Alliance for the Wild Rockies et al

Filing 50

ORDER granting in part and denying in part 43 Motion to Remand. The Forest Service's Record of Decision for the Stonewall Vegetation Project is VACATED and REMANDED to the Forest Service for completion of a supplemental environmental analysis of the effects of the Park Creek Fire on the proposed project. Signed by Judge Dana L. Christensen on 6/12/2018. (ASG)

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

FILen
JUN

12 2018

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°r:,~trict o(~ Courts

isso111a D. o.ntana

'"'sion

ALLIANCE FOR THE WILD
ROCKIES, NATIVE ECOSYSTEMS
COUNCIL,
Plaintiffs,

CV 17-21-M-DLC

ORDER

vs.
LEANNE MARTEN, et al.,
Defendants.
Before the Court is Defendants' Motion for Voluntary Remand (Doc. 43)
wherein Defendants request that the Court remand, without vacating, the Record of
Decision ("ROD") for the Stonewall Vegetation Project to allow the Forest Service
to perform supplemental environmental analysis as a result of the 2017 Park Creek
Fire. At the May 18, 2018 hearing on this Motion, Defendants elaborated that they
are seeking dismissal of this case without vacatur for the purpose of completing the
supplemental analysis, although this relief was not explicitly requested in their
Motion. Plaintiffs do not oppose voluntary remand if the ROD is either
"withdrawn by the agency or vacated by the Court." (Doc. 45 at 16.) For the
following reasons, Defendants' Motion will be granted in part and denied in part.

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PROCEDURAL BACKGROUND

The Forest Service issued a Final Environmental Impact Statement ("FEIS")
on August 24, 2015, and the Stonewall Vegetation Project ROD on August 25,
2016. On September 28, 2016, the Forest Service awarded a Timber Sale Contract
("Timber Contract") to R-Y Timber, Inc. Plaintiffs commenced this action on
February 17, 2017, and on May 30, 2017, the Court granted a preliminary
injunction enjoining the Stonewall Vegetation Project. On June 30, 2017,
Plaintiffs filed a motion for summary judgment and Defendants were given until
August 7, 2017, to respond. On July 17, 2017, Defendants filed a Notice of Fire
Incident and on August 8, 201 7, this Court stayed the case and required Defendants
to file a status report notifying the Court of the status and impacts of the fire by
October 2, 201 7.
On October 2, 201 7, Defendants filed a status report indicating that the fire
had not yet been fully contained and that an extended stay was warranted because
the Forest Service needed additional time to assess the impact of the fire on the
project area after containment. While the Court initially denied the request to
extend the stay, upon reconsideration, the Court ultimately extended the stay after
finding that "the Government needs to conduct on-the-ground assessment of the
project area to determine whether the fires have altered the physical characteristics

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of the project area and, in tum, confront the likelihood that the changes altered the
analyses 'that are the focal point of this litigation."' (Doc. 41 at 8 (quoting Doc. 40
at 13).) To this end, Defendants were required to apprise the Court of the "results
of its completed fire impact assessment no later than January 19, 2018." (Id. at 9.)
On January 19, 2018, Defendants filed the subject Motion on the grounds that an
"interdisciplinary review of the resources affected by the fire" indicates that
"supplemental environmental analysis is warranted." (Doc. 43 at 2.)
DISCUSSION

In light of the Forest Service's determination that supplemental
environmental analysis is warranted as a result of the Park Creek Fire's effects on
the project area, Defendants seek remand to the Forest Service for completion of
the analysis without vacating the ROD. Defendants have now clarified that they
are seeking a remand and dismissal of this case while the disputed ROD remains
intact. Defendants have also made clear that the potential loss of the Timber
Contract is the chief consideration for their request that the remand be without
vacatur. However, Defendants indicated during the May 18, 2018 hearing that it
isn't entirely clear whether the Timber Contract would remain in effect if the ROD
was vacated. In the event the Timber Contract remained viable, Defendant's argue
that vacatur would still result in harm because there would be approximately 60
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days' additional delay-during which time any salvageable timber in the project
area would have decreased in value from the deteriorating effects of prolonged
exposure. Because Plaintiffs have indicated that they do not oppose remand if it is
accompanied by either vacatur or withdrawal of the ROD, the central issue in
dispute is whether remand should be without vacatur of the ROD. Nonetheless, the
Court begins with a brief discussion of the propriety of remand in this case.
"A federal agency may request remand in order to reconsider its initial
action." Cal. Communities Against Toxics v. United States E.P.A., 688 F.3d 989,
992 (9th Cir. 2012). "Generally, courts only refuse voluntarily requested remand
when the agency's request is frivolous or made in bad faith." Id. (citing SKF USA
Inc. v. United States, 254 F.3d 1022, 1029 (Fed. Cir. 2001)). When tasked with

deciding the propriety of a request for voluntary remand, courts in this Circuit
generally look to the Federal Circuit's decision in SKF USA, Inc. v. United States,
254 F.3d 1022 (Fed. Cir. 2001), for guidance. See, e.g., Cal. Communities, 688
F.3d at 992; N. Coast Rivers Alliance v. United States Dep't ofInterior, No. 1:16CV-00307-LJO-MJS, 2016 WL 8673038, at *3 (E.D. Cal. Dec. 16, 2016); Guam
Preservation Trust v. Gregory, No. 10-00677, 2011 WL 13248292, at *3 (D. Haw.

