Conservation Congress v. United States Forest Service et al

Filing 142

FINAL JUDGMENT signed by District Judge John A. Mendez on 5/26/2017. CASE CLOSED. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CONSERVATION CONGRESS,

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Plaintiff,

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v.

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2:13-cv-01977-JAM-DB

FINAL JUDGMENT

UNITED STATES FOREST SERVICE,
and UNITED STATES FISH AND
WILDLIFE SERVICE,

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No.

Defendants,
and
TRINITY RIVER LUMBER COMPANY,
Defendant
Intervenor.

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On February 17, 2017, the Court entered its Order on the

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Motions for Summary Judgment (“Merits Order”).

ECF No. 121.

The

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Court granted Federal Defendants’ and Intervenor’s Motions with

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respect to the Second, Third, Fifth, Sixth, Seventh, Eighth, and

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Ninth Claims for Relief and the Supplemental Complaint and denied

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Plaintiff’s Motion with respect to those claims.

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granted Plaintiff’s Motion with respect to the First and Fourth

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Claims for Relief.

The Court

The Court then ordered supplemental briefing
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on the appropriate remedy in this case and held a hearing on this

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issue on May 16, 2017.

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briefs for the original and supplemental motions, the evidence

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submitted therewith, as well as the proposed orders, and is fully

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advised.

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and conclusions contained in the Merits Order.

The Court has reviewed the parties’

This Judgment Order incorporates the facts, reasoning,

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I.

Remand

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The Court’s Merits Order found the Forest Service violated

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the National Environmental Policy Act (NEPA), for which the

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presumptive remedy is a remand to the agency for additional

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explanation or investigation.

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470 U.S. 729, 744 (1985).

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Court agrees, that a remand to the agency is appropriate.

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No. 125 at 1; ECF No. 129 at 2-3; ECF No. 130 at 23.

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Instructions on remand are included under “Final Judgment,”

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infra.

Fla. Power & Light Co. v. Lorion,

The parties do not dispute, and the
ECF

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II.

Vacatur

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Whether to vacate an agency action “depends on how serious

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the agency’s errors are ‘and the disruptive consequences of an

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interim change that may itself be changed.’”

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Toxics v. U.S. E.P.A., 688 F.3d 989, 992 (9th Cir. 2012) (quoting

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Allied–Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d

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146, 150-51 (D.C. Cir. 1993)).

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Cal. Cmtys. Against

The Court finds that vacatur of the Smokey Project Decision

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Notice/Finding of No Significant Impact (DN/FONSI) is not

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warranted.

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its NEPA obligations; Plaintiff lost its Motion for Summary

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Judgment on the majority of its claims.

On the whole, the Court found that USFS complied with

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Two of the deficiencies

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the Court found—the unclear LOPs and failure to address past

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monitoring efforts—were not, in these circumstances, serious

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errors.

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have an opportunity to respond to the supplemental documents.

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See Cal. Cmtys. Against Toxics, 688 F.3d at 993 (“[A]ny

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disadvantage petitioners suffered can be corrected on remand when

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they will have an opportunity to comment meaningfully on the

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documents.”).

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design or decision.

The flaws will be cured on remand and Plaintiff will

The changes are unlikely to affect the project
See Pollinator Stewardship Council v. U.S.

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E.P.A., 806 F.3d 520, 532 (9th Cir. 2015) (“We have also looked

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at whether the agency would likely be able to offer better

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reasoning or whether by complying with procedural rules, it could

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adopt the same rule on remand, or whether such fundamental flaws

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in the agency’s decision make it unlikely that the same rule

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would be adopted on remand.”).

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The Court does view the failure to consider a large diameter

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cap as a serious error.

However, vacatur is subject to equitable

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considerations and the Court does not find it just to vacate the

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entire decision—which was largely supported by the administrative

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record—on this basis.

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F.3d at 532 (quoted above); Sierra Forest Legacy v. Sherman, 951

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F. Supp. 2d 1100, 1106 (E.D. Cal. 2013) (“[T]he determination of

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when to remand without vacatur should not be limited to

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situations where it is necessary to avoid environmental harm, but

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should instead be based on a broader examination of the

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equities.”); Cal. Cmtys. Against Toxics, 688 F.3d at 993 (“A

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flawed rule need not be vacated.

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the regulation can be left in place while the agency follows the

See Pollinator Stewardship Council, 806

Indeed, when equity demands,

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necessary procedures to correct its action.”) (citations

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omitted).

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remedy tailored to the facts of this case and the Court’s Merits

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Order is the more equitable and just result.

The broad consequences of vacatur are unwarranted.

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III. Injunctive Relief

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A plaintiff seeking injunctive relief to remedy a NEPA

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violation must demonstrate: (1) that it has suffered an

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irreparable injury; (2) that remedies available at law, such as

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monetary damages, are inadequate to compensate for that injury;

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(3) that, considering the balance of hardships between the

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plaintiff and defendant, a remedy in equity is warranted; and

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(4) that the public interest would not be disserved by a

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permanent injunction.

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U.S. 139, 156–57 (2010).

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Monsanto Co. v. Geertson Seed Farms, 561

Although an injunction is a drastic remedy and generally

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disfavored where vacatur is sufficient to redress a plaintiff’s

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injury, see Monsanto Co., 561 U.S. at 165–66, a tailored

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injunction is the appropriate remedy in these circumstances.

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noted above, the failure to address or consider a large diameter

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cap was a serious error.

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analysis “is the heart of the environmental impact statement.”);

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Merits Order at 31-37.

