Forest Service Employees For Environmental Ethics v. United States Forest Service et al

MOTION for Summary Judgment

E.D. Wash.May 5, 2017

Fed. Defs.’ Cross Mot. for Summ. J. and Resp. in Opp’n to Pl.’s Mot. for Summ. J. JEFFREY H. WOOD Acting Assistant Attorney General Environment & Natural Resources Division U.S. Department of Justice S. DEREK SHUGERT (OH #84188) Trial Attorney Natural Resources Section Environment & Natural Resources Division 601 D St NW Washington, D.C. 20004 Tel: (202) 305-0169 Fax: (202) 305-0506 shawn.shugert@usdoj.gov Attorney for Federal Defendants UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON FOREST SERVICE EMPLOYEES FOR ENVIRONMENTAL ETHICS, Plaintiff, v. UNITED STATES FOREST SERVICE, et al., Federal Defendants. No. 2:16-cv-293-TOR FEDERAL DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT AND RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Hearing July 7, 2017 without oral argument Case 2:16-cv-00293-TOR Document 22 Filed 05/05/17 Fed. Defs.’ Cross Mot. for Summ. J. and Resp. in Opp’n to Pl.’s Mot. for Summ. J. -i- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Table of Contents I. INTRODUCTION ................................................................................................ 1 II. BACKGROUND .................................................................................................. 3 A. Facts Establishing Mootness ...................................................................... 3 B. Legal Background ...................................................................................... 3 III. STANDARD OF REVIEW .................................................................................. 4 IV. ARGUMENT ........................................................................................................ 5 A. The Construction of the CPL Complies with 36 C.F.R. § 220.4(b) .......... 5 B. Plaintiff’s Challenge to the Regulation is Time-Barred ............................. 7 1. Plaintiff’s Challenge is a Facial Challenge ...................................... 7 2. The Court Should Reject Plaintiff’s Attempt to Characterize its Challenge as an As-Applied Challenge .................................... 11 C. Plaintiff Cannot Bring an As-Applied Challenge to the Regulation........ 14 D. Construction of the CPL Complies with NEPA ....................................... 16 V. CONCLUSION ................................................................................................... 19 Case 2:16-cv-00293-TOR Document 22 Filed 05/05/17 Fed. Defs.’ Cross Mot. for Summ. J. and Resp. in Opp’n to Pl.’s Mot. for Summ. J. -ii- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Table of Authorities CASES Am. Hosp. Ass’n v. Nat’l Labor Relations Bd., 499 U.S. 606 (1991) .................................................................................................... 8 Andrus v. Sierra Club, 442 U.S. 347 (1979) .................................................................................................. 16 Artichoke Joe’s Cal. Grand Casino v. Norton, 278 F. Supp. 2d 1174 (E.D. Cal. 2003) ..................................................................... 12 Block v. N.D. Bd. of Univ. & Sch. Lands, 461 U.S. 273 (1983) .................................................................................................... 4 Califano v. Sanders, 430 U.S. 99 (1977) ...................................................................................................... 2 Cedars-Sinai Med. Ctr. v. Shalala, 177 F.3d 1126 (9th Cir. 1999) ..................................................................................... 9 Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) .................................................................................................... 2 Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010) .................................................................................................... 8 Convoy, Inc. v. San Diego, 183 F.3d 1108 (9th Cir. 1999) ............................................................................... 9, 15 Ctr. for Biological Diversity v. Exp.-Imp. Bank of the U.S., No. C-12-6325-SBA, 2014 WL 3963203 (N.D. Cal. Aug. 12, 2014) ................ 10, 13 Ctr. for Biological Diversity v. Kempthorne, 588 F.3d 701 (9th Cir. 2009) ..................................................................................... 11 Defenders of Wildlife v. Andrus, 627 F.2d 1238 (D.C. Cir. 1980) ................................................................................ 19 Earth Island Inst. v. U.S. Forest Serv., 697 F.3d 1010 (9th Cir. 2012) ..................................................................................... 4 Envtl. Prot. Info. Ctr. v. Pac. Lumber Co., 266 F. Supp. 2d 1101 (N.D. Cal. 2003) ................................................................ 9, 10 Feldman v. Bomar, 518 F.3d 637 (9th Cir. 2008) ..................................................................................... 14 Case 2:16-cv-00293-TOR Document 22 Filed 05/05/17 Fed. Defs.’ Cross Mot. for Summ. J. and Resp. in Opp’n to Pl.’s Mot. for Summ. J. -iii- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gator.com Corp. v. L.L. Bean, Inc., 398 F.3d 1125 (9th Cir. 2005) ................................................................................... 14 Hells Canyon Pres. Council v. U.S. Forest Serv., 593 F.3d 923 (9th Cir. 2010) ..................................................................................... 11 Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) .............................................................................................. 14 iMatterUtah v. Njord, 774 F.3d 1258 (10th Cir. 2014) .................................................................................. 9 Immigration & Naturalization Serv. v. Nat’l Ctr. for Immigrants’ Rights, Inc., 502 U.S. 183 (1991) ................................................................................................ 8, 9 Indep. Living Ctr. of S. Cal., Inc. v. Maxwell-Jolly, 590 F.3d 725 (9th Cir. 2009) ..................................................................................... 14 Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008) ....................................................................................... 4 N. Carolina v. Rice, 404 U.S. 244 (1971) .................................................................................................. 14 N. County Cmty Alliance v. Salazar, 573 F.3d 738 (9th Cir. 2009) ..................................................................................... 12 Native Ecosystems Council v. Krueger, 649 F. App’x 614 (9th Cir. 2016) .............................................................................. 15 Oksner v. Blakey 347 F. App’x 290 (9th Cir. 2009) ................................................................................ 8 Oksner v. Blakey, No. C 07-2273 SBA, 2007 WL 3238659 (N.D. Cal. Oct. 31, 2007) .......................... 8 Seattle Audubon Soc. v. Lyons, 871 F. Supp. 1291 (W.D. Wash. 1994) ..................................................................... 19 Shiny Rock Mining Corp. v. United States, 906 F.2d 1362 (9th Cir. 1990) ................................................................... 