Jarita Mesa Livestock Grazing Ass'n v. United States Forest Service (58 F. Supp. 3d 1191, 2014)

MEMORANDUM OPINION

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Federal Defendants’ Motion for Reconsideration, filed February 7, 2013 (Doc. 53)(“Motion to Reconsider”). The Court held a hearing on July 26, 2013. The primary issue is whether the Court should reconsider the portion of its earlier Memorandum Opinion and Order, filed January 24, 2013, 921 F.Supp.2d 1137 (D.N.M.2013) (Doc. 49)(“MOO”), in which it concluded that the Plaintiffs have asserted two separate claims for violation of the First Amendment to the Constitution of the United States — one under the Administrative Procedure Act of 1946, Pub. L. No. 79-404, 60 Stat. 237 (“APA”), and the other a “standalone” First Amendment claim outside of the APA- — and that the Plaintiffs are entitled to “robust discovery” on the standalone claim but are limited to the administrative record on the APA First Amendment claim. MOO at 1204-05. The Court now concludes that only one First Amendment claim exists, that the APA governs that First Amendment claim, and that the Plaintiffs are thus limited to the APA’s discovery provisions, which preclude discovery outside of the administrative record unless and until the plaintiff makes certain factual showings.

FACTUAL BACKGROUND

The history of the Plaintiffs’ case predates the parties before the Court. The Plaintiffs set forth a backdrop of social, cultural, and economic factors, which they say are inextricably intertwined with the Plaintiffs’ cattle grazing within the Carson National Forest. The Plaintiffs also allege a history of tension between the United States Forest Service (“USFS”) and the Plaintiffs’ ancestors, which bears on the legality of the Defendants’ actions managing national forestland in northern New Mexico over the last three years. The Court takes as true all nonconclusory factual statements in the Complaint for Declaratory and Injunctive Relief (First Amendment to the United States Constitution, National Environmental Policy Act; National Forest Management Act, Sustain Yield Forest Management Act; Administrative Procedure Act), filed January 20, 2012 (Doc. l)(“Complaint”).

1. The Parties to the Litigation.

“The Plaintiffs and their ancestors are Hispanic stockmen whose families have been grazing livestock” in northern New Mexico for many generations. Complaint ¶ 3, at 2-3. Most of the natural-person Plaintiffs’ families were grazing livestock in the area of the Vallecitos Federal Sustained Yield Unit (“the Unit”) before the USFS existed. See Complaint ¶ 3, at 3. The Unit is an area of the Carson National Forest that Congress set aside to be managed for the economic benefit of the communities located in the Unit. Congress specifically provided that these local communities should have access to the timber and other forest products within the Unit, as needed for the communities’ economic stability. See Complaint ¶ 39, at 14. Grazing livestock is an “integral part of their existence and is a central part of life in the villages they reside in ... all of Northern New Mexico.” Complaint ¶ 3, at 3.

The Jarita Mesa Allotment and the Ala-mosa Allotment are areas within the Unit on which cattle grazing is allowed. See Complaint ¶ 2, at 2. Plaintiffs Sebedeo Chacon, Michael Pena, Juan Giron, Gabriel Aldaz, Arturo Rodarte, Thomas Griego, Donald Griego, Joe Gurule, Jr., Lorenzo Jaramillo, Jeffrey Chacon, and Gloria Valdez (collectively, “the Jarita Mesa Permit-tees”) have permits, that the USFS issued, which allow them to graze cattle on the Jarita Mesa Allotment. See Complaint ¶ 3, at 2. Plaintiffs Thomas Griego, Donald Griego, Carlos Ortega, Leon Ortega, Daniel Rael, Horacio Martinez, Ronald Martinez, Fernando Gurule, Jerry Vasquez, and Alfonso Chacon (collectively, “the Ala-mosa Permittees”) have permits, that the USFS issued, which allow them to graze cattle on the Alamosa Allotment. See Complaint ¶ 3, at 2. S. Chavez is a former permittee on the Alamosa Allotment and now lives within the Unit with his wife, V. Chavez. See Complaint ¶ 3, at 2. J. Valdez is a former permittee on the Jarita Mesa Allotment and now resides within the Unit. See Complaint ¶ 3, at 2-3. The Jarita Mesa Grazing Association and the Alamosa Grazing Association (collectively, “the Associations”) are “local livestock associations made up exclusively of grazing per-mittees on the respective allotments.” Complaint ¶ 13, at 5. The Associations were established to: (i) protect and promote the permittees’ livestock grazing on the Allotments; (ii) manage and share the costs of handling livestock, range improvements, and other programs for the benefit of the Allotments and their resources; (iii) express the Associations’ members’ wishes; and (iv) meet with and work with the USFS to ensure proper management of livestock and range resources on the allotments. See Complaint ¶ 13, at 6. S. Cha-con was president of the Jarita Mesa Grazing Association throughout the events set forth in the Complaint. See Complaint ¶ 14, at 6. T. Griego was president of the Alamosa Grazing Association throughout the events set forth in the Complaint. See Complaint ¶ 15, at 7.

The Hispanic people in northern New Mexico have lived in the area for hundreds of years, long before the USFS was created. See Complaint ¶ 37, at 13. They have a unique culture, shaped by and dependent on their relationship with the land. See Complaint ¶ 37, at 13. The Hispanic people living in villages nearby the Carson National Forests have historically relied on the resources of the national forests of northern New Mexico for sustenance. See Complaint ¶ 37, at 13. These Hispanics rely upon the “fodder, including grasses and other forage, like the marsh hay, mushrooms, nuts, and seeds” within the Unit for their sustenance. Complaint ¶ 39, at 14. Livestock grazing is central to their cultural, social, and economic fabric, and has been since at least the 1690s. See Complaint ¶ 40, at 14. The Associations represent the communities “that have historically relied on, and continue to rely on, grazing on these ancient community ... lands.” Complaint ¶ 40, at 15.

The Board of County Commissioners of the County of Rio Arriba (“Rio Arriba County”) is a political subdivision in northern New Mexico, in which a large portion of the Carson National Forest, including the Allotments and the El Rito Ranger District, is located. See Complaint ¶ 16, at 7. The Individual Plaintiffs are all residents of Rio Arriba County. Rio Arriba County and local school districts receive payment derived from the grazing fees, in lieu of taxes, from the USFS. This payment is derived, in part, from grazing fees. Rio Arriba County is thus interested in ensuring that the “grazing permits on land administered by the Forest Service within Rio Arriba County are not unlawfully reduced.”' Complaint ¶ 16, at 7. Rio Arriba County is also interested in protecting the social fabric, customs, traditions, and cultural integrity of the traditional communities within the county, and in the economic betterment of its citizens. Rio Arriba County is further interested in “making sure federal laws are followed and that its citizens are not punished by federal officials for expressing their views on federal agency policy to elected officials and others.” Complaint ¶ 16, at 7.

