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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CONSERVATION CONGRESS, 12 Plaintiff, 13 14 15 v. 18 19 2:13-cv-01977-JAM-DB FINAL JUDGMENT UNITED STATES FOREST SERVICE, and UNITED STATES FISH AND WILDLIFE SERVICE, 16 17 No. Defendants, and TRINITY RIVER LUMBER COMPANY, Defendant Intervenor. 20 21 On February 17, 2017, the Court entered its Order on the 22 Motions for Summary Judgment (“Merits Order”). ECF No. 121. The 23 Court granted Federal Defendants’ and Intervenor’s Motions with 24 respect to the Second, Third, Fifth, Sixth, Seventh, Eighth, and 25 Ninth Claims for Relief and the Supplemental Complaint and denied 26 Plaintiff’s Motion with respect to those claims. 27 granted Plaintiff’s Motion with respect to the First and Fourth 28 Claims for Relief. The Court The Court then ordered supplemental briefing 1 1 on the appropriate remedy in this case and held a hearing on this 2 issue on May 16, 2017. 3 briefs for the original and supplemental motions, the evidence 4 submitted therewith, as well as the proposed orders, and is fully 5 advised. 6 and conclusions contained in the Merits Order. The Court has reviewed the parties’ This Judgment Order incorporates the facts, reasoning, 7 I. Remand 8 The Court’s Merits Order found the Forest Service violated 9 the National Environmental Policy Act (NEPA), for which the 10 presumptive remedy is a remand to the agency for additional 11 explanation or investigation. 12 470 U.S. 729, 744 (1985). 13 Court agrees, that a remand to the agency is appropriate. 14 No. 125 at 1; ECF No. 129 at 2-3; ECF No. 130 at 23. 15 Instructions on remand are included under “Final Judgment,” 16 infra. Fla. Power & Light Co. v. Lorion, The parties do not dispute, and the ECF 17 II. Vacatur 18 Whether to vacate an agency action “depends on how serious 19 the agency’s errors are ‘and the disruptive consequences of an 20 interim change that may itself be changed.’” 21 Toxics v. U.S. E.P.A., 688 F.3d 989, 992 (9th Cir. 2012) (quoting 22 Allied–Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d 23 146, 150-51 (D.C. Cir. 1993)). 24 Cal. Cmtys. Against The Court finds that vacatur of the Smokey Project Decision 25 Notice/Finding of No Significant Impact (DN/FONSI) is not 26 warranted. 27 its NEPA obligations; Plaintiff lost its Motion for Summary 28 Judgment on the majority of its claims. On the whole, the Court found that USFS complied with 2 Two of the deficiencies 1 the Court found—the unclear LOPs and failure to address past 2 monitoring efforts—were not, in these circumstances, serious 3 errors. 4 have an opportunity to respond to the supplemental documents. 5 See Cal. Cmtys. Against Toxics, 688 F.3d at 993 (“[A]ny 6 disadvantage petitioners suffered can be corrected on remand when 7 they will have an opportunity to comment meaningfully on the 8 documents.”). 9 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. 10 E.P.A., 806 F.3d 520, 532 (9th Cir. 2015) (“We have also looked 11 at whether the agency would likely be able to offer better 12 reasoning or whether by complying with procedural rules, it could 13 adopt the same rule on remand, or whether such fundamental flaws 14 in the agency’s decision make it unlikely that the same rule 15 would be adopted on remand.”). 16 The Court does view the failure to consider a large diameter 17 cap as a serious error. However, vacatur is subject to equitable 18 considerations and the Court does not find it just to vacate the 19 entire decision—which was largely supported by the administrative 20 record—on this basis. 21 F.3d at 532 (quoted above); Sierra Forest Legacy v. Sherman, 951 22 F. Supp. 2d 1100, 1106 (E.D. Cal. 2013) (“[T]he determination of 23 when to remand without vacatur should not be limited to 24 situations where it is necessary to avoid environmental harm, but 25 should instead be based on a broader examination of the 26 equities.”); Cal. Cmtys. Against Toxics, 688 F.3d at 993 (“A 27 flawed rule need not be vacated. 28 the regulation can be left in place while the agency follows the See Pollinator Stewardship Council, 806 Indeed, when equity demands, 3 1 necessary procedures to correct its action.”) (citations 2 omitted). 3 remedy tailored to the facts of this case and the Court’s Merits 4 Order is the more equitable and just result. The broad consequences of vacatur are unwarranted. 5 III. Injunctive Relief 6 A A plaintiff seeking injunctive relief to remedy a NEPA 7 violation must demonstrate: (1) that it has suffered an 8 irreparable injury; (2) that remedies available at law, such as 9 monetary damages, are inadequate to compensate for that injury; 10 (3) that, considering the balance of hardships between the 11 plaintiff and defendant, a remedy in equity is warranted; and 12 (4) that the public interest would not be disserved by a 13 permanent injunction. 14 U.S. 139, 156–57 (2010). 15 Monsanto Co. v. Geertson Seed Farms, 561 Although an injunction is a drastic remedy and generally 16 disfavored where vacatur is sufficient to redress a plaintiff’s 17 injury, see Monsanto Co., 561 U.S. at 165–66, a tailored 18 injunction is the appropriate remedy in these circumstances. 19 noted above, the failure to address or consider a large diameter 20 cap was a serious error. 21 analysis “is the heart of the environmental impact statement.”); 22 Merits Order at 31-37. 23 of large diameter trees while the agency corrects the NEPA 24 analysis will address this deficiency and ensure that the Project 25 does not proceed in a manner that precludes the possibility of 26 the agency adopting a diameter cap. 27 the agency’s error while also permitting some progress on the 28 Project in the interim. As See 40 C.F.R. § 1502.14 (Alternatives An injunction that prevents the removal 4 This outcome accounts for 1 The Court finds that absent a narrow injunction Plaintiff 2 will suffer an irreparable injury not compensable by monetary 3 damages. 