109 F. Supp. 3d 1238
N.D. Cal.2015Background
- KS Wild challenged the Services’ issuance of two 50-year incidental take permits for northern spotted owls and coho salmon to Fruit Growers, alleging APA, ESA, and NEPA violations.
- The court previously granted summary judgment invalidating the permits, NMFS’s biological opinion and incidental take statement, and the Final Environmental Impact Statement.
- KS Wild moved to vacate the invalidated permits, NMFS documents, and the FEIS, and sought an injunction prohibiting logging under state-approved plans.
- Defendants urged remand without vacatur due to potential disruptive consequences; KS Wild urged vacatur to remedy the ESA/APA violations.
- The court applied the Allied-Signal two-factor test to decide vacatur, finding serious errors and weighing disruptive consequences; vacatur granted for the permits and NMFS documents, but records of decision not vacated; injunction denied; claim 3 dismissed for failure to brief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether vacatur is appropriate for ESA/APA/NEPA errors | KS Wild seeks vacatur as default remedy for unlawful agency action | Defendants contend remand without vacatur may suffice due to corrective potential | Vacatur appropriate; errors outweighed disruptive effects |
| Are the Services' errors serious enough to justify vacatur | Errors were substantial in analysis and justification | Errors can be cured on remand | Errors deemed serious; tipped Allied-Signal factor in favor of vacatur |
| Do disruptive consequences of vacatur outweigh the errors | Vacatur would undermine conservation benefits and implementation of the Plan | Vacatur would disrupt ongoing conservation and timber-harvest activities | Disruptive harms did not outweigh the seriousness of errors; vacatur granted |
| Whether to vacate records of decision | RoD may be arbitrary and capricious absent valid EIS | No basis shown to vacate RoD | Declined to vacate records of decision |
| Whether to grant injunctive relief | Injunction needed to prevent continued harm and enforce remedy | No irreparable harm shown; injunction inappropriate | Injunction denied |
Key Cases Cited
- California Communities Against Toxics v. U.S. E.P.A., 688 F.3d 989 (9th Cir. 2012) (vacatur may be declined where harms outweigh agency errors)
- Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392 (9th Cir. 1995) (rare remand without vacatur when error unlikely to affect final decision)
- Sierra Club v. Marsh, 816 F.2d 1376 (9th Cir. 1987) (institutionalized caution in ESA contexts)
- National Wildlife Federation v. NMFS, 524 F.3d 917 (9th Cir. 2008) (need for robust analysis of life-cycle impacts in ESA analysis)
- Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d 146 (D.C. Cir. 1993) (two-factor Allied-Signal test for vacatur decision)