Alliance for the Wild Rockies v. Savage et al
Filing
111
ORDER denying 93 Motion for vacatur. The Court's order of July 19, 2016 is VACATED in part. The Order is vacated as to the Plaintiff's lynx-related claim.That claim is DISMISSED as moot. IT IS FURTHER ORDERED that the Project is remanded to the United States Forest Service as it relates to the construction and reclassification of roads within the Tobacco BORZ polygon. SEE ORDER FOR FURTHER DETAILS. Signed by Judge Dana L. Christensen on 3/25/2019. (ASG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
ALLIANCE FOR THE WILD
ROCKIES,
CV 15-54-M-DLC
Plaintiff,
ORDER
vs.
CHRISTOPHER SAVAGE, Kootenai
National Forest Supervisor, FAYE
KRUEGER, Regional Forester of
Region One of the U.S. Forest Service,
UNITED STATES FOREST
SERVICE, an agency of the U.S.
Department of Agriculture, and
UNITED STATES FISH &
WILDLIFE SERVICE, an agency of
the U.S. Department of the Interior,
Defendants,
and
KOOTENAI FOREST
STAKEHOLDER COALITION, a
Montana Corporation, and LINCOLN
COUNTY, a political subdivision of
the State of Montana,
Defendant-Intervenors.
Before the Court is Plaintiff Alliance for the Wild Rockies' s Motion to
Vacate Record of Decision. (Doc. 93.) The motion is opposed by the Federal
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Defendants, 1 the Defendant-Intervenors, and Amici the State of Montana and the
Kootenai Tribe of Idaho. (Docs. 104, 105, 107, & 108.) Because this case
presents the "rare circumstances" justifying remand without vacatur, the Plaintiffs
motion will be denied. Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744
(1985).
BACKGROUND
Plaintiff Alliance for the Wild Rockies ("Alliance") brought this lawsuit in
2015 to enjoin implementation of the East Reservoir Forest Restoration Project
(the "Project"). The Project affects 92,407 acres southeast of Libby, Montana,
along the east shore of Lake Koocanusa Reservoir. The Project area includes
18,428 acres of the Tobacco Bears Outside the Recovery Zone ("BORZ") polygon.
The Forest Service monitors the fairly significant grizzly bear activity within the
Tobacco BORZ, and it imposes greater restrictions on use in light of that activity. 2
Alliance initially brought five claims for relief, alleging errors arising from:
(1) noncompliance with standards regarding lynx and lynx habitat; (2) proposed
road activity within the Tobacco BORZ; (3) the Project's unknown effect on bull
1
The Federal Defendants include the United States Forest Service, the United States Fish and
Wildlife Service, and individuals named in their capacity within those two agencies. Throughout
this Order, the Federal Defendants are collectively referred to as the "Forest Service."
2
"BORZ" is a term of art used by the Forest Service to describe regions outside of designated
grizzly bear recovery zones where grizzly bear activity is monitored. The acronym originated in
FWS's 1993 Grizzly Bear Recovery Plan, which sets forth the protective measures to be applied
within BORZ polygons, as well as the more stringent protections for designated recovery zones.
All.for the Wild Rockies v. Savage, 897 F.3d 1025, 1034 (9th Cir. 2018).
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trout; (4) failure to conduct a cumulative-effects analysis of amendments to the
relevant forest plan; and (5) inadequacy of the overall road density analysis.
Alliance eventually withdrew claim (4). In July 2016, following a hearing on the
parties' cross-motions for summary judgment, the Court issued an order granting
in full the Federal Defendants' and the Defendant-Intervenors' motions for
summary judgment. Alliance appealed from that order as to issues (1) and (2).
First, Alliance argued on appeal that the Forest Service violated the
Administrative Procedure Act ("APA") in determining the Project's impact on
lynx and lynx habitat. The Ninth Circuit found-and both parties agreed-that
further administrative proceedings mooted lynx-related claim, and it instructed this
Court to vacate that part of its summary judgment order on remand. The Court
now vacates the portion of its earlier order discussing this issue and dismisses
Alliance's lynx-related claim as moot.
