PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY v. UNITED STATES FISH AND WILDLIFE SERVICE et al

Filing 40

MEMORANDUM OPINION ON VACATUR. See text for details. Signed by Judge John D. Bates on 5/25/16. (lcjdb1) Modified on 5/25/2016 (tb).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

PUBLIC EMPLOYEES FOR
ENVIRONMENTAL RESPONSIBILITY,
et al.,
Plaintiffs,
v.

Civil Action No. 14-1807 (JDB)

UNITED STATES FISH AND WILDLIFE
SERVICE, et al.,
Defendants.

MEMORANDUM OPINION ON VACATUR
On October 29, 2014, plaintiffs Ken Stromborg, Bill Koonz, James Ludwig, Mark
Tweedale, Dennis Wild, and Public Employees for Environmental Responsibility (collectively,
PEER) brought suit against the Fish and Wildlife Service and FWS Director Daniel M. Ashe
(collectively, FWS) to challenge the Service’s extension of two depredation orders that authorize
commercial freshwater aquaculture producers and states and tribes to kill double-crested
cormorants. See 50 C.F.R. §§ 21.47, 21.48. On March 29, 2016, the Court granted plaintiffs’
motion for summary judgment on their National Environmental Policy Act (“NEPA”) claims and
remanded the depredation orders to FWS. The same day, the Court ordered FWS to submit a
proposed remediation plan and any comments on the injunctive relief sought by PEER. PEER was
directed to file a response to the proposed plans. The issue of remedy is now ripe and before the
Court.

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ANALYSIS
The remedy for plaintiffs’ NEPA claim is governed by the Administrative Procedure Act,
which 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.” 5 U.S.C. § 706(2)(A) (emphasis added); see Citizens to Preserve Overton
Park, Inc. v. Volpe, 401 U.S. 402, 413–14 (1971) (“In all cases agency action must be set aside if
the action was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law’ or if the action failed to meet statutory, procedural, or constitutional requirements.”). The
Court, however, is not without discretion: “The decision whether to vacate depends on the
seriousness of the order’s deficiencies . . . and the disruptive consequences of an interim change
that may itself be changed.” Allied–Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d
146, 150–51 (D.C. Cir. 1993) (internal quotation marks omitted). Still, in this district, “vacating
a rule or action promulgated in violation of NEPA is the standard remedy.” Humane Soc’y of U.S.
v. Johanns, 520 F. Supp. 2d 8, 37 (D.D.C. 2007); see Realty Income Tr. v. Eckerd, 564 F.2d 447,
456 (D.C. Cir. 1977) (“[W]hen an action is being undertaken in violation of NEPA, there is a
presumption that injunctive relief should be granted against continuation of the action until the
agency brings itself into compliance.”).
A review of NEPA cases in this district bears out the primacy of vacatur to remedy NEPA
violations. See Reed v. Salazar, 744 F. Supp. 2d 98, 118–20 (D.D.C. 2010) (finding NEPA
violation and ordering vacatur); Sierra Club v. Van Antwerp, 719 F. Supp. 2d 77, 78–80 (D.D.C.
2010) (finding NEPA violation and ordering remand with partial vacatur); Greater Yellowstone
Coal. v. Kempthorne, 577 F. Supp. 2d 183, 204–05, 210 (D.D.C. 2008) (finding NEPA violation
and ordering vacatur); Humane Soc’y of U.S., 520 F. Supp. 2d at 37–38 (same); Greater

