Klamath-Siskiyou Wildlands Ctr. v. Nat'l Oceanic & Atmospheric Admin. Nat'l Marine Fisheries Serv.

• Decision Date: 29 May 2015
• Docket Number: Case No. 13–cv–03717–NC
• Citation: 109 F.Supp.3d 1238
• Parties: Klamath–Siskiyou Wildlands Center, Center for Biological Diversity, and Klamath Forest Alliance, Plaintiffs, v. National Oceanic and Atmospheric Administration National Marine Fisheries Service, and United States Fish and Wildlife Service, Defendants, and Fruit Growers Supply Company, Defendant–Intervenor.
• Court: U.S. District Court — Northern District of California

109 F.Supp.3d 1238

Klamath–Siskiyou Wildlands Center, Center for Biological Diversity, and Klamath Forest Alliance, Plaintiffs,

v. National Oceanic and Atmospheric Administration National Marine Fisheries Service, and United States Fish and Wildlife Service, Defendants,andFruit Growers Supply Company, Defendant–Intervenor.

Case No. 13–cv–03717–NC

United States District Court, N.D. California.

Signed May 29, 2015

Timothy J. Ream, Justin Augustine, San Francisco, CA, John R. Mellgren, Eugene, OR, Paul August Kampmeier, Wyatt Foster Golding, Seattle, WA, Susan Jane McKibben Brown, Portland, OR, for Plaintiffs.

Ethan Carson Eddy, Travis James Annatoyn, United States Department of Justice, Washington, DC, for Defendants.

Scott Benjamin Birkey, Cox Castle & Nicholson, Andrew Biel Sabey, Cox, Castle & Nicholson LLP, San Francisco, CA, for Defendant–Intervenor.

ORDER VACATING INCIDENTAL TAKE PERMITS, BIOLOGICAL OPINION, AND ENVIRONMENTAL IMPACT STATEMENT; AND DENYING MOTION FOR INJUNCTION

NATHANAEL M. COUSINS, United States Magistrate Judge

Having determined that the defendant agencies improperly issued incidental take permits for two threatened species, the Court now considers the appropriate remedy. Vacatur is the standard remedy for unlawful agency decisions. To be sure, the Ninth Circuit does not mandate that district courts mechanically vacate an agency's action after a finding that it violates the Administrative Procedure Act. Yet courts within this circuit rarely remand without vacatur. Here, the key issue is whether or not this Court should vacate incidental take permits that violate the Endangered Species Act, when vacatur would also result in temporarily putting an end to permits for conservation efforts that benefit the threatened species.

At summary judgment, plaintiffs Klamath–Siskiyou Wildlands Center, Center for Biological Diversity, and Klamath Forest Alliance (collectively "KS Wild") alleged that defendants U.S. Fish and Wildlife Service and National Marine Fisheries Service (collectively "the Services") improperly issued 50–year incidental take permits to defendant-intervenor Fruit Growers Supply Company to take two "threatened" species: the northern spotted owl and the Southern Oregon/Northern California Coast coho salmon ("coho salmon").¹ KS Wild also alleged multiple violations of the Endangered Species Act and the National Environmental Policy Act.

On April 3, 2015, this Court granted in part KS Wild's motion for summary judgment against the Services and Fruit Growers. It held that the Services acted arbitrarily and capriciously, in violation of the Administrative Procedure Act, by issuing two deficient incidental take permits, failing to make a valid no-jeopardy finding in one of the biological opinions, and insufficiently analyzing the cumulative impacts of its proposed action in the Final Environmental Impact Statement. Klamath–Siskiyou Wildlands Ctr. v. Nat'l Oceanic & Atmospheric Admin., No. 13–cv–03717 NC, 99 F.Supp.3d 1033, 1066–67, 2015 WL 1738309, at *27 (N.D.Cal. Apr. 3, 2015) (summary judgment order).

KS Wild now moves the Court to vacate the incidental take permits, the NMFS biological opinion, the NMFS incidental take statement, the Final Environmental Impact Statement, and the records of decision on remand. Dkt. No. 78. In addition, KS Wild seeks to enjoin Fruit Growers from logging under state-approved harvesting plans. Id. at 16–19.

For the reasons explained below, the Court GRANTS KS Wild's motion to vacate the incidental take permits, the NMFS biological opinion, the NMFS incidental take statement, and the Final Environmental Impact Statement, finding that the defendants' assertions of disruptive consequences and harm to the threatened species do not outweigh the seriousness of the agency's errors that this Court found. But the Court DENIES KS Wild's motion to vacate the records of decision. The Court also DENIES KS Wild's request for an injunction against the Services and Fruit Growers. Finally, the Court DISMISSES KS Wild's third claim for relief because of its failure to brief the issue at summary judgment.