Second, and relevant to the pending motion, Alliance appealed this Court's
determination that the Forest Service did not violate the AP A in authorizing road
construction within the Tobacco BORZ. On this issue, the Ninth Circuit reversed
this Court's summary judgment order, holding that the Forest Service acted
arbitrarily and capriciously by failing to fully consider the impact of existing roads
on its baseline calculation ofBORZ road mileage. All.for the Wild Rockies v.
Savage, 897 F.3d 1025 (9th Cir. 2018).
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At issue here is solely whether this Court, in complying with the Ninth
Circuit's instruction to remand this issue to the Forest Service, should vacate the
operative Record of Decision ("ROD"). Because the Forest Service's error did not
permeate the Project and can be remedied more quickly absent vacatur, and
because the equities favor the Forest Service, the Court remands without vacatur.
DISCUSSION
Alliance advocates for remand with vacatur and dismissal of this case,
contending that judicial economy and the policy underlying the Endangered
Species Protection Act ("EPA") counsel in favor of vacating the Record of
Decision. The Court disagrees. Although remand without vacatur is appropriate
only in "limited circumstances," those circumstances are presented here. Cal.
Cmties. Against Toxics v. EPA, 688 F.3d 989,994 (9th Cir. 2012) (per curium).
The AP A provides that courts shall "hold unlawful and set aside agency
action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of
discretion, or otherwise not accordance in law." 5 U.S.C. § 706(2) & (2)(A).
"Ordinarily when a regulation is not promulgated in compliance with the APA, the
regulation is invalid." Idaho Farm Bureau Fed'n v. Babbitt, 58 F.3d 1392, 1405
(9th Cir. 1995). Thus, "vacatur of an unlawful agency action normally
accompanies a remand." All. for the Wild Rockies v. US. Forest Service, 907 F .3d
1105, 1121 (9th Cir. 2018). However, "[w]hen equity demands, ... the regulation
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can be left in place while the agency reconsiders or replaces the action, or to give
the agency time to follow the necessary procedures." Id.
The decision of whether to vacate is "controlled by principles of equity."
Id., quoting Nat'! Wildlife Fed'n v. Espy, 45 F.3d 1337, 1343 (9th Cir. 1995)). In
determining the appropriate remedy, the Court must "weigh the seriousness of the
agency's errors against 'the disruptive consequences"' ofvacatur. Pollinator
Stewardship Council v. US. E.P.A., 806 F.3d 520,532 (9th Cir. 2015) (quoting
Allied-Signal, Inc. v. US. Nuclear Regulatory Comm'n, 988 F.2d 146, 150-51
(D.C. Cir. 1993)). Here, the agency's error is limited in scope and severity, and
vacatur would result in a disproportionate disruption to the Project, which has
largely withstood Alliance's legal challenge. Thus, the circumstances of this case
justify the relatively rare remedy of remand without vacatur.
I.
The Seriousness of the Error
The Court must first consider "the seriousness of the agency's errors." Id.
Under the National Forest Management Act ("NFMA"), the Project must comply
with the provisions of the Kootenai National Forest Plan (the "Forest Plan"). 16
U.S.C. § 1604(i) ("Resource plans and permits, contracts, and other instruments for
the use and occupancy of National Forest System lands shall be consistent with the
land management plans."). Relevant here, the Access Amendments, which were
incorporated into the Forest Plan in 2011, limit allowable road mileage within the
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Tobacco BORZ. Specifically, the Access Amendments prohibit the construction
of roads within the Tobacco BORZ above a set baseline of 1,124.7 miles. (Doc.
105-2 at 4.)
The Forest Service's error arose from its determination that the Project was
consistent with the Access Amendments because it would reduce the total miles of
road within the Tobacco BORZ. While some new road would be added, other
roads would be decommissioned, resulting in a net reduction of 0.3 miles.
However, the Forest Service merely "analyzed the effects of the Project on its own
measurement"; it "never assessed the impact of the project on the ... baseline
condition of the Tobacco BORZ polygon." Savage, 897 F.3d at 1035. Most
significantly, it was unclear whether so-called "undetermined" roads-the
decommissioning of which was used to offset new road construction-had been
factored into the Tobacco BORZ baseline. Id. at 1036. If the undetermined roads
were not considered in setting the baseline, the Project could result in an increase
in road mileage within the BORZ. Thus, the Forest Service failed to comply with
the Access Amendments, in violation of NFMA.