The USFS is an agency of the United States Department of Agriculture and is charged with the “administration of lands within the United States that have been designated as National Forest Lands.” Complaint ¶ 17, at 8. The USFS is charged with the management of the Unit. Throughout the events set forth in the Complaint, Trujillo was employed by the USFS as the El Rito District Ranger. Complaint ¶ 19, at 8. Both Allotments áre located in the El Rito District of the Carson National Forest. See Complaint ¶ 1, at 2. Trujillo is charged with “managing the natural resources in her district, including the range resource.” Complaint ¶ 19, at 8.

2. The Events Giving Rise to the Litigation.

“[A]ll or a substantial part of the events or omissions giving rise to the [Plaintiffs’] claims ... occurred within this judicial district.” Complaint ¶ 12, at 5. Beginning in the 1920s, the USFS’ management practices led to a reduction of the number of Hispanic residents near the Carson National Forest who were allowed to graze in the forest under permit. See Complaint ¶ 43, at .16-17. The USFS gradually eliminated milk cow and draft horse permits. See Complaint ¶ 43, at 17. The reduction in these permits has destabilized the Plaintiffs’ cultural and social fabric. See Complaint ¶ 43, at 17. The Plaintiffs have “repeatedly voiced opposition to and have been highly critical of various actions taken by the Defendants,” especially Trujillo’s actions in recent years. Complaint ¶ 57, at 22-23. The Plaintiffs have written letters, spoken at public meetings, and contacted their congressional representatives about the Defendants’ actions. See Complaint 1157, at 23.

Under the USFS’ management, the population of wild horses and elk on the Unit has grown to the point that the vegetative cover, upon which the Plaintiffs rely for grazing their cattle, has degraded. See Complaint ¶ 58, at 23. In 2002, the USFS concluded that the wild horses on Jarita Mesa were competing with the cattle for forage. See Complaint ¶ 59, at 23. In 2002, the USFS issued a Decision Notice (“2002 Decision Notice”), which authorizes the number of wild horses to increase from between twelve and fourteen, to between twenty and seventy. Complaint. ¶ 60, at 24. The 2002 Decision Notice provides certain measures to be taken if the wild horse herd size grows above seventy horses. See Complaint ¶ 60, at 24.

On or about April 8, 2006, S. Chacon, as the President of the Jarita Mesa Grazing Association, sent a letter to New Mexico’s then-Governor Bill Richardson and to the New Mexico Congressional delegation, which over eighty residents of the Unit signed, and in which S. Chacon complained about the USFS’ management of the El Rito Ranger District. The letter specifically complained about the USFS’ failure to reduce the number of wild horse herds and to control the number of elk herds on the Unit. See Complaint ¶ 62, at 25. On May 24, 2006, the Plaintiffs wrote to Trujillo’s supervisor, Carson National Forest Supervisor Martin Chavez, and alleged that Trujillo was acting “in an abusive manner towards the Jarita Mesa permit-tees, was dealing with them in a less than honest manner, was arbitrarily and capriciously reducing the grazing time allowed under their permits, and was otherwise impairing their grazing rights” under the permits. Complaint ¶ 63, at 25. In June, 2006, an USFS employee admitted that the wild horse herd exceeded the number that the 2002 Decision Notice allowed and was numbering at least 150. See Complaint ¶ 64, at 25.

On July 5, 2006, Trujillo ordered all cattle removed from the Jarita Mesa Allotment by July 31, 2006. See Complaint ¶ 66, at 26. Some of the Plaintiffs, including S. Chacon and Aldaz, appealed Trujillo’s order. See Complaint ¶ 66, at 27. On July 25, 2006, Trujillo wrote to the Jarita Mesa Grazing Association and stated that the range conditions had not improved significantly, and, thus, she would not change her July 5, 2006, order to remove cattle by July 31, 2006. See Complaint ¶ 68, at 27. On July 28, 2006, acting Carson Forest Supervisor Kendall Clark decided to delay Trujillo’s order for two weeks because of recent rains and soil moisture levels. A report by the Range Improvement Task Force (“RITF”), associated with New Mexico State University (“NMSU”), subsequently found that the past grazing of the permittees’ cattle had not damaged grazing resources, and that there was sufficient grass to complete the grazing season as the permits authorized. The Jarita Mesa Permittees were eventually allowed to complete their grazing season as their permits specified. See Complaint ¶ 69, at 28.

David Correia is a scholar who had been researching the Unit’s history over several years. Correia had been previously granted full access to the USFS’ records at the El Rito District Office for his research on the Unit. In 2006, he began assisting the Plaintiffs with their interactions with Trujillo. Correia attended a meeting in the El Rito area regarding grazing issues, at which Trujillo made statements to the effect that residents of the Unit caused most or all of the problems facing the Unit. See Complaint ¶ 72, at 28. Correia responded publicly at the meeting that the USFS’ mismanagement of the Unit over the years was the actual source of the Unit’s problems. Subsequent to the 2006 meeting, Trujillo refused to allow Correia access to any records at the El Rito District Office and informed him that this change of policy was because of his statements at the meeting. See Complaint ¶ 72, at 29.

Trujillo then announced that she would end the 2006 grazing season in September, 2006, instead of on October 31, 2006, as set forth in the Plaintiffs’ permits. Trujillo stated that this change was because the Plaintiffs failed to meet certain conditions that she had imposed — conditions that, had they been met, would have allowed the season to end on October 31, 2006. S. Chacon, as President of the Jarita Mesa Grazing Association, proposed a compromise end date of October 15, 2006. See Complaint ¶ 73, at 29. Trujillo responded that she would view S. Chacon’s request as that of his alone and that individual per-mittees would need to address their needs to her individually. Trujillo stated that, if the conditions she imposed were not met, she would suspend or cancel the permits, and. charge fines for any cattle not removed by October 2, 2006. See Complaint ¶ 74, at 30.

As of October 5, 2006, S. Chacon had seventeen cows lost in the Carson National Forest. Give the size of the Allotments, locating cattle at the end of a grazing season is often difficult for the permittees. On October 6, 2006, Trujillo reduced S. Chacon’s grazing permit by twenty percent over the next two years, because he had not retrieved all of his cattle by the deadline she imposed. This decision was upheld on appeal. See Complaint ¶ 75, at 30-31. A Riparian Specialist and Natural Resource Specialist from NMSU wrote to Trujillo regarding S. Chacon’s permit reduction, and expressed that her standards were “unreasonable and unyielding,” and that the USFS was aware that S. Chacon was not given enough time to recover his cattle. Complaint ¶ 77, at 31-32.

Moving ahead three years, the Plaintiffs complained to Trujillo and her staff in the spring of 2009 regarding the USFS’ management of the Allotments. Trujillo responded with a certified letter in which she outlined the repercussions that the Plaintiffs would face if they did not comply with their grazing permits’ terms. See Complaint ¶ 79, at 32. On June 1, 2009, S. Chacon and T. Griego sent Trujillo a letter, that twenty-six permittees signed, in which the Plaintiffs criticized Trujillo’s management of the Allotments. The Plaintiffs also sent the letter to the New Mexico Congressional delegation, Governor Richardson, and Trujillo’s immediate supervisor, Carson Forest Supervisor Clark. The Plaintiffs stated in the letter that Trujillo’s certified letter insulted them, and the Plaintiffs accused Trujillo of attempting to intimidate them. The Plaintiffs alleged that Trujillo had failed to “install needed cattle guards or to fix plugged ones,” and that Trujillo would sanction the permittees when their cattle then driftéd from one allotment to another. Complaint ¶ 80, at 32-33. The Plaintiffs complained that they believed Trujillo was attempting to end grazing on the Allotments. See Complaint ¶ 80, at 33.

In 2009 and 2010, the USFS began preparing an Environmental Assessment (“EA”) that would1 determine the amount of grazing allowed on the Allotments for 2011 and subsequent years. See Complaint ¶ 78, at 32. On August 20, 2009, the USFS made public three alternative courses of action for the El Rito District: (i) no grazing; (ii) grazing at the same level as the previous ten years, but with a minor reduction and improved management; and (hi) an eighteen-percent reduction in the number of permits with improved management. The EA did not propose a reduction to the wild horse or elk population. See Complaint ¶ 81, at 33.

The USFS requested comments from the RITF regarding the EA’s proposals. The RITF had been studying the socioeconomic and environmental effects and implications of USFS decisions regarding the Allotments for many years. See Complaint ¶ 82, at 33. The RITF sent a letter to Trujillo expressing concern over the EA’s scientific methodology, and the RITF noted that the permittees “feel discouraged and powerless vis-a-vis” the USFS, as evidenced by the strained relationship of the two over recent years. Complaint ¶ 82, at 34. The RITF recommended that Trujillo adopt the second proposal in the EA, which would allow grazing to remain at the same level as the previous years. See Complaint ¶ 84, at 34. The RITF also recommended a longer grazing season. See Complaint ¶ 84, at 34.

Rio Arriba County submitted a letter to the Defendants on September 17, 2009, in which it expressed concern about what it viewed as a .“historical pattern of unjustified Forest Service action to reduce grazing opportunities for villagers that has chipped away and eroded the culture in the area and the way of life integral to that culture.” Complaint ¶ 85, at 35. The Associations also submitted comments on September 17, 2009, in which they stated that the USFS should, as part of the upcoming EA, consider managing the wild horse and elk populations. See Complaint ¶86, at 35. On September 18, 2009, the New Mexico Department of Agriculture submitted comments in which it recommended that Trujillo adopt the EA’s second proposal and stated its belief that proper management of the Carson National Forest would obviate the need to reduce the number of permits. See Complaint ¶ 87, at 35.

On January 11, 2010, at a public meeting, Trujillo expressed her view that the current level of permits was an eighteen-percent temporary increase above the correct level — an increase which occurred in 1980, and had, improperly, never been reduced to the correct level. See Complaint ¶ 89, at 36. Trujillo also stated that she had been working with outside groups regarding the possibility of purchasing the Plaintiffs’ permits. See Complaint ¶ 89, at 36. Trujillo further stated that she would seek an eighteen-percent reduction in the number of permits, regardless of the EA’s proposals. See Complaint ¶ 89, at 37. That month, Trujillo contacted outside groups later in January and suggested that they purchase the Plaintiffs’ permits. See Complaint ¶ 90, at 37.

In March, 2010, the Plaintiffs submitted a petition to Carson National Forest Supervisor Clark, and - Corbin Newman, the Regional Forester, which over 200 Unit residents signed, in which they requested that Trujillo be transferred from the El Rito District Ranger position. Trujillo was “extremely upset and angered by” the Plaintiffs’ request. Complaint ¶ 92, at 38.

On September 30, 2010, the USFS issued its EA. See Complaint ¶ 4, at 3. The EA contains approximately one page describing the socioeconomic and cultural impact that the proposed actions may have. See Complaint ¶ 93, at 38. The EA did not contain any recommendations regarding reducing the wild horse and elk population on the Allotments. See Complaint ¶ 94, at 39. The EA noted that, if the second alternative was adopted, which would allow the permittees to remain at the same number but with better management, the overall environmental impact would be positive, and the economic impact on the permittees would be less harsh than if the third alternative, an eighteen-percent reduction in the number of permittees, was adopted. See Complaint ¶ 97, at 40. The EA thus designated the second alternative as the Proposed Action. See Complaint ¶ 98, at 41.

The 2010 EA’s Proposed Action would have allowed the Plaintiffs to “continue grazing on both allotments with approximately the same number of cows as Plaintiffs have grazed on those allotments since 1980.” Complaint ¶ 4, at 3; id. ¶ 98, at 41. Normally, the District Range for the Carson and Santa Fe National Forests adopts the Proposed Action set forth in an EA. See Complaint ¶ 4, at 3; id. ¶ 99, at 41. Rather than adopting the 2010 EA’s Proposed Action, Trujillo adopted the third alternative set forth in the 2010 EA, which imposed an eighteen-percent reduction in the Plaintiffs’ grazing permits. See Complaint ¶ 5, at 3. Trujillo stated that she took this action because the current number of permitted livestock on the Unit was unsustainable. See Complaint ¶ 5, at 3-4; id. ¶ 100, at 42. The EA did not conclude that the current grazing numbers were unsustainable. See Complaint ¶ 100, at 42.

On November 29, 2010, the Associations and Rio Arriba County appealed Trujillo’s 2010 Decision Notice. See Complaint ¶ 105, at 44. In 2011, Trujillo’s’ supervisors ruled on the appeal and announced that they are upholding her decision. See Complaint ¶ 106, at 44. The Plaintiffs assert that they “will be significantly injured as a result of the imposition of the 18% reduction in permitted cow/calf numbers.” Complaint ¶ 17, at 8. The Plaintiffs assert that the loss of grazing permits “causes not only severe economic harm to Plaintiffs but also grave damage to viability of the unique cultural and social fabric of their families and communities.” Complaint ¶ 17, at 8. The Plaintiffs assert that the importance of their social and cultural fabric “has been recognized by Defendant Forest Service as essential not just to the residents of northern New Mexico but to the entire nation.” Complaint ¶ 17, at 8.

PROCEDURAL BACKGROUND

The Court will summarize- — as needed to dispose of the Motion to Reconsider — the Complaint, the Court’s MOO, and the USFS’ Motion to Reconsider a portion of that MOO.

