Native Ecosystem Council et al v. Krueger et al
Filing
50
ORDER denying 45 Motion to Vacate. Signed by Judge Dana L. Christensen on 12/9/2016. (ASG)
~ILED
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
DEC 0 9 2016
Clerk, U.S District Court
District Of Montana
Missoula
CV -13-167-M-DLC
NATIVE ECOSYSTEMS COUNCIL,
a nonprofit organization, ALLIANCE
FOR THE WILD ROCKIES, a
nonprofit organization,
ORDER
Plaintiffs,
vs.
FAYE KRUEGER, in her official
capacity as Regional Forester for the
United States Forest Service, Region
One; UNITED STATES FOREST
SERVICE, an agency of the U.S.
Department of Agriculture; U.S. FISH
& WILDLIFE SERVICE, an agency of
the U.S. Department of Interior,
Defendants.
Before the Court is Plaintiffs' motion to vacate this Court's order of June 4,
2014. For the reasons given below, the Court denies the motion.
BACKGROUND
On August 13, 2013, Plaintiffs initiated this matter, filing a complaint
challenging the Millie Roadside Hazard Tree Removal Project ("Millie Project")
on the Gallatin National Forest. In June of 2014, this Court considered the parties'
cross-motions for summary judgment, granting Defendants' motion and denying
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Plaintiffs'. Plaintiffs appealed to the Ninth Circuit and sought an injunction
pending appeal. Both this Court and the Ninth Circuit denied injunctive relief.
Because the Millie Project was completed while the appeal was pending, the Ninth
Circuit denied the Plaintiffs' petition as moot. See Native Ecosystems Council v.
Krueger, 649 F. App'x 614 (9th Cir. 2016).
LEGAL STANDARD
Rule 60 of the Federal Rules of Civil Procedure grants discretionary
authority to district courts to vacate an earlier order when relief is justified. "The
Rule does not particularize the factors that justify relief, but ... it provides courts
with authority adequate to enable them to vacate judgments whenever such action
is appropriate to accomplish justice ...." Liljeberg v. Health Servs. Acquisition
Corp., 486 U.S. 847, 864 (1988) (citation and internal quotation marks omitted).
DISCUSSION
Plaintiffs argue that precedent requires this Court to vacate its judgment
because their appeal was mooted by forces outside of their control. Defendants
disagree, raising two arguments: (1) that Plaintiffs forfeited their claim to vacatur
by abandoning their arguments on appeal; and (2) that they cannot demonstrate
that hardship will arise in the absence ofvacatur.
The Supreme Court has described vacatur as an "extraordinary remedy"
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available only to a petitioner that meets its burden of demonstrating that the
equities tip in its favor. US. Bancorp Mortg. Co. v. Bonner Mall P'ship, 513 U.S.
18, 26 (1994). Nonetheless, the "established practice" in the Ninth Circuit is to
vacate an earlier decision when a case is mooted on appeal because vacatur
"eliminates a judgment the loser was stopped from opposing on direct review."
NASD Dispute Resolution, Inc. v. Judicial Council of Cal., 488 F.3d 1065, 1068
(9th Cir. 2007) (citations and internal quotation marks omitted).
"[T]he touchstone ofvacatur is equity." Dilley v. Gunn, 64 F.3d 1365, 1370
(9th Cir. 1995). The balance of equities tips in favor of the party seeking vacatur
when mootness occurs through "happenstance" or "results from unilateral action
of the party who prevailed below." Id. (citations and internal quotation marks
omitted). On the other hand, the earlier order should stand where "the losing party
has voluntarily forfeited his legal remedy by the ordinary processes of appeal or
certiorari, thereby surrendering his claim to the equitable remedy of vacatur. The
judgment is not unreviewable, but simply unreviewed by his own choice." US.
Bancorp, 513 U.S. at 25.
