Save Our Cabinets et al v. United States Fish and Wildlife Service

Filing 70

ORDER granting 65 Motion to Vacate; finding as moot 69 Motion for Extension of Time to File Response/Reply. The agencies' decision to approve the Montanore Project is VACATED and the 2014 Biological Opinions and the 2016 Record of Decision are set aside and remanded to the agencies for further action as outlined in the May 2017 Opinion and Order. Signed by Judge Donald W. Molloy on 6/29/2017. (NOS)

FILED
JUN 2 9 2017
Clerk, U.S Diatrict Court
District Of Montana
Missoula

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

SAVE OUR CABINETS,
EARTHWORKS, and DEFENDERS OF
WILDLIFE,

CV 15-69-M-DWM

ORDER
Plaintiffs,
vs.
UNITED STATES FISH AND
WILDLIFE SERVICE; CHRISTOPHER
S. SAVAGE, Kootenai National Forest
Supervisor; and UNITED STATES
FOREST SERVICE,
Defendants,
and
MONTANORE MINERALS
CORPORATION,
Defendant-Intervenor.

On May 30, 2017, the parties' motions for summary judgment (Docs. 35,

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44, and 48) were granted-in-part and denied-in-part and the matter was remanded
to the agencies based on claims advanced under the Endangered Species Act
("ESA"). (Doc. 64.) Plaintiffs now request judgment be entered and for the
agencies' decision documents to be vacated. (Doc. 65.) The defendants do not
object to the entry of judgment, but oppose vacatur. (Docs. 67, 68.)
Federal Defendants oppose setting aside the agency documents on the
grounds that the requested relief is not necessary because it does no more than that
provided for in the remand order. (See Doc. 67 at 2-3.) Montanore argues, on the
other hand, that vacating the Biological Opinions "would delay important
mitigation that would improve existing conditions for grizzly bear and bull trout,"
including "acquiring new grizzly bear replacement habitat, transferring such
habitat or appropriate conservation easements to the Forest, closing roads,
changing access to Forest roads and trails, converting roads to trails, developing a
grizzly bear oversight committee and Comprehensive Grizzly Bear Management
Plan, and removing culverts." (Doc. 68 at 3.) Montanore insists that courts have
"broad latitude in fashioning equitable relief when necessary to remedy an
established wrong," and "equity can authorize the district court to keep an invalid
biological opinion in place during any remand if it provides protection for listed
species within the meaning of the ESA." Nat'l Wildlife Fed'n v. Nat'l Marine
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Fisheries Serv., 839 F. Supp. 2d 1117, 1129 (D. Or. 2011) (internal quotation
marks omitted). Montanore also argues that vacatur would disrupt the permitting
process, impeding the Project's future development. (Doc. 68 at 12-13.)
Pursuant to the Administrative Procedure Act ("APA"), the "reviewing
court shall ... set aside agency action, findings, and conclusions found to be ...
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
the law." 5 U.S.C. § 706(2)(A); see also Fla. Power & Light v. Lorion, 470 U.S.
729, 74 (1985). The defendants fail to show that this is one of the "rare
circumstances" that warrants ignoring the APA's mandate. Or. Natural Desert

Ass 'n v. Jewell, 840 F.3d 562, 575 (9th Cir. 2016); Humane Soc '.Y of US. v. Locke,
626 F.3d 1040, 1053 n.7 (9th Cir. 2010). The mitigation measures at issue are not
ESA protections that justify leaving an unlawful agency document in place. See

Idaho Farm Bureau Fed'n v. Babbitt, 58 F.3d 1392, 1405-06 (9th Cir. 1995)
(leaving listing rule for Springs Snail in place while the Fish and Wildlife Service
remedied procedural error because vacatur could have wiped out the species);

Defenders of Wildlife v. Salazar, 776 F. Supp. 2d 1178, 1187 (D. Mont. 2011)
(stating that equity may require "leav[ing] ESA protections in effect-rather than
strip them away-while the agency revisits the [problematic] issue"). And, there
is no reason that Montanore cannot continue its mitigation efforts even if the
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agencies' decision documents are set aside.
Additionally, the deficiencies in the Biological Opinions are substantial.

See Cal. Comms. Against Toxics v. US. E.P.A., 688 F.3d 989, 992 (9th Cir. 2012).
(noting that the severity of the deficiencies should be considered in determining
whether vacatur is warranted). The proposed mitigation measures, albeit arguably
beneficial for the species, do not outweigh the APA's specific mandate that
"agency action, findings, and conclusions found to be ... arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with the law" must be set
aside. See 5 U.S.C. § 706(2)(A). Because such a finding was made here with
respect to the agencies' jeopardy determinations as to both bull trout and grizzly
bears and the bull trout incidental take statement, (see Doc. 64 ),
IT IS ORDERED that Plaintiffs' motion (Doc. 65) is GRANTED. The
Clerk of Court is directed to enter judgment, dated today, consistent with the May
30, 2017 Opinion and Order on Summary Judgment, (Doc. 64), and this Order.
The agencies' decision to approve the Montanore Project is VACATED and the
2014 Biological Opinions and the 2016 Record of Decision are set aside and
remanded to the agencies for further action as outlined in the May 2017 Opinion
and Order.
IT IS FURTHER ORDERED that Plaintiffs' motion for extension (Doc. 69)
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is DENIED as MOOT.
Dated this

/-

Jfl day of June, 2017.

olloy, District Judge
District Court

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