National Wildlife Federation v. Lohr

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NATIONAL WILDLIFE FEDERATION,
Plaintiff,
v. Civil Action No. 19-cv-2416 (TSC)
MATTHEW LOHR; SONNY PERDUE,
Defendants.
MEMORANDUM OPINION
Plaintiff National Wildlife Federation (“NWF”) challenged a 2020 Final Rule from the
Natural Resource Conservation Service (“NRCS”), claiming that NRCS changed its policy
regarding pre–1996 wetland certifications in violation of the Administrative Procedure Act
(“APA”), the Endangered Species Act (“ESA”), and the National Environmental Policy Act
(“NEPA”). This court granted Plaintiff’s motion for summary judgment and denied Defendants’
cross motion, holding that Plaintiff had standing and that the 2020 Final Rule violated the APA
because NRCS changed its policy without providing a reasoned explanation. The court therefore
vacated the 2020 Final Rule and remanded the case to NRCS.
Defendants moved to alter the judgment, asking the court to remand the case to NRCS
without vacating the 2020 Final Rule to minimize disruption to the agency and the community
while NRCS issues a new rule. Having considered the record and the briefs, the court will
DENY Defendants’ Motion to Alter Judgment, ECF No. 47.
Page 1 of 7
I. LEGAL STANDARD
“Federal Rule of Civil Procedure 59(e) provides a limited exception to the rule that
judgments are to remain final,” Leidos, Inc. v. Hellenic Republic, 881 F.3d 213, 217 (D.C. Cir.
2018), by granting courts “discretion” to alter or amend a judgment under a limited set of
circumstances, Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (per curiam). A
court should grant a Rule 59(e) motion only if it “finds that there is an intervening change of
controlling law, the availability of new evidence, or the need to correct a clear error or prevent
manifest injustice.” Ciralsky v. CIA, 355 F.3d 661, 671 (D.C. Cir. 2004) (quoting Firestone, 76
F.3d at 1208). “No manifest injustice exists . . . ‘where a party could have easily avoided the
outcome, but instead elected not to act until after a final order had been entered.’” Morrissey v.
Mayorkas, 17 F.4th 1150, 1160–61 (D.C. Cir. 2021) (quoting Ciralsky, 355 F.3d at 673).
Granting a Rule 59(e) motion is “an extraordinary measure.” Leidos, Inc., 881 F.3d at 1217(citation omitted).
II. ANALYSIS
Under the APA, a “reviewing court shall” “hold unlawful and set aside agency action,
findings, and conclusions found to be” “arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” 5 U.S.C. § 706(2)(A) (emphases added). Thus, “ordinary practice”
“is to vacate unlawful agency action.” Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs,
985 F.3d 1032, 1050 (D.C. Cir. 2021) (citation omitted); accord Env’t Def. Fund v. FERC, 2
F.4th 953, 976 (D.C. Cir. 2021) (citation omitted) (vacatur is the “normal remedy” (citation
omitted)). Courts are “not without discretion,” however, “to leave agency action in place while
the decision is remanded for further explanation.” Standing Rock Sioux Tribe, 985 F.3d at 1051
(citation omitted). But see Comcast Corp. v. FCC, 579 F.3d 1, 10–11 (D.C. Cir. 2009)
Page 2 of 7
(Randolph, S.J., concurring) (arguing that, under the plain text of the APA, courts must vacate
any unlawful administrative action).
“The decision whether to vacate depends on ‘the seriousness of the order’s deficiencies’”
and “the disruptive consequences of an interim change that may itself be changed.” Allied-
Signal, Inc. v. U.S. Nuclear Regul. Comm’n, 988 F.2d 146, 150–51 (D.C. Cir. 1993) (citation
omitted). The seriousness of a deficiency “is determined at least in part by whether there is ‘a
significant possibility that the agency may find an adequate explanation for its actions’ on
remand.” Standing Rock Sioux Tribe, 985 F.3d at 1051 (citation omitted). But if “an agency
bypasses a fundamental procedural step, the vacatur inquiry asks not whether the ultimate action
could be justified, but whether the agency could, with further explanation, justify its decision to
skip that procedural step.” Id. at 1052. For example, the D.C. Circuit has held that “deficient
notice is a ‘fundamental flaw’ that almost always requires vacatur.” Oglala Sioux Tribe v. U.S.
Nuclear Regul. Comm’n, 896 F.3d 520, 536 (D.C. Cir. 2018) (citation omitted).
The disruptive consequences factor, moreover, “is weighty only insofar as the agency
may be able to rehabilitate its rationale for the regulation.” Comcast Corp., 579 F.3d at 9. This
analysis accounts for economic disruption, but that harm is “not commonly a basis, standing
alone, for declining to vacate agency action.” Standing Rock Sioux Tribe, 985 F.3d at 1051
(citation omitted). Applying this factor, the D.C. Circuit declined to vacate unlawful agency
action in Sugar Cane Growers Cooperative of Florida v. Veneman, 289 F.3d 89, 97 (D.C. Cir.