Here, the parties agree that the Millie Project was completed before
Plaintiffs' appeal was heard and that the Ninth Circuit determined that the case
was mooted by the project's completion. They diverge on another point-whether
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Plaintiffs waived their right to seek vacatur by raising issues on appeal different
from those decided by this Court. Defendants argue-and Plaintiffs do not
dispute-that Plaintiffs did not appeal this Court's determination of the merits of
their claims brought under NEPA and that Plaintiffs' BSA claims were grounded
in a different theory on appeal.
By raising entirely new issues on appeal, Plaintiffs "voluntarily forfeited
[their] legal remedy by the ordinary processes of appeal ...." US. Bancorp, 513
U.S. at 25. Under Ninth Circuit precedent, where the party seeking vacatur bears
some responsibility for mootness, the decision whether to vacate lies firmly within
this Court's discretion. Am. Games, Inc. v. Trade Prods., Inc., 142 F.3d 1164,
1169-70 (9th Cir. 1998). The appropriate test is "whether to vacate the injunction
in light of 'the consequences and attendant hardships of dismissal or refusal to
dismiss' and the 'competing values of finality of judgment and right to relitigation
of unreviewed disputes."' Dilley, 64 F .3d at 13 71 (quoting Rings by Truck Lines,
Inc. v. W. Conference of Teamsters, 686 F.2d 720, 722 (9th Cir. 1982)).
Plaintiffs have not demonstrated that vacatur is necessary to avoid hardship.
They argue that this Court's 2014 order should not stand because it does not
consider Cottonwood Environmental Law Center v. USFS, which the Ninth Circuit
decided in 2015. 780 F.3d 1075 (9th Cir. 2015). Additionally, they claim that
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hardship exists because the government has cited to the June 4, 2012 order to
support its arguments in another case. See Alliance for the Wild Rockies v.
Marten, CV-16-35-M-DWM, Fed. Defs.' Opp. To Pls.' Mot. for a Prelim. Inj. 16
(July 6, 2016) (stating that "this Court has upheld the Forest Service's
determination that hazard tree removal within 150 feet of a road qualified as
'maint[aining] roads, trails, and landline boundaries."').
Plaintiffs have not demonstrated the existence or likelihood of hardship.
Their claim is essentially that they are injured by this Court's order because it was
decided in favor of the government. However, the order has little to no continued
effect on Plaintiffs. The project is entirely completed, and the order does not, for
example, require Plaintiffs' continued compliance with an injunction or their
payment of attorneys fees. See, e.g., Dilley, 64 F.3d at 1371-72; Chafin v. Chafin,
133 S. Ct. 1017, 1026 (2013). In fact, it is not even controlling precedent. See
Camreta v. Greene, 563 U.S. 692, 709 n. 7 (2011) (citing 18 J. Moore et al.,
Moore's Federal Practice§ 134.02(1)(d) 134-36 (3d ed. 2011)) ("A decision of a
federal district court judge is not binding precedent in either a different judicial
district, the same judicial district, or even upon the same judge in a different
case."). If there were, as Plaintiffs hint, some inconsistency with the Ninth
Circuit's opinion in Cottonwood, then Cottonwood would apply. Further,
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Plaintiffs, by changing their arguments on appeal, forfeited their right to contest
the merits of the order.
Additionally, Plaintiffs "right to relitigation of unreviewed disputes" does
not outweigh "the competing value[ ] of finality of judgment .... " Rings by Truck
Lines, 686 F.2d at 722. The Millie Project has been completed, and Plaintiffs'
claims cannot be relitigated. Nothing in this Court's 2014 order may operate to
bar further litigation stemming from new projects, and nothing in the order will be
determinative of other controversies. Plaintiffs have not met their burden of
showing that the equities weigh in favor of vacatur.
IT IS ORDERED that Plaintiffs' Motion to Vacate (Doc. 45) is DENIED.
Dated this '\'""day of December, 20
{.~
Dana L. Christensen, Chief Judge
United States District Court
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