Ctr. for Biological Diversity v. United States Bureau of Land Mgmt.

Docket Number4:21-cv-00182-BLW
Decision Date02 June 2023
PartiesCENTER FOR BIOLOGICAL DIVERSITY, WESTERN WATERSHEDS PROJECT, and WILDEARTH GUARDIANS, Plaintiffs, v. UNITED STATES BUREAU OF LAND MANAGEMENT, MARY D'AVERSA, in her official capacity as District Manager for the Bureau of Land Management Idaho Falls District, and UNITED STATES DEPARTMENT OF INTERIOR, Defendants, and P4 PRODUCTION, LLC, Intervenor-Defendant.
CourtU.S. District Court — District of Idaho
MEMORANDUM DECISION AND ORDER

B Lynn Winmill U.S. District Court Judge

INTRODUCTION

Center for Biological Diversity, Western Watersheds Project, and WildEarth Guardians (collectively CBD) brought this action challenging the United States Bureau of Land Management's Final Environmental Impact Statement (FEIS) and 2019 Record of Decision (ROD), which approved a new open-pit phosphate mine in southeast Idaho-the Caldwell Canyon Mine Project (the “Project”)-set to be operated by intervenor P4 Production (P4). The Court previously granted summary judgment in favor of CBD on some of their claims finding that the BLM violated the National Environmental Protection Act (NEPA) and the Federal Land Policy and Management Act (FLPMA). Currently before the Court is the issue of remedies, and P4's motions for leave to file the Fifth Declaration of Roger W. Gibson (Dkt. 94) and to take judicial notice (Dkt. 100).

BACKGROUND[1]

On May 13, 2022, CBD filed a motion for summary judgment on all their claims. See Dkt. 58. Specifically, CBD alleged that the ROD, which approved the Project, and the FEIS upon which the ROD was based upon, violated NEPA, FLPMA, and the Clean Water Act (CWA). See CBD Br., Dkt. 58-1. In response, both the BLM and P4 filed cross-motions for summary judgment. See Dkts. 61 and 64. On November 2, 2022 the Court heard oral argument. See Dkt. 78.

On January 24, 2023, the Court issued a Memorandum Decision and Order granting summary judgment in favor of CBD, in part, and in favor of the BLM, in part. See Jan. 24, 2023 MDO, Dkt. 79. Specifically, the Court found that the BLM violated NEPA by (1) failing to consider the indirect effect of processing ore from the Caldwell Canyon Mine at the Soda Springs Plant,[2] (2) failing to take a hard look at the direct, indirect, and cumulative impacts of the Project on the Greater Sage-Grouse population and habitat, and (3) excluding a citizen-proposed alternative without explanation. See id. at 19-32 and 41-42.[3] The Court also found that the BLM's approval of the East Caldwell haul road and utility corridor rightof-way (ROW) violated FLPMA for failing to apply the mandated protections for the Dry Valley sage-grouse lek. Id. at 52. Although it granted summary judgment on some of CBD's claims, the Court deferred ruling on the appropriate remedy for BLM's violations.

On February 3, 2023, the Court approved the parties' joint recommendation for an expedited briefing schedule to address the issue of remedies. See Dkt. 80. In support of its Response, P4 submitted the Fourth Declaration of Roger W. Gibson, P4's President. See Dkt. 87-1. After CBD challenged some of the contentions made in that declaration, see CBD Reply at 9-12; Dkt. 90, P4 filed a motion for leave to file a fifth supplemental declaration from Mr. Gibson. See Dkt. 94. P4 claimed that the Court should consider the additional declaration because it addressed issues raised for the first time in CBD's Reply, and because there would be no prejudice to CBD. See P4's Br., Dkt. 94-1. CBD opposed the request for leave on both procedural and substantive grounds. See CBD Response, Dkt. 96.

On March 28, 2023, the Court held a hearing on the remedies issue and P4's motion for leave to file. See Dkt. 99. With the remedies issue under advisement, P4 filed a motion to take judicial notice of a recently issued Record of Decision for another phosphate mine. The Court now issues its decision and order on P4's motions and the issue of remedies.

ANALYSIS
A. Motion for leave to file the Fifth Declaration of Roger W. Gibson As a threshold matter, the Court will grant P4 leave to file and consider Mr.

Gibson's fifth declaration. See Fifth Gibson Decl., Dkt. 91-2. As mentioned, following the close of the expedited briefing schedule, P4 sought leave to file a supplemental declaration from Mr. Gibson addressing two items which they felt were raised for the first time in CBD's Reply: (1) CBD's “challenge to the foundation and credibility for declarant Gibson's testimony regarding certain aspects of P4's and Bayer's business, operations, and projected losses in the event” that the Court orders vacatur; and (2) “the availability to P4 of an alternative ore source to maintain operations at the Soda Springs facility during the potential period of delay caused by vacatur.” P4's Br. at 1, Dkt. 94-1. While CBD argues that these are not “new” issues warranting a supplemental declaration, their opposition is predominately comprised of substantiative arguments regarding the declaration's content. See CBD Response, Dkt. 97.

