250 F. Supp. 3d 773
D. Or.2017Background
- Ninth Circuit remanded the case, instructing the district court to vacate the Secretary of the Interior’s Record of Decision (ROD) unless it is advisable to keep it in place.
- The Allied-Signal two-part vacatur test governs whether to remand with or without vacatur: (1) seriousness of the agency’s deficiencies; (2) disruptive consequences of vacatur.
- Plaintiffs challenged BLM’s baseline analysis in its NEPA process for a project affecting potential winter habitat for greater sage-grouse, arguing the ROD was based on a faulty baseline.
- BLM adopted mitigation measures in its Final EIS and ROD that relied on the disputed baseline findings; Plaintiffs argued lack of adequate baseline prevented informed agency decision-making and meaningful public participation.
- Defendants argued economic harms from vacatur and suggested forthcoming winter surveys could vindicate the ROD and cure the defect.
- The court found the project was operating under a limited notice to proceed (studies allowed; construction prohibited), reducing but not eliminating economic disruption from vacatur.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether to vacate the ROD under Allied-Signal | ROD must be vacated because BLM’s baseline error undermines NEPA’s purposes (informed decision-making and public participation) | Vacatur is unnecessary because upcoming surveys may confirm the ROD and vacatur would cause significant economic disruption | Court vacated the ROD; seriousness of NEPA errors outweighed limited disruptive effects |
| Seriousness of NEPA deficiencies | Baseline analysis was faulty and materially affected agency decision-making about sage-grouse habitat | Error can be cured by post-ROD surveys confirming no winter use | Court held the baseline defect was serious—undermined informed decision-making—favoring vacatur |
| Public participation impact | Public could not meaningfully comment on methods or results without adequate baseline; NEPA requires notice/comment on methodology | Post-ROD surveys will confirm results, so public participation won’t be impeded substantively | Court held the lack of baseline impeded meaningful public participation; this weighed heavily for vacatur |
| Disruptive consequences of vacatur (economic) | Economic disruption is limited because only planning/design work continues; construction paused | Vacatur would cause economic harm and delay | Court found only modest economic disruption; this factor only slightly favored Defendants |
Key Cases Cited
- Or. Nat. Desert Ass’n v. Jewell, 840 F.3d 562 (9th Cir. 2016) (remand instructions regarding NEPA baseline errors)
- Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d 146 (D.C. Cir. 1993) (two-part test for vacatur vs. remand)
- Weinberger v. Romero-Barcelo, 456 U.S. 305 (U.S. 1982) (standard for weighing public interest when vacating agency actions)
- Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (U.S. 1989) (NEPA’s purposes: informed decision-making and public participation)
- Cal. Cmtys. Against Toxics v. U.S. Envtl. Prot. Agency, 688 F.3d 989 (9th Cir. 2012) (economic consequences weighed in vacatur analysis)
- Great Basin Res. Watch v. U.S. Bureau of Land Mgmt., 844 F.3d 1095 (9th Cir. 2016) (post‑EIS analyses without public input cannot cure EIS deficiencies)