June 30, 2011); Oregon Nat'! Desert Ass 'n v. Freeborn, No. CV 06-1311-MO,

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2007 WL 9658100, at *1 (D. Or. June 19, 2007). In SKF USA, the Federal Circuit
stated that:
[W]hen an agency action is reviewed by the courts, in general the
agency may take one of five positions, though it is possible that there
may be remand situations that do not fall neatly into this taxonomy.
First, it may choose to defend the agency's decision on the grounds
previously articulated by the agency. Second, it may seek to defend
the agency's decision on grounds not previously articulated by the
agency. Third, the agency may seek a remand to reconsider its
decision because of intervening events outside of the agency's control.
Fourth, even in the absence of intervening events, the agency may
request a remand, without confessing error, to reconsider its previous
position. Finally, ... the agency may request a remand because it
believes that its original decision was incorrect on the merits and it
wishes to change the result.
254 F.3d at 1027-28 (emphasis in original).
Here, the agency is seeking remand to reconsider its decision because an
uncontrollable intervening event, the Park Creek Fire, burned a significant portion
of the project area. Consequently, Defendants fall within the third position. Under
these circumstances, "[a] remand is generally required ifthe intervening event may
affect the validity of the agency action." Id. at 1028. The Court is satisfied that
the "interdisciplinary review" performed by Defendants appropriately determined
that the Park Creek Fire changed conditions which warrant "reevaluation of project
analyses and possible modification of the ROD." (Doc. 44 at 3.) Moreover, the
propriety of remand is not contested in this case. (Doc. 45 at 16-17.) Because

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"the intervening event may affect the validity" of the ROD and the Court has
received no argument or evidence tending to suggest that Defendants' request for
voluntary remand has been made frivolously or in bad faith, the Court determines
that voluntary remand is appropriate in this case.
The Court now turns to whether remand will be with or without vacatur.
While the Ninth Circuit "does not mandate vacatur," courts "in the Ninth Circuit
decline vacatur only in rare circumstances." Klamath-Siskiyou Wild/ands Ctr. v.

Nt'l Oceanic and Atmospheric Admin. Nt'l Marine Fisheries Serv., 109 F. Supp. 3d
1238, 1242 (N.D. Cal. 2015) (citing Cal. Communities, 688 F.3d at 992). Indeed,
it is only in rare circumstances, "'when equity demands,"' that the agency action is
left in place on remand. Cal. Communities, 688 F .3d at 992 (quoting Idaho Farm

Bureau Fed'n v. Babbitt, 58 F.3d 1392, 1405 (9th Cir. 1995); see also Humane
Soc y v. Locke, 626 F.3d 1040, 1053 n. 7 (9th Cir. 2010) ("In rare circumstances,
when we deem it advisable that the agency action remain in force until the action
can be reconsidered or replaced, we will remand without vacating the agency's
action."); Ctr. for Food Safety v. Vi/sack, 734 F. Supp. 2d 948, 951 (N.D. Cal.
2010) ("[T]he Ninth Circuit has only found remand without vacatur warranted by
equity concerns in limited circumstances, namely serious irreparable
environmental injury.").

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To determine whether the Court should vacate the ROD, the Court must
evaluate two factors: "(1) the seriousness of an agency's errors and (2) the
disruptive consequences that would result from vacatur." Klamath-Siskiyou, 109
F. Supp. 3d at 1242 (citing Cal. Communities, 688 F.3d at 992). Put another way,
"courts may decline to vacate agency decisions when vacatur would cause serious
and irremediable harms that significantly outweigh the magnitude of the agency's
error." Id. (internal quotation marks and citation omitted). Additionally, in
Pollinator Stewardship Council v. United States E.P.A., 806 F.3d 520, 532 (9th
Cir. 2015), the Ninth Circuit also established that courts could consider the
likelihood that the agency will reach the same decision on remand, vacatur being
more appropriate ifthe same result is unlikely.
Looking at some circumstances which have prompted the Ninth Circuit to
remand without vacatur provides a measure for the level of severity of
consequences which will warrant this rare remedy. Applying these factors in
California Communities Against Toxics v. United States E.P.A., 688 F.3d 989,
993-94 (9th Cir. 2012), the Ninth Circuit declined to vacate an agency decision
when the "severe" consequences of vacatur included regional power outages
necessitating "the use of diesel generators that pollute the air, the very danger the
Clean Air Act aims to prevent," the economic disaster of halting and delaying "a

