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Alliance for Wild Rockies v. Savage

United States District Court, D. Montana, Missoula Division

March 25, 2019

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 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).


         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 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 APA 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 of BORZ road mileage. All. for the Wild Rockies v. Savage, 897 F.3d 1025 (9th Cir. 2018).

         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.


         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 APA 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. U.S. Forest Service, 907 F.3d 1105, 1121 (9th Cir. 2018). However, "[w]hen equity demands, ... the regulation 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 Ata7 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'" of vacatur. Pollinator Stewardship Council v. U.S. E.P.A., 806 F.3d 520, 532 (9th Cir. 2015) (quoting Allied-Signal, Inc. v. U.S. 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. ยง l6O4(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 Tobacco BORZ. Specifically, the Access ...

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