD.21764005.1 24. Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct. Executed this _______ day of June, 2017. ___________________________________ ROBERT TRENT HOLLINGSWORTH Case 1:16-cv-00675-DDD-JPM Document 27-3 Filed 06/30/17 Page 4 of 4 PageID #: 178 1 PD.21764137.1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA ALEXANDRIA DIVISION ROBERT TRENT HOLLINGSWORTH, ET AL VERSUS TOM VILSACK, ET AL CIVIL ACTION NO. 16-675 JUDGE DRELL MAGISTRATE JUDGE PEREZ- MONTES DECLARATION OF JONATHAN CADE PILCHER I, Jonathan Cade Pilcher, declare under penalty of perjury that the following is true and correct: 1. My name is Jonathan Cade Pilcher. I am over 18 years of age and competent to give testimony in this matter. 2. I am a lifelong resident of Louisiana and I currently reside in Many, Louisiana, which is approximately 40 miles from Kisatchie National Forest (“the Forest”). 3. I have lived within 50 miles of the Forest for my entire life. 4. I am 50 years old, have been an avid hunter since I was five. I first went hunting with my father and grandfather when I was five years old. 5. I have enjoyed the practice of Dog-Deer Hunting since I was five and I have been hunting deer in the Forest legally, both with and without dogs, for 21 years. 6. I have raised my own hunting dogs for nearly 40 years. 7. I currently own 21 hunting dogs, which range in age from four months to eight years. 8. Over the last five years, I have spent over $15,000 caring for my hunting dogs. 9. The tradition of Dog-Deer Hunting has been passed down through my family for at least five generations since the 1800’s. 10. I have passed the tradition on to my two sons, who are aged 16 and 19. Case 1:16-cv-00675-DDD-JPM Document 27-4 Filed 06/30/17 Page 1 of 3 PageID #: 179 2 PD.21764137.1 11. My sons have joined me on dog-deer hunts in the Forest on many occasions. 12. The boys began participating in the care of the hunting dogs when they were five years old. 13. Like I did when I was a child, my sons learned important life lessons about responsibility and hard work by assisting me in caring for the dogs. 14. My sons now own and care for their own hunting dogs. 15. My family and I have, for over 100 years, organized family Dog-Deer Hunting trips. 16. My community has long embraced Dog-Deer Hunting as an important social and cultural tradition that we trace back for generations. 17. I have been a member of the Louisiana Sportsmen Alliance, LLC (“LSA”) for the last six years. 18. The LSA is an organization of Louisiana sportsmen with a common goal of preserving the traditions and rights of the Louisiana sportsman. Louisiana has been known as the “Sportsman’s Paradise” for many years. LSA values that distinction and is dedicated to defending it. The LSA’s purposes include the preservation of hunting lands for its members. 19. The LSA actively participated in the notice and comment process prior to the Forest Service’s decision to ban Dog-Deer Hunting in the Forest. 20. I know that, in addition to myself, multiple other members of the LSA have been directly injured by the Forest Service’s decision to eliminate Dog-Deer Hunting from the Forest. 21. The Forest Service’s decision to ban Dog-Deer Hunting has adversely impacted me in many ways, including, but not limited to: a. Despite a long family tradition of Dog-Deer Hunting in the Forest, I am no longer able to hunt in the Forest. Case 1:16-cv-00675-DDD-JPM Document 27-4 Filed 06/30/17 Page 2 of 3 PageID #: 180 Case 1:16-cv-00675-DDD-JPM Document 27-4 Filed 06/30/17 Page 3 of 3 PageID #: 181 1 PD.21764351.1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA ALEXANDRIA DIVISION ROBERT TRENT HOLLINGSWORTH, ET AL VERSUS TOM VILSACK, ET AL CIVIL ACTION NO. 16-675 JUDGE DRELL MAGISTRATE JUDGE PEREZ- MONTES DECLARATION OF JERRY TRAYLOR I, Jerry Traylor, declare under penalty of perjury that the following is true and correct: 1. My name is Jerry Traylor. I am over 18 years of age and competent to give testimony in this matter. 2. I am a lifelong resident of Louisiana and currently reside in Pollock, Louisiana, where my property currently borders the Kisatchie National Forest (“the Forest”). 3. I have lived within 30 minutes of the Forest for most of my life. 4. I am 80 years old and have been an avid hunter since I was eight. 5. I first went hunting in the Forest in 1958, and hunted in the Forest every year until the Forest Service arbitrarily and capriciously banned Dog-Deer Hunting. 6. I have enjoyed the practice of Dog-Deer Hunting since I was ten and have been hunting deer in the Forest legally, both with and without dogs, for over 50 years. 7. I have raised my own hunting dogs for many years. 8. I currently own 7 hunting dogs, which range in age from one to ten years. 9. Over the last five years, I have spent over $15,000 caring for my hunting dogs. 10. The tradition of Dog-Deer Hunting has been passed down through my family for over 150 years and five generations. Case 1:16-cv-00675-DDD-JPM Document 27-5 Filed 06/30/17 Page 1 of 3 PageID #: 182 2 PD.21764351.1 11. I have been Dog-Deer Hunting with my father, grandfather, and uncles. I have also passed the tradition on to my five sons and several grandchildren. 12. My five sons all raise their own hunting dogs and participate in the family tradition of Dog- Deer Hunting. 13. My current residence borders the Forest. The Forest’s proximity to my home made it much easier to involve my family in the important family and cultural tradition of Dog-Deer Hunting. Because of my age, my physical proximity to the Forest made it easier for me to engage in the valued family tradition of Dog-Deer Hunting. 14. Prior to the ban, I regularly went hunting with dogs with my grandfather, father, uncles, children, and grandchildren in the Forest. 15. I have never been cited for a violation of any state, local, or federal law or regulation while Dog-Deer Hunting. 16. My community has long embraced Dog-Deer Hunting as an important social and cultural tradition that we trace back for generations. 17. I have been a member of the Louisiana Sportsmen Alliance, LLC (“LSA”) since 2009. 18. The LSA is an organization of Louisiana sportsmen with a common goal of preserving the traditions and rights of the Louisiana sportsman. Louisiana has been known as the “Sportsman’s Paradise” for many years. LSA values that distinction and is dedicated to defending it. The LSA’s purposes include the preservation of hunting lands for its members. 19. The LSA actively participated in the notice and comment process prior to the Forest Service’s decision to ban Dog-Deer Hunting in the Forest. 20. I know that, in addition to myself, multiple other members of the LSA have been directly injured by the Forest Service’s decision to eliminate Dog-Deer Hunting from the Forest. Case 1:16-cv-00675-DDD-JPM Document 27-5 Filed 06/30/17 Page 2 of 3 PageID #: 183 Case 1:16-cv-00675-DDD-JPM Document 27-5 Filed 06/30/17 Page 3 of 3 PageID #: 184