As noted by the parties, the decision of whether to consider Mr. Gibson's supplemental declaration falls squarely within this Court's discretion. See S.E.C. v. Seaboard Corp., 677 F.2d 1301, 1314 (9th Cir. 1982) (“acceptance or rejection of argumentative briefs, memoranda, and other supplementary material is within the sound discretion of the court). However, leave should only be granted “where a valid reason for such additional briefing exists, such as the movant raises new arguments in its reply brief.” Allen v. Campbell, No. 4:20-CV-00218-DCN, 2020 WL 6876198, at *7 (D. Idaho Nov. 23, 2020) (citations omitted) (further noting that the decision to grant leave to file a sur-reply is discretionary).

Although the Court does not disagree with some of CBD's contentions, it finds that consideration of the additional declaration is justified under the circumstances. First, the substantive issue in front of the Court-determining the appropriate remedy for BLM's violations-is a question of equity. See Idaho Farm Bureau Fed'n v. Babbitt, 58 F.3d 1392, 1406 (9th Cir. 1995). Given the nature of this determination, the Court finds equity is best served by having all possible information at its disposal rather than applying a formulaic rule to preclude consideration of potentially relevant information. Additionally, CBD was able to sufficiently address the supplemental declaration, raising both substantive and procedural arguments in their opposition.[4] The Court also finds it significant that the parties carrying the burden on the remedies issue-BLM and P4-took the procedural status of a non-moving party.[5]

Most importantly, as discussed below, even considering Mr. Gibson's fifth declaration, the Court finds that vacatur is the appropriate remedy. Accordingly, CBD suffers no tangible harm from consideration of the declaration, and the Court will grant P4's motion.

B. Vacatur is the appropriate remedy for the BLM's violations Moving to the issue at hand, CBD requests that this Court vacate the ROD,

including the EIS, and all decisions made in reliance on those documents. See CBD Br. at 1-2, Dkt. 81. In other words, CBD seeks to wipe the slate clean and have the BLM restart its approval of the Project.

Conversely, BLM and P4 seek remand without vacatur, claiming that a more tailored remedy is warranted under the current circumstances. See BLM Response at 1-2, Dkt. 84; P4 Response at 1, Dkt. 87. Generally, the BLM argues that its errors were not so severe as to taint the entire Project, and P4 argues that whatever the errors were, they are outweighed by the disruptive consequences vacatur would cause. Id. The Court finds that BLM and P4 have not demonstrated that a deviation from the presumptive remedy is warranted for the reasons discussed below.

1. Legal Standard

In the Ninth Circuit, vacatur is the presumptive remedy for agency action that the Court has found a violation under the Administrative Procedures Act (APA). Env't Def. Ctr. v. Bureau of Ocean Energy Mgmt., 36 F.4th 850, 882 (9th Cir. 2022) (citing All. for the Wild Rockies v. U.S. Forest Serv., 907 F.3d 1105, 1121 (9th Cir. 2018)). Remand to the agency without vacatur is only ordered “in [the] limited circumstances” when equity so demands. Nat'l Fam. Farm Coal. v. U.S. Env't Prot. Agency, 960 F.3d 1120, 1144 (9th Cir. 2020) (citation omitted); Pollinator Stewardship Council v. U.S. E.P.A., 806 F.3d 520, 532 (9th Cir. 2015) (We leave an invalid rule in place only when equity demands that we do so”) (internal quotations omitted).

To determine whether vacatur is appropriate, a court applies the “two-factor balancing test first outlined in the D.C. Circuit's Allied-Signal decision by “weigh[ing] the seriousness of the agency's errors against the disruptive consequences of an interim change that may itself be changed.” Ctr. for Food Safety v. Regan, 56 F.4th 648, 663 (9th Cir. 2022); see also Allied-Signal, Inc. v. U.S. Nuclear Regul. Comm n, 988 F.2d 146, 150-51 (D.C. Cir. 1993). Because vacatur is the presumed remedy, the burden is on the agency to establish equity demands a more tailored remedy. See Env't Def. Ctr., 36 F.4th at 882; W. Watersheds Project v. Zinke, 441 F.Supp.3d 1042, 1083 (D. Idaho 2020) (“The burden is on BLM to show that compelling equities demand anything less than vacatur.”).

2. The seriousness of the errors

In addressing the first Allied-Signal factor-the seriousness of BLM's errors-the Court considers “whether the agency would likely be able to offer better reasoning or whether by complying with procedural rules, it could adopt the same [decision] on remand, or whether such fundamental flaws in the agency's decision make it unlikely that the same [decision] would be adopted on remand.” Ctr. for Food...

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