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Yellowstone Coal. v. Bosworth, 209 F. Supp. 2d 156, 163–64 (D.D.C. 2002) (same); cf. Bldg.
Indus. Legal Def. Found. v. Norton, 231 F. Supp. 2d 100, 101–02, 104–07 (D.D.C. 2002) (ordering
vacatur where parties agreed that FWS had violated the Endangered Species Act); Am. Oceans
Campaign v. Daley, 183 F. Supp. 2d 1, 17–21 (D.D.C. 2000) (finding NEPA violation and entering
an injunction against the enforcement of the deficient rule). And in the NEPA cases cited by
defendants, where courts ordered remand without vacatur, the courts generally did so without
explanation. See, e.g., Idaho v. Interstate Commerce Comm’n, 35 F.3d 585, 599 (D.C. Cir. 1994);
Nat’l Wildlife Fed’n v. Norton, 332 F. Supp. 2d 170, 187 (D.D.C. 2004).
Plaintiffs contend that this is not the type of case that merits departure from the presumptive
remedy of vacatur. Pls.’ Mem. [ECF No. 38] at 8–13. According to PEER, the deficiencies in the
agency’s environmental assessment (“EA”) are significant whereas the disruptive consequences
of vacatur are not. Id. at 13–19. FWS, on the other hand, believes that vacatur would indeed
“have wide-ranging detrimental impacts,” including environmental impacts, administrative
burdens on FWS, and burdens on the regulated community. Defs.’ Mem. [ECF No. 37] at 6, see
id. at 6–9. For the reasons that follow, the Court is not convinced that rescinding the orders while
FWS conducts its supplementary NEPA analysis will be so disruptive as to merit an exception
from the standard remedy of vacatur.
FWS argues that vacatur will cause “substantial disruption to the regulated community and
the Service,” as well as “significant impacts to recreational fisheries and aquaculture industry.”
Id. at 8, see id. at 8–9. Courts do consider disruptive impacts to the regulated industry in nonenvironmental cases. See, e.g., Chamber of Commerce v. SEC, 443 F.3d 890, 909 (D.C. Cir. 2006)
(considering “disruption to the mutual fund industry” if the Court were to vacate rule promulgated
by the SEC). But it is not clear that economic concerns are as relevant in an environmental case

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like this one. See Ctr. for Food Safety v. Vilsack, 734 F. Supp. 2d 948, 953 (N.D. Cal. 2010)
(expressing doubt over the propriety of considering “economic consequences . . . in environmental
cases”). NEPA’s focus is on “requiring agencies to undertake analyses of the environmental
impact of their proposals and actions.” Del. Riverkeeper Network v. FERC, 753 F.3d 1304, 1310
(D.C. Cir. 2014) (emphasis added) (internal quotation marks omitted). Absent a strong showing
by FWS that vacatur will unduly harm economic interests like aquaculture or recreational fishing,
the Court is reluctant to rely on economic disruption as the basis for denying plaintiffs the
injunctive relief they seek.
Regardless, FWS has not made a compelling case that rescission will cause significant
consequences to aquaculture because the forecasted harms are imprecise or speculative. Cf. Bldg.
Indus. Legal Def. Found., 231 F. Supp. 2d at 106 (“In assessing the ‘disruptive consequences’ of
vacatur, the Court cannot rely upon intervenors’ abstract policy arguments . . . .” (internal citation
omitted)). For example, FWS claims that “[f]isheries impacts can be in the millions of dollars”
and that “the impacts to the aquaculture could be in the millions of dollars.” Defs.’ Mem. at 8
(emphases added). Not only do these consequences sound entirely conjectural, they are also
disputed by PEER. As to the impact on the aquaculture industry, for example, PEER argues that
FWS has relied on decade old-figures from “the short-lived economic peak of the southern catfish
industry.” 2d Wild Decl. [ECF No. 38-2] ¶ 5. Further, the projection of “millions of dollars” is
based off of cormorant damage over a 20-year-period. Ford Decl. [ECF No. 37-1] ¶ 15. But the
Court sees no reason to expect such protracted consequences. FWS has represented that its
supplemental analysis under NEPA will take only seven months. Defs.’ Mem. at 11. In short,
even if the Court were inclined to rely heavily on a disruption to commercial interests, FWS’s