1. The Claims in the Complaint.

All of the Plaintiffs’ alleged injuries are related to Trujillo’s 2010 decision to reduce grazing on the Jarita Mesa and Alamosa Grazing Allotments, both of which lie within the El Rito Ranger District of the Carson National Forest. The Plaintiffs allege that the eighteen-percent reduction in their permits violated the Plaintiffs’ First Amendment right to free speech and to petition for redress of their grievances. The Plaintiffs bring this action under the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4331-4370 (“NEPA”), the National Forest Management Act of 1976, Pub. L. No. 94-588, 90 Stat. 2949 (codified in scattered section of 16 U.S.C.)(“NFMA”), the Federal Sustained Yield Forest Management Act of 1944, 16 U.S.C. §§ 583, 583a-583i (“FSYMA”), and the APA. See Complaint ¶ 9, at 4-5. The Plaintiffs assert that the Court has jurisdiction over this action under 28 U.S.C. §§ 1331, 1343(a)(3), 1346, 2201, and 2202. See Complaint ¶ 10, at 5.

The Plaintiffs assert that, under NEPA, all federal agencies are required to prepare an environmental impact statement (“EIS”) regarding proposed actions that will significantly affect the quality of a human environment. See Complaint ¶ 23, at 9 (citing 42 U.S.C. § 4332(2)(C)). The Plaintiffs assert that agencies must prepare an EA when a proposed action’s effect is uncertain. See Complaint ¶ 24, at 10 (citing 40 C.F.R. §§ 1501.4(b), 1508.9). The Plaintiffs assert that, as part of the EIS and EAs prepared under NEPA, an agency “must consider a reasonable range of alternatives and analyze both the direct and indirect impacts of all proposed major federal actions significantly affecting the human environment.” Complaint ¶ 26, at 10 (citing 40 C.F.R. § 1502.14). The Plaintiffs assert that, when a range of proposed actions are available and an EA is prepared, the EA “is considered the functional equivalent of the preferred alternative” in an EIS. Complaint ¶ 26, at 10. The Plaintiffs assert that an agency is required to “insure the professional integrity, including scientific integrity,” of the environmental analyses underlying an EIS and EA. Complaint ¶ 28, at 10 (citing Natural Res. Def. Council v. Morton, 458 F.2d 827, 838 (D.C.Cir.1972); 40 C.F.R. § 1502.24). The Plaintiffs assert that the environmental review process that NEPA requires is subject to public comment, and agencies must respond to public comments with thorough modifications, or with a thorough explanation for why no modification is necessary. See Complaint ¶ 29, at 10-11 (citing 40 C.F.R. § 1503.4).

The Plaintiffs assert that, under the NFMA, the USFS is required to develop land resource management plans (“Forest Plans”) for each national forest, and must implement the plan on a site-specific level. See Complaint ¶¶ 30-32, at 11 (citing Pub. L. No. 94-588; 16 U.S.C. § 1604(a); 36 C.F.R. § 219.10). The Plaintiffs assert that the implementation of a Forest Plan must be consistent with the Forest Plan. See Complaint ¶ 32, at 11 (citing 16 U.S.C. § 1604(i)). The Plaintiffs assert that, under the SYFMA, the USFS must use timber and non-timber forest products within a sustained unit for the “benefit of and to stabilize the communities within each sustained yield unit.” Complaint ¶ 33, at 12 (citing 16 U.S.C. §§ 583(b), 583(a)).

The Plaintiffs assert that the USFS 1972 Region 3 Policy (“the Policy”) recognizes that northern New Mexico communities are dependent upon forest resources, declares the Spanish-American/Hispanic culture of the area to be a “resource,” and acknowledge that the USFS’ “objectives and policies must be altered to the extent possible to recognize and be responsive to the culture and peoples.” Complaint ¶ 34, at 12 (citing the Policy at 3). The Plaintiffs assert that the Policy “ ‘explicitly recognized the intimate relationship that the Native American and Hispanic residents of Northern New Mexico had with the land’ ... and that ‘their economic well-being is often tied closely to the resources of the National Forests and-the manner in which they are utilized.’ ” Complaint ¶ 49, at 19-20 (quoting from the Policy at 2). The Plaintiffs assert that the Policy requires the USFS to take actions for the preservation of Spanish-American/Hispanic culture in the region, including authorizing livestock permits. See Complaint ¶¶ 35-36, at 12-13.

The Plaintiffs assert that the USFS reduced their grazing permits out of racial animus. See Complaint ¶¶ 43-44, at 17. The Plaintiffs assert that the Unit was created in 1948 “to address some of the economic and social afflictions” harming the Plaintiffs’ communities, and resulting from the reduction in their grazing permits over the years. Complaint ¶¶ 45-46, at 18. The Plaintiffs assert that, contrary to the Policy, the USFS “has, for the most part, dealt with the Hispanic communities within the Unit ..., by continuing to pursue ... a reduction in grazing permits, that have worked to further destabilize and impair the cultural, social, and economic fabric” of the Plaintiffs’ communities. Complaint ¶ 54, at 22. The Plaintiffs assert that, instead of “managing the [U]nit to provide stability to the communities within the Unit as required by law,” the USFS’ conduct has “resulted in an increase in economic and cultural instability for the communities in the Unit.” Complaint ¶ 56, at 22.

The Plaintiffs assert that Trujillo has responded to their public criticism “by engaging in a continuing and ongoing campaign of retaliation, misusing her position to harass and punish Plaintiffs for their constitutionally protected conduct.” Complaint ¶ 57, at 23. The Plaintiffs assert that swelling of the wild horse and elk populations on the Unit has contributed to the destabilization of the Plaintiffs’ grazing tradition and culture. See Complaint ¶ 58, at 23. The Plaintiffs assert that, rather than reducing the number of wild horses on the Unit, as outlined in the 2002 Decision Notice, the Defendants have used the damaged forage as an “excuse to harass” the Plaintiffs about foraging conditions and to restrict their grazing rights. Complaint ¶ 61, at 25.

The Plaintiffs assert that Trujillo’s July 5, 2006, order that the Plaintiffs remove their cattle from Jarita Mesa by July 31, 2006, and her refusal to lift that order, were “motivated, in whole or in part, by a desire to retaliate against Plaintiffs for the exercise of their First Amendment rights to free speech and to petition for redress of grievances.” Complaint ¶ 70, at 28. The Plaintiffs assert that Trujillo’s actions were part of an “ongoing pattern and practice of retaliatory conduct.” Complaint ¶ 71, at 28. The Plaintiffs assert that Trujillo’s decision in 2006 to reduce S. Chacon’s grazing permit by twenty percent had a profound economic impact on him, “costing him tens of thousands of dollars,” and also damaged the social and cultural fabric of his community and extended family. Complaint ¶ 75, at 31. The Plaintiffs assert that S. Chacon was “singled out for disparately harsh punishment by Defendant Trujillo because she perceived him as a leader of the Jarita Mesa Grazing Association,” and because the Jarita Mesa Permittees had criticized her to the government. Complaint ¶ 76, at 31. The Plaintiffs assert that Trujillo acted as she did to chill the Plaintiffs’ speech. See Complaint ¶ 76, at 31.

