Save Our Cabinets et al v. United States Department of Agriculture et al
ORDER granting 70 Motion to Vacate. The Forest Service's decision to approve the Montanore Mine Project is VACATED, and the 2016 Record of Decision and 2015 Joint Final Environmental Impact Statement are set aside and remanded to the Forest Service for further action as outlined in the May 2017 Opinion and Order. Signed by Judge Donald W. Molloy on 6/29/2017. (NOS)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
JUN 2 9 2017
Clerk, U.S Diatrict Court
District Of Montana
SAVE OUR CABINETS,
EARTHWORKS, and CLARK FORK
(Consolidated with Case No.
UNITED STATES DEPARTMENT OF
AGRICULTURE, U.S. FOREST
SERVICE, and CHRISTOPHER S.
On May 30, 2017, the parties' motions for summary judgment (Docs. 35,
39, 48, 52) were granted-in-part and denied-in-part and the matter remanded to the
Forest Service based on claims advanced under the National Environmental Policy
Act ("NEPA"), the Forest Service Organic Act of 1897 ("Organic Act"), the
Federal Water Pollution Control Act ("Clean Water Act"), and the National Forest
Management Act ("NFMA"). (Doc. 69.) Plaintiffs now request judgment be
entered and that the agency's decision documents be vacated. (Doc. 70.) The
defendants do not object to the entry of judgment, but insist vacatur is neither
necessary nor appropriate. (Docs. 72, 73.)
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 and because the JFEIS does not represent "final
agency action." (See Doc. 72.) Montanore, on the other hand, argues that vacatur
is not appropriate because the deficiencies identified by the Court can be
addressed on remand with the Record of Decision in place and vacatur would be
disruptive of the permitting process. (Doc. 73.) Neither position is persuasive.
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, 4 70 U.S.
729, 74 (1985). "Whether agency action should be vacated depends on how
serious the agency's errors are and the disruptive consequences of interim change
that may itself be changed." Cal. Comms. Against Toxics v. US. E.P.A., 688 F.3d
989, 992 (9th Cir. 2012) (internal quotation marks omitted). Here, the agency's
decision was found arbitrary and capricious in violation of the Clean Water Act,
Organic Act, NEPA, and NFMA. Although the NEPA violations may be
considered largely procedural-i.e., the need to provide mitigation discussion for
Poorman Creek-the other violations are substantial. Moreover, the consequences
of vacating the Record of Decision are distinguishable from those present in
California Communities Against Toxics where the Ninth Circuit conclude vacatur
could result in blackouts, "economically disastrous" results, and require extensive
legislative efforts to remedy. 688 F.3d at 994. Here, vacatur would maintain the
status quo and does not prevent Montanore from taking steps to continue the
Because the Record of Decision and the JFEIS were found to violate the
APA, (Doc. 69), they must be set aside. In the alternative, Montanore asks vacatur
be limited to the future phases of the Project, leaving the Record of Decision in
place as to the Evaluation Phase. Such a piecemeal approach to vacatur is not
appropriate here as the primary problem with the Record of Decision identified in
this Court's earlier order is that it approves the entire Project, not just the
Evaluation Phase. By setting aside the Record of Decision in its entirety, the
agency has the opportunity to decide how it would like to proceed, either through
issuing a new Record of Decision that approves only the Evaluation Phase or one
that once again addresses the entire project.
IT IS ORDERED that Plaintiffs' motion (Doc. 70) 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. 69), and this Order.
The Forest Service's decision to approve the Montanore Mine Project is
VACATED, and the 2016 Record of Decision and 2015 Joint Final Environmental
Impact Statement are set aside and remanded to the Forest Service for further
action as outlined in the May 201 7 Opinion and Order.
Dated this :H'r.ay of June, 201 7.
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