Se. Alaska Conservation Council v. U.S. Forest Serv.

• Decision Date: 24 June 2020
• Docket Number: Case No. 1:19-cv-00006-SLG
• Parties: SOUTHEAST ALASKA CONSERVATION COUNCIL, et al., Plaintiffs, v. UNITED STATES FOREST SERVICE, et al., Defendants.
• Court: U.S. District Court — District of Alaska

468 F.Supp.3d 1148

SOUTHEAST ALASKA CONSERVATION COUNCIL, et al., Plaintiffs,

v.UNITED STATES FOREST SERVICE, et al., Defendants.

Case No. 1:19-cv-00006-SLG

United States District Court, D. Alaska.

Signed June 24, 2020

Olivia Elisabeth Glasscock, Thomas S. Waldo, Earthjustice, Juneau, AK, for Plaintiffs.

Erika Danielle Norman, John Pershing Tustin, U.S. Department of Justice, Washington, DC, for Defendants United States Forest Service, United States Department of Agriculture, David Schmid, Earl Stewart.

Julie A. Weis, Pro Hac Vice, Haglund Kelley Horngren Jones & Wilder LLP, Portland, OR, for Defendant Alaska Forest Association.

ORDER ON REMEDY

Sharon L. Gleason, UNITED STATES DISTRICT JUDGE

On March 11, 2020, the Court entered its Decision and Order holding that the Environmental Impact Statement ("EIS") for the Prince of Wales Landscape Level Analysis Project ("Project"), which authorized "integrated resource management activities on Prince of Wales Island" over a period of 15 years,¹ violated the National Environmental Policy Act ("NEPA"), the Alaska National Interest Lands Conservation Act ("ANILCA"), and the National Forest Management Act ("NFMA"), and that it was therefore "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," pursuant to § 706(2)(A) of the Administrative Procedure Act ("APA").² The Court ordered declaratory relief to this effect but, at the Forest Service's request, allowed the parties to file supplemental briefing on the question of the appropriate remedy before entering a final judgment.³ The parties have completed their briefing and the issue is now before the Court.⁴

LEGAL STANDARD

Vacatur is the normal remedy under the APA, which directs reviewing courts to "set aside" unlawful agency action. ⁵

The Ninth Circuit has explained that a court should "order remand without vacatur only in ‘limited circumstances,’ " and "leave an invalid rule in place only ‘when equity demands.’ "⁶ To determine whether to remand an action without vacatur, a court is to "weigh the seriousness of the agency's errors against ‘the disruptive consequences of an interim change that may itself be changed.’ "⁷ "Put differently, ‘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.’ "⁸ The Ninth Circuit "ha[s] long held that relief for a NEPA violation is subject to equity principles."⁹

DISCUSSION

The parties now agree that the portions of the Project's Record of Decision ("ROD") that authorize vegetation management and road construction should be vacated.¹⁰ However, the parties disagree as to whether the Project EIS should also be vacated as applied to these two activities.

Plaintiffs did not explicitly request a vacatur of the Project EIS in the Complaint or in their briefing on the merits. But they contend that this relief "flows necessarily from the Court's ruling on the merits" and is necessary to prevent the Forest Service from tiering to the Project EIS in future NEPA analyses.¹¹ The Forest Service maintains that the EIS should not be vacated for several reasons, among them that Plaintiffs had not previously asked for that form of relief,¹² that the ROD is the only "final agency action subject to review under the APA" in this case,¹³ that "[v]acatur of the [Project EIS] would ... inappropriately disrupt the Forest Service's discretion on remand,"¹⁴ and that vacatur of the EIS would harm the local economy by delaying the Forest Service's ability to offer timber sales to the Southeast Alaska timber industry.¹⁵ For the reasons set forth below, the Court concludes that vacatur of the Project EIS with respect to vegetation management and road construction is warranted in this case.¹⁶

The Court first addresses the Forest Service's contentions that "the judicial remedy should be directed at the ROD" alone because Plaintiffs had not previously requested vacatur of the EIS and because "[a]n EIS standing alone is not a final agency action subject to judicial review."¹⁷ Although Plaintiffs explicitly requested partial vacatur of the ROD in the Complaint and in their briefing on the merits,¹⁸ they also made the traditional request for "such other relief as this Court deems just and proper."¹⁹ And the Court's Decision and Order found that both the Project EIS and the ROD violated federal law.²⁰ Further, the Forest Service's assertion that the Project EIS cannot itself be subject to review or vacatur is mistaken. The Forest Service cites Oregon Natural Desert Association v. BLM for the proposition that the ROD is the final agency action that triggers review under the APA.²¹ But in that case, the Ninth Circuit cited a string of cases clarifying that once a ROD has issued, both it and the Final EIS are ripe for judicial review.²² And Plaintiffs have cited to two cases in which the district court vacated the EIS along with the relevant ROD.²³ Accordingly, the Court concludes that partial vacatur of the Project EIS is an available remedy in this case.

Whether partial vacatur of the Project EIS is an appropriate remedy in this case requires the Court to weigh the gravity of the errors committed by the agency against the disruption that vacatur would cause.²⁴

A. The Seriousness of the Errors

The Court discussed the EIS and its inadequacies at length in its decision on the merits and will not repeat that analysis in detail here.²⁵ In short, the Court concluded that the Project EIS was fundamentally invalid at a structural level; the Court held that the Forest Service erred in deferring site-specific decision-making when it determined that such future decision-making would not be subject to additional NEPA review.²⁶ In reaching its conclusion, the Court also explained that the analytical framework used in the EIS, which focused primarily on the Project's maximum potential impacts, and the assumptions made as a part of that analysis, resulted in an inadequate comparison of alternatives and was "not sufficient to meet the requirements for an EIS."²⁷

These errors are serious. The Project EIS's lack of site-specificity and inadequate comparison of alternatives precluded the Forest Service from taking the requisite hard look at the Project's potential impacts and deprived the public of the opportunity to comment on those impacts, thus undermining the "two fundamental objectives" of NEPA: the agency's careful consideration of "detailed information concerning significant environmental impacts" and the public's ability to participate in the decision-making process.²⁸ These errors therefore strongly weigh in favor vacatur.²⁹

The Forest Service now suggests that the Project EIS's shortcomings do not necessarily prevent it from serving as a programmatic EIS, to which future site-specific analyses could tier, potentially without further amendment.³⁰ The agency maintains that the Court's decision on the merits "did not find the [Project EIS] to be invalid for all purposes, only that it could not support the decision to authorize site-specific timber sales and road construction without further NEPA review."³¹ The Forest Service reads the Court's Decision and Order too narrowly. In addition to the deferral of site-specific analysis, the Court also found the Project EIS's comparison of alternatives to be inadequate.³² The failure to meaningfully compare alternatives is itself a significant error. As the Ninth Circuit has explained, "the alternatives analysis section is the heart of the environmental impact statement."³³ The Court concluded that the Project EIS was invalid for its stated purpose—to act as a "large landscape-scale NEPA analysis that will result in a decision whether or not to authorize integrated resource management activities ... over the next 15 years."³⁴ The errors identified by the Court's Decision and Order render the Project EIS invalid for that purpose regardless of the label the Forest Service attaches to it.³⁵ Further, to the extent that the Forest Service opposes vacatur of the Project EIS so that it may repurpose it into a programmatic EIS without taking additional NEPA-compliant steps to trigger judicial review of the document in its new capacity,³⁶ that approach would appear to be invalid under Ninth Circuit precedent.³⁷

The Forest Service maintains that vacatur of the ROD alone would fully redress Plaintiffs’ injuries, and that Plaintiffs would have the opportunity to challenge any use of the Project EIS as a programmatic document once it is tiered to in a site-specific analysis.³⁸ But Plaintiffs have successfully identified structural errors in the Project EIS. A remedy that allows the Forest Service to build upon this inadequate foundation and compound those errors by tiering to the Project EIS would not grant Plaintiffs adequate relief.³⁹ The Court therefore concludes that the errors in the Project EIS in light of its stated purpose are of such seriousness as to weigh in favor of vacatur, and that vacatur of the ROD alone would not fully redress Plaintiffs’ injuries.

B. The Disruptive Consequences of Vacatur

The Forest Service argues that vacatur of the Project EIS with respect to vegetation management and road construction would be extremely disruptive because it would invade the agency's discretion on remand and require it to begin the NEPA process again from scratch.⁴⁰ The agency's chief complaint is that vacatur would leave it unable to tier to the Project EIS in future NEPA analyses, an outcome it characterizes as "precisely the kind of micromanagement of agency decision-making that courts should avoid."⁴¹ For the reasons discussed above, however, the Court concludes that partial vacatur of the Project EIS is the natural consequence of the errors contained within it.⁴² Moreover, vacatur leaves the Forest Service with considerable discretion about how to best design and authorize timber sales on Prince of Wales Island in the future.⁴³ And as Plaintiffs...