In determining the scope of an EIS, an agency must consider, among other things, the cumulative impact of "individually minor but collectively significant actions taking place over a period of time." Alpine Lakes Prot. Soc'y v. United States Forest Serv., 838 F. Supp. 478, 481-83 (W.D.Wash. 1993); 40 C.F.R. § 1508.25; 40 C.F.R. § 1508.7. The failure to consider the potential for the cumulative impact of actions on the environment cannot be characterized as an informed exercise of discretion. See Alpine Lakes, 838 F. Supp. at 484.
Judicial review should focus on the administrative record. However, a court may consider evidence outside the record if necessary to explain the agency's action or to determine whether the agency's inquiry was insufficient or inadequate. Alpine Lakes Protection Society v. United States Forest Service, 838 F. Supp. 478, 481 (W.D.Wash. 1993); Animal Defense Council v. Hodel, 840 F.2d 1432, 1436 (9th Cir. 1988). Plaintiffs' objections under NEPA all revolve around the environmental impact of ORV usc of the trails in question.
Pursuant to the these regulations, courts have held that approval of access roads across federal lands requires federal agencies to analyze impacts of the road as well as the activities for which the road is being constructed. Thomas v. Peterson, 753 F.2d 754, 758 (9th Cir. 1985) ("the timber sales cannot proceed without the road"); Save the Yaak Committee v. Block, 840 F.2d 714, 720 (9th Cir. 1988) ("road reconstruction, timber harvest, and feeder roads are all `connected actions' that must be analyzed by the Forest Service in deciding whether to prepare an EIS or only an EA"); Alpine Lakes Protection Society v. United States Forest Serv., 838 F. Supp. 478, 480-83 (W.D.Wash. 1993) (Forest Service must consider not only access road across National Forest, but also logging on adjacent private lands). In these cases, the access roads had no independent purpose or utility distinguishable from the overall project.
The court has before it the entire administrative record. As this court noted in Alpine Lakes Protection Soc'y v. USFS, 838 F. Supp. 478, 481 (W.D.Wash. 1993), the focal point for judicial review is the administrative record already in existence, not the new record made in the reviewing court. The court may, however, consider evidence outside the administrative record for certain limited purposes, such as to explain the agency's action or to determine whether its course of inquiry was insufficient or inadequate.
This requirement extends to non-federal actions undertaken exclusively by private parties if the federal actions are so interrelated as to constitute "links in the same bit of chain." Alpine Lakes Protec. Socy. v. U.S. Forest Serv., 838 F. Supp. 478, 482 (W.D. Wash. 1993) In Thomas v. Peterson, the Ninth Circuit found that the construction of a logging road and the sale of timber were "connected" actions in that "the road would not be built but for the contemplated timber sales."
Even if ANILCA did apply here, USFS action under that statute would still be governed by the requirements of NEPA. See, e.g., Alpine Lakes Prot. Soc'y v. U.S. Forest Serv., 838 F. Supp. 478, 484-85 (W.D. Wash. 1993) ("The court therefore concludes that ANILCA's requirement that the Forest Service grant reasonable access across Forest Service lands to inholders does not preclude compliance with the requirements of NEPA as set forth above."). D. Adjustment of Land Titles Act (ALTA)
National Audubon Society v. U.S. Forest Service, 46 F.3d 1437, 1447 (9th Cir. 1993). The reviewing court may go outside the record to consider evidence relevant to the substantive merits of an agency decision: 1) to determine whether the agency considered all relevant factors, Thompson, 885 F.2d at 555; 2) to determine whether the agency's "course of inquiry was sufficient or inadequate," Alpine Lakes Protection Society v. U.S. Forest Service, 838 F. Supp. 478, 481 (W.D.Wash. 1993) (citations omitted); 3) when it is necessary to explain the agency's action; 4) when the agency has relied on evidence outside the record; 5) to explain technical terms or complex subject matter; or 6) when there is a showing of agency bad faith, National Audubon Society, 46 F.3d at 1447 fn. 9. "[A]llegations that an EIS has failed to mention serious environmental consequences, failed to adequately discuss some reasonable alternative, or otherwise swept `stubborn problems or serious criticisms . . . under the rug,' raises issues sufficiently important to permit the introduction of new evidence in the District Court, including expert testimony with respect to technical matters, both in challenges to the sufficiency of an environmental impact statement and in suits attacking an agency determination that no such statement is necessary." County of Suffolk v. Secretary of the Interior, 562 F.2d 1368, 1384-1385 (2nd Cir. 1977), cert. denied, 434 U.S. 1064, 98 S.Ct. 1238, 55 L.Ed.2d 764 (197