Aqualliance v. U.S. Bureau of Reclamation

• Decision Date: 07 June 2018
• Docket Number: 1:15–CV–754–LJO–BAM
• Citation: 312 F.Supp.3d 878
• Parties: AQUALLIANCE, et al., Plaintiffs, v. U.S. BUREAU OF RECLAMATION, et al., Defendants.
• Court: U.S. District Court — Eastern District of California

312 F.Supp.3d 878

AQUALLIANCE, et al., Plaintiffs,

v.U.S. BUREAU OF RECLAMATION, et al., Defendants.

1:15–CV–754–LJO–BAM

United States District Court, E.D. California.

Signed June 7, 2018

Jason Flanders, Anthony M. Barnes, Aqua Terra Aeris Law Group, Oakland, CA, Michael Bruce Jackson, Michael B. Jackson, Attorney at Law, Quincy, CA, Patrick M. Soluri, Soluri Meserve, A Law Corporation, Sacramento, CA, for Plaintiffs.

Anna K. Stimmel, US Department of Justice, Washington, DC, Bradley H. Oliphant, R. Lee Leininger, US Department Of Justice, Env. & Natural Resources Division, Denver, CO, Daniel Joseph O'Hanlon, Elizabeth Louise Leeper, Hanspeter Walter, Rebecca Rose Akroyd, Kronick, Moskovitz, Tiedemann & Girard, Jeffrey K. Dorso, Andrea A. Matarazzo, Pioneer Law Group, LLP, Jon David Rubin, San Luis & Delta–Mendota Water Authority, Sacramento, CA, for Defendants.

MEMORANDUM DECISION AND ORDER RE POST–JUDGMENT VACATUR

Lawrence J. O'Neill, UNITED STATES CHIEF DISTRICT JUDGE

I. INTRODUCTION

Plaintiffs,¹ various water resource management and conservation organizations, challenged Defendants'² "10–year water transfer program to move water from sellers located upstream of the Sacramento/San Joaquin Delta (‘Delta’) to willing buyers south of the Delta" (the "Project"). ECF No. 16, First Amended Complaint ("FAC") at ¶ 2. Plaintiffs asserted Reclamation's and the Authority's creation and approval of the Project's Final Long–Term Water Transfers Environmental Impact Statement/Environmental Impact Report³ ("FEIS/R") violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq ., and the California Environmental Quality Act ("CEQA"), Cal. Pub. Res. Code §§ 21000 et seq . Plaintiffs also assert FWS's analysis of the Project's impacts to the giant garter snake ("GGS") and related approval of the Project's Final Biological Opinion ("BiOp") and Incidental Take Statement ("ITS") violated the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531 et seq . FAC at ¶ 1.

The Parties filed cross-motions for summary judgment. ECF Nos. 45, 48, 49, 50. On February 15, 2018, the Court issued a 133–page Memorandum Decision and Order granting in part and denying in part the cross motions. ECF No. 70 ("MSJ Order"). In sum, the Court concluded "that both challenged documents (the FEIS/R and the BiOp[/ITS] ) are at least in some part unlawful," and directed the Parties "to meet and confer before submitting a joint proposed form of judgment that identifies a schedule for remand and/or a joint proposed schedule for any anticipated further proceedings in this case." Id. at 133.

The Court emphasized that it "has provided ample and specific direction to give the parties and counsel what they need to make this happen without further involvement by this Court. The only matter beyond the control of the Court is a desire by both sides to accomplish this directive. The Court relies on the duty, competence, and professionalism of those involved to accomplish the mission." Id. Notwithstanding this plea, the Parties represent that they could not come to agreement on the matter of whether or not the Court should on remand vacate the agency decisions it found unlawful. Defendant argues for remand without vacatur. ECF No. 76. Plaintiff maintains vacatur is appropriate, if not required, under the circumstances. ECF No. 77. After considering the entire record, including two rounds of supplemental briefing, ECF Nos. 76–77 & 81–82, for the reasons set forth below, the Court has determined that vacatur is appropriate as to both the FEIS/R and the BiOp/ITS.

II. STANDARD OF DECISION

Vacatur is the presumptive remedy when a court finds an agency's decision unlawful under the Administrative Procedure Act ("APA"). See 5 U.S.C. § 706(2)(A) ("The reviewing court shall hold unlawful and set aside agency action, findings, and conclusions found to be...arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]") (emphasis added); Se. Alaska Conserv. Council v. U.S. Army Corps of Eng'rs , 486 F.3d 638, 654 (9th Cir. 2007) ("Under the APA, the normal remedy for an unlawful agency action is to ‘set aside’ the action. In other words, a court should vacate the agency's action and remand to the agency to act in compliance with its statutory obligations.") rev'd on other grounds sub nom. Coeur Alaska v. Se. Alaska Conserv. Council , 557 U.S. 261, 129 S.Ct. 2458, 174 L.Ed.2d 193 (2009) ; see also Klamath–Siskiyou Wildlands Ctr. v. Nat'l Oceanic & Atmospheric Admin. Nat'l Marine Fisheries Serv. , 109 F.Supp.3d 1238, 1241–43 (N.D. Cal. 2015).

