United States District Court, E.D. California
Decided April 26, 2013.
For Pacific Rivers Council, Plaintiff: Babak Naficy, LEAD ATTORNEY, Law Offices Of Babak Naficy, San Luis Obispo, CA; Brian Gaffney, LEAD ATTORNEY, Law Offices of Brian Gaffney, San Francisco, CA.
For Dale Bosworth, in his capacity as Chief of the United States Forest Service, United States Forest Service, Mark Rey, in his official capacity as Under Secretary of Agriculture, Defendants: Barclay Thomas Samford, LEAD ATTORNEY, United States Dept. of Justice, Environment of Natural Resources Division, Denver, CO; Cynthia Sue Huber, LEAD ATTORNEY, U.S. Dept. of Justice, Natural Resources Section,, Department of Justice, Environment and Natural Resources Division, Washington, DC; David Taylor Shelledy, LEAD ATTORNEY, U.S. Attorney's Office, Sacramento, CA.
For Jack - Blackwell, in his official capacity as Regional Forester, Region 5, U.S. Forest Service, Defendant: Barclay Thomas Samford, LEAD ATTORNEY, United States Dept. of Justice, Environment of Natural Resources Division, Denver, CO.
For Bernard Weingardt, Regional Forester, Pacific Southwest Region, United States Forest Service, Defendant: Barclay Thomas Samford, LEAD ATTORNEY, United States Dept. of Justice, Environment of Natural Resources Division, Denver, CO; David Taylor Shelledy, LEAD ATTORNEY, U.S. Attorney's Office, Sacramento, CA.
For American Forest & Paper Association, Intervenor Defendant: J. Michael Klise, PHV, LEAD ATTORNEY, Crowell & Moring LLP, Washington, DC; Thomas R. Lundquist, PHV, Crowell and Moring LLP, Washington, DC.
For California Forestry Association, Intervenor Defendant: J. Michael Klise, PHV, LEAD ATTORNEY, Crowell & Moring LLP, Washington, DC; Steven P. Rice, LEAD ATTORNEY, Crowell & Moring LLP, Irvine, CA; Thomas R. Lundquist, PHV, LEAD ATTORNEY, Crowell and Moring LLP, Washington, DC.
For Quincy Library Group, Intervenor: Michael Bruce Jackson, LEAD ATTORNEY, Michael B. Jackson, Attorney at Law, Quincy, CA.
MEMORANDUM AND ORDER
MORRISON C. ENGLAND, JR., CHIEF UNITED STATES DISTRICT JUDGE.
Presently before this Court is the question of the appropriate remedy for a legal deficiency in the Supplemental Environmental Impact Statement (" SEIS" ) the Forest Service prepared pursuant to the National Environmental Policy Act (" NEPA" ) for the 2004 Sierra Nevada Forest Plan Amendment (also referred to as the " 2004 Framework" or the " SNFPA" ).
On appeal of this Court's merits ruling, the Ninth Circuit concluded that the Forest Service failed to take a hard look at the environmental consequences of the 2004 Framework on fish and remanded the matter for determination of the appropriate remedy.
Pacific Rivers Council v. U.S. Forest Serv., 689 F.3d 1012 (9th Cir. 2012). Pacific Rivers Council (" PRC" ) urges this Court to vacate and enjoin the 2004 Framework and all projects issued under the 2004 Framework. Such draconian relief, however, is unwarranted. Vacatur of the 2004 Framework would be both unduly disruptive and environmentally harmful, and an indiscriminate injunction against all projects issued under the 2004 Framework's direction is both unnecessary to remedy PRC's injury and contrary to the public interest.
Therefore, as set forth below, the Court will deny PRC's request to vacate the 2004 Framework as well as its request for injunctive relief. The Forest Service will be directed to prepare a supplemental EIS to address the deficiencies in the 2004 SEIS no later than September 30, 2014.
The 2004 Framework, which amended the Forest Plans for 11 national forests covering 11.5 million acres within the Sierra Nevada region, represents the Forest Service's attempt at the " unenviable task" of balancing protection of wildlife with effective reduction of hazardous fuels in order to decrease the risk of stand-replacing wildfire.
Sierra Nevada Forest Prot. Campaign (" SNFPC" ) v. Rey, 573 F.Supp.2d 1316, 1338 (E.D. Cal. 2008).
In four related cases, plaintiffs challenged the 2004 Framework alleging numerous deficiencies under NEPA and the National Forest Management Act (" NFMA" ).