9, 10, 11, 13 Sierra Club v. Penfold, 857 F.2d 1307 (9th Cir. 1988) ................................................................................... 11 Sisseton-Wahpeton Sioux Tribe v. United States, 895 F.2d 588 (9th Cir. 1990) ....................................................................................... 4 Case 2:16-cv-00293-TOR Document 22 Filed 05/05/17 Fed. Defs.’ Cross Mot. for Summ. J. and Resp. in Opp’n to Pl.’s Mot. for Summ. J. -iv- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 State v. Nat’l Indian Gaming Comm’n, 151 F. Supp. 3d 1199 (D. Kan. 2015) ....................................................................... 10 Strahan v. Linnon, 967 F. Supp. 581 (D. Mass. 1997) ............................................................................. 13 The Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008) ....................................................................................... 4 Tillett v. Bureau of Land Mgmt., 586 F. App’x 394 (9th Cir. Dec. 4, 2014) ................................................................. 16 Tindal v. McHugh, 945 F. Supp. 2d 111 (D.D.C. 2013) ............................................................................ 2 U.S. W. Comm’ns v. MFS Intelenet, Inc., 193 F.3d 1112 (9th Cir. 1999) ................................................................................... 11 United States v. Salerno, 481 U.S. 739 (1987) .................................................................................................... 8 Utah v. Njord, 774 F.3d 1258 (10th Cir. 2014) ................................................................................... 9 W. Coast Seafood Processors Ass’n v. Nat. Res. Def. Council, Inc., 643 F.3d 701 (9th Cir. 2011) ............................................................................... 14, 15 Walker v. Beard, 789 F.3d 1125 (9th Cir. 2015) ................................................................................... 14 Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442 (2008) ................................................................................................ 8, 9 Wilderness Watch v. King, 592 F. App’x 606 (9th Cir. 2015) .............................................................................. 16 Wind River Mining Corp. v. United States, 946 F.2d 710 (9th Cir. 1991) ................................................................. 7, 8, 11, 12, 13 STATUTES 5 U.S.C. §§ 701-706........................................................................................................ 4 5 U.S.C. § 704 ............................................................................................................... 14 5 U.S.C. § 706(2)(A) ....................................................................................................... 4 28 U.S.C. § 2401(a) .................................................................................................... 4, 7 42 U.S.C. § 4321 ............................................................................................................. 2 Case 2:16-cv-00293-TOR Document 22 Filed 05/05/17 Fed. Defs.’ Cross Mot. for Summ. J. and Resp. in Opp’n to Pl.’s Mot. for Summ. J. -v- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 42 U.S.C. § 4332 ........................................................................................................... 16 42 U.S.C. § 4342 ........................................................................................................... 16 REGULATIONS 7 C.F.R. § 1970.18 ........................................................................................................ 18 25 C.F.R. § 292.44 ........................................................................................................ 10 32 C.F.R. § 989.34 ........................................................................................................ 18 33 C.F.R. § 230.8 .......................................................................................................... 18 36 C.F.R. § 220.1 ............................................................................................................ 3 36 C.F.R. § 220.3 ............................................................................................................ 3 36 C.F.R. § 220.4(b) ..................................................................................... 1, 2, 3, 5, 18 36 C.F.R. § 220.4(b)(1) ................................................................................................. 18 36 C.F.R. § 220.5 ............................................................................................................ 3 36 C.F.R. § 220.6 ............................................................................................................ 3 36 C.F.R. § 220.7 ............................................................................................................ 3 40 C.F.R. § 1506.11 ................................................................................................ 17, 18 40 C.F.R. §§ 1500.1-1517.7 .......................................................................................... 17 43 C.F.R. § 46.150 ........................................................................................................ 18 OTHER AUTHORITIES Daniel R. Mandelker, NEPA Law and Litigation (2016) ............................................. 17 Case 2:16-cv-00293-TOR Document 22 Filed 05/05/17 Fed. Defs.’ Cross Mot. for Summ. J. and Resp. in Opp’n to Pl.’s Mot. for Summ. J. -1- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION On June 29, 2015, lightning struck a ridgetop in the Okanogan-Wenatchee National Forest (“Forest”), igniting a large, severe fire known as the Wolverine Fire. W0501.1 At the time of the fire, conditions in the Forest impeded fire containment and suppression; drought severity was “extreme” and the forecast was for high winds and no precipitation. W0058, 91. The location of the fire and topography of the Forest restricted suppression methods to helicopter, and firefighters had to be removed from the area to ensure their safety. W0091. Despite the best efforts of firefighters and the Forest Service, on August 1 the fire escaped containment and continued to grow in size and severity, threatening residential communities on all sides. Id. The communities of Holden and Lucerne, as well as all workers on the Holden Mine remediation project, fortunately, had been evacuated only one day earlier. W0501. The fire continued to grow in severity and size, and, on August 17, despite best efforts, it escaped containment again. Id. For the next two weeks, the fire spread at an average rate of one to three miles per day, resulting in the evacuation of Gold Creek and McFarland Creek. By August 28, over 800 people remained evacuated in the surrounding areas as firefighters battled the fire, and evacuation orders would soon be posted for over 200 more homes. W0988. The fire continued to spread, leaving the wilderness areas and approaching several populated communities. The Forest Service, in consultation with other Federal, State, and local groups, determined that it had to act to protect against loss of life and property, and began constructing a Community Protection Line (“CPL”). The CPL can best be described as a fire break using existing roads, which have no 1 Citations to the Administrative Records lodged with the Court, ECF No. 14, are to the prefix “W” or “R” followed by the Bates-numbered page. The Forest Service’s Administrative Records consist of two separate records: 1) documents considered in response to the Wolverine Fire in 2015, and 2) documents considered in the promulgation of 36 C.F.R. § 220.4(b). Case 2:16-cv-00293-TOR Document 22 Filed 05/05/17 Fed. Defs.’ Cross Mot. for Summ. J. and Resp. in Opp’n to Pl.’s Mot. for Summ. J. -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vegetation, and the strategic thinning of brush and vegetation adjacent to the roads, ahead of the forecasted path of the fire. Decl. of Michael R. Williams ¶7.2 The CPL established a fire break, a barrier between the fire and approximately 1503 residences, that minimized risk and provided for firefighter and public safety. W1896. The CPL, constructed by utilizing and widening existing roads in addition to thinning and removing vegetation adjacent to roads, was completed over a two-week period. On September 14, the fire’s growth was no longer forecasted to reach nearby communities and the Forest Service ended mechanical and hand felling of trees. W1926. Plaintiff’s Motion for Summary Judgment, ECF No. 14 (“Plaintiff’s Motion”), challenges the regulation authorizing the Forest Service’s ability to perform urgently needed actions in response to an emergency, 36 C.F.R. § 220.4(b) (“the Regulation”), arguing that the Regulation violates the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321, et seq. Plaintiff asserts that its challenge to the Regulation is an as-applied challenge and that the facts and circumstances surrounding the Wolverine Fire provide it with the standing necessary to bring an as-applied challenge. However, Plaintiff’s purported as-applied challenge fails to identify an ongoing action, is moot, and states no permissible claim for relief. Further, Plaintiff’s argument and requested relief center solely on the Regulation’s per se validity, and fall squarely within the judicial definition of a facial challenge. As such, Plaintiff’s facial challenge disguised as an as-applied challenge is time-barred. Even if a facial 2 Mr. Williams’s declaration is properly before this Court to assist in determining whether the agency has considered all relevant factors and adequately explained its decision. See Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 419-20 (1971), abrogated by Califano v. Sanders, 430 U.S. 99 (1977); see also Tindal v. McHugh, 945 F. Supp. 2d 111, 127 (D.D.C. 2013) (background information to explain agency’s decision is appropriately before the court when it comes from those who participated in the pertinent agency actions). Case 2:16-cv-00293-TOR Document 22 Filed 05/05/17 Fed. Defs.’ Cross Mot. for Summ. J. and Resp. in Opp’n to Pl.’s Mot. for Summ. J. -3- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 challenge were properly before this Court, the CPL meets the requirements of the Regulation, and the Regulation is valid under NEPA. Accordingly, Plaintiff’s Motion should be denied. II. BACKGROUND3 A. Facts Establishing Mootness Construction of the CPL began on August 30, 2015. W0200. On September 9, the IMT instructed its team that no additional construction would occur. W1897. On September 14, based on the forecast of the fire’s growth, all mechanical and hand felling of trees was suspended. W1926. The only remaining aspects of the CPL after September 14, 2015, can best be described as clean up and consisted of hauling materials offsite and chipping and scattering some of the slashed wood. W1933, 38. Currently, two slash piles of debris on the Wolverine River Ranger District remain to be burned, which will occur in the fall of this year. Decl. of Michael R. Williams ¶10. B. Legal Background The Forest Service codified its “procedures for compliance with [NEPA] and the Council on Environmental Quality (“CEQ”) regulations for implementing the procedural provisions of NEPA.” 36 C.F.R. § 220.1 et seq. 36 C.F.R. § 220.4(b) states: (b) Emergency responses. When the responsible official4 determines that an emergency exists that makes it necessary to take urgently needed actions before preparing a NEPA analysis and any required documentation in accordance with the provisions in §§ 220.5, 220.6, and 220.75 of this part, then the following provisions apply. 3 Federal Defendants incorporate by reference their separate Statement of Material Facts. 4 The responsible official is “[t]he Agency employee who has the authority to make and implement a decision on a proposed action.” 36 C.F.R. § 220.3. 5 36 C.F.R. §§ 220.5, 220.6, and 220.7 discuss Environmental Impact Statements, Categorical Exclusions, and Environmental Assessments, respectively. Case 2:16-cv-00293-TOR Document 22 Filed 05/05/17 Fed. Defs.’ Cross Mot. for Summ. J. and Resp. in Opp’n to Pl.’s Mot. for Summ. J. -4- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (1) The responsible official may take actions necessary to control the immediate impacts of the emergency and are urgently needed to mitigate harm to life, property, or important natural or cultural resources. When taking such actions, the responsible official shall take into account the probable environmental consequences of the emergency action and mitigate foreseeable adverse environmental effects to the extent practical. III. STANDARD OF REVIEW Judicial review of this action falls under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706; Earth Island Inst. v. U.S. Forest Serv., 697 F.3d 1010, 1013 (9th Cir. 2012). Under the APA, an agency action will be set aside only if the challenging party demonstrates that the agency’s decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” The Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008) (en banc) (quoting 5 U.S.C. § 706(2)(A)). A decision is arbitrary and capricious “only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Id. at 9877 (quotation marks and citation omitted). Plaintiff’s action is barred by the statute of limitations found in 28 U.S.C. § 2401(a). Because the statute of limitations in 28 U.S.C. § 2401(a) is a condition of the Government’s waiver of sovereign immunity, “courts are reluctant to interpret [it] in a manner that extends the waiver beyond that which Congress clearly intended.” Sisseton-Wahpeton Sioux Tribe v. United States, 895 F.2d 588, 592 (9th Cir. 1990). Such a statute of limitations “must be strictly observed, and exceptions thereto are not to be lightly implied.” Block v. N.D. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 287 (1983). Case 2:16-cv-00293-TOR Document 22 Filed 05/05/17 Fed. Defs.’ Cross Mot. for Summ. J. and Resp. in Opp’n to Pl.’s Mot. for Summ. J. -5- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IV. ARGUMENT A. The Construction of the CPL Complies with 36 C.F.R. § 220.4(b) The CPL was constructed in response to an emergency, in an attempt to mitigate the loss of life, property, and resources, and in consideration of environmental consequences. As such, the CPL satisfies the Regulation. The Forest Service’s responsible official appropriately determined that an emergency existed requiring urgently needed action. The Forest Supervisor, Michael R. Williams, was the responsible official who determined that the severity, location, and forecasted growth of the fire constituted an emergency that made it necessary to take urgently needed action. Williams Decl. ¶2. The location of the fire in the Forest made direct firefighting methods impossible, and, on June 30, 2015, firefighters were evacuated from the area near the fire to ensure their safety. W0044. The weather in the Forest was dry and windy, and the area was experiencing an extreme drought. W1904-07. Throughout the life of the fire, the Energy Release Component, an index measuring approximately how hot a fire can burn, was at a historic high. W0031. The fire continued to grow in size and severity and, on July 30, 2015, the communities of Holden and Lucerne and the workers on the Holden Mine remediation project were evacuated. W0501. On August 17, the fire escaped containment and began traveling south in the Entiat watershed toward the Entiat community. Id. On August 22, the fire was forecasted to come out of the wilderness area and threatened several populated areas, including the communities of Chelan, Ardenvoir, Entiat, Lake Wenatchee, Plain, Holden Village, Lucerne, and Stehekin. W0372. The Forest Service coordinated with over a dozen state and local entities as it asked for public involvement in maintaining firefighter and public safety. Id. From August 17 to August 31, the fire spread south toward the Entiat community at a rate of one to three miles per day. W1903. On August 28, a level three evacuation order was posted in the Gold Creek and McFarland Creek areas impacting approximately 70 residences, Case 2:16-cv-00293-TOR Document 22 Filed 05/05/17 Fed. Defs.’ Cross Mot. for Summ. J. and Resp. in Opp’n to Pl.’s Mot. for Summ. J. -6- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and approximately 800 people remained evacuated in Chelan and Okanagan Counties at this time. W0613. On August 30, the Forest Service authorized the construction of the CPL. W0200. On August 31, a level 1 evacuation order was posted for 107 homes from Potato Creek to Brief, a level 2 evacuation order was posted for 102 homes from Brief to Preston Creek, and 936 homes remained threatened by the fire. W0988. Construction of the CPL involved the strategic thinning of brush and vegetation adjacent to existing roads ahead of the forecasted path of the fire. Williams Decl. ¶7. By September 5, 95% of the eastern section and 75% of the western section of the CPL was complete, with the remaining work in the eastern section consisting mostly of cleanup activities. W1896. On September 9, the forecasted worst case scenario for the fire showed “possible fire growth to within three miles of the contingency line, in a three day period . . . [w]eather and fuel conditions over the three days may lead to large fire growth.” W1897. On September 9, the Incident Management Team (“IMT”) responsible for overseeing fire suppression explained that fire suppression was difficult because of “limited safety zones, and topography issues” that “contribute to increased danger to suppression personnel . . . .” W1897. On September 9, the IMT instructed its team that no additional construction would occur to “allow for reevaluation without starting additional sections.” Id. On September 14, the IMT ran an updated forecast for the fire’s growth and, based on the forecast, mechanical and hand felling of trees was suspended, effectively ending the construction of the CPL. W1926. Throughout this process, the Forest Service considered the environmental consequences of the CPL and mitigated adverse effects. Its objectives for containing the fire included protecting communities, protecting the area’s “natural scenic beauty, recreational opportunities, ecological diversity and cultural resources,” and protecting the safety of fire personnel and other human life. W0323-24. The Forest Service Case 2:16-cv-00293-TOR Document 22 Filed 05/05/17 Fed. Defs.’ Cross Mot. for Summ. J. and Resp. in Opp’n to Pl.’s Mot. for Summ. J. -7- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 contacted the U.S. Fish and Wildlife Service (“FWS”) to initiate an emergency consultation on potential effects to endangered species. W3199-204. FWS provided the Forest Service with suggested protective measures, with experts who served as resources, and with an opinion that the anticipated fire-suppression activities would not have an adverse impact on designated critical habitat. Id. The ways the Forest Service mitigated harm to the Forest included but were not limited to, restrictions on helicopters, restrictions on working near waterways, mandatory consultations with resource advisors, protective measures in riparian areas, retaining canopy cover, and instructions on retention of specific resources. W0325. The Administrative Record shows that the Forest Service faced an emergency. Private citizens were evacuated from their homes, lives and property were threatened, and the fire was forecasted to continue growing in size and severity. The Forest Service constructed a fire break to ensure the safety of communities and firefighters, and it did so in full consideration of environmental consequences to the Forest. When the fire was forecasted not to reach additional communities, construction of the CPL ended. As such, the CPL satisfies the Regulation. B. Plaintiff’s Challenge to the Regulation is Time-Barred Although Plaintiff attempts to portray its challenge to the Regulation as an as- applied challenge that accrued in 2015, this claim presents a facial challenge and is barred by the statute of limitations. Further, the Court should reject Plaintiff’s attempt to characterize its challenge as an as-applied challenge that meets the narrow criteria established by the Ninth Circuit allowing challenges to agency actions more than six years after promulgation of a regulation. 1. Plaintiff’s Challenge is a Facial Challenge A facial challenge to a regulation must be brought within six years of publication of the regulation in the Federal Register. See Wind River Mining Corp. v. United States, 946 F.2d 710, 715 (9th Cir. 1991) (citing 28 U.S.C. § 2401(a)). The Case 2:16-cv-00293-TOR Document 22 Filed 05/05/17 Fed. Defs.’ Cross Mot. for Summ. J. and Resp. in Opp’n to Pl.’s Mot. for Summ. J. -8- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Ninth Circuit recognized that “The government’s interest in finality outweighs a late- comer’s desire to protest the agency’s action as a matter of policy or procedure.” Id.. Outside of the six-year statute of limitations period, a challenge to an agency’s regulation can only be brought through an as-applied challenge of the agency’s adverse application of the regulation to the challenger, or by petitioning the agency for amendment or rescission of the regulation and then appealing the agency’s decision. Id..; see also Oksner v. Blakey, No. C 07-2273 SBA, 2007 WL 3238659, at *1 (N.D. Cal. Oct. 31, 2007), aff’d, 347 F. App’x 290 (9th Cir. 2009). A facial challenge to a regulation questions the validity of the regulation not just in the particular circumstances of a given case, but rather inherently “in all its applications,” arguing the regulation is without statutory authority and thus “invalid on its face.” Am. Hosp. Ass’n v. Nat’l Labor Relations Bd., 499 U.S. 606, 619 (1991); Immigration & Naturalization Serv. v. Nat’l Ctr. for Immigrants’ Rights, Inc., 502 U.S. 183, 188 (1991) (facial challenge is where the plaintiff alleges that the rule or regulation is “facially invalid because it is without statutory authority”). The distinction between facial and as-applied challenges is “both instructive and necessary, for it goes to the breadth of the remedy employed by the Court.” Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 330-31 (2010). In a facial challenge, the plaintiff does not seek to only establish that the law cannot be applied to him or her; rather, he or she must show that “no set of circumstances exists under which the [challenged] Act would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987). The Supreme Court has repeatedly cautioned that facial challenges are disfavored and should be considered sparingly. See, e.g., Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 450 (2008). This is so because facial challenges seek the broad remedy of a complete invalidation of a law or regulation and because a Case 2:16-cv-00293-TOR Document 22 Filed 05/05/17 Fed. Defs.’ Cross Mot. for Summ. J. and Resp. in Opp’n to Pl.’s Mot. for Summ. J. -9- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ruling on the validity of all possible applications of a statute necessarily “rest[s] on speculation” and invites the “premature interpretation of statutes.” Id.6 An as-applied challenge is one in which a plaintiff asserts that a rule was “improperly imposed on” a particular party, and concerns whether that application “may be invalid as-applied in” that particular case. Nat’l Ctr. for Immigrants’ Rights, Inc., 502 U.S. at 188; see also iMatterUtah v. Njord, 774 F.3d 1258, 1264 (10th Cir. 2014) (an as-applied challenge “tests the application of that [regulation] to the facts of a plaintiff’s concrete case.”). A plaintiff “may not escape the applicable statute of limitations by trying to couch its facial challenge as an as-applied claim.” Envtl. Prot. Info. Ctr. v. Pac. Lumber Co., 266 F. Supp. 2d 1101, 1121 (N.D. Cal. 2003) (“EPIC”). As the Ninth Circuit has stated, “allowing suit whenever a regulation was administered by a federal agency ‘would virtually nullify the statute of limitations for challenges to agency orders.’” Cedars-Sinai Med. Ctr. v. Shalala, 177 F.3d 1126, 1129 (9th Cir. 1999) (quoting Shiny Rock Mining Corp. v. United States, 906 F.2d 1362, 1365 (9th Cir. 1990)). Plaintiff’s Motion alleges that the Forest Service lacked statutory authority to authorize the emergency procedures described in the Regulation. Pl.’s Mot. 3 (“[e]ven if emergencies can be exempted from NEPA -- which they cannot . . . .”). Plaintiff does not challenge the application of the Regulation to circumstances unique to the Wolverine Fire, instead mounting a broad challenge to the underlying authority of the Forest Service, or any agency, to allow for an emergency response under NEPA. Thus, the target of Plaintiff’s claim is not the 2015 CPL, but the agency’s 2008 promulgation of the Regulation. Courts consistently treat such challenges as 6 The Court’s rationale for restraint highlights an important distinction between facial and as-applied challenges. The remedy for a facial challenge is a finding that a particular law or regulation can never be validly enforced, whereas a successful as- applied challenge will prevent the law from being enforced in a specific set of circumstances. See, e.g., 4805 Convoy, Inc. v. San Diego, 183 F.3d 1108, 1111 (9th Cir. 1999). Case 2:16-cv-00293-TOR Document 22 Filed 05/05/17 Fed. Defs.’ Cross Mot. for Summ. J. and Resp. in Opp’n to Pl.’s Mot. for Summ. J. -10- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 facial challenges notwithstanding a plaintiff’s characterization. See EPIC, 266 F. Supp. 2d at 1120-211 (“Despite EPIC’s attempt to cast this action as a substantive challenge to application of section 122.27, EPIC is directly challenging the legal validity of the regulation. In fact, EPIC acknowledges that its action poses ‘pure questions of law.’”) (emphasis added); Ctr. for Biological Diversity v. Exp.-Imp. Bank of the U.S., No. C-12-6325-SBA, 2014 WL 3963203, at *7 (N.D. Cal. Aug. 12, 2014) (finding that challenge to regulation was a “time-barred policy-based facial challenge, not an as-applied challenge” where plaintiffs were “directly challenging the validity of the Services' regulation itself”); State v. Nat’l Indian Gaming Comm’n, 151 F. Supp. 3d 1199, 1219 (D. Kan. 2015) (“The Court concludes that these attacks on the DOI’s implementation of 25 C.F.R. § 292.44 amount to facial challenges to the validity of the regulation itself. Plaintiffs contend, in essence, that the DOI acted arbitrarily and exceeded its authority when it promulgated § 292.4. Plaintiffs therefore contend that the regulation is invalid as written—an alleged defect that would affect all conceivable parties.”). The mere fact that the Forest Service invoked the Regulation in the face of an emergency in 2015 does not turn Plaintiff’s facial challenge into an as-applied challenge. It is plain on the face of Plaintiff’s Motion that nothing about the particular facts, circumstances, or reasoning of the Forest Service’s construction of the CPL have any bearing on adjudicating Plaintiff’s claim under the theory it pursues. Plaintiff simply believes that emergencies cannot be exempt from NEPA. That type of challenge is a facial challenge, and it is time-barred in this case. Plaintiff speculates that its claim did not accrue until 2015 because “a timely facial challenge to the rule” would have resulted in a possible standing defense from the Forest Service. Pl.’s Mot. 7. However, Plaintiff’s hypothetical standing argument is both speculative and, likely, incorrect. In Shiny Rock, the Ninth Circuit rejected plaintiff’s argument that regardless of the date of publication in the Federal Register, a Case 2:16-cv-00293-TOR Document 22 Filed 05/05/17 Fed. Defs.’ Cross Mot. for Summ. J. and Resp. in Opp’n to Pl.’s Mot. for Summ. J. -11- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 party can only bring a challenge after the published rule was applied to that individual. The court stated “Shiny Rock’s suggestion that the statute of limitations did not commence until the rejection of its claim because it lacked standing prior to that date, if accepted, would . . . render the limitation on challenges to agency orders we adopted in Penfold meaningless.” Id.7 Moreover, Plaintiff’s claim raises a pure question of statutory interpretation, and its Motion offers no reason to suppose its claim was not ripe until 2015. As the Ninth Circuit has noted, “[a] claim is usually ripe ‘if the issues raised are primarily legal, do not require further factual development, and the challenged action is final.’” Ctr. for Biological Diversity v. Kempthorne, 588 F.3d 701, 708-09 (9th Cir. 2009) (quoting U.S. W. Comm’ns v. MFS Intelenet, Inc., 193 F.3d 1112, 1118 (9th Cir. 1999)). Accepting Plaintiff’s hypothetical argument on standing condones its failure to file suit in a timely manner and satisfy the statute of limitations. Courts should avoid rulings that would undermine “the important interests served by statutes of limitations, including evidence preservation, repose, and finality.” Hells Canyon Pres. Council v. U.S. Forest Serv., 593 F.3d 923, 933 (9th Cir. 2010). Because Plaintiff challenges the validity of the regulation itself, it brought the Court a time-barred facial challenge. Accordingly, Plaintiff’s claim should be denied. 