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billion-dollar venture employing 350 workers," and the likelihood that the
California legislature would be required "to pass a new bill ... [that] would create
needless and duplicative legislative effort." The "severe" calamities destined to
follow an order of vacatur outweighed the substantive and "harmless" procedural
errors which invalidated the agency action, presenting a situation warranting
"judicial restraint" in the exercise of vacatur. Id. at 992-994. In an earlier
decision, Idaho Farm Bureau Federation v. Babbitt, 58 F.3d 1392, 1403-06 (9th
Cir. 1995), the Ninth Circuit similarly found that vacatur of an agency action
invalidated by procedural error was not warranted because "equitable concems"the potential extinction of a species of snail-weighed in favor of remand without
vacatur. The Court is satisfied that the consequences ofvacatur in the case at hand,
which are much less severe in comparison to the cases above, do not warrant
''judicial restraint" in the exercise of vacatur.
As to the first factor, Defendants contend that there is no error to be weighed
because the remand is sought in order to address the environmental changes
resulting from the Park Creek Fire, which is not an error attributable to the agency.
Because Defendants are not conceding any error attributed them by Plaintiffs and
have only sought remand to perform supplemental environmental analysis of the
effects of the fire, the Court agrees. However, regardless of the fact that the error

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is not attributable to the Defendants, the error being addressed-the effects of the
fire on the project-is significant and will likely result in changing the ROD in this
case. As Defendants' stated: "[i]t defies common sense and judicial economy to
suggest the Court review a decision where, as here, a significant intervening event
has occurred that may lead to changes in the challenged action and the operative
legal arguments." (Doc 46 at 5.) The Court acknowledges that Defendants also
contend that there is a "realistic possibility that the decision ... may stand" after
remand but is convinced that the impetus of this Motion-the need to evaluate the
implications of a substantial fire on the proposed project-belies this contention.
Consequently, the Court finds that there is no error attributable to the agency but
that it is unlikely the ROD will stand on remand.
As to the second factor, Defendants argue that because the Park Creek Fire
itself"demonstrated the risks posed by heavy fuel loads in the project area" and
vacatur "will only delay this project," the second factor weighs against vacatur.
(Doc. 46 at 10.) Additionally, Defendants appropriately assert that the Ninth
Circuit's consideration of the economic consequences ofvacatur in California
Communities permits this Court to consider the "economic and other practical

concerns" ofvacatur in this case. (Id. at 11.) To this end, Defendants assert that
vacatur could result in the termination of the Timber Contract and "it is not
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necessary or economical to terminate an existing contract because of delay or the
potential need for modification." (Id.) Defendants' then vaguely add that doing so
"could impose substantial costs and further delay on the Forest Service as a result
of circumstances outside its control." (Id.) During oral argument on this Motion,
Defendants elaborated that they foresee an additional 60 days' delay resulting from
vacatur and that this delay will result in the economic consequence of decreased
salvageable timber value in the project area.
Defendants' arguments on this point are unavailing. While there has been a
fire demonstrating the risks of heavy fuel loads in the project area, Defendants
have not explained why any delay as a result of vacatur will increase the
magnitude of this risk and, importantly, the fire has already occurred. Moreover,
termination of the Timber Contract is speculative-Defendants conceded during
oral argument on this Motion that it is not certain that it will be terminated as a
result ofvacatur. Further, as to the potential for decreased salvageable timber
values, the Court does not have any measure by which to classify this economic
consequence as "severe." The Court has been provided with neither a calculus to
determine the loss in value of salvageable timber as a result of approximately 60
days' weather nor an estimated dollar amount to substantiate Defendants'
speculative "substantial costs."

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Consequently, the Court is satisfied that this case does not present the
exceptional circumstance where "equity demands" that the Court exercise judicial
restraint by declining to vacate the ROD upon remand. Balancing the gravity of
the agency's errors with the consequences ofvacatur, it is apparent that while there
is no error attributable to the agency, there are also no "serious and irremediable
harms" that demand that the ROD be left in place. Further, the Court finds it
unlikely that the ROD will stand after the completion of the analysis on remand.
Accordingly,
IT IS ORDERED that Defendants' Motion (Doc. 43) is GRANTED IN
PART AND DENIED IN PART. The Forest Service's Record of Decision for the
Stonewall Vegetation Project is VACATED and REMANDED to the Forest
Service for completion of a supplemental environmental analysis of the effects of
the Park Creek Fire on the proposed project.
DATED this 12#aay of June, 2018.

ana L. Christensen, Chief Judge
United States District Court

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