High Sierra Hikers Ass'n v. United States Dep't of the Interior, C 09-04621 RS

• Decision Date: 29 May 2012
• Docket Number: No. C 09-04621 RS,C 09-04621 RS
• Parties: HIGH SIERRA HIKERS ASSOCIATION, Plaintiff, v. UNITED STATES DEPARTMENT OF THE INTERIOR, et al., Defendants.
• Court: U.S. District Court — Northern District of California

HIGH SIERRA HIKERS ASSOCIATION, Plaintiff,

v.UNITED STATES DEPARTMENT OF THE INTERIOR, et al., Defendants.

No. C 09-04621 RS

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

DATED: May 29, 2012

REMEDY ORDER

I. INTRODUCTION

Following an order granting in part and denying in part the parties' cross-motions for summary judgment, High Sierra Hikers Association ("HSHA") filed a motion for partial vacatur and injunctive relief. This motion addresses the proper remedy for defendants' Wilderness Act violation and requests the imposition of interim measures while the National Park Service ("NPS") completes the requisite necessity finding and finalizes the stock-specific Wilderness Stewardship Plan ("WSP"). NPS responded with its own briefing on remedy, agreeing that both a partial vacatur and interim order were appropriate, but disputing plaintiff's proposed terms. For the following reasons, the motion for partial vacatur and interim relief is granted in part and denied in part as explained below.

II. FACTUAL BACKGROUND

In late 2007, NPS issued a Record of Decision ("ROD"), adopting the Preferred Alternative promulgated in the agency's General Management Plan ("GMP"). The GMP and ROD provide programmatic guidance to management on a variety of park issues in Sequoia and Kings Canyon National Parks ("SEKI") and commit NPS to developing a WSP for consideration of site-specific wilderness areas and potential modifications to stock use. While that process is underway, the programmatic documents permit stock use up to current levels pursuant to existing park policies. Under these policies, namely the Stock Use Management Plan ("SUMMP") and the Back-country Management Plan ("BMP"), NPS determines the proper annual level of stock use based on the findings of an adaptive management monitoring program. NPS then uses this information to decide how many commercial use authorizations ("CUAs") to issue and whether to grant the annual extension of SEKI's one concession contract (collectively the "Packer Permits").

Plaintiff filed suit alleging the GMP violates both the Wilderness Act and the National Environmental Policy Act ("NEPA"). Specifically, HSHA argued that NPS failed to conduct either the Wilderness Act's requisite necessity finding or NEPA's obligatory environmental impact assessments prior to releasing the GMP or issuing annual Packer Permits. To this effect, HSHA moved for summary judgment. Defendants responded with a cross-motion for summary judgment. After a consolidated hearing, the Court issued an order granting in part and denying in part the cross-motions, explaining that in "issuing the Packer Permits and approving the GMP, the NPS violated the Wilderness Act by failing to conduct the requisite specialized finding, but complied with NEPA by fulfilling the Act's procedural requirements." (Dkt. No. 124 at 1-2). Briefing was then ordered on the issue of remedy.

HSHA thereafter filed a motion for partial vacatur and injunctive relief. NPS responded, conceding that both a vacatur and an injunction are necessary, but proposing alternative terms for the remedies. On the issue of partial vacatur, HSHA seeks an order compelling NPS to complete the specialized finding and to vacate all portions of the GMP and ROD which discuss or provide programmatic direction regarding commercial stock services. NPS objects to plaintiff's proposal, suggesting that it is too broad and affects unnecessary portions of the GMP.

HSHA also recommends specific injunctive measures. Both parties concur that some form of interim relief is critical while NPS completes the Wilderness Act specialized finding as NPS,prior to oral argument on May 23, 2012, had refused to issue any Packer Permits unless and until so authorized by the Court. At the conclusion of oral argument, the Court authorized the immediate issuance of permits up to 80% of 2007 levels pending entry of this further order.

As to the type and scope of interim relief necessary, however, the parties disagree. HSHA presents three interim measures: (1) a prohibition on the use of commercial services to transport unnecessary items into wilderness areas; (2) a ban on commercial stock grazing in particularly vulnerable meadows; and (3) a limit on stock use to no more than 80% of 2007 levels. NPS believes these proposals are excessive and improperly infringe on the agency's discretion. Instead, it suggests that stock use should be authorized in the interim up to the average of the level for each year from 2005 to 2007. To the extent that some use reduction is warranted, NPS suggests 5% is more appropriate than the 20% HSHA proposes.¹

Prior to oral argument, NPS advised the Court of legislation entitled the "Sequoia and Kings Canyon National Parks Back-country Access Act." The bill provides, in part, that "the Secretary [of the Interior] shall continue to issue authorizations to provide commercial services for commercial stock operations . . . at use levels determined by the Secretary to be appropriate and subject to any terms and conditions that the Secretary determines to be appropriate." H.R. 4849, 112th Cong. (2012) (the "SEKI Access Act"). Congress recently passed the Act but, due to the Congressional recess, it has apparently not yet reached the President's desk. As explained below, if the legislation is signed into law, the parties are directed to apprise the Court of what effect, if any, that new law will have on the terms of this order.