2. The Court Should Reject Plaintiff’s Attempt to Characterize its Challenge as an As-Applied Challenge Plaintiff asserts that it can challenge the Regulation under the narrow criteria described in Wind River, however, Plaintiff does not satisfy that criteria and its claim should fail. In Wind River, the Ninth Circuit described the rare circumstances where 7 Shiny Rock explained that the Ninth Circuit’s decision in Penfold “declined to adopt a rule under which ‘claimants such as Sierra Club could challenge regulations ... when administered by the federal agency, rather than when adopted,’” because adoption of such a rationale “would virtually nullify the statute of limitations for challenges to agency orders.” Shiny Rock, 906 F.2d at 1365 (quoting Sierra Club v. Penfold, 857 F.2d 1307, 1316 (9th Cir. 1988)). Case 2:16-cv-00293-TOR Document 22 Filed 05/05/17 Fed. Defs.’ Cross Mot. for Summ. J. and Resp. in Opp’n to Pl.’s Mot. for Summ. J. -12- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a “late-comer” can challenge the substance of an agency action more than six years after it was finalized. In particular, Wind River allowed for a claim to accrue more than six years later when it would otherwise be impossible for any potential claimant to even know about the disputed rule or decision until the rule or decision was later applied to them personally (as in an enforcement proceeding). Wind River, 946 F.2d at 715. The Ninth Circuit further explained that a plaintiff is not excused from the statute of limitations where he brings “a policy-based facial challenge to the government’s decision,” because “[t]he grounds for such challenges will usually be apparent to any interested citizen within a six-year period following promulgation of the decision.” Id. Plaintiff here brings a facial challenge to the Forest Service’s ability to respond to emergency circumstances, and not an as-applied challenge. As already noted, the facts and circumstances of the Wolverine Fire and measures taken to mitigate loss of life and property have no bearing on Plaintiff’s purely legal claim. Wind River and related cases make clear what the Ninth Circuit had in mind by singling out instances of “adverse application of the decision to the particular challenger.” Id. at 715. Wind River stands for allowing limited as-applied challenges by “late-comers” who are the specific target of the regulatory action because otherwise, “no one was likely to have discovered” the agency’s earlier legal violation, and thus “the agency took the action long before anyone discovered the true state of affairs.” Id. at 715-16 (emphasis added). Thus, a latecomer’s challenge might not be time-barred because, until the earlier agency decision was applied to that particular plaintiff, he “could have had no idea” that the agency had exceeded its statutory authority years before in a way that would affect him. N. County Cmty Alliance v. Salazar, 573 F.3d 738, 743 (9th Cir. 2009) (emphasis added) (citing and quoting Artichoke Joe’s Cal. Grand Casino v. Norton, 278 F. Supp. 2d 1174 (E.D. Cal. 2003)). Here Plaintiff knew of the Case 2:16-cv-00293-TOR Document 22 Filed 05/05/17 Fed. Defs.’ Cross Mot. for Summ. J. and Resp. in Opp’n to Pl.’s Mot. for Summ. J. -13- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Regulation, and made the same policy-based arguments against it in comments to the Forest Service on October 10, 2007. R2189. This case is more like the situation described in Wind River where a plaintiff bringing “a policy-based facial challenge to the government’s decision” is not excused from the statute of limitations because “[t]he grounds for such challenges will usually be apparent to any interested citizen within a six-year period following promulgation of the decision.” Wind River, 946 F.2d at 7155. This case also resembles Strahan v. Linnon, in which a plaintiff’s attempt to challenge a regulation promulgated in 1986 was a time-barred facial challenge because “his claim is that the regulation is plainly inconsistent with Congress’ mandate in the ESA,” and thus was not “a complaint for review of the adverse application of the [regulation] to the particular challenger” as contemplated by Wind River. Strahan v. Linnon, 967 F. Supp. 581, 607 (D. Mass. 1997) (citing and quoting Wind River, 946 F.2d at 7155).8 Publication of a rule in the Federal Register by itself is presumptively sufficient notice to trigger the statute of limitations. See Shiny Rock, 906 F.2d at 1365-666. There is no basis for considering this one of the exceptional cases where potential plaintiffs would have had no opportunity to challenge the disputed statutory interpretation until that disputed interpretation was adversely applied to them personally in later proceedings. Plaintiff’s claim is time-barred. Not only has Plaintiff failed to allege that it was unaware of the Regulation until construction of the CPL, but the face of Plaintiff’s Motion clearly alleges a policy-based, purely legal (and, hence, facial) challenge to the Regulation. 8 See also Ctr. for Biological Diversity, 2014 WL 3963203 at *7 (“Plaintiffs assert that the regulation is invalid as written rather than invalid as-applied to them. The grounds for Plaintiffs’ policy-based challenge to the Services’ regulation arose at the time the regulation was promulgated and should have been apparent to any interested citizen within the six-year period following publication of the regulation in the Federal Register.”) Case 2:16-cv-00293-TOR Document 22 Filed 05/05/17 Fed. Defs.’ Cross Mot. for Summ. J. and Resp. in Opp’n to Pl.’s Mot. for Summ. J. -14- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. Plaintiff Cannot Bring an As-Applied Challenge to the Regulation Plaintiff’s purported as-applied challenge fails to identify an ongoing action, is moot, and does not state a permissible claim for relief. In an APA challenge, a plaintiff must identify a “final agency action” that serves as the basis for its claim. See 5 U.S.C. § 704. Here, the action challenged by Plaintiff, and the action that serves as the basis for its purported as-applied challenge, is construction of the CPL. However, that action is complete, rendering the case moot. Further, the Court cannot provide Plaintiff with its requested remedy under NEPA as there is no action left to occur. See Feldman v. Bomar, 518 F.3d 637, 644 (9th Cir. 2008) (Case dismissed as moot because the court could not provide any effective relief; the project at issue was complete and appellants could not demonstrate a remediable harm effecting their existing interests.). NEPA is intended to inform decision makers and the public about environmental consequences, it provides no basis for the remedy Plaintiff seeks. Plaintiff’s claim should be denied. Article III of the Constitution “requires that a live controversy persist throughout all stages of the litigation.” Gator.com Corp. v. L.L. Bean, Inc., 398 F.3d 1125, 1128-29 (9th Cir. 2005) (en banc) (citation omitted); see also Hollingsworth v. Perry, 133 S. Ct. 2652, 2661 (2013) (same). “A claim that has lost its character as a live controversy is considered moot . . .” Indep. Living Ctr. of S. Cal., Inc. v. Maxwell- Jolly, 590 F.3d 725, 727 (9th Cir. 2009). Mootness implicates jurisdiction because “the Court is not empowered to decide moot questions or abstract propositions.” N. Carolina v. Rice, 404 U.S. 244, 246 (1971) (quotes omitted); Walker v. Beard, 789 F.3d 1125, 1132 (9th Cir. 2015). The mootness inquiry requires a determination not only of whether there is a “present, live controversy,” Walker, 789 F.3d at 11322, but also of whether the Court can grant any “effective relief.” W. Coast Seafood Processors Ass’n v. Nat. Res. Def. Council, Inc., 643 F.3d 701, 704 (9th Cir. 2011). Here, there is no “present Case 2:16-cv-00293-TOR Document 22 Filed 05/05/17 Fed. Defs.’ Cross Mot. for Summ. J. and Resp. in Opp’n to Pl.’s Mot. for Summ. J. -15- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 controversy” to sustain this action because the emergency work was completed on September 14, 2015, and the Court cannot grant Plaintiff any “effective relief.” Id; see also Native Ecosystems Council v. Krueger, 649 F. App’x 614, 615 (9th Cir. 2016) (“Here, the government has met its burden because no effective relief remains that can be granted. We cannot enjoin a completed project, and a declaratory judgment would have no practical effect.”). The work to construct the CPL is over. Firefighting teams worked to thin trees in strategic areas, existing roads were improved and widened, and a strategic fuel break was constructed, all by September 14, 2015. W1926. Cleanup activities, consisting of hauling materials offsite and chipping and scattering some of the slashed wood, were completed after the fire. W1938. The Forest Service has completed the emergency work on the Wolverine River Ranger District except for burning two remaining slash piles, and that will occur in the fall of 2017. Williams Decl. ¶10. The Forest Service has closed out the project administratively, and there are no ongoing or continuing actions associated with it. Consequently, there is “no present controversy” before this Court. See W. Coast Seafood Processors Ass’n, 643 F.3d at 7044. Additionally, because this lawsuit does not challenge any existing or continuing action or plan, there is no mechanism through which the Court can grant any “effective relief.” For example, if the Court were to “declare that the Forest Service violated the APA and/or NEPA,” Compl. 14, ECF No. 1, and remand to the Forest Service, there is no existing project or future work to be completed, or action for which the Court could issue any declaratory relief. Any order that this Court might issue would be directed at a nonexistent project, would have no practical effect and, therefore, would not provide Plaintiff with any effective relief. The case, therefore, is moot as there is no present controversy for which the Court can order effective relief.9 9 Similarly, as described above, the Court cannot strike the Regulation since that is a remedy only available on a facial challenge. See 4805 Convoy, Inc., 183 F.3d at 1111. Case 2:16-cv-00293-TOR Document 22 Filed 05/05/17 Fed. Defs.’ Cross Mot. for Summ. J. and Resp. in Opp’n to Pl.’s Mot. for Summ. J. -16- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 See, e.g., Tillett v. Bureau of Land Mgmt., 586 F. App’x 394 (9th Cir. Dec. 4, 2014) (“[t]he district court properly dismissed Tillett’s action for injunctive relief [regarding horse removal] as moot because the BLM moved the horses during the pendency of this action, and, thus, the district court could no longer provide any meaningful relief.”); Wilderness Watch v. King, 592 F. App’x 606, 607 (9th Cir. 2015) (appellant’s request for relief was moot where appellant challenged a “single fact- dependent authorization involving USFS discretion.”). The completion of the CPL removes the necessary application of the Regulation to allow Plaintiff to bring an as-applied challenge. Further, the Court cannot provide Plaintiff any effective relief. Therefore, the claim is moot. D. Construction of the CPL Complies with NEPA Even if the Court were to reach Plaintiff’s purported as-applied challenge to the Forest Service’s approval of the CPL under the Regulation, that challenge is without merit. Construction of the CPL is consistent with the Regulation10 and, hence, complies with NEPA. Plaintiff’s position that the Forest Service can never act to prevent loss of life or property in an emergency is at odds with NEPA and CEQ’s implementation of the law. NEPA states that “to the fullest extent possible . . . all agencies of the Federal Government shall” comply with the procedural requirements contained in the statute.” 42 U.S.C. § 4332. Title II of NEPA created CEQ and charged the three-member panel with interpreting environmental information, appraising federal programs, assessing the environmental needs of the nation, and recommending environmental policies. Id. § 4342. CEQ has the primary responsibility for interpreting NEPA, and the Supreme Court has said that CEQ’s interpretation of NEPA is owed “substantial deference.” Andrus v. Sierra Club, 442 U.S. 347, 358 (1979)); see also Daniel R. Mandelker, NEPA Law and Litigation § 2:10 Judicial Reliance on Guidelines and Regulations (2d Case 2:16-cv-00293-TOR Document 22 Filed 05/05/17 Fed. Defs.’ Cross Mot. for Summ. J. and Resp. in Opp’n to Pl.’s Mot. for Summ. J. -17- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ed. 2016) (“NEPA is an ambiguous statute, and the courts are likely to consider the CEQ regulations when they interpret the law.”). In 1978, CEQ adopted regulations governing federal agency compliance with NEPA. See 40 C.F.R. §§ 1500.1-1517.77. Regarding emergencies, CEQ’s regulations provide that “[w]here emergency circumstances make it necessary to take an action with significant environmental impact without observing the provisions of these regulations, the Federal agency taking the action should consult with [CEQ] about alternative arrangements. Agencies and [CEQ] will limit such arrangements to actions necessary to control the immediate impacts of the emergency.” 40 C.F.R. § 1506.11. Thus, emergency circumstances do not evade NEPA compliance as Plaintiff suggests. Rather, emergency circumstances are contemplated by CEQ’s NEPA compliance regulations and are an integral part of its scheme. CEQ asks that the agency consult with the Council and limit agency actions to those that are necessary to control the immediate impacts of the emergency. Nowhere in the regulation does CEQ require contemporaneous consultation on a case by case or emergency by emergency basis, as Plaintiff implies in its Motion. Indeed, such a requirement could well defeat the purpose of a regulation that anticipates exigent circumstances – like a fire that is spreading at a rate of one to three miles per day near vulnerable communities -- that require an agency to direct its resources solely to emergency response. Here, the Forest Service consulted with CEQ prospectively, with public involvement, discussing a way to respond to emergencies that would satisfy the requirements of 40 C.F.R. § 1506.11. The Forest Service’s consultation with CEQ satisfies 40 C.F.R. § 1506.11. In 2004, the Forest Service began discussions on moving its NEPA codifying procedures from the Forest Service Manual and Forest Service Handbook to the Code of Federal Regulations. R0028. In addition to formalizing its existing procedures, the Forest Service wanted to clarify and expand all NEPA implementing procedures to Case 2:16-cv-00293-TOR Document 22 Filed 05/05/17 Fed. Defs.’ Cross Mot. for Summ. J. and Resp. in Opp’n to Pl.’s Mot. for Summ. J. -18- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 incorporate CEQ guidance. R6665. On February 28, 2006, the Forest Service indicated that one area it wanted to clarify in its NEPA codifying procedures was CEQ’s guidance on emergency responses. R0073. Moving its NEPA procedures from its Manual and Handbook to the Code of Federal Regulations enabled the Forest Service to provide notice and comment to the public and consult with CEQ. The Forest Service included 36 C.F.R. § 220.4(b)), the Regulation at issue here, in its draft documents available to the public and in its consultation with CEQ. From March 21, 2007, through July 21, 2008, the Forest Service and CEQ collaborated on all NEPA implementing regulations, including Section 220.4(b). See R0577-88; 1049-50; 1250-52; 1254-58; 2888-92; 3202-61; 3262-3323; 3326-88; 3390-3456; 3531-66; 3567-3602; 4929-30; 5517-81; 5853-5920; 6259-6329; 6330. As the Administrative Record shows, CEQ and the Forest Service engaged in a lengthy, robust consultation on implementing an emergency response regulation that would satisfy the requirements of 40 C.F.R. § 1506.11.11 The Forest Service’s consultation with CEQ resulted in alternative arrangements that meet the requirements of 40 C.F.R. § 1506.11 and NEPA. 36 C.F.R. § 220.4(b) allows the Forest Service, in response to an emergency, to take actions “urgently needed to mitigate harm to life, property, or important natural or cultural resources” and requires that the Forest Service “mitigate foreseeable adverse environmental effects to the extent practical.” 36 C.F.R. § 220.4(b)(1). The language, derived from the Forest Service’s draft regulation, input from the public, and guidance from CEQ, was approved by CEQ as the authorized manner by which the Forest Service could respond to certain emergencies. See R5517 (Correspondence from 11 Plaintiff’s contention that the Forest Service’s Regulation is “unique” and that “[n]o other Federal agency has exempted its emergency actions from NEPA,” is inaccurate. Most agencies have similar emergency provisions in their NEPA regulations, and several have engaged in consultation with CEQ in a manner similar to the Forest Service. See 33 C.F.R. § 230.8; 43 C.F.R. § 46.150; 7 C.F.R. § 1970.18; and 32 C.F.R. § 989.34. Case 2:16-cv-00293-TOR Document 22 Filed 05/05/17 Fed. Defs.’ Cross Mot. for Summ. J. and Resp. in Opp’n to Pl.’s Mot. for Summ. J. -19- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Horst Greczmiel of CEQ at the end of the process saying “[h]ere are the latest - and final - comments. Let me know if there are any issues you want/need to raise. I think we’ve hit the mark.”). Finally, on July 21, 2008, CEQ issued a formal acknowledgment that the Regulation complies with NEPA. R6330 (“Based on our review, CEQ concludes that the Forest Service NEPA regulations are in conformance with NEPA and the CEQ regulations.”). CEQ’s regulations, as well its formal opinions, are entitled to substantial deference. See Seattle Audubon Soc. v. Lyons, 871 F. Supp. 1291, 1319 (W.D. Wash. 1994) (citing Defenders of Wildlife v. Andrus, 627 F.2d 1238, 1246–47 (D.C. Cir. 1980)). The Forest Service promulgated its Regulation in consultation with, and with the approval of, CEQ. Its proactive consultation on authorized emergency responses culminated in an alternative arrangement that conforms with NEPA. Plaintiff fails to show that the construction of the CPL, serving as the basis of Plaintiff’s purported as- applied challenge, was arbitrary and capricious. V. CONCLUSION The circumstances surrounding the Wolverine Fire required that the Forest Service take urgent action. Throughout the life of the fire, conditions in the Forest were unfavorable to fire suppression. The Forest was in the middle of a severe drought, the forecasted weather contained high winds and no precipitation, and the fire’s location within the Forest made direct firefighting impossible. At various times in the month of August, 2015, the fire escaped containment and continued growing in size, threatening the safety of firefighters and the public. Hundreds of people were evacuated from their homes as the fire raced toward residential communities. By the time the Forest Service began construction of the CPL, almost 1,000 people remained evacuated in the surrounding areas. The Forest Service needed to act and, in consultation with over a dozen other entities, it began constructing the CPL. Case 2:16-cv-00293-TOR Document 22 Filed 05/05/17 Fed. Defs.’ Cross Mot. for Summ. J. and Resp. in Opp’n to Pl.’s Mot. for Summ. J. -20- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff would have this Court believe that the Forest Service acted impulsively and cut down trees for some unknown reason. The reality is that the fire threatened the lives and homes of thousands of people, along with the lives and safety of firefighters. The Forest Service constructed the CPL in accordance with its Regulation, and in observation of potential environmental consequences. Construction of the CPL was strategic – it utilized and widened existing roads in addition to thinning vegetation adjacent to roads. And, when the fire’s growth was no longer forecasted to reach nearby communities, the Forest Service promptly ended the felling of trees. In accordance with its own Regulation and NEPA, the Forest Service appropriately took urgent action to avoid grave harm, and it mitigated harmful environmental consequences in the process. For the foregoing reasons, the Court should deny Plaintiff’s motion for summary judgment, grant Federal Defendants’ motion for summary judgment, and dismiss the case in its entirety. Respectfully submitted on this 5th day of May 2017. JEFFREY H. WOOD Acting Assistant Attorney General Environment and Natural Resources Division /s/ S. Derek Shugert S. DEREK SHUGERT Trial Attorney Natural Resources Section P.O. Box 7611 Washington, D.C. 20044-7611 (202) 305-0169 Fax: (202) 305-0506 shawn.shugert@usdoj.gov Attorney for Federal Defendants Case 2:16-cv-00293-TOR Document 22 Filed 05/05/17 Fed. Defs.’ Cross Mot. for Summ. J. and Resp. in Opp’n to Pl.’s Mot. for Summ. J. -21- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court via the CM/ECF system, which will provide service to counsel for the parties. /s/ S. Derek Shugert S. Derek Shugert Attorney for Federal Defendants Case 2:16-cv-00293-TOR Document 22 Filed 05/05/17 Case 2:16-cv-00293-TOR Document 22-1 Filed 05/05/17 Case 2:16-cv-00293-TOR Document 22-1 Filed 05/05/17 Case 2:16-cv-00293-TOR Document 22-1 Filed 05/05/17 Case 2:16-cv-00293-TOR Document 22-1 Filed 05/05/17 Case 2:16-cv-00293-TOR Document 22-1 Filed 05/05/17