Regents of Univ. of Cal. v. Fed. Emergency Mgmt. Agency

Decision Date20 December 2019
Docket NumberCase No. 17-cv-03461-LB
CourtU.S. District Court — Northern District of California


Case No. 17-cv-03461-LB


December 20, 2019


Re: ECF Nos. 120, 123-125, 127


In 2005, the Regents of the University of California submitted two applications to the California Governor's Office of Emergency Services ("Cal OES") for grant funding from the Federal Emergency Management Agency ("FEMA") to mitigate the risk of wildfires in the East Bay Hills. The funding was for two areas: a 42.8-acre area in Claremont Canyon and a 56.3-acre area in Strawberry Canyon. The forest in those areas has an "understory"1 of native trees and

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shrubs growing beneath an "overstory"2 canopy of non-native trees, particularly eucalyptus trees, that are vulnerable to fire. The University's project would eradicate the non-native overstory by cutting down all of the non-native trees (including all eucalyptus, Monterey pine, and acacia trees) to convert the area into a forest of native California species that would be more resistant to fire.

FEMA conducted an environmental review under the National Environmental Policy Act ("NEPA"). Among other things, FEMA consulted with the U.S. Fish and Wildlife Service. The Fish and Wildlife Service issued a Biological Opinion that the project might have short-term adverse effects on the Alameda whipsnake, which is listed as threatened under the Endangered Species Act, and would also have long-term benefits by eradicating eucalyptus trees (which are unsuitable for the whipsnake), thereby creating new habitat areas for the whipsnake. The Fish and Wildlife Service issued an "incidental-take statement" (or "incidental-take permit") authorizing the University to engage in limited "incidental take" (meaning, harassment, injury, or death) of the whipsnake and other listed species in connection with the project.

In 2014, FEMA issued a final Environmental Impact Statement documenting its environmental review. FEMA, in conjunction with the University, modified the project to implement a "unified methodology": (1) for 22.1 of the 99.1 total acres at issue, the University would emphasize "thinning" the understory (by removing shrubs and low tree branches) instead of cutting down the non-native-tree overstory, and (2) for the remaining acres, the University would implement its plan to cut down non-native trees. In 2015, FEMA granted $573,828 in funding to the University for the project.

A non-profit organization called the Hills Conservation Network ("HCN") filed several suits to block the project. HCN contended that the University's plan to cut down non-native trees (and spread wood chips from those trees at the project sites) would increase, not decrease, fire risk. Instead, HCN said that removing understory vegetation, not cutting down the overstory, was a

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better and more cost-effective way to mitigate fire risk. HCN argued that FEMA should have required that approach for the entire project area.

HCN first sued FEMA, the director of Cal OES, and the University (among other defendants) in federal court, alleging that FEMA violated NEPA by not adequately considering HCN's alternative as part of its environmental review of the University's project. Hills Conservation Network v. FEMA, No. 3:15-cv-01057-LB (N.D. Cal. filed Mar. 6, 2015) (Federal HCN). In September 2016, FEMA and Cal OES settled the Federal HCN lawsuit, over the University's objections, by agreeing to rescind the grants for the University's project.

HCN also sued the University in state court, alleging that the University violated the California Environmental Quality Act ("CEQA") by not adequately conducting its own environmental review of its project. Hills Conservation Network, Inc. v. Regents of the Univ. of Cal., No. RG16823477 (Cal. Super. Ct. Alameda Cty. filed July 15, 2016) (State HCN). In October 2016, the state court enjoined the University's project on the ground that HCN had a likelihood of success on the merits of its claim that the University violated CEQA.

In February 2017, the University rescinded its approval for its original project — which allowed it to stipulate to dismissal of the State HCN lawsuit on the ground that it was "potentially moot." The University moved forward instead with a "Revised Project," funded by a $3,621,000 grant from the California Department of Forestry and Fire Protection ("Cal Fire"). The Revised Project involves selective thinning and understory removal throughout the area covered by the FEMA project (among other areas) and not cutting down non-native trees and removing the overstory canopy as its original project had called for. The University is pursuing a full environmental review of the Revised Project for CEQA compliance.