III. DISCUSSION

A. Partial Vacatur

When an agency's rule is determined to be unlawful, courts generally choose to set it whollyaside. See 5 U.S.C. § 706(2); Tinoqui-Chalola Council of Kitanemul & Yowlumne Tejon Indians et al. v. U.S. Dep't of Energy et al., 232 F.3d 1200, 1305 (9th Cir. 2000). As a matter of equity, however, courts may alternatively order partial or no vacatur while the rule is remanded for further agency action. Idaho Farm Bureau Fed'n v. Babbitt, 58 F.3d 1392, 1405 (9th Cir. 1995) ("[W]hen equity demands, the regulation can be left in place while the agency follows the necessary procedures."); see, e.g., ICORE, Inc. v. Fed. Commc'ns Comm'n, 985 F.2d 1081 (D.C. Cir. 1993) (listing cases from a variety of federal circuits where agency actions were remanded without interim vacatur including W. Oil and Gas v. EPA, 633 F.2d 803, 813 (9th Cir. 1980)). Such relief is especially appropriate in the environmental context where full interim vacatur "may have unpredictable or irreversible consequences." Ctr. for Biological Diversity v. Bureau of Land Mgmt., No. 06-4884 SI, 2011 WL 337364, *2 (N.D. Cal. Jan. 29, 2011) (citing Natural Res. Def. Council v. U.S. Dep't of the Interior, 275 F. Supp. 2d 1136, 1146 (C.D. Cal. 2002)).

Here, the parties agree that a partial vacatur of both the GMP and ROD is necessary due to NPS's failure to comply with the Wilderness Act's specialized finding requirement, but dispute the extent of such vacatur. HSHA insists the vacatur should cover all portions of the GMP and ROD which provide programmatic direction on the future of commercial stock or "facilitate" commercial stock use, while the NPS contends that only those portions which specifically "authorize" continuing commercial stock in wilderness areas should be set aside. Notably, this disagreement appears to be more semantic than substantive as both parties agree the vacatur must ensure that the upcoming WSP does not rely on the GMP or ROD in analyzing stock-related development. Consequently, the Court hereby vacates all portions of the GMP and ROD which provide: (1) programmatic guidance regarding the type or level of commercial stock services necessary in SEKI's wilderness; or (2) direction as to the need, appropriateness, or size of developments, structures, or facilities used completely or partially for commercial stock services. This includes all references to the future development or installation of stock facilities including, but not limited to, those anticipated in the Ash Mountain/Foothills area, at North Fork, in the South Form and Dillonwood areas, in Mineral King, and to replace the Wolverton station. (Pl's. Ex. 98 at 20418, 20422, 20432, 20400 and Ex. 2 at 20420, 20386, 20400, 20402, 20406, 20410). In order to inform the public of this decision, NPS must post notice of the partial vacatur at the first place on theagency website where the GMP and ROD appear. No additional postings, such as on linked material, will be required at this juncture.

B. Order to Complete Specialized Finding in the WSP

In producing the GMP, NPS failed to conduct the Wilderness Act's requisite specialized finding with regard to commercial stock use in SEKI. HSHA seeks a court order compelling NPS to complete this finding in the upcoming WSP. Plaintiff further requests that the order limit the WSP to wilderness issues only as a means to streamline the agency's analysis. According to HSHA, such a limitation will accelerate the review process and prevent unnecessary complications. Defendants represent that they recognize the need to complete a specialized finding on commercial stock services in the parks' wilderness areas and intend to do so in the upcoming WSP which they represent will be completed by January, 2015. They argue, however, that it would be illogical and unreasonably intrusive on the agency's administrative process to accept HSHA's proposal and preclude consideration of front-country areas within the WSP alongside analysis of the wilderness.

Under NEPA, "connected" or "cumulative" agency actions must be discussed within the same impact statement. See 40 C.F.R. § 1508.25; Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 999 (9th Cir. 2004); Earth Island Inst. v. U.S. Forest Serv., 351 F.3d 1291, 1306 (9th Cir. 2003). Determining the exact relationship between management actions "requires a high level of technical expertise and is properly left to the informed discretion of the responsible federal...