4 adequately remedied by money damages and is often permanent or at 5 least of long duration, i.e., irreparable.” 6 Def. v. Connaughton, 752 F.3d 755, 764–65 (9th Cir. 2014). 7 felling of the large diameter trees cannot be remedied easily if 8 at all. 9 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 10 Court acknowledges that, as Defendants and Intervenor argue, 11 Plaintiffs have not established that cutting those trees will 12 result in irreparable harm to the northern spotted owl. 13 contrary finding could not flow from the Court’s conclusion that 14 the decision not to prepare an EIS was not arbitrary or 15 capricious. 16 satisfied that the irreparable harm prong is met by the 17 procedural harm Plaintiff suffered coupled with the permanent 18 removal of trees that may be unnecessary to achieve the Project’s 19 purpose and need. 20 2014 WL 5313943, at *20–22 (C.D. Cal. Sep. 12, 2014) 21 (“[P]rocedural harm is insufficient by itself to warrant an 22 injunction.”) (finding irreparable harm where agency failed to 23 adequately address alternative constructive methods; construction 24 would preclude later use of the plaintiffs' preferred 25 alternative, construction would be disruptive, and plaintiffs 26 would be denied an opportunity to participate in a meaningful 27 NEPA process). 28 judgment motions and that submitted with the supplemental briefs, Merits Order at 24–28. A Instead, the Court is See Today’s IV, Inc. v. Fed. Transit Admin, Between the evidence submitted on the summary 5 1 the irreparable harm prong is met. 2 (Declarations of Conservation Congress members); ECF No. 125-1, 3 2, 4, & 5 (Supplemental Declarations). 4 See ECF No. 103-1, 2, & 3 The balance of the hardships and public interest support a 5 narrow injunction. The injunction will address Plaintiff’s 6 interests in seeing the agency consider (briefly or in detail) a 7 large diameter cap and receiving an opportunity to participate in 8 that analysis. 9 seeing the Project move forward are accounted for in the narrow The Defendants’ and Intervenor’s interests in 10 scope of the injunction. 11 injunction once USFS satisfies its NEPA obligations. A narrow 12 injunction also accounts for the public’s interest. The Court 13 makes no finding with respect to the competing accounts of 14 whether the removal of large trees will abate fire risk. 15 However, in the absence of an imminent threat and because the 16 Project may proceed in limited form, the public’s interest in 17 requiring agencies to follow NEPA procedures and make well- 18 informed decisions in managing the nation’s forests favors 19 injunctive relief. 20 The parties may apply to dissolve the There is a concern, however, that an injunction imposing an 21 18 inch dbh diameter cap will hurt the Project’s economic 22 viability and effectively halt all operations this year. 23 Taylor Decl., ECF No. 131; Williams Decl., ECF No. 129-1. 24 Defendants submitted evidence that USFS is presently considering 25 diameter caps of 18, 20, and 24 inches and—based on preliminary 26 analysis and assuming the Project’s other parameters stay the 27 same—has found that an 18 inch cap would drastically reduce the 28 timber volume. Williams Decl. at ¶¶ 28–31. 6 See Increasing the 1 diameter cap by 2 inches is expected to increase the number of 2 acres treated from 18 acres to 246 acres and the timber produced 3 from 3,189 CCF to 4,368 CCF. 4 Although the Court cannot determine that this difference is 5 sufficient to ameliorate the economic harm Intervenor is 6 concerned with, a 20 inch dbh diameter cap should at least afford 7 Defendants and Intervenor more leeway in finding ways to move 8 forward with the Project while USFS completes the NEPA analysis. 9 At the May 16, 2017 hearing, Defendants and Intervenor also Williams Decl. at ¶¶ 28–31. 10 indicated that if the Court were to grant limited injunctive 11 relief, they preferred a 20 inch dbh cap over an 18 inch dbh cap. 12 IV. Final Judgment 13 Based on the foregoing, the Court remands the Project to 14 USFS. 15 issuing instructions on remand, the parties each proposed 16 instructions which were discussed in detail at the hearing. 17 Based on those recommendations the Court instructs as follows: 18 ECF No. 121. 1. Although courts typically refrain from USFS shall prepare supplemental NEPA analysis that 19 cures the NEPA violations identified in the Court’s Merits Order 20 and complies with the applicable statutes; 21 2. Should USFS conclude that no EIS is required, USFS 22 shall circulate the analysis and draft revised DN/FONSI to the 23 public; 24 3. USFS shall accept objections for a 20-day period from 25 any party eligible to object under 36 C.F.R. § 218.5 (USFS is not 26 required to accept public comment during remand other than during 27 the objection period specified herein); and 28 4. USFS shall complete its supplemental NEPA documentation 7 1 2 and public involvement process no later than December 1, 2017. The Court further orders that Defendants and Intervenor are 3 enjoined from removing any trees with 20 inches dbh or greater in 4 implementing the Project. 5 dissolve this limited injunction upon a showing that USFS has 6 complied with this Court’s Order and satisfied its obligations 7 under NEPA. 8 USFS to cancel its contract with Intervenor. 9 10 The Court will retain jurisdiction to The Court declines to vacate the DN/FONSI or require IT IS SO ORDERED. Dated: May 26, 2017 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8

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