In June 2017, the University filed this lawsuit against FEMA, Cal OES, and several FEMA and Cal OES officials. The University claims that FEMA's decision to terminate the grants for its original Claremont Canyon and Strawberry Canyon project (1) failed to comply with the regulations under the Robert T. Stafford Disaster Relief and Emergency Assistance Act ("Stafford Act") and thus violated the Administrative Procedure Act ("APA"), (2) was arbitrary and capricious and thus violated the APA, and (3) failed to comply with the procedural and substantive

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requirements of NEPA. HCN intervened as an additional defendant. Another FEMA grant recipient (that retained grant funding) — the East Bay Regional Park District ("Park District") — also intervened as an additional defendant.

The parties all filed dispositive cross-motions. The University moved for summary judgment, arguing that FEMA's actions in terminating the grants for its original project violated the APA and NEPA.3 FEMA moved to dismiss, arguing that (1) the University lacks standing because there is no causation or redressability, (2) the case is moot because the University itself rescinded its approval for the FEMA project and is now pursuing the Revised Project, and (3) its sovereign immunity bars the University's claims.4 FEMA also cross-moved for summary judgment on the grounds that (1) it legally terminated the grants because Cal OES (the main grant recipient) consented to the termination and the University (as a subgrantee) does not need to consent and (2) it complied with the APA and NEPA when it terminated the grants.5 HCN joined in FEMA's motions.6 The Director of Cal OES7 (1) moved to dismiss, arguing that the Eleventh Amendment bars the University's claims against him, and (2) cross-moved for summary judgment, arguing, like FEMA, that their mutual consent to terminate the grants was lawful.8 9 The Park District cross-moved for summary judgment on the ground that this case should not alter or vacate FEMA's grant funding for the Park District's project.10

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The court dismisses the case as moot. The University affirmatively rescinded its approval for the FEMA project to cut down the non-native-tree overstory and now is implementing a Cal Fire-funded Revised Project to thin the forest and remove understory. FEMA's grants and the related items (e.g., the incidental-take statement) were for the FEMA project and cannot be transferred to the Revised Project. Consequently, a court order finding that FEMA erred in rescinding the University's grants for the original project would not afford the University any effective relief because the University is instead pursuing the Revised Project. This mooted the State HCN lawsuit, and it moots this lawsuit too.


1. Statutory, Regulatory, and Administrative Background

1.1 FEMA Grant Programs

Under the Stafford Act, FEMA administers numerous grant programs, including the Pre-Disaster Mitigation Program authorized by 42 U.S.C. § 5133 and the Hazard Mitigation Grant Program authorized by 42 U.S.C. § 5170c.

The Pre-Disaster Mitigation Program was established "to provide technical and financial assistance to States and local governments to assist in the implementation of predisaster hazard mitigation measures that are cost-effective and are designed to reduce injuries, loss of life, and damage and destruction of property, including damage to critical services and facilities under the jurisdiction of the States or local governments." 42 U.S.C. § 5133(b). The Hazard Mitigation Grant Program allows for federal funding when authorized under a presidential declaration that a major disaster exists. 42 U.S.C. §§ 5170, 5170c.

According to FEMA guidance, states, territories, and federally recognized tribes (including the emergency-management agencies or similar offices of states, territories, and federally recognized tribes) are eligible to be "Applicants" to the Pre-Disaster Mitigation Program and the Hazard

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Mitigation Grant Program.11 (Cal OES is the Applicant to FEMA for the state of California.12) Entities that are not states, territories, or federally recognized tribes cannot be Applicants, but they can submit subapplications for FEMA assistance to their Applicant state, territory, or federally recognized tribe.13 Applicants are responsible for soliciting subapplications from eligible subapplicants and assisting in the preparation of, reviewing, and submitting eligible, complete applications to FEMA.14

If FEMA awards grant funding, the Applicant then becomes both the "Recipient" of the grant funds and a "pass-through entity." 2 C.F.R. § 200.86 ("Recipient means a non-Federal entity that receives a Federal award directly from a Federal awarding agency to carry out an activity under a Federal program. The term recipient does not include subrecipients."); 2 C.F.R. § 200.74 ("Pass-through entity means a non-Federal entity that provides a subaward to a subrecipient to carry out part of a Federal program.").15 Pass-through entities are accountable for the use of the funds and are responsible for...

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