ORDER VACATING INCIDENTAL TAKE PERMITS, BIOLOGICAL OPINION, AND ENVIRONMENTAL IMPACT STATEMENT; AND DENYING MOTION FOR INJUNCTION
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 rеsult 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 Wild
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-ev-03717 NC,
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 thе 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.,
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
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, сapricious, an abuse of discretion, or otherwise not in accordance with law[.]”; Se. Alaska Conserv. Council v. U.S. Army Corps of Eng’rs,
The Ninth Circuit, however, does not mandate vacatur. Cal. Communities Against Toxics v. U.S. Envtl. Prot. Agency,
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,
But courts in the Ninth Circuit decline vacatur оnly in rare circumstances. See Humane Soc’y v. Locke,
In California Communities Against Toxics, for example, the Ninth Circuit found that the Environmental Protection Agency violated the APA’s notice-and-comment requirements during the rule-making process when it failed to disclose certain documents in the electronic docket сoncerning a soon-to-be completed power plant. Cal. Communities Against Toxics,
The Allied-Signal apprоach also accords with earlier Ninth Circuit cases involving remand without vacatur. Idaho Farm, for instance, involved FWS’s proposal listing the Bruneau Hot Springs Snail, a rare snail species in southwest Idaho, as an endangered species under the ESA.
Such cases highlight the “significant disparity between the agencies’ relatively minor errors, on the one hand, and the damage that vacatur could cause the very purpose of the underlying statutes, on the other.” League of Wilderness Defenders,
Here, KS Wild contends that this Court should apply the default vacatur remedy. The Services and Fruit Growers disagree. In particular, defendants argue that vacating the FWS incidental take permit, the NMFS incidental take permit, the NMFS biological opinion, the NMFS incidental take statement, and the Final Environmental Impact Statemеnt would disrupt conservation efforts and negate any benefits that would accrue to the northern spotted owl and the coho salmon under the Habitat Conservation Plan.
In determining whether to vacate the above documents, the Court applies the two-part Alliedr-Signal test.
1. Seriousness of Agency’s Errors
According to the Services, the errors this Court identified in its summary judgment order are “not so serious that reworked incidental take permits and associated documents are ‘unlikely' following remand.” Dkt. No. 84 at 3 (quoting Fox Television Stations, Inc. v. F.C.C.,
As to coho salmon, the Services also state thаt NMFS’s failure to perform a short-term-impact analysis should not lead the Court to conclude that “these documents are flawed beyond repair,” id.; rather, because NMF>3 “may be able readily to cure [the] defect in its explanation of a decision” the Court should weigh the first Allied-Signal factor in NMFS’s favor, id. (quoting Heartland Reg’l Med. Ctr. v. Sebelius,
Despite this commitment, the Court does not find defendants’ views persuasive. The Court’s summary judgment order details the flaws in the incidental take permits, the NMFS biological opinion and accompanying incidental take statement, and the Final Environmental Impact Statement; therefore, the Court need not repeat its analysis here. Nonetheless, the Court underscores three examples that demonstrate the seriousness of the Services’ errors.
First, FWS violated the ESA by factoring the conservation efforts of non-permitapplieant U.S. Forest Service into its § 10 analysis of applicant Fruit Growers’ mitigation efforts. ESA § 10(a)(2)(B)(ii), 16 U.S.C. § 1539(a)(2)(B)(ii) (“the applicant will ... minimize and mitigate the impacts of such taking”) (emphasis added). Specifically, the Court examined the conservation values of high value owl circles and found that “[f|or 17 of the 24 owl circles supported by Conseivation Support Areas, Fruit Growers’ Conservation Support Areas make up less than 15 percent of the total owl circle.” Klamath-Siskiyou Wildlands Ctr.,
Second, NMFS arbitrarily and capriciously issued an incidental take permit to Fruit Growers to take coho salmon. NMFS found Fruit Growers could adequately minimize and mitigate the impacts likely to result from take and concluded that the benefits of Fruit Growers’ mitigation efforts would occur over the permit’s 50-year term. But NMFS failed to evaluаte the proposed action’s short-term impacts to coho salmon, which have only a three-year life cycle. See Pac. Coast Fed’n v. BOR,
Third, the Servicеs failed to conduct a cumulative effects analysis as to Fruit Growers’ timber harvest projects, use of herbicides, and water withdrawal projects. Klamath-Siskiyou Wildlands Ctr.,
These errors involve more than mere technical or procedural formalities that the Services can easily cure. Instead, the substantive errors under the ESA include,
In light of the above, the Court finds that the first Allied-Signal factor tips towards vacatur.