2002), concluding that vacatur would have invited “chaos” with “no apparent way to restore the
status quo ex ante.”
Defendants will not suffer manifest injustice if the 2020 Final Rule is vacated pending
remand. First, NRCS’s action was seriously deficient. NRCS did not give an explanation for the
Page 3 of 7
alleged change in policy because they claimed they did not change their policy at all. See Mem.
Op., ECF No. 44 at 20–21. The court consequently held that NRCS violated the APA by failing
to engage in reasoned decisionmaking. See id. Defendants have not given any indication as to
how they will substantiate this change in policy on remand, or why they think this new policy is
sound as a matter of law, instead simply asserting that they “will be able” to redress the failure
“while reaching the same result.” See Mot. to Alter J., ECF No. 47 at 5 (“Motion”) (citation
omitted). Although a lack of reasoned decisionmaking is not always a “fundamental” procedural
error, it was here because no explanation at all was given for the change in policy. See Standing
Rock Sioux Tribe, 985 F.3d at 1052.
Second, Defendants have not demonstrated that disruptive consequences must flow from
vacatur. Although Defendants persuasively argue that being forced to re-certify pre–1996
wetland determinations while a new rule is pending may be burdensome, see Decl. of Jason
Outlaw, ECF No. 47-1 ¶ 20 (estimating 2,575 requests that may require a new wetland
determination), NRCS has temporarily placed a “hold on servicing certain new wetland
determination requests” affected by this litigation, U.S. Department of Agriculture, Notice CP-
778: Certified Wetland Determinations, ECF No. 49-1 at 1. Defendants argue that this hold is
only in place while NRCS “determines how that processing should occur in compliance with the
Court’s order,” Reply Br. in Supp. of Defs.’ Mot. to Alter J., ECF No. 50 at 7 (“Reply”), but give
no reason why NRCS could not continue that hold for the “9–12 months” it will take to “publish
a new Interim Final Rule,” Decl. of Jason Outlaw ¶ 41.
Remanding without vacatur also risks disruptive consequences to the environment. As
the court has already acknowledged, NRCS’s change in policy has “allowed producers to drain
and farm more wetlands.” Mem. Op. at 18 (quoting AR001334). Thus, if the 2020 Final Rule is
Page 4 of 7
not vacated pending remand, wetlands may be improperly destroyed in the interim—a scenario
in which there would be “no apparent way to restore the status quo ex ante,” Sugar Cane
Growers Coop. of Fla., 289 F.3d at 97. Defendants argue that preserving these wetlands may
“undermine[] the certainty” of farmland transactions and operations while a new rule is pending,
Mot. at 8, but these potential economic harms are not alone enough to require remand without
vacatur, see Standing Rock Sioux Tribe, 985 F.3d at 1052.
Finally, Defendants could have—and should have—raised their challenge to vacatur at
the summary judgment stage. Plaintiff explicitly requested vacatur several times in its Amended
Complaint and its summary judgment briefing. Am. Compl., ECF No. 24 ¶¶ 9, 16; id. Prayer for
Relief ¶ 5; Mem. in Supp. of Pl.’s Mot. for Summ. J., ECF No. 27-1 at 35, 62 (“NWF
respectfully requests that the Court vacate NRCS’s arbitrary and capricious policy.”); Pl.’s
Combined Opp’n to Defs.’ Cross Mot. for Summ. J. & Reply in Supp. of Pl.’s Mot. for Summ.
J., ECF No. 31 at 45. Defendants chose not to respond to that request in any of its briefs. “No
manifest injustice exists . . . ‘where a party . . . elected not to act until after a final order had been
entered.’” Morrissey, 17 F.4th at 1160–61 (citation omitted). That is precisely the path
Defendants have taken here.
Defendants premise their motion on their view that, in cases where the parties did not
brief the remedy, the court should apply a less stringent standard in determining whether vacatur
of a procedurally deficient rule is proper. Mot. at 2 (citing AARP v. U.S. EEOC, 292 F. Supp. 3d
238, 241–42 (D.D.C. 2017); additional citations omitted). In AARP, 292 F. Supp. 3d at 241,
however, the parties did not address remedy at all in their briefs, and when the court asked each
side about remedy at oral argument, “neither party discussed its position in much detail.”
Consequently, the court concluded that AARP was “different from the common situation in
Page 5 of 7
which a moving party seeks to make an argument that it could have made previously.” Id. at
241–42. In this case, by contrast, Plaintiff explicitly requested vacatur, and Defendants chose
not to respond to that request. Now that the court has granted Plaintiff what it requested—and
what Defendants did not contