United States District Court, E.D. California
A. MENDEZ, UNITED STATES DISTRICT JUDGE.
February 17, 2017, the Court entered its Order on the Motions
for Summary Judgment (“Merits Order”). ECF No.
121. The Court granted Federal Defendants' and
Intervenor's Motions with respect to the Second, Third,
Fifth, Sixth, Seventh, Eighth, and Ninth Claims for Relief
and the Supplemental Complaint and denied Plaintiff's
Motion with respect to those claims. The Court granted
Plaintiff's Motion with respect to the First and Fourth
Claims for Relief. The Court then ordered supplemental
briefing on the appropriate remedy in this case and held a
hearing on this issue on May 16, 2017. The Court has reviewed
the parties' briefs for the original and supplemental
motions, the evidence submitted therewith, as well as the
proposed orders, and is fully advised. This Judgment Order
incorporates the facts, reasoning, and conclusions contained
in the Merits Order.
Court's Merits Order found the Forest Service violated
the National Environmental Policy Act (NEPA), for which the
presumptive remedy is a remand to the agency for additional
explanation or investigation. Fla. Power & Light Co.
v. Lorion, 470 U.S. 729, 744 (1985). The parties do not
dispute, and the Court agrees, that a remand to the agency is
appropriate. ECF No. 125 at 1; ECF No. 129 at 2-3; ECF No.
130 at 23. Instructions on remand are included under
“Final Judgment, ” infra.
to vacate an agency action “depends on how serious the
agency's errors are ‘and the disruptive
consequences of an interim change that may itself be
changed.'” Cal. Cmtys. Against Toxics v. U.S.
E.P.A., 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 (D.C. Cir. 1993)).
Court finds that vacatur of the Smokey Project Decision
Notice/Finding of No Significant Impact (DN/FONSI) is not
warranted. On the whole, the Court found that USFS complied
with its NEPA obligations; Plaintiff lost its Motion for
Summary Judgment on the majority of its claims. Two of the
deficiencies the Court found-the unclear LOPs and failure to
address past monitoring efforts-were not, in these
circumstances, serious errors. The flaws will be cured on
remand and Plaintiff will have an opportunity to respond to
the supplemental documents. See Cal. Cmtys. Against
Toxics, 688 F.3d at 993 (“[A]ny disadvantage
petitioners suffered can be corrected on remand when they
will have an opportunity to comment meaningfully on the
documents.”). The changes are unlikely to affect the
project design or decision. See Pollinator Stewardship
Council v. U.S. E.P.A., 806 F.3d 520, 532 (9th Cir.
2015) (“We have also looked at whether the agency would
likely be able to offer better reasoning or whether by
complying with procedural rules, it could adopt the same rule
on remand, or whether such fundamental flaws in the
agency's decision make it unlikely that the same rule
would be adopted on remand.”).
Court does view the failure to consider a large diameter cap
as a serious error. However, vacatur is subject to equitable
considerations and the Court does not find it just to vacate
the entire decision-which was largely supported by the
administrative record-on this basis. See Pollinator
Stewardship Council, 806 F.3d at 532 (quoted above);
Sierra Forest Legacy v. Sherman, 951 F.Supp.2d 1100,
1106 (E.D. Cal. 2013) (“[T]he determination of when to
remand without vacatur should not be limited to situations
where it is necessary to avoid environmental harm, but should
instead be based on a broader examination of the
equities.”); Cal. Cmtys. Against Toxics, 688
F.3d at 993 (“A flawed rule need not be vacated.
Indeed, when equity demands, the regulation can be left in
place while the agency follows the necessary procedures to
correct its action.”) (citations omitted). The broad
consequences of vacatur are unwarranted. A remedy tailored to
the facts of this case and the Court's Merits Order is
the more equitable and just result.
plaintiff seeking injunctive relief to remedy a NEPA
violation must demonstrate: (1) that it has suffered an
irreparable injury; (2) that remedies available at law, such
as monetary damages, are inadequate to compensate for that
injury; (3) that, considering the balance of hardships
between the plaintiff and defendant, a remedy in equity is
warranted; and (4) that the public interest would not be
disserved by a permanent injunction. Monsanto Co. v.