2. Disruptive Consequences
The Services and Fruit Growers identify a series of harms to the northern spotted owl and coho salmon that would result from vacatin’. Ultimately, according to the Services, “it is vacatur, not the incidental take permits, which threatens conservation of protected species.” Dkt. No. 84 at 8. Specifically, as to the northern spotted owl, the Services аrgue that vacatur would “effectively nullify the underlying [Habitat Conservation Plan], handicapping local and regional efforts to conserve the species.” Id. at 5. Among the benefits to the northern spotted owl under the Plan that would “vanish,” the Services point to the Plan’s requirement that Fruit Growers preserve 24 Conservation Support Areas, preserve vegetation standards, and help develop a barred owl control study. Id. at 5-6 (citing Williams Deck).
But these assertions of disruptive consequences, even if taken as true, do not outweigh the seriousness of FWS’s errors. For instance, the Services emphasize Fruit Growers’ efforts to preserve 24 Consеrvation Support Areas. But as explained in the summary judgment order, it is not clear whether those efforts actually minimize and mitigate the taking allowed under the permit to the maximum extent practicable. Klamath-Siskiyou Wildlands Ctr.,
Additionally, the Services’ own evidence refutes its assertions that vacatur would disrupt conservation efforts. For instance, on the one hand, the Services argue that “Fruit Growers has agreed to remove barred owls ... after locating barred owls through surveys which have already begun.” Id. at 6 (citing Williams Deck) On the other, they present two annual monitoring reports stating that Fruit Growers did not complete barred owl surveys in 2013 and 2014. Dkt. Nos. 85-1 at 3 (March 31, 2014 report); 85-2 аt 2 (March 31, 2015 report); see also AR 40109 (inci
As to the coho salmon, the Court acknowledges that the Plan includes actions that benefit the species. For instance, the Plan does include efforts to implement road management measures to prevent and control erosion production and sediment delivery to streams. Klamath-Siskiyou Wildlands Ctr.,
Aside from harm to the two species, defendants also assert that vacatur would create economic harms to Fruit Growers and the greater Siskiyou region. For example, Fruit Growers discusses a recent fire that consumed 13,500 acres of Fruit Growers’ property located within land covered by the Habitat Conservation Plan. Dkt. No. 81 at 5. Fruit Growers asserts that the Court would jeopardize Fruit Growers’ efforts to reforest and restore the damaged land — using a technique known as salvage harvest — if it vacated the FWS incidental take permit, and result in millions of dollars in econоmic loss to the company. Id. at 8. This assertion, however, is undermined by Fruit Growers’ own assertion that without the Plan’s incentives, Fruit Growers would immediately schedule for timber harvest many Conservation Support Areas “because they are economically valuable and would be legally available” under state law. Id. at 7.
Still, Fruit Growers also asserts that the Siskiyou County economy would suffer just as much from vacatur. For instance, Fruit Growers states that “[cjeased salvage operations ... would result in substantial impacts to Fruit Growers’ customers (e.g.mills) ... [as well as to] logging contractors and trucking companies” that depend on Fruit Growers’ operations. Id. at 8. Yet Fruit Growers’ assertion does not rise to the concrete, foreseeable economic harm like that found in California Communities Against Toxics, where vacatur meant halting construction of a power plant that would lead to 350 layoffs, blackouts to the community, and additional action from the California legislature.
In short, the Court finds that despite the asserted disruptive consequences, the scale still tips in favor of vacatur in light of the seriousness of the errors the Services committed. Hitting the pause button on the Plan while the Services correct their errors may lead to harms; but the Court does not find that these harms constitute “serious and irrеmediable harms that significantly outweigh the magnitude of the agency’s error.” See League of Wilderness Defenders,
Accordingly, the Court VACATES the Services’ two incidental take permits, the NMFS biological opinion, the NMFS incidental take statement, and the Final Environmental Impact Statement.