I. BACKGROUND

In 2009, Fruit Growers submitted an application to FWS for authorization under ESA § 10 to take northern spotted owls on the company's lands in connection with timber harvest operations. Klamath–Siskiyou Wildlands Ctr., 99 F.Supp.3d at 1041–42, 2015 WL 1738309, at *5. Fruit Growers also submitted an incidental take permit application to NMFS for authorization to take coho salmon. Id. FWS and NMFS eventually issued incidental take permits to Fruit Growers, allowing the company to take northern spotted owls and coho salmon during the course of its timber harvest activities. The permits last for 50 years. Id. Because Fruit Growers intended to take the northern spotted owl and the coho salmon, it developed a Habitat Conservation Plan that presented separate strategies on how to conserve each species.

To further evaluate the Plan and the incidental take permit application, Fruit Growers and the Services prepared a Draft Environmental Impact Statement as required by NEPA.

Id. at 1245, 2015 WL 1738309, at *6 (citing 42 U.S.C. § 4321 et seq. ). The Services subsequently published the Final Environmental Impact Statement. Id. During this time, both FWS and NMFS assessed whether issuing an incidental take permit to Fruit Growers would likely jeopardize the continued existence of an endangered or threatened species, or destroy or adversely modify designated critical habitat. See ESA § 7(a)(2), 16 U.S.C. § 1536(a)(2). In making this determination, FWS and NMFS issued biological opinions. Both concluded that the proposed permit would not jeopardize the northern spotted owl or coho salmon or adversely modify the species' critical habitat. Klamath–Siskiyou Wildlands Ctr., 99 F.Supp.3d at 1044–45, 2015 WL 1738309, at *7.

KS Wild challenged the incidental take permits, the associated biological opinions, and the Final Environmental Impact Statement. This Court agreed in part with KS Wild that the Services violated the Administrative Procedure Act, the Endangered Species Act, and the National Environmental Policy Act. It granted KS Wild's summary judgment motion and invalidated the incidental take permits issued by the Services, the biological opinion issued by NMFS, and the Final Environmental Impact Statement. Id. at *27. The Court also invalidated the NMFS incidental take statement concerning coho salmon. Id. at *20 ("[T]he Court invalidates NMFS's biological opinion as well as the accompanying incidental take statement.").

In response to the Court's order for additional briefing as to potential remedies, KS Wild now asks the Court to vacate the incidental take permits, the NMFS biological opinion, the Final Environmental Impact Statement, and the records of decision on remand. Dkt. No. 78. Additionally, KS Wild seeks to enjoin Fruit Growers from logging under any state agency-approved harvesting plans. KS Wild also seeks an order directing the Services to determine how much take has occurred under the now-invalid permits and whether Fruit Growers must provide post-termination mitigation to offset impacts of that take. Id. at 16–19.

The Services and Fruit Growers oppose KS Wild's requested remedies. Specifically, defendants argue that the Court should remand the Services' actions to the agencies without vacatur because the disruptive consequences of vacatur outweigh the seriousness of the errors the Court identified at summary judgment. Dkt. Nos. 81, 84. Finally, KS Wild and defendants disagree over whether KS Wild waived claim 3 of its complaint because of KS Wild's failure to brief the issue at summary judgment. Both sides request a favorable summary judgment order as to this claim.

This Court has jurisdiction under 28 U.S.C. § 1331. Plaintiffs, defendants, and defendant-intervenors consented to the jurisdiction of a magistrate judge under 28 U.S.C. § 636(c). Dkt. Nos. 10, 18, 28.

II. DISCUSSION

A. Vacatur

When a court finds an agency's decision unlawful under the Administrative Procedures Act, vacatur is the standard remedy. See 5 U.S.C. § 706(2)(A) ("The reviewing court shall ... set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]"; 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.") (internal quotation marks and citation omitted), 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) ; Idaho Farm Bureau Fed'n v. Babbitt, 58 F.3d 1392, 1405 (9th Cir.1995) ("Ordinarily when a regulation is not promulgated in compliance with the APA, the regulation is invalid."); accord Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1084 (D.C.Cir.2001) (relief for APA error "normally will be a vacatur of the agency's order"); Reed v. Salazar, 744 F.Supp.2d 98, 119 (D.D.C.2010) ("default remedy is to set aside [agency] action" taken in violation of NEPA).

The Ninth Circuit, however, does not mandate vacatur. 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."). Indeed, "[w]hen 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)).

In these instances, to determine whether it should vacate an agency decision, a court must look at two factors: (1) the seriousness of an agency's errors and (2) the disruptive consequences that would result from vacatur. Cal. Communities Against Toxics, 688 F.3d at 992 ("Whether agency action...