Sierra Nevada Forest Prot. Campaign (" SNFPC" ) v. Rey, 573 F.Supp.2d 1316 (E.D. Cal. 2008);
California ex rel. Lockyer (" California" ) v. U.S. Dep't of Agric., No. 05-211, 2008 WL 3863479 (E.D. Cal. Aug. 19 and Sept. 3, 2008);
Pacific Rivers Council (" PRC" ) v. U.S. Forest Serv., No. 05-953, 2008 WL 4291209 (E.D. Cal. Sept. 18, 2008); and
California Forestry Ass'n (" CFA" ) v. Bosworth, No. 05-905, 2008 WL 4370074 (E.D. Cal. Sept. 24, 2008). In August and September 2008, this Court issued summary judgment opinions in all four cases.
In this case, this Court granted summary judgment to the Forest Service on all issues. PRC, 2008 WL 4291209, at *22. PRC appealed. In a February 3, 2012 opinion, a divided panel of the Ninth Circuit concluded that the Forest Service adequately addressed impacts to amphibians in the 2004 SEIS, but failed to adequately address impacts to individual fish species.
PRC v. U.S. Forest Serv., 668 F.3d 609, 627 (9th Cir. 2012). The United States sought rehearing and rehearing en banc. On June 20, 2012, the Court of Appeals
issued a superseding opinion which did not materially alter its February 3, 2012 decision, and denied the petition for rehearing and rehearing en banc.
Pacific Rivers Council v. U.S. Forest Serv., 689 F.3d 1012 (9th Cir. 2012). The Court of Appeals remanded the case to this Court. On November 16, 2012, the Forest Service filed a petition for a writ of certiorari with the United States Supreme Court. Certiorari was thereafter granted by the Supreme Court on March 18, 2013.
After separate proceedings on appeal, see SFL v. Sherman, 646 F.3d 1161 (9th Cir. 2011), the SFL and California cases challenging the Framework were concurrently before this Court on the question of remedy.
On April 15, 2013, the Court issued a separate Memorandum and Order with regard to the proper remedy for those cases.
PRC asks this Court to vacate the 2004 Framework and all actions taken in reliance upon the 2004 Framework, reinstate the 2001 Framework, and enjoin all logging, burning, road activity and grazing in the Sierra Nevada National Forests that is inconsistent with the 2001 Framework. Defendants urge the Court to leave the 2004 Framework in place, let project-level decisions move forward and direct the agency to prepare a supplemental EIS addressing the NEPA deficiency identified by the Ninth Circuit; namely, the likely environmental consequences on fish that implementation of the 2004 Framework may pose.
PRC's request to vacate the 2004 Framework is denied. Under the two-part vacatur test recently adopted by the Ninth Circuit, the limited nature of the NEPA error and the disruption that would be caused by a temporary return to the 2001 Framework both favor leaving the 2004 Framework in place during remand. PRC's broad request that all project decisions, licenses and permits issued under the 2004 Framework be vacated as well as enjoined is also denied. PRC falls well short of demonstrating that its members will suffer an injury-in-fact justifying such broad injunctive relief, and the equities clearly weigh in favor of allowing decisions made under the 2004 Framework to proceed unimpeded during remand.
A. The Legal Standards for Vacatur
Vacatur is a species of equitable relief and courts are not mechanically obligated to vacate agency decisions that they find invalid. As the Ninth Circuit explained in
Nat'l Wildlife Fed'n v. Espy: " Although the district court has power to do so, it is not required to set aside every unlawful agency action. The court's decision to grant or deny injunctive or declaratory relief under the APA is controlled by principles of equity." 45 F.3d 1337, 1343 (9th Cir. 1995) (emphasis added).
See also Humane Soc'y v. Locke, 626 F.3d 1040, 1053 n.7 (9th Cir. 2010) (stating that a court may remand without vacatur to allow the agency action to remain in force until the action can be considered or replaced);
Pit River Tribe v. U.S. Forest Serv., 615 F.3d 1069, 1080-81 (9th Cir. 2010) (" Our courts have long held that relief for a NEPA violation is subject to equity principles." );
Idaho Farm Bureau Fed'n v. Babbitt, 58 F.3d 1392, 1405 (9th Cir. 1995) (" [W]hen equity demands, the regulation can be left in place while the agency follows the necessary procedures." );
W. Oil and Gas Ass'n v. EPA, 633 F.2d 803, 813 (9th Cir. 1980) (" [G]uided by authorities that recognize that a reviewing court has discretion to shape an equitable remedy, we leave the challenged designations in effect." ).
Nothing in the Administrative Procedure Act, which provides the basis for this Court's review of the 2004 Framework SEIS, restricts the range of equitable remedies available to the Court, including the issuance of declaratory relief without setting aside the agency action. See 5 U.S.C. § 702 (" [n]othing herein . . . affects . . . the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground" ); 5 U.S.C. § 703 (authorizing suit for declaratory or injunctive relief).