Geertson Seed Farms, 561 U.S. 139, 156-57 (2010).
an injunction is a drastic remedy and generally disfavored
where vacatur is sufficient to redress a plaintiff's
injury, see Monsanto Co., 561 U.S. at 165-66, a
tailored injunction is the appropriate remedy in these
circumstances. As noted above, the failure to address or
consider a large diameter cap was a serious error.
See 40 C.F.R. § 1502.14 (Alternatives analysis
“is the heart of the environmental impact
statement.”); Merits Order at 31-37. An injunction that
prevents the removal of large diameter trees while the agency
corrects the NEPA analysis will address this deficiency and
ensure that the Project does not proceed in a manner that
precludes the possibility of the agency adopting a diameter
cap. This outcome accounts for the agency's error while
also permitting some progress on the Project in the interim.
Court finds that absent a narrow injunction Plaintiff will
suffer an irreparable injury not compensable by monetary
damages. “[E]nvironmental injury, by its nature, can
seldom be adequately remedied by money damages and is often
permanent or at least of long duration, i.e.,
irreparable.” League of Wilderness Def. v.
Connaughton, 752 F.3d 755, 764-65 (9th Cir. 2014). The
felling of the large diameter trees cannot be remedied easily
if at all. See id. (“The logging of mature
trees, if indeed incorrect in law, cannot be remedied easily
if at all.”). The Court acknowledges that, as
Defendants and Intervenor argue, Plaintiffs have not
established that cutting those trees will result in
irreparable harm to the northern spotted owl. A contrary
finding could not flow from the Court's conclusion that
the decision not to prepare an EIS was not arbitrary or
capricious. Merits Order at 24-28. Instead, the Court is
satisfied that the irreparable harm prong is met by the
procedural harm Plaintiff suffered coupled with the permanent
removal of trees that may be unnecessary to achieve the
Project's purpose and need. See Today's IV, Inc.
v. Fed. Transit Admin, 2014 WL 5313943, at *20-22 (C.D.
Cal. Sep. 12, 2014) (“[P]rocedural harm is insufficient
by itself to warrant an injunction.”) (finding
irreparable harm where agency failed to adequately address
alternative constructive methods; construction would preclude
later use of the plaintiffs' preferred alternative,
construction would be disruptive, and plaintiffs would be
denied an opportunity to participate in a meaningful NEPA
process). Between the evidence submitted on the summary
judgment motions and that submitted with the supplemental
briefs, the irreparable harm prong is met. See ECF
No. 103-1, 2, & 3 (Declarations of Conservation Congress
members); ECF No. 125-1, 2, 4, & 5 (Supplemental
balance of the hardships and public interest support a narrow
injunction. The injunction will address Plaintiff's
interests in seeing the agency consider (briefly or in
detail) a large diameter cap and receiving an opportunity to
participate in that analysis. The Defendants' and
Intervenor's interests in seeing the Project move forward
are accounted for in the narrow scope of the injunction. The
parties may apply to dissolve the injunction once USFS
satisfies its NEPA obligations. A narrow injunction also
accounts for the public's interest. The Court makes no
finding with respect to the competing accounts of whether the
removal of large trees will abate fire risk. However, in the
absence of an imminent threat and because the Project may
proceed in limited form, the public's interest in
requiring agencies to follow NEPA procedures and make
well-informed decisions in managing the nation's forests
favors injunctive relief.
is a concern, however, that an injunction imposing an 18 inch
dbh diameter cap will hurt the Project's economic
viability and effectively halt all operations this year.
See Taylor Decl., ECF No. 131; Williams Decl., ECF
No. 129-1. Defendants submitted evidence that USFS is
presently considering diameter caps of 18, 20, and 24 inches
and-based on preliminary analysis and assuming the
Project's other parameters stay the same-has found that
an 18 inch cap would drastically reduce the timber volume.
Williams Decl. at ¶¶ 28-31. Increasing the diameter
cap by 2 inches is expected to increase the number of acres
treated from 18 acres to 246 acres and the timber produced
from 3, 189 CCF to 4, 368 CCF. Williams Decl. at ¶¶
28-31. Although the Court cannot determine that this
difference is sufficient to ameliorate the economic harm
Intervenor is concerned with, a 20 inch dbh diameter cap
should at least afford Defendants and Intervenor more leeway
in finding ...