However, vacatur is not required in every case. See Cal. Communities Against Toxics v. U.S. Envtl. Prot. Agency , 688 F.3d 989, 992 (9th Cir. 2012) (per curiam ) ("A flawed rule need not be vacated."). "When equity demands, [a flawed action] can be left in place while the agency follows the necessary procedures to correct its action." Id. (quoting Idaho Farm , 58 F.3d at 1405 (internal quotation marks omitted) ). Nonetheless, courts in the Ninth Circuit decline to vacate unlawful agency action only in rare circumstances. See 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.").

When determining whether to vacate an agency decision, courts in the Ninth Circuit look to the factors described in Allied–Signal, Inc. v. U.S. Nuclear Regulatory Comm'n , 988 F.2d 146, 150–51 (D.C. Cir. 1993). See Cal Communities , 688 F.3d at 993 ; League of Wilderness Defs./Blue Mountains Biodiversity Project v. United States Forest Serv. , No. 3:10-CV-01397-SI, 2012 WL 13042847, at *2 (D. Or. Dec. 10, 2012) ; see also N. Coast Rivers All. v. United States Dep't of the Interior , No. 1:16-CV-00307 LJO MJS, 2016 WL 8673038, at *6 (E.D. Cal. Dec. 16, 2016) (applying Allied–Signal factors in context of voluntary remand). The Allied–Signal factors are: (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 Against Toxics , 688 F.3d at 992 (internal quotation omitted) ). "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.’ " Klamath–Siskiyou , 109 F.Supp.3d at 1242 (quoting League of Wilderness Defs. , 2012 WL 13042847, at *6 ). Courts have considered remand without vacatur to be appropriate where "serious irreparable environmental injury" would result from vacatur. Ctr. for Food Safety v. Vilsack , 734 F.Supp.2d 948, 951 (N.D. Cal. 2010). In addition to environmental harm, it is appropriate to consider other practical concerns when weighing the consequences of vacatur. Cal. Communities , 688 F.3d at 993–94 (considering delay to "much needed power plant," possibly resulting in blackouts, to be a "severe" consequence of vacatur that may be considered in balance). In balancing these factors in relation to ESA claims, courts will "tip the scales in favor of the endangered species under the ‘institutionalized caution’ mandate." Klamath–Siskiyou , 109 F.Supp.3d at 1242 (internal citations and quotations omitted).

III. ANALYSIS

A. Disruptive Consequences

Under the second Allied–Signal factor, the Court may consider the disruptive consequences that would result from vacatur. California Communities , 688 F.3d at 992 (citing Allied–Signal , 988 F.2d at 150–51 ). Under a worst case scenario, the supplemental analyses and related procedures aimed at addressing the flaws the Court identified in the FIES/R and BiOp/ITS should be complete by early 2019. ECF No. 81 at 1–2. The Authority has determined that it will not participate in transfers from either crop fallowing or groundwater substitution this year. ECF No. 76 at 3. While Reclamation initially expected some "inter-basin" transfers from fallowed fields to the Tehama Colusa Canal Authority ("TCCA") this year, Id. at 4, Reclamation later clarified that in light of more recent water supply information, TCCA will not be requesting inter-basin crop fallowing transfers this year. ECF No. 79 at ¶ 4. Therefore, there will be no impact to water users as a result of being unable to transfer water under the Project this year, because no water users wish to transfer water under the Project.

The United States points to only one other potential "disruptive consequence" of vacatur in this case: if the BiOp/ITS is vacated (rather than remanded without vacatur to make corrections) Federal Defendants will be required to re-start the ESA consultation process and Reclamation will need to submit a new request for ESA consultation to FWS, which will require the preparation of a new biological assessment to include an updated description of the project, updated information about the status of the species, and updates regarding any additional science that published since the last consultation package was forwarded to FWS. See ECF No. 81 at 1–2. Federal Defendants anticipate that these additional procedures would add approximately two months to the schedule, meaning that any new BiOp would be completed by late February 2019. Id. at 2. Because Reclamation generally begins processing requests for transfers after February, any delays to the schedule could "greatly complicate" the transfer approval process. Id. Moreover, Federal Defendants point out that the closeness in time between the completion of the remand process and the transfer season would increase the likelihood that any future challenges would need to be brought by way of an emergency motion. Id.

All the above assertions are reasonable, but they do not justify remand without vacatur. Vacatur is the "normal remedy," Se. Alaska , 486 F.3d at 654, with remand without vacatur warranted by equity concerns...