As to the records of decision, the Court will not vacate those doсuments. KS Wild cites League of Wilderness Defenders v. Pena,
B. Injunctive Relief
A court’s decision to issue an injunction constitutes an unwarranted “extraordinary remedy” if a less drastic remedy, such as vacatur, could sufficiently redress plaintiffs injury. Monsanto Co. v. Geertson Seed Farms,
And in cases involving the ESA, the balance of hardships tilts in favor of injunctive relief even further than in other matters involving environmental harm. Nat’l Wildlife Fed’n v. Burlington N. R.R., Inc.,
Here, KS Wild seeks to enjoin Fruit Growers from logging under any Timber Harvesting Plan approved on the basis of
The Court agrees with defendants. To begin with, the Court notes that it upheld FWS’s no-jeopardy finding as to the northern spotted owl. See Klamath-Siskiyou Wildlands Ctr.,
In addition to seeking to enjoin logging by Fruit Growers under the Timber Harvest Plans, KS Wild also seeks injunctive relief “ordering the Services to determine how much take of northern spotted owls and coho salmon has occurred under the unlawfully issued permits, and to determine whether [Fruit Growers] must provide post-termination mitigation to offset the impacts of that take.” Dkt. No. 78 at 18-19. Yet other than two sections of Wildlife and Fisheries regulations that say nothing about post-termination mitigation pending a court’s remand of a habitat conservation plan, id. (citing 50 C.F.R § 17.32 (“Permits-Genеral”), 50 C.F.R. § 222.301 (“General requirements”)), KS Wild offers no other supporting authority that would convince this Court to grant its distinct request.
Accordingly, the Court DENIES KS Wild’s motion for injunctive relief.
C. Claim 3 Waiver
In their cross-motion for summary judgment, the Services contend that KS Wild waived claim 3 of their complaint by failing to brief that claim at summary judgment. Dkt. No. 63 at 50. According to KS Wild’s third claim, FWS violated ESA § 7 by failing to prepare a legally sufficient incidental take statement. Dkt. No. 1 at 28. The Services, however, did not address the actual merits of the incidental take statements’ validity at summary judgment; rather, the Services stated that KS Wild’s failure to brief the issue was sufficient for
In response, KS Wild argues that because of the “legal infirmities that are plain on the face of the incidental take statement,” the Court should enter summary judgment on KS Wild’s third claim. Dkt. No. 78 at 20. According to KS Wild, FWS’s reliance on an arbitrary and capricious incidental take permit and Habitat Conservation Plan makes the incidental take statement that it issued “necessarily arbitrary and capricious” as well. Id. Furthermore, KS Wild points out that the Court would err in entering summary judgment for FWS; the Services failed to establish that the incidental take statement is valid as a matter of law with “one cursory paragraph” that does not discuss claim 3’s merits. Id.
The Court finds that KS Wild’s failure to raise the third claim on their summary judgment motion constitutes a waiver. See, e.g., USA Petroleum Co. v. Atl. Richfield Co.,
Thus, while this Court will not grant summary judgment to the Services as to KS Wild’s third claim, it DISMISSES KS Wild’s third claim for failure to prosecute. Fed.R.Civ.P. 41(b); Hells Canyon Pres. Council v. U.S. Forest Serv.,
III. CONCLUSION
Based on the discussion above, the Court VACATES the northern-spotted-owl incidental take permit issued by FWS, the coho-salmon incidental take permit issued by NMFS, the coho-salmon biological opinion issued by NMFS, the coho-salmon incidental take statement issued by NMFS, and the Final Environmental Impact Statement issued ’by both FWS and NMFS. The Court finds that the seriousness of the Services’ errors significantly outweighs the asserted disruptive consequences that would result from vacatur. This case is therefore REMANDED to the Fish and Wildlife Service and the National Marine Fisheries Service for further proceedings consistent with this Order.
The Court, however, DENIES KS Wild’s motion to vacate the records of decision. The Court also DENIES KS Wild’s request for an injunction against
IT IS SO ORDERED.
Notes
. NMFS determined that the Southern Oregon/Northern California Coast Evolutionarily Significant Unit (ESU) of coho salmon (Oncorhynchus kisutch) is a "species” under the ESA. 62 Fed.Reg. 24588 (May 6, 1997). An ESU is a "distinct population segment.” 62 Fed.Reg. at 24588. There are many distinct population segments of coho salmon. But for the purposes of this Order, the term "coho salmon” will refer only to the Southern Oregon/Northern California Coast ESU of coho salmon.