Forestkeeper v. United States Forest Serv.
| Decision Date | 15 March 2011 |
| Docket Number | CASE NO. CV F 09-392 LJO JLT |
| Parties | SEQUOIA FORESTKEEPER, Plaintiff, v. UNITED STATES FOREST SERVICE, et al., Defendants. |
| Court | U.S. District Court — Eastern District of California |
ORDER ON PLAINTIFF'S RECONSIDERATION MOTION (Doc. 86)
Plaintiff Sequoia Forestkeeper moves for reconsideration of this Court's December 3, 2010 Order on Cross-Motions for Summary Judgment ("MSJ Order"). Sequoia Forestkeeper argues that this Court made errors of fact and law to conclude that Fay Creek is not a "navigable water" or a "fishery." In addition, Sequoia Forestkeeper contends that this Court erred by refusing to consider supporting declarations attached to Sequoia Forestkeeper's motion and other documents and by denying injunctive relief. Based on a change in the controlling law and defendant United States Forest Service's ("the USFS"s) position on the law, this Court finds that reconsideration of the "navigable water" issue is warranted. Having reconsidered whether Fay Creek is a navigable water, this Court MODIFIES its MSJ Order in part and GRANTS summary judgment in favor of Sequoia Forestkeeper on this issue. This Court further GRANTS reconsideration of Sequoia Forestkeeper's request for injunctive relief, SETSASIDES the administrative agency action, and REMANDS this issue to the administrative agency for further proceedings. As to all other issues, this Court DENIES Sequoia Forestkeeper's reconsideration motion.
Sequoia Forestkeeper initiated this action to seek judicial review of the USFS's1 re-issuance of a Special Use Permit ("SUP") to Robert Sellers and Quarter Circle Five Ranch (collectively "Sellers") in 2003, pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. §§701-706. The SUP authorizes Sellers to use a water diversion that diverts water flowing from Fay Creek via a dam located within the boundaries of the Sequoia National Forest for private use ("diversion"). Sequoia Forestkeeper argued that by re-issuing the SUP, the USFS violated: (1) the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§4321-4347, for failure to prepare an Environmental Assessment ("EA") or an Environmental Impact Statement ("EIS") despite warnings from the California Department of Fish and Game, Sequoia Forestkeeper, and downstream landowners that the SUP would result in significant harm to the environment (first cause of action); (2) NEPA, for failure to take a "hard look" at the environmental impacts of the re-issuance; (3) the National Forest Management Act ("NFMA"), 16 U.S.C. §§1600-1687, because the SUP fails to comply with California resource and environmental law (third cause of action); and (4) NFMA, because the SUP fails to comply with Sequoia National Forest Land and Resource Management Plan ("Forest Plan"), which requires compliance with the water quality standards of the Clean Water Act, 33 U.S.C. §§1251-1387.2
In its MSJ Order, the Court found that the USFS violated NEPA by failing to consider requests to include a minimum bypass flow restriction in the SUP or to require monitoring devices to be installed. This Court rejected Sequoia Forestkeeper's claims on all other grounds. Accordingly, this Court granted in part and denied in part the parties' cross-summary judgment motions and remanded this action to the USFS for further consideration.
Sequoia Forestkeeper moves for reconsideration of this Court's MSJ Order on the following issues: (1) whether this Court erred in concluding that because Fay Creek was not a "navigable water, " the USFS did not violate the NFMA by failing to require a Section 401 Certificate; (2) whether this Court erred in concluding that Fay Creek did not constitute a "fishery"; (3) whether this Court erred by failing to consider Sequoia Forestkeeper's extra-record evidence; and (4) whether this Court erred in denying Sequoia Forestkeeper's request for injunctive relief. In response, USFS concedes that its legal position on the law as it pertains to the "navigable water" issue has changed. In addition, the USFS contends that the administrative record is incomplete on the issue, and requests remand to allow the USFS to develop the administrative record more fully. The USFS opposes Sequoia Forestkeeper's motion on all other issues.