The Plaintiffs also assert that what Trujillo stated was an eighteen-percent increase in permits was the result of an agreement in which the Plaintiffs agreed to a shorter grazing permit, but an eighteen-percent increase in the number of permits. See Complaint ¶ 89, at 36. The Plaintiffs assert that Trujillo’s attempts to orchestrate the purchase of their permits was “completely outrageous” and beyond the scope of her duties, in addition to being in violation of the “letter and spirit” of the Policy. Complaint ¶ 91, at 37. The Plaintiffs assert that this “shocking” conduct demonstrates her “deep animosity towards the needs and aspirations of the permit-tees.” Complaint ¶ 91, at 37.

The Plaintiffs also assert that Trujillo’s 2010 Decision Notice, in which she chose to reduce the available permits by eighteen percent, was done out of her anger towards the Plaintiffs, and because she had “determined to retaliate against the Plaintiffs for having the temerity to point out her errors and criticize her mismanagement of the two allotments and the entire Sustained Yield Unit.” Complaint ¶ 99, at 42. The Plaintiffs assert that Trujillo decided to reduce their permits by eighteen percent “long before the Final EA was issued.” Complaint ¶ 103, at 43. The Plaintiffs assert that Trujillo’s statements regarding the current level of permittees being unsustainable “was a pretext to conceal her retaliatory motive ... to punish Plaintiffs and the other permittees for having complain[ed] to other government officials about Defendant Trujillo’s conduct.” Complaint ¶ 104, at 44.

The Plaintiffs assert that the economic loss they have suffered and will continue to suffer because of the 2010 Decision Notice is far greater than the $32,000.00 which the USFS estimates will be their economic loss. The Plaintiffs assert that their economic injuries are “compounded by permanent, irreparable damage to the social and cultural fabric” of their communities. Complaint ¶ 107, at 45. The Plaintiffs point out that their “large extended families” share the beef they acquire from cattle raising, providing “the larger population of local residents with healthy and inexpensive meat on which they depend for a vital part of their diet,” and the Plaintiffs will now have twenty percent less beef available for their needs. Complaint ¶ 109, at 46.

The Plaintiffs’ first count in the Complaint is alleged against Trujillo. The Plaintiffs assert that the Trujillo violated their right to free speech, “the related right to petition for redress of grievances,” and their right to freedom of association, as the First Amendment guarantees. Complaint ¶ 112, at 47. The Plaintiffs assert that they did not have an opportunity during the EA process,' or during their appeal of Trujillo’s July 5, 2006 order, “to discover and present evidence of disparate treatment, violation of normal procedure or practice, or other evidence from which retaliatory animus may be inferred,” including the evidence that district rangers normally adhere to the proposed actions in EAs. Complaint ¶ 12, at 47. The Plaintiffs assert that they have “no remedy other than an action under the First Amendment” to remedy this asserted constitutional violation, “which resulted in a reduction in their permits for the 2011 grazing season,” a reduction which continues through the 2015 grazing season, “and to compensate them for the losses already accrued as a result of Defendant Trujillo’s retaliatory conduct.” Complaint ¶ 112, at 47-48. The Plaintiffs assert that Trujillo acted in an “arbitrary and capricious manner,” and “intentionally and/or with deliberate indifference to the First Amendment rights of Plaintiffs.” Complaint ¶ 113, at 48. The Plaintiffs also assert that Trujillo’s actions violated the APA. See Complaint ¶ 114, at 48 (citing 5 U.S.C. §§ 702, 706(2)(b)). The Plaintiffs assert that they “will suffer irreparable harm if these reductions are allowed to proceed,” and they assert that they “have no adequate remedy at law to stop them.” Complaint ¶ 115, at 48.

As their second cause of action, the Plaintiffs allege that the Defendants failed to properly analyze environmental impact in the 2010 EA, and, by failing to take a “hard look” at the social, economic, and environmental justice impact each alternative would have, violated the APA. Complaint ¶¶ 116-119, at 48-49 (citing Natural Res. Def. Council v. Morton, 458 F.2d at 838; 5 U.S.C. §§ 702, 706(2)). The Plaintiffs allege as their third cause of action that the Defendants failed to properly analyze the environmental impact in the 2010 EA by failing to develop a proper baseline with the best available science for their study, in violation of the APA. See Complaint ¶¶ 120-123, at 49 (citing 40 C.F.R. § 1502.24; 5 U.S.C. §§ 702, 706(2)). The Plaintiffs allege, as their fourth cause of action, that the Defendants failed to properly consider and respond to comments, and failed to consider a reasonable range of alternatives in the 2010 EA, in violation of NEPA and of the APA. See Complaint ¶¶ 124-127, at 49-50 (citing 40 C.F.R. 1503.4; 36 C.F.R. § 220.4(c); 5 U.S.C. §§ 702, 706(b)). As their fifth cause of action, the Plaintiffs allege that Trujillo failed to consider the findings in the 2010 EA when she made her 2010 Decision Notice, in violation of NEPA and of the APA. See Complaint ¶¶ 128-131 (citing 36 C.F.R. § 220.4(c)(4); 5 U.S.C. §§ 702, 706(2)). As their sixth cause of action, the Plaintiffs allege that the Defendants failed to follow the Carson National Forest Plan range standards and guidelines related to grazing numbers, in violation of the NFMA and of the APA. See Complaint ¶¶ 132-136, at 50-51 (citing 16 U.S.C. § 1604(i); 5 U.S.C. §§ 702, 706(b)). As their seventh cause of action, the Plaintiffs allege that the Defendants failed to follow the Carson National Forest Plan’s range standards and guidelines related to the management of wild horses on the Jarita Mesa Allotment, in violation of the NFMA and of the APA. See Complaint ¶¶ 137-140, at 51-52 (citing 5 U.S.C. §§ 702, 706(2)). As their eighth cause of action, the Plaintiffs allege that the Defendants violated the SYFMA and the APA, by failing to use the Carson National Forest for the benefit of the communities within the Unit. See Complaint ¶¶ 141-143, at 52 (citing 5 U.S.C. §§ 702, 706(2)). As their ninth cause of action, the Plaintiffs allege that the Defendants violated the Policy and the APA by failing to manage the Allotments in a manner that is responsive to and compatible with the well-being of the local resource-dependent communities, and that they did so without a reasonable explanation. See Complaint ¶¶ 144-146, at 52-53 (citing 5 U.S.C. §§ 702, 706(2)).