The parties dispute the seriousness of the error. Alliance contends that a
failure to comply with a forest plan is necessarily serious, warranting vacatur
absent extraordinary circumstances. (Docs. 94 at 17-23; 109 at 6-8.) The Forest
Service argues that its NFMA error does not affect the Project as a whole and can
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be remedied relatively quickly (Doc. 105 at 13-21 ), a position echoed by the
Intervenor-Defendants (Doc. 104 at 5 (classifying error as "a failure to explain
rather than an error in judgment")) and Amicus the Kootenai Tribe of Idaho (Doc.
108 at 3 (discussing "simple and discrete technical issue on remand-basically a
math problem")).
The Forest Service has the better argument. While it may be misleading to
classify a violation of law as anything less than "serious," the error is certainly
limited in scope. The Forest Service's erroneous analysis regarding road-related
activities within the Tobacco BORZ does not compromise the integrity of the
Project as a whole. Of the 92,547 acres in the Project area, 74,119 acres fall
outside the Tobacco BORZ. (Doc. 105 at 7-8.) Thus, activities in 80% of the
Project area are necessarily unaffected by the Forest Service's NFMA error.
Additionally, the Project entails work within the Tobacco BORZ that does not
demand road construction or reclassification. The error does not call the legality of
that work into question. Again, Alliance raised a number of broad claims for relief
in its motion for summary judgment, and it did not win on those claims. The
Forest Service's error, like the issue discussed in this Order, is well-cabined.
In addition to its limitation in geographical scope, the error does not threaten
the overall integrity of the Project. The failure to analyze road mileage under the
Access Amendments is a relatively simple failure of accounting and not a failure of
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understanding. If the Forest Service can verify that the total number of road miles
will fall under the baseline, it may proceed with its road-related activities within
the BORZ. The 4.44 total miles of "undetermined" roads that proved fatal to the
Forest Service's NFMA analysis are unlikely to present a substantial obstacle to
implementation of the Project; indeed, as the Forest Service points out, the
BORZ's total road mileage is nearly 20 miles below the baseline, providing a
comfortable cushion on remand. See Pollinator Stewardship Council, 806 F .3d at
532 ("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.").
II.
The Consequences of Vacatur
The Court must consider "the disruptive consequences" of vacating a rule
rather than remanding for correction of an identified defieciency. Cal. Cmties.
Against Toxics, 688 F.3d at 992 (quotation omitted). Here, vacatur is likely to
cause immediate economic harm and would threaten the health of the forest
ecosystem. When considered alongside the limited scope and technical nature of
the Forest Service's error, the equities favor remand without vacatur.
The Project's economic impact is relevant to the question of whether to
vacate on remand. Earth Island Inst. v. Carlton, 626 F.3d 462,475 (9th Cir. 2010).
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Considering only the four previously awarded timber sales falling strictly outside
of the Tobacco BORZ, the Forest Service estimates that the projected activities
"will reforest and restore 772 acres of Forest Service land, abate hazardous fuel on
885 acres, treat 320 acres for noxious weeds, and maintain 58 miles of road."
(Doc. 105 at 25.) These four sales "are expected to generate more than $555,000
in revenue," 80 percent of which will be earmarked for reforestation and forest
improvement work within the forest. (Doc. 105 at 25.) The sales will also be a
boon to private business-more particularly, local and small business-and to
consumers. (Doc. 105 at 27-28.) Similarly, the High Five sale within the Tobacco
BORZ does not require any road construction or reclassification, and it is
anticipated to bring in over $1 million in revenue. Other sales with similar
economic benefit are in the works.
More pressingly, the Project will decrease the likelihood and severity of
wildfire, which threatens local communities and the forest ecosystem. Over 8,000
acres of the Project area falling outside the Tobacco BORZ is designated as
Wildland Urban Interface, and the Project prioritizes hazardous fuel reduction
treatment in high-risk areas. (Doc. 105 at 28-29.) Amicus the State of Montana
effectively amplifies the Forest Service's position regarding fire mitigation. (Doc.
