ELR Citation: ELR 21440
No(s). 92-4071 (10th Cir. May 19, 1993)

The court holds that the U.S. Forest Service did not violate its regulation concerning development of the agency appeal record by considering information outside the record in deciding to allow the transplant of 150 elk to the Manti-LaSal National Forest near Monticello, Utah. First, the court holds that the Forest Service did not violate its own regulation at 36 C.F.R. §211.18(r), concerning the development of the agency appeal record. The Forest Service's interpretation of its regulation as requiring the deciding officer to forward only those documents relevant to the agency appeal to the reviewing officer, who may then request additional information, is reasonable, consistent with the regulation's plain meaning, and entitled to great deference. Next, the court holds that the administrative record presented for judicial review consists of all documents and materials directly or indirectly considered by the agency. Therefore, that the administrative record contained more evidentiary material than the agency appeal record is not evidence that the Forest Service violated §211.18(r). Finally, the court holds that the administrative record submitted to the district court was proper as long as the Forest Service submitted all documents and information considered and developed at all three stages of its decision and review process. Plaintiffs failed to establish that the administrative record was improperly designated or that any documents that were inappropriately included prejudiced them.

Counsel for Plaintiffs
Richard C. Cahoon
Marsden, Orton, Cahoon & Gottfredson
68 S. Main St., 5th Fl., Salt Lake City UT 84101
(801) 521-3800

Counsel for Defendants
David C. Shilton, Robert H. Oakley
Environmental and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before McKAY, Chief Judge, LOGAN and BALDOCK, Circuit Judges.