The Plaintiffs request various forms of relief. The Plaintiffs request that the Court: (i) declare that the “acts complained of herein violated the First Amendment rights” of the Plaintiffs, Complaint ¶ 1, at 53; (ii) declare that any future reductions to the number of cattle permitted on the Allotments for the 2012-2015 grazing seasons, based on Trujillo’s 2010 Decision Notice, would be contrary to the Constitution, see Complaint ¶ 2, at 53; (iii) declare that the Defendants violated NEPA by failing to analyze adequately, or to “take a hard look” at the social, economic, and environmental impacts that would result from the 2010 EA and 2010 Decision Notice for the Allotments, Complaint ¶ 3, at 53; (iv) declare that the Defendants violated NEPA by “failing to properly analyze impacts insofar as they failed to develop or use a proper baseline based on the best available science,” Complaint ¶4, at 53; (v) declare that the Defendants violated NEPA by failing to properly consider and respond to comments, and by failing to consider a reasonable range of alternatives, see Complaint ¶ 5, at 54; (vi) declare that Trujillo violated NEPA by failing to consider the alternatives that the EA analyzed before issuing the 2010 Decision Notice, see Complaint ¶ 6, at 54; (vii) declare that the Defendants violated the NFMA by failing to act in accordance with the Carson National Forest Plan’s range standards and guidelines regarding grazing numbers, see Complaint ¶ 7, at 54; (viii) declare that the Defendants violated the NFMA by failing to act consistently with the Carson National Forest Plan’s range standards and guidelines regarding wild horse management, see Complaint ¶ 8, at 54; (ix) declare that the Defendants violated the Plaintiffs’ rights under the SYFMA by failing to manage the forest for the benefit of the communities within the Unit, see Complaint ¶ 9, at 54; (x) declare that the Defendants violated the Policy by failing to be responsive to the needs of the local, resource-dependent communities and failing to act in a way that supports their future well-being, see Complaint ¶ 10, at 54; (xi) declare that the Defendants’ actions violated the APA by not observing the procedures required by law, and were arbitrary and capricious “and/or unconstitutional,” Complaint ¶ 11, at 55; (xii) issue a judgment and injunction that voids the 2010 Decision Notice, and orders the Defendants to adhere to the second alternative the 2010 EA, which would allow the Plaintiffs to keep their permits at approximately the same levels as before the 2010 EA was issued, see Complaint ¶ 12, at 55; (xiii) issue an injunction that compels the USFS to comply with NEPA, the NFMA, the SYFMA, and the APA, so as to prevent irreparable harm and satisfy the public interest, see Complaint ¶ 13, at 55; (xiv) issue an injunction which requires the Defendants to adhere to the second alternative in the 2010 EA, see Complaint ¶ 14, at 55; (xv) award compensatory damages, against Trujillo, to the Plaintiffs who had their permits reduced in the 2011 grazing season and any subsequent grazing season, see Complaint ¶ 15, at 55; (xvi) award punitive damages against Trujillo, see Complaint ¶ 16, at 56; (xvii) award the Plaintiffs their “costs, expenses, expert witness fees, and reasonable attorney fees under applicable law,” Complaint ¶ 17, at 56; and (xviii) grant the Plaintiffs “such other and further relief as the Court deems proper,” Complaint ¶ 18, at 56.

2. The USFS’ Motion to Dismiss and the Court’s MOO Ruling on the Motion.

The USFS filed a motion to dismiss May 23, 2012. See Defendants’ Memorandum in Support of Motion to Dismiss, filed May 23, 2012 (Doc. 17)(“MTD”). The MTD moved the Court to dismiss (i) the claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (“Bivens ”); (ii) the First Amendment retaliation claim; and (iii) the claims for declaratory relief. See MTD at 1. The Court granted the MTD as to (i) and (iii), and denied it as to (ii). See MOO at 1141—42.

The Court ruled that the Plaintiffs stated a proper and plausible First Amendment retaliation claim. See MOO at 1193—1205. The USFS disagrees with the Court’s ruling on this claim, but does not challenge it here. The Motion to Reconsider, instead, focuses entirely on the following portion of the MOO, in which the Court has bolded the particularly relevant sentences:

1. The Plaintiffs May Seek Equitable Relief for the Violation of Their Constitutional Rights Outside of the APA.

The Plaintiffs seek equitable relief from Trujillo in her official capacity. “An action against federal employees in their official capacities is in effect a suit against the United States for which a waiver of sovereign immunity must exist.” Cortez v. EEOC, 585 F.Supp.2d 1273, 1287 (D.N.M.2007). “Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.” FDIC v. Meyer, 510 U.S. at 475, 114 S.Ct. 996. “[A]n official capacity suit is only another way of pleading an action against an entity of which an officer is an agent.” Johnson v. Bd. of Cnty. Comm’rs for Cnty. of Fremont, 85 F.3d 489, 493 (1996) (internal quotation marks omitted).

Through 5 [U.S.C.] § 702, Congress provided “a general waiver of the government’s sovereign immunity from in-junctive relief.” United States v. Murdock Mach. and Eng’g Co. of Utah, 81 F.3d at 930 n. 8. “This waiver is not limited to suits under the Administrative Procedure Act.” Simmat v. U.S. Bureau of Prisons, 413 F.3d at 1233.

Whether plaintiffs’ claims arise under the APA or common law is also immaterial with respect to the sovereign immunity analysis. Under 5 U.S.C. § 702, the United States waives sovereign immunity as to actions “in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority.” As we held in Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225 (10th Cir.2005), § 702’s waiver of sovereign immunity “is not limited to suits under the Administrative Procedure Act.” Id. at 1233; see also Hanson v. Wyatt, 552 F.3d 1148, 1173 n. 11 (10th Cir.2008) (Gorsuch, J., concurring)(“Section 702 is a waiver of sovereign immunity, but we have not treated Section 704 as a limit on that waiver.” (citation omitted)).

Gilmore v. Weatherford, 694 F.3d at 1166 n. 1. The Plaintiffs may therefore bring their claims under the First Amendment, and not under the APA, against the Defendants without implicating sovereign immunity, because of the United States’ general waiver, in 5 U.S.C. § 702, of sovereign immunity in suits seeking equitable relief. Additionally, the Court has jurisdiction under 28 U.S.C. § 1331 of this claim. See Simmat v. U.S. Bureau of Prisms, 413 F.3d at 1232, 1236 (finding that a federal court has jurisdiction under 28 U.S.C. § 1331 for claims “seeking vindication of their constitutional lights ... and may obtain relief in the nature of either injunction or mandamus”). The United States’ waiver of sovereign immunity in the APA extends to claims for “nonmon-etary relief against federal officials and agencies,” over which the Court has jurisdiction, such as those for equitable relief brought under 28 U.S.C. § 1331. Simmat v. U.S. Bureau of Prisons, 413 F.3d at 1232, 1236. Indeed, in the Plaintiffs’ Second Notice of Additional Authority in Response to Defendants’ Motion to Dismiss Count I, the Plaintiffs cite to persuasive authority from the United States Court of Appeals for the District of Columbia Circuit, which comes to the same conclusion as the Court has here. See Trudeau v. Federal Trade Comm’n, 456 F.3d at 187 (“In sum, we hold that APA § 702’s waiver of sovereign immunity permits not only Trudeau’s APA cause of action, but his nonstatutory and First Amendment actions as well.”).

