United States District Court, D. Oregon
LEAGUE OF WILDERNESS DEFENDERS/BLUE MOUNTAINS BIODIVERSITY PROJECT, et al., Plaintiffs,
JAMES M. PEÑA, et al., Defendants, and BAKER COUNTY, a political subdivision of the State of Oregon, et al., Defendant-Intervenors.
Tom C. Buchele, EARTHRISE LAW CENTER, Portland, OR, Attorney for Plaintiff League of Wilderness Defenders/Blue Mountains Biodiversity Project
Jennifer R. Schemm, Attorney at Law, La Grande, OR, Attorney for Plaintiff Hells Canyon Preservation Council.
Sam Hirsch, Beverly F. Li, U.S. DEPARTMENT OF JUSTICE, Environmental & Natural Resources Division Washington, D.C. Attorneys for Federal Defendants James Pena, United States Forest Service, United States Fish and Wildlife Service, and Gary Miller.
Scott W. Horngren, AMERICAN FOREST RESOURCE COUNCIL, Portland, OR, Caroline Lobdell, WESTERN RESOURCES LEGAL CENTER, Portland, OR, Attorneys for Defendant-Intervenors.
OPINION & ORDER
MARCO A. HERNNDEZ, District Judge.
On December 9, 2014, this Court issued an Opinion and Order that granted in part Plaintiffs League of Wilderness Defenders/Blue Mountains Diversity Project and Hells Canyon Preservation Council's (collectively, "Plaintiffs") motion for summary judgment against the United States Forest Service and its Regional Forester for the Pacific Northwest Region (collectively, "Defendants"). League of Wilderness Defenders/Blue Mountains Biodiversity Project v. Connaughton, No. 3:12-CV-02271-HZ, 2014 WL 6977611, at *1 (D. Or. Dec. 9, 2014). The Court held that the Forest Service acted arbitrarily and capriciously, violating the Administrative Procedure Act ("APA") by approving the Snow Basin Vegetation Management Project ("Project") in eastern Oregon through the issuance of its Record of Decision ("ROD") and underlying Final Environmental Impact Statement ("FEIS").
The Court requested further briefing from the parties regarding the proper scope of relief. Plaintiffs urge the Court to vacate the ROD, the FEIS, and three timber sales contracts approved by the Forest Service pursuant to the ROD. Defendants and Intervenors agree that the ROD must be vacated; however, they oppose vacatur of the FEIS and the timber sales contracts, arguing that remand without vacatur is a sufficient remedy. For the reasons that follow, the Court vacates the ROD and the FEIS, but not the timber sales contracts.
The Forest Service issued a FEIS and ROD in March 2012, establishing the Project's plan for logging a nearly 29, 000 acre portion of the Wallowa Whitman National Forest ("WWNF") in northeastern Oregon. In order to implement the Project, the Forest Service sought to amend the "Eastside Screens, " a set of interim riparian, ecosystem, and wildlife standards for timber sales applicable to public lands east of the Cascade Mountains that, in essence, prohibit the harvest of old-growth trees.
Plaintiffs challenged the legality of the FEIS and the ROD. The Court agreed that the Forest Service's FEIS and ROD violated the National Environmental Policy Act, 42 U.S.C. §§ 4321, et seq. ("NEPA"), and the National Forest Management Act, 16 U.S.C. §§ 1601, et seq. ("NFMA"), in the following ways: (1) insufficiently analyzing the cumulative impacts of its proposed action; (2) failing to prepare a supplemental environmental impact statement to show the environmental impact of the Project on elk and their habitat; (4) failing to disclose and include documents critical to the Forest Service's analysis in the FEIS; (5) failing to ensure the scientific integrity of the FEIS regarding the categorization of a specific kind of forest; and (6) failing to articulate a rational connection between the characteristics of the Project area and the choice to adopt site-specific, rather than forest-wide, amendments.
The APA provides that the "reviewing court shall hold unlawful and set aside agency action, findings, and conclusions found to be... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" or "without observance of procedure required by law." 5 U.S.C. § 706(2)(A) & (D). When a court determines that an agency's decision was unlawful under the APA, vacatur is the standard remedy. Se. Alaska Conservation Council v. U.S. Army Corps of Engineers, 486 F.3d 638, 654 (9th Cir. 2007) ("Under the APA, the normal remedy for an unlawful agency action is to set aside' the action. 5 U.S.C. § 706(2). In other words, a court should vacate the agency's action and remand to the agency to act in compliance with its statutory obligations.'" (citation omitted)), rev'd and remanded sub nom. Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 557 U.S. 261 (2009); Alsea Valley Alliance v. Dep't of Commerce, 358 F.3d 1181, 1185 (9th Cir. 2004) ("Although not without exception, vacatur of an unlawful agency rule normally accompanies a remand."); Idaho Farm Bureau Fed'n v. Babbitt, 58 F.3d 1392, 1405 (9th Cir. 1995) ("Ordinarily when a regulation is not promulgated in compliance with the APA, the regulation is invalid."); accord Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1084 (D.C. Cir. 2001) (relief for APA error "normally will be a vacatur of the agency's order"); Reed v. Salazar, 744 F.Supp.2d 98, 119 (D.D.C. 2010) ("default remedy" is to set aside agency action taken in violation of NEPA).
Although the Supreme Court has cautioned courts against granting injunctive relief as a matter of course in NEPA cases, it did not question the use of vacatur as a standard remedy. See Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165 (2010) (urging courts to employ partial or complete vacatur before considering the "drastic and extraordinary" relief of injunction); Sierra Club v. Van Antwerp, 719 F.Supp.2d 77, 78 (D.D.C. 2010) ("While the U.S. Supreme Court made clear in Monsanto that there is no presumption to other injunctive relief, ... both the Supreme Court and the D.C. Circuit Court have held that remand, along with vacatur, is the presumptively appropriate remedy for a violation of the APA." (citation omitted)).
Vacatur is not, however, required. California Communities Against Toxics v. U.S. E.P.A., 688 F.3d 989, 992 (9th Cir. 2012). When equity demands, a court may elect not to vacate an illegal agency decision on remand. See Humane Soc'y v. Locke, 626 F.3d 1040, 1053 n.7 (9th Cir. 2010) ("In rare circumstances, when we deem it advisable that the agency action remain in force until the action can be reconsidered or replaced, we will remand without vacating the agency's action."); Ctr. For Food Safety v. Vilsack, 734 F.Supp.2d 948, 951 (N.D. Cal. 2010) ("[T]he Ninth Circuit has only found remand without vacatur warranted by equity concerns in limited circumstances, namely serious irreparable environmental injury.").
To determine whether vacatur would be appropriate in a given case, the Ninth Circuit adopted the standard described in Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm'n, 988 F.2d 146 (D.C. Cir. 1993). Under the Allied-Signal standard, "[w]hether the agency action should be vacated depends on how serious the agency's errors are and the disruptive consequences of an interim change that may itself be changed.'" California Communities Against Toxics, 688 F.3d at 992. That is, courts may decline to vacate agency decisions when vacatur would cause serious and irremediable harms that significantly outweigh the magnitude of the agency's error.
I. Final Agency ...