107 at 3--4.) For example, Montana points out that asbestos contamination in and
around Libby, Montana translates to the potential fire-related "dispersal of airborne
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asbestos in smoke and convection columns throughout the Kootenai River and
Flathead Valleys," which could then "be trapped by weather inversions for
extended periods." (Doc. 107 at 7-8.) In addition to the devastating effects of
wildfire on the land, animals, individuals, and property directly affected, fire
imposes enormous costs on agencies, including the Montana Department of
Natural Resources, that respond to active wildland fires. (Doc. 107 at 4-8.) If the
Court orders vacatur, important wildland fire mitigation work will be delayed,
threatening the vitality of the forest ecosystem, the resources of responding
agencies, and the safety and health of those who live in and around the Project
area.
Further, as the Kootenai Tribe of Idaho points out, the Project area has been
substantially degraded by "misguided" historical forest management practices, and
intervention is necessary "to reestablish forest conditions that are more resistant
and resilient to disturbances" and "to create a varied landscape that will sustain
species of importance to both Tribal and non-Tribal peoples." (Doc. 108 at 4-5.)
The Tribe, which was heavily involved in the consultation process, represents that
the Project will make for a healthier forest and better conditions for species,
including the grizzly bear. In its view, "ecological restoration within the Project
area should start sooner rather than later." (Doc. 108 at 5.) The Court agrees.
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On balance, the Forest Service's error does not justify the significant delay,
expense, and inconvenience that would result from vacatur. See Cal. Cmties.
Against Toxics, 688 F.3d at 993 (remanding without vacatur where "[t]he delay
and trouble vacatur would cause are severe"); Greenpeace v. Cole, 50 F. Supp. 3d
1158, 1170 (D. Alaska 2014) ("Providing explanation and analysis demonstrating
consistency and compliance with the ... Forest Plan, if possible, would be just as
permissible to correcting the error as vacatur and a new decisionmaking process,
but would be less time and resource intensive."). "[V]acatur would cause serious
and irremediable harms that significantly outweigh the magnitude of the agency's
error." All.for Wild Rockies v. Marten, CV 17-21-M-DLC, 2018 WL 2943251, at
*3 (D. Mont. June 12, 2018) (internal quotation marks and citation omitted).
Courts "should aim to ensure the framing of relief no broader than required
by the precise facts." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),
Inc., 528 U.S. 167, 193 (2000) (internal quotation marks and citation omitted).
Often, vacatur is necessary to avoid judicial interference with executive functions;
the Court cannot rewrite a faulty rule or supply new reasoning for the agency's
rule, for example. See Fla. Power & Light Co, 470 U.S. at 744 ("If the record
before the agency does not support the agency action ... the proper course, except
in rare circumstances, is to remand to the agency for additional investigation or
explanation."). Here, a more tailored remedy is both available and appropriate.
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The Court accordingly remands without vacatur. Before constructing any
new roads or converting previously undetermined roads in the Tobacco BORZ, the
Forest Service must determine that its proposed activities comport with the Forest
Plan, including the Access Amendments. In the meantime, it may carry out those
Project activities that do not involve the construction or reclassification of roads
inside the BORZ.
Accordingly, IT IS ORDERED that the Court's order of July 19. 2016 is
VACATED in part. The Order is vacated as to the Plaintiffs lynx-related claim.
That claim is DISMISSED as moot.
IT IS FURTHER ORDERED that the Plaintiffs motion (Doc. 93) for
vacatur is DENIED.
IT IS FURTHER ORDERED that the Project is remanded to the United
States Forest Service as it relates to the construction and reclassification of roads
within the Tobacco BORZ polygon. On remand, the Forest Service shall
appropriately analyze the effect of anticipated road-related activities pursuant to
the standards set forth in the Forest Plan, including the Access Amendments.
Unless and until the NFMA violation identified by the Ninth Circuit Court of
Appeals is corrected, no roads shall be built within the Tobacco BORZ, and no
undetermined roads shall be reclassified.
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DATED this 2.S~ ay of March, 2019.
Dana L. Christensen, Chief Judge
United States District Court
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