The Court is fully aware of the tension that exists between allowing a standalone First Amendment claim for declaratory relief and the APA claims. Although the stand alone First Amendment claim allows the Plaintiffs robust discovery, while the similar claim under the APA and Olenhouse v. Commodity Credit Corp. [42 F.3d 1560 (10th Cir.1994) ], enjoys no or very little discovery. The end result of both claims are likely to be similar if the Plaintiffs prevail: an injunction under the stand alone claim and invariably under the APA claim. The Defendants appear to ask the Court to fashion some doctrine — like in the Bivens area — that precludes the declaratory judgment action if there is another remedy. There is, however, no such doctrine, and the Court is reluctant to create one here. While the stand alone First Amendment claim undercuts Olenhouse v. Commodity Credit Corp. in this case, this situation is unusual and relatively rare. The Plaintiffs could have brought only a First Amendment claim in a separate case and enjoyed robust discovery; there is no sound reason to prevent them from joining it with an APA claim, which largely raises statutory issues. While the Plaintiffs could not get much, if any, discoveiy on their APA First Amendment claim, there is no sound reason to preclude them from getting discovery on their standalone claim simply because they also have an APA First Amendment claim.

MOO at 1203-05 (boldface omitted in opening heading to avoid confusion)(boldface in last two sentences added). The Court cited no authority for its conclusions in the final quoted paragraph, but it did append the following footnote at the end of the final sentence: “The Defendants appear to be prepared for this fact, as Department of Justice Attorney Andrew A. Smith appears to be representing the United States on the APA issues, and Assistant United States Attorney Ruth F. Keegan appears to be doing the heavy lifting regarding the First Amendment claims against Trujillo.” MOO at 1205 n. 8.

3. The Motion to Reconsider.

The USFS filed its Motion to Reconsider on February 7, 2013. See Motion to Reconsider at 1. The USFS’ opening paragraph in its argument section sums up its request:

The APA and Supreme Court common law predating the APA require that federal agency action be reviewed pursuant to the procedures set forth in the APA. The presence of Plaintiffs’ constitutional claim does not alter this rule. The Tenth Circuit’s opinion in Simmat v. United States Bureau of Prisons, 413 F.3d 1225 (10th Cir.2005), on which this Court relied to recognize a “stand alone” First Amendment claim, is consistent with this rule. Moreover, as Plaintiffs appear to acknowledge in their Complaint, the fact that Plaintiffs seek review of a final agency action makes Administrative Record review particularly appropriate. Finally, the policy reasons underlying Administrative Record review of agency decisions apply to constitutional claims as well as all other APA claims. However, should this Court decide to follow those few cases that have allowed discovery on constitutional claims, like those courts, this Court should prohibit discovery until it has had an opportunity to review the Administrative Record and Plaintiffs show cause for allowing discovery.

Motion to Reconsider at 7-8 & n. 1. The USFS notes that,

[u]nder the APA, the presumption is that discovery is not allowed and review is limited, to the Administrative Record. Sims v. Natl Transp. Safety Board, 662 F.2d 668, 671 (10th Cir.1981) (“[T]he APA does not provide for discovery, and the Federal Rules of Civil Procedure do not apply to an agency.”). While the APA has limited exceptions to the rule, it is Plaintiffs’ burden to show that the exceptions apply. Bar MK Ranches v. Yuetter, 994 F.2d 735, 740 (10th Cir.1993) (“[T]he designation of the Administrative Record, like any established administrative procedure, is entitled to a presumption of administrative regularity.”)(citing Wilson v. Hodel, 758 F.2d 1369, 1374 (10th Cir.1985)). Whether exceptions apply here is not the subject of this Motion; nor does this Motion address the standard of review. Rather, the sole issue presented here is whether the scope of this Court’s review of Plaintiffs’ First Amendment claim is governed by the procedures set forth in the APA and Olenhouse in the first instance, rather than the Federal Rules of Civil Procedure.

Motion to Reconsider at 7 n. 1.

The USFS argues that the APA’s provision that the reviewing “court shall review the whole record or those parts of it cited by a party,” requires district courts to limit their review of agency actions to the administrative record. Motion to Reconsider at 8 (emphasis in original)(quoting 5 U.S.C. § 706). It contends that “[t]he APA does not make an exception for constitutional claims but expressly states that constitutional claims are also reviewed pursuant to APA procedures,” and asserts that “Olenhouse, itself[,] included a constitutional due process claim[ ] that the United States Court of Appeals for the Tenth Circuit reviewed ‘consistent with the judicial review provisions of the APA.’ ” Motion to Reconsider at 8.

The USFS also contends that the APA largely codifies the common law of agency review that existed before its enactment, and that this common law indicates that district courts should limit their review of agency decisions to the administrative record. See Motion to Reconsider at 9-10 (citing Tagg Bros. & Moorhead v. United States, 280 U.S. 420, 50 S.Ct. 220, 74 L.Ed. 524 (1930)). It argues that this limitation applies even if the Plaintiffs have a claim directly under the First Amendment. ' See Motion to Reconsider at 10-11 (citing Franklin Sav. Ass’n v. Dir., Office of Thrift Supervision, 934 F.2d 1127, 1137 (10th Cir.1991); Robbins v. U.S. Bureau of Land Mgmt., 438 F.3d 1074, 1085 (10th Cir.2006)). • In particular, it quotes the dissent of the Honorable Antonin G. Scalia, Associate Justice of the Supreme Court of the United States, for the proposition that, “[w]hile a right to judicial review of agency action may be created by a separate statutory or constitutional provision, once created it becomes subject to the judicial review provisions of the APA unless specifically excludéd.” Motion to Reconsider at 12 (emphasis in original)(quoting Webster v. Doe, 486 U.S. 592, 607 n. *, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988) (Scalia, J., dissenting)).

The USFS further argues that Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225 (10th Cir.2005)—the case upon which it says the Court relied to fashion or recognize a standalone First Amendment claim — is consistent with the requirement of limiting judicial review to the administrative record. See Motion to Reconsider at 13-14. The USFS asserts that the plaintiffs in that case sought discovery, but that the Tenth Circuit nonetheless based its review on the administrative record alone and dismissed their case for failure to exhaust administrative remedies. See Motion to Reconsider at 14 n. 3 (citing Simmat v. U.S. Bureau of Prisons, 413 F.3d at 1231 n. 9). The USFS also block quotes a portion of Simmat v. U.S. Bureau of Prisons, drawing particular attention to the final sentence of the block quote: “If Mr. Simmat had pursued his administrative remedies, he would have received either relief or an explanation, and the courts would have something to review.” Motion to Reconsider at 14 (emphasis in Motion to Reconsider but not source)(quoting 413 F.3d at 1238). The USFS last asserts that limiting judicial review to the administrative record is particularly appropriate in this case, because the Court is reviewing a final agency decision and because policies of fairness, orderly procedure, and competence support a limited review. See Motion to Reconsider at 17-22.