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of large diameter trees while the agency corrects the NEPA

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analysis will address this deficiency and ensure that the Project

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does not proceed in a manner that precludes the possibility of

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the agency adopting a diameter cap.

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the agency’s error while also permitting some progress on the

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Project in the interim.

As

See 40 C.F.R. § 1502.14 (Alternatives

An injunction that prevents the removal

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This outcome accounts for

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The Court finds that absent a narrow injunction Plaintiff

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will suffer an irreparable injury not compensable by monetary

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damages.

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adequately remedied by money damages and is often permanent or at

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least of long duration, i.e., irreparable.”

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Def. v. Connaughton, 752 F.3d 755, 764–65 (9th Cir. 2014).

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felling of the large diameter trees cannot be remedied easily if

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at all.

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incorrect in law, cannot be remedied easily if at all.”).

“[E]nvironmental injury, by its nature, can seldom be

League of Wilderness
The

See id. (“The logging of mature trees, if indeed
The

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Court acknowledges that, as Defendants and Intervenor argue,

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Plaintiffs have not established that cutting those trees will

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result in irreparable harm to the northern spotted owl.

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contrary finding could not flow from the Court’s conclusion that

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the decision not to prepare an EIS was not arbitrary or

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capricious.

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satisfied that the irreparable harm prong is met by the

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procedural harm Plaintiff suffered coupled with the permanent

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removal of trees that may be unnecessary to achieve the Project’s

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purpose and need.

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2014 WL 5313943, at *20–22 (C.D. Cal. Sep. 12, 2014)

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(“[P]rocedural harm is insufficient by itself to warrant an

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injunction.”) (finding irreparable harm where agency failed to

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adequately address alternative constructive methods; construction

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would preclude later use of the plaintiffs' preferred

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alternative, construction would be disruptive, and plaintiffs

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would be denied an opportunity to participate in a meaningful

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NEPA process).

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judgment motions and that submitted with the supplemental briefs,

Merits Order at 24–28.

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Instead, the Court is

See Today’s IV, Inc. v. Fed. Transit Admin,

Between the evidence submitted on the summary

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the irreparable harm prong is met.

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(Declarations of Conservation Congress members); ECF No. 125-1,

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2, 4, & 5 (Supplemental Declarations).

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See ECF No. 103-1, 2, & 3

The balance of the hardships and public interest support a

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narrow injunction.

The injunction will address Plaintiff’s

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interests in seeing the agency consider (briefly or in detail) a

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large diameter cap and receiving an opportunity to participate in

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that analysis.

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seeing the Project move forward are accounted for in the narrow

The Defendants’ and Intervenor’s interests in

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scope of the injunction.

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injunction once USFS satisfies its NEPA obligations.

A narrow

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injunction also accounts for the public’s interest.

The Court

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makes no finding with respect to the competing accounts of

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whether the removal of large trees will abate fire risk.

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However, in the absence of an imminent threat and because the

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Project may proceed in limited form, the public’s interest in

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requiring agencies to follow NEPA procedures and make well-

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informed decisions in managing the nation’s forests favors

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injunctive relief.

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The parties may apply to dissolve the

There is a concern, however, that an injunction imposing an

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18 inch dbh diameter cap will hurt the Project’s economic

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viability and effectively halt all operations this year.

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Taylor Decl., ECF No. 131; Williams Decl., ECF No. 129-1.

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Defendants submitted evidence that USFS is presently considering

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diameter caps of 18, 20, and 24 inches and—based on preliminary

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analysis and assuming the Project’s other parameters stay the

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same—has found that an 18 inch cap would drastically reduce the

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timber volume.

Williams Decl. at ¶¶ 28–31.
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See

Increasing the

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diameter cap by 2 inches is expected to increase the number of

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acres treated from 18 acres to 246 acres and the timber produced

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from 3,189 CCF to 4,368 CCF.

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Although the Court cannot determine that this difference is

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sufficient to ameliorate the economic harm Intervenor is

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concerned with, a 20 inch dbh diameter cap should at least afford

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Defendants and Intervenor more leeway in finding ways to move

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forward with the Project while USFS completes the NEPA analysis.

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At the May 16, 2017 hearing, Defendants and Intervenor also

Williams Decl. at ¶¶ 28–31.

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indicated that if the Court were to grant limited injunctive

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relief, they preferred a 20 inch dbh cap over an 18 inch dbh cap.

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IV.

Final Judgment

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Based on the foregoing, the Court remands the Project to

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USFS.

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issuing instructions on remand, the parties each proposed

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instructions which were discussed in detail at the hearing.

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Based on those recommendations the Court instructs as follows:

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ECF No. 121.

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Although courts typically refrain from

USFS shall prepare supplemental NEPA analysis that

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cures the NEPA violations identified in the Court’s Merits Order

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and complies with the applicable statutes;

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2.

Should USFS conclude that no EIS is required, USFS

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shall circulate the analysis and draft revised DN/FONSI to the

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public;

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3.

USFS shall accept objections for a 20-day period from

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any party eligible to object under 36 C.F.R. § 218.5 (USFS is not

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required to accept public comment during remand other than during

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the objection period specified herein); and

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4.

USFS shall complete its supplemental NEPA documentation
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and public involvement process no later than December 1, 2017.
The Court further orders that Defendants and Intervenor are

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enjoined from removing any trees with 20 inches dbh or greater in

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implementing the Project.

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dissolve this limited injunction upon a showing that USFS has

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complied with this Court’s Order and satisfied its obligations

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under NEPA.

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USFS to cancel its contract with Intervenor.

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The Court will retain jurisdiction to

The Court declines to vacate the DN/FONSI or require

IT IS SO ORDERED.
Dated: May 26, 2017

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