The Ninth Circuit recently clarified the standards that should be applied when determining whether a procedurally invalid agency action should be vacated or left in place during a remand. Emphasizing that a " flawed rule need not be vacated," the Ninth Circuit held that the determination of " [w]hether 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 v. U.S. EPA (" CCAT" ), 688 F.3d 989, 992 (9th Cir. 2012) (quoting Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm'n, 988 F.2d 146, 150-51, 300 U.S.App. D.C. 198 (D.C. Cir. 1993)).
As discussed below, the record before this Court indicates that the legal flaw in the 2004 Framework SEIS is not a grave one. Vacating the 2004 Framework in the face of the Forest Service's relatively minor NEPA error, however, would have extremely disruptive consequences to both the Forest Service and the general public.
PRC asserts that in conducting any remedy analysis in the instant matter, the Court should presume vacatur is the appropriate remedy and that the Forest Service should bear the burden of demonstrating vacatur is not warranted. While the Court does not believe that PRC has identified any controlling precedent that imposes the burden of proof on Defendants, the Court concludes that even if such a burden exists, Defendants have carried that burden in this case by providing overwhelming factual evidence to support the conclusion that vacating the 2004 Framework would be inequitable under controlling Ninth Circuit law.
In addition to arguing that vacatur is the presumptive remedy under the APA, PRC also suggests that vacatur should be withheld only in situations where environmental harm is likely to flow fro vacating a flawed agency decision. This is not correct. The CCAT court made clear that in addition to weighing the environmental consequences of vacatur, courts should consider economic and other practical concerns. Id. at 994 (" If saving a snail warrants judicial restraint, so does saving the power supply." ) (internal citation omitted). In CCAT, the Ninth Circuit noted that vacatur of the challenged rule could delay the construction of a new Sentinel power plant. The Ninth Circuit reasoned that such delay would entail both environmental and economic impacts, as well as " needless and duplicative legislative effort." Id. at 993-94. Based on these consequences, the Court remanded the rule " without vacatur so that construction of Sentinel may proceed without delay." Id.
In sum, vacatur, like injunctive relief, is an equitable remedy that is only granted in particular circumstances; neither remedy issues as a matter of course upon the showing of a legal violation. And while the tests for vacatur and injunctive relief are not identical, both take into account a
balancing of the equities and involve an analysis of the likely consequences to the parties and to the public from issuing such relief. As detailed below, the facts before this Court indicate that vacatur of the 2004 Framework is not appropriate, despite the Forest Service's failure to fully comply with NEPA.
1. Vacatur of the 2004 Framework is Not Warranted
Applying the two CCAT factors here indicates that the 2004 Framework should not be vacated.
The first CCAT factor looks to " how serious the agency's errors are."
CCAT, 688 F.3d at 992. Here, the Court of Appeals faulted the Forest Service for not including a discussion of the impacts of the 2004 Framework on individual fish species. PRC, 689 F.3d at 1028. However, that merits finding does not demonstrate a serious error for several reasons. First, since both Frameworks have the same basic protective measures for aquatic species, there is no major substantive difference between the two Frameworks with regard to impacts on fish. Second, because the 2001 EIS analyzed the impacts on individual fish species from a broad range of management alternatives, within which the 2004 Framework falls, both the agency and the public were apprised of the likely programmatic consequences of the 2004 Framework on fish.
Third, because the 2004 SEIS disclosed the environmental consequences of the 2004 Framework on aquatic habitat, the SEIS provided information to the agency and public on the habitat where fish live. And, finally, to the extent that there is a deficit in analysis of impacts to fish, additional analysis can be completed at the site-specific level before any ground-disturbing actions take place that could harm fish or PRC's members. Each of these points is addressed in greater detail below.
First, because the 2004 and 2001 Frameworks have nearly identical protective measures for fish, projects issued pursuant to the 2004 Framework are not likely to result in appreciably different impacts to fish from those issued pursuant to the 2001 Framework. See SNFPA 03486 (" The proposed changes considered in the  SEIS would not alter the existing strategy, [and thus] [p]rotection of most fish would therefore be similar." ). The two Frameworks utilize virtually the same Aquatic Management Strategy (" AMS" ), Standards and Guidelines (" S& Gs" ) applicable to fish, and Best Management Practices (" BMPs" ). See SNFPA 03281; see also Kellett Decl. (ECF 177-2) at ¶ ¶ 5-7 (describing similar S& Gs related to Riparian
Conservations Areas and Critical Aquatic Refuges); Hill Decl. (ECF 177-3) at ¶ ¶ 23-33 (describing similar S& Gs related to erosion from timber harvest), Yost Decl. (ECF 177-4) at ¶ ¶ 8-12 (describing similar S& Gs related to grazing).
Additionally, in preparing the SEIS for the 2004 Framework, the Forest Service prepared a " Consistency Review" to determine the extent to which the changes proposed in the 2004 Framework would result in environmental ...