In the alternative to a complete bar on evidence outside the administrative record, the USFS asks the Court to defer discovery until it has reviewed the administrative record to precisely tailor discovery to the issues presented. See Motion to Reconsider at 22-23. It asserts that even the courts that have allowed discovery outside of the administrative record have strictly conditioned the discovery. See Motion to Reconsider at 22-23 (citing Puerto Rico Pub. Housing Admin. v. U.S. Dep’t of Housing, 59 F.Supp.2d 310, 327-28 (D.P.R.1999)). The USFS preemptively rebuts the Plaintiffs’ expected contention that the administrative record is insufficient to evaluate whether the actions of the USFS were retaliatory, stating that, “[i]f that is the case, it is because Plaintiffs failed to exhaust their administrative remedies.” Motion to Reconsider at 23. The USFS notes that, in fact, a motion to dismiss for failure to exhaust administrative remedies is forthcoming, see Motion to Reconsider at 14 n. 2, and it has since filed this motion, see Federal Defendants’ Motion to Dismiss Count 1 for Failure to Exhaust Administrative Remedies,’filed February 18, 2013 (Doc. 55)(“MTD for Failure to Exhaust”).

The Plaintiffs responded to the Motion to Reconsider within a month. See Plaintiffs’ Memorandum in Response to Defendants’ Motion for Reconsideration, filed March 4, 2013 (Doc. 59)(“Response”). They argue that the Court must undertake a de novo review of the USFS’ actions, at least with regard to the standalone First Amendment claim. See Response at 7. They address Webster v. Doe, asserting that the Supreme Court

held that the limitations of the APA did not preclude an independent review of the plaintiffs constitutional claims which would include discovery in the district court, noting that “[t]he District Court has the latitude to control any discovery process which may be instituted so as to balance respondent’s need for access to proof which would support a colorable constitutional claim against the extraordinary needs of the CIA for confidentiality. ..

Response at 9 (quoting 486 U.S. at 604, 108 S.Ct. 2047).

The Plaintiffs quote extensively from Porter v. Califano, 592 F.2d 770 (5th Cir.1979), a case in which, according to the Plaintiffs, the United States Court of Appeals for the Fifth Circuit allowed a plaintiff discovery on judicial review of an administrative dismissal of her First Amendment retaliatory termination claim. See Response at 9-10. The Plaintiffs also cite Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), a case in which the Supreme Court stated that courts should conduct “an independent examination of the record,” Response at 10 (quoting 391 U.S. at 579 n. 2, 88 S.Ct. 1731), rather than deferring to the agency’s expertise, as, “in general, courts, not agencies, are expert on the First Amendment,” Response at 11 (quoting Porter v. Califano, 592 F.2d at 780 n. 15).

The Plaintiffs assert that district courts should conduct de novo review of constitutional claims. See Response at 12 (citing McNary v. Haitian Refugee Ctr., 498 U.S. 479, 497, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991)). The Plaintiffs cite a number of cases in which they assert district courts permitted supplementary discovery on top of an administrative record: Miccosukee Tribe of Indians of Florida v. United States, 2010 WL 337653 (S.D.Fla. Jan. 22, 2010); Grill v. Quinn, 2012 WL 174873 (E.D.Cal. Jan. 20, 2012); and Puerto Rico Public Housing Administration v. U.S. Department of Housing & Urban Development, 59 F.Supp.2d 310 (D.P.R.1999). See Response at 13-15. The Plaintiffs also attempt to distinguish the cases that the USFS cites, arguing: that Olenhouse v. Commodity Credit Corp. “did not involve an independent constitutional claim and did not involve a discussion of what type of discovery is permissible on an independent First Amendment retaliation claim or on any independent constitutional claim,” Response at 16; that Franklin Savings Association v. Director, Office of Thrift Supervision did not involve an allegation of an unconstitutional motive on the part of the agency, see Response at 16; that Robbins v. U.S. Bureau of Land Management “did not involve any issues about the scope of discovery on an independent constitutional claim,” Response at 16; that, in National Broadcasting Co. v. United States, the Supreme Court “did not consider or discuss the scope of discovery that would be appropriate in a case alleging unconstitutional motive or intent by a federal official,” Response at 17; and that, in Munsell v. U.S. Department of Agriculture, “[t]he court did not even reach the issue of whether the plaintiff had a constitutional claim because it found he had failed to exhaust administrative actions,” Response at 18.

As a backstop to their primary argument that the Court should permit full discovery of all issues by virtue of the standalone claim being outside the APA, the Plaintiffs argue that their allegations of bad faith entitle them to discovery even under the APA. See Response at 20-24. They argue that, “[although generally the scope of judicial review of agency action under the [APA] is limited to review of the administrative record ..., there are several well recognized exceptions to this rule.” Response at 21. They note that, “[i]n particular, extra-record discovery is appropriate where the plaintiff makes ‘a strong showing of bad faith or improper behavior’ by agency decision-makers.” Response at 21 (quoting Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)). They quote a case out of the United States District Court for the Western District of Wisconsin for the proposition that, “[i]f there are adequate grounds to suspect that an agency decision was tainted by improper political pressure, courts have a responsibility to bring out the truth of the matter.” Response at 22 (alteration in Response)(quoting Sokaogon Chippewa Cmty. v. Babbitt, 961 F.Supp. 1276 (W.D.Wis.1997)).

The USFS replied, largely reiterating the arguments from their Motion to Reconsider. See Federal Defendants’ Reply in Support of Their February 7, 2013 “Motion for Reconsideration,” Doc. 53, filed April 3, 2013 (Doc. 74)(“Reply”). It first reiterates its argument that an implied cause of action under the First Amendment is still subject to the APA’s procedural requirements, regardless whether it is standalone. See Reply at 2-7. It next argues that the comprehensive remedial scheme that Congress provides in the APA “leaves neither need nor room for an implied direct constitutional action for equitable relief.” Reply at 7 (emphasis omitted)(capitalization altered for readability). It first asserts that the Plaintiffs’ suit is, in actuality, an appeal from a final agency action. See Reply at 7 (citing 5 U.S.C. § 551(13)). It asserts that the APA is the “comprehensive remedial scheme” applicable to final agency actions, Reply at 10, and, thus, “ ‘[t]he APA is the proper avenue for reviewing an agency’s action or decision,’ including for alleged constitutional violations,” Reply at 8 (alteration in original)(internal quotation marks omitted)(citing Robbins v. Wilkie, 300 F.3d 1208, 1212 (10th Cir.2002)). It contends that the Declaratory Judgment Act, 28 U.S.C. § 2201, likewise, does not circumvent the APA’s procedural framework. See Reply at 11-14.

The USFS next argues that § 706(2)(F) of the APA, which provides that “[t]he reviewing court shall ... hold unlawful and set aside agency action, findings, and conclusions found to be ... unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court,” is inapplicable. Reply at 17-20. It first asserts that the Court has already held that the Plaintiffs discovery on the APA claims will be severely curtailed. See Reply at 17 (“Plaintiffs could not get much, if any, discovery on their APA First Amendment claim.” (quoting MOO at 1205)). It .contends that § 706(2)(F) is applicable in two circumstances: (i) “when the action is adjudicatory in nature and the agency’s fact-finding procedures [were] inadequate”; and (ii) “when issues not prev