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position that vacatur will cause detrimental economic impacts rests on very little substance or
certainty.
Moving on to FWS’s complaints about impacts to its own operations and the “regulated
community,” the Court finds the agency’s concerns are frankly unexceptional.
If the Court were to vacate the Orders, the immediate effect would
be that activities the regulated community undertakes on a daily
basis would have to stop until a depredation permit was submitted . .
. . This reason alone provides ample rationale to leave the Orders in
place, as courts repeatedly have exercised their discretion to avoid
the vacatur of an agency action where such vacatur would cause
serious disruption of an affected industry and entities.
Id. at 8. The “activities” FWS has referenced are the killing of cormorants under the depredation
orders the Court has found wanting. If this argument were enough to carry the day, then it seems
vacatur would never be appropriate. Obviously the effect of vacatur is to stop these activities.
That “reason alone” cannot be enough.
FWS’s prediction of environmental harms is similarly abstract. “The Service estimates
that the cormorant population would increase and stabilize at a higher number . . . .” Ford Decl.
¶ 13. That seems likely. But how much higher? And would that population increase be significant
even though FWS represents that new final depredation orders can be issued in seven months?
Even assuming that the population does increase, FWS is noticeably tentative about the
consequences of that cormorant population growth. Defs.’ Mem. at 7 (“[C]ormorants may cause
habitat damage” due to increased excrement); id. (“Cormorants may also move in to areas where
they may congregate and damage vulnerable species . . . .); id. (“In some locations this may shift
predation pressure onto high conservation priority fish species.”) (all emphases added). These
noncommittal representations are not compelling. See Nat. Res. Def. Council v. EPA, 676 F.
Supp. 2d 307, 314 (S.D.N.Y. 2009) (expressing skepticism over agency’s position that vacatur

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“may cause growers to use pesticides” (emphasis in original)). And again they are countered by
PEER, which argues, for example, that studies show that cormorants shift predation to invasive
species not to important fish species. 2d Ludwig Decl. [ECF No. 38-1] ¶ 7. Hence, while FWS
may in the future be able to assemble a record that shows serious cormorant-caused environmental
damage, their proffer at this time does not persuade the Court that vacatur of the depredation orders
will cause serious environmental harm.
In fact, according to PEER, environmental harm will result if the orders are not rescinded.
It goes without saying that if these orders are left in place, additional cormorants will be killed.
Pls.’ Mem. at 19. As a result, PEER argues, certain beneficial ecosystem services that cormorants
provide will be lost. Id. PEER’s expert on colonial waterbirds James Ludwig attests that
cormorants prey principally on invasive fish species and therefore reduce “burgeoning populations
of invasive species that are known to harm sport fisheries.” 2d Ludwig Decl. ¶¶ 9a, 15. Ludwig
also states that cormorants help co-nesting species because they “help create the type of habitat in
which white pelicans—which cannot tolerate woody vegetation—thrive.” Id. ¶ 9. In sum, FWS
has not made a persuasive case that vacatur will cause detrimental environmental effects,
particularly given the countervailing evidence offered by PEER that leaving the orders in place
will have its own environmental consequences.
Moreover, if the Court were to vacate these orders, the parties agree that alternative routes
remain available for the management of cormorant populations, for example, through individual
predation permits under the Migratory Bird Treaty Act. Pls.’ Mem. at 3; Defs.’ Mem. at 8; see 50
C.F.R. § 21.41. According to FWS, “migratory bird permits could be requested and issued for the
reduction of cormorant impacts on sensitive species or their habitats (vegetation).” Ford Decl.
¶ 12. While the Court understands the limitations of relying on state management plans and