In reply, Sequoia Forestkeeper opposes remand of the navigable water issue, arguing that this Court must decide whether the USFS acted arbitrarily and capriciously based on the administrative record at the time it existed when the USFS made its final administrative decision. In addition, Sequoia Forestkeeper reiterates its position that this Court erred on all issues presented in its reconsideration motion.
Having considered the parties' arguments, declarations, and the administrative record, this Court found this motion suitable for a decision without a hearing, vacated the March 10, 2011 hearing on this motion pursuant to Local Rule 230(g).
The Court has discretion to reconsider and vacate a prior order. Barber v. Hawaii, 42 F.3d 1185, 1198 (9th Cir.1994); United States v. Nutri-cology, Inc., 982 F.2d 394, 396 (9th Cir.1992); see also, Fed. R. Civ. P. 59(e). Motions to reconsider are committed to the discretion of the trial court. Combs v. Nick Garin Trucking, 825 F.2d 437, 441 (D.C.Cir.1987); Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir.1983) (en banc). A motion for reconsideration is an "extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources." Kona Enterprises v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000).
To succeed, a party must set forth facts or law of a strongly convincing nature to induce the courtto reverse its prior decision. Id.; see also, Kern-Tulare Water Dist. v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D.Cal.1986), affirmed in part and reversed in part on other grounds, 828 F.2d 514 (9th Cir.1987). "A motion for reconsideration should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law." 389 Orange Street Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999).
Motions for reconsideration are not the place for parties to make new arguments not raised in their original briefs. Northwest Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 925-6 (9th Cir.1988). Nor is reconsideration to be used to ask the court to rethink what it has already thought. United States v. Rezzonico, 32 F.Supp.2d 1112, 1116 (D.Ariz.1998). "A party seeking reconsideration must show more than a disagreement with the Court's decision, and recapitulation of the cases and arguments considered by the court before rendering its original decision fails to carry the moving party's burden." U.S. v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal.2001).
This Court's initial review of Sequoia Forestkeeper asserted claims pursuant to NEPA (counts one and two) and NFMA (counts three and four) was limited. Alleged violations of NEPA and NFMA are subject to juridical review under the APA. Blue Mtn. Biodiversity Project v. Blackwood, 161 F.3d 1208, 1211 (9th Cir. 1998). This Court reviews of an agency's actions pursuant to the differs, depending on whether the issue was primarily factual or primarily legal. Price Rd. Neighborhood Ass'n. v. United States DOT, 113 F.3d 1505, 1508 (9th Cir. 1997). After some discussion, the Court found that MSJ Order, pg. 11.
For disputes that are primarily factual, this Court "shall...set aside" agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law, " or found to be "without observance of procedure required by law." 5 U.S.C. §706(2). Although the Court's review is "searching and careful, " the "standard is narrow." Ocean Advocates v. United States Army Corps ofEng'rs, 402 F.3d 846, 859 (9th Cir. 2005). The arbitrary and capricious standard is "highly deferential, presuming the agency action to be valid and [requires] affirming the agency action if a reasonable basis exists for its decision." Indep. Acceptance Co. v. California, 204 F.3d 1247, 1251 (9th Cir. 2000) (quotations and citations omitted). Under such deferential review, the Court may not substitute its judgment for that of the agency. Marsh v. Or. Natural Res. Council, 490 U.S. 360, 376 (1989); Kern County Farm Bureau v. Allen, 450 F.3d 1072, 1076 (9th Cir. 2006). Thus, the Court will not vacate an agency's decision under the "arbitrary and capricious" standard unless the agency:
has relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the produce of agency expertise.
Nat'l Assn. of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658 (2007) (quoting Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). On the other hand, a reviewing court will "uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned." Id. (quotations and citations omitted).
When a dispute is primarily legal in nature, or concerns a threshold question of law, this Court applies the more lenient "reasonableness" standard. Ka Makani 'O Kohala Ohana Inc. v. Dept. of Water Supply, 295 F.3d 955, 959 (9th Cir. 2002). Under this standard, the Court will uphold the agency's...
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