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individual permits, see Defs.’ Mem. at 8, Ford Decl. ¶¶ 12, 18–20, particularly in the long term,
the takeaway remains that any seriously detrimental impact of vacatur in the short term could be
mitigated. The availability of these alternative measures counsels in favor of vacatur. North
Carolina v. EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008) (Rogers, J., concurring in granting
rehearing) (explaining that vacatur may be appropriate when “other statutory and regulatory
measures would mitigate the disruption caused by vacating the rule”); Bldg. Indus. Legal Def.
Found., 231 F. Supp. 2d at 106 & n.5 (considering other regulatory protections that could protect
certain species if the critical habitat designation were vacated).
Finally, FWS has not seriously contested that its EA was markedly deficient. The failure
to update its analysis from the previous renewal of the orders was striking. And its examination
of alternatives was nominal at best. Therefore, the Court concludes that the appropriate remedy is
vacatur on remand until FWS performs a new and legally adequate EA or environmental impact
statement (“EIS”) for national cormorant management orders in compliance with the requirements
of NEPA. 1
The Court concludes by advising FWS to take its remediation obligations seriously. The
Service has proposed that the job can be done in seven months, during which time it will amend
its NEPA analysis, provide 30-day public comment, consider the comments, and prepare a final
EA. Defs.’ Mem. at 10–12. “At this time, FWS has no reason to believe this action, the five-year
extension of the existing Orders, will require an EIS . . . .” Id. at 11 (emphasis added). The Court

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FWS requests that in the event of vacatur, the Court “exercise its equitable discretion to stay the
effect of its order to allow the Service time to address NEPA and promulgate and issue a new rule.” Defs.’
Mem. at 12–13. While the D.C. Circuit has used this approach on occasion, see Chamber of Commerce v.
SEC, 443 F.3d 890, 909 (D.C. Cir. 2006), the cases cited by FWS show that it is generally an interim
measure used by courts where the plaintiffs agree that staying vacatur is appropriate. See Anacostia
Riverkeeper, Inc. v. EPA, 713 F. Supp. 2d 50, 55 (D.D.C. 2010); Hawaii Longling Ass’n v. Nat’l Marine
Fisheries Serv., 288 F. Supp. 2d 7, 12 (D.D.C. 2003). For the same reasons that the Court rejects FWS’s
request for remand without vacatur, the Court will not stay its order here.

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cautions FWS that one could view its proposal suspiciously. Plaintiffs have noticed that it sounds
as if a “five-year extension of the existing Orders” is once again a foregone conclusion prior to the
requisite assessment of environmental impacts and alternatives. See Pls.’ Mem. at 2. On remand,
FWS must make good on its promise to “develop reasonable alternatives that take into
consideration the approaches suggested by . . . commenters” and “consider some alternatives from
previous NEPA documents, some approaches that were suggested by commenters, and some new
alternatives.” See Defs.’ Mem. at 12; Ford Decl. ¶ 10 (listing four alternatives that FWS will
consider). The Court expects that FWS will use this consideration of alternatives to “foster
excellent action,” 40 C.F.R. § 1500.1(c), rather than as a “mere formality,” Ctr. for Food Safety,
734 F. Supp. 2d at 953. FWS must also take a hard look at the orders’ effects on cormorants by
updating its assessment framework. 2
CONCLUSION
For the foregoing reasons, the 2014 re-extensions of the Aquaculture Depredation Order,
50 C.F.R. § 21.47, and the Public Resource Depredation Order, id. § 21.48, issued by FWS in
violation of NEPA will be vacated, and the orders remanded to FWS for proceedings consistent
with this Opinion and the Court’s March 29, 2016, Opinion and Order. A separate order will issue
with this opinion.

/s/
JOHN D. BATES
United States District Judge
Dated: May 25, 2016

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PEER asks the Court to also require FWS to examine several factors that they continue to believe
were insufficiently considered in the 2014 environmental assessment. Pls.’ Mem. at 4–5. Having declined
to decide whether FWS took a “hard look” at these issues in its summary judgment opinion, the Court will
not endeavor to do so here. One would expect that, upon remand, FWS will take care not to cut corners in
its examination of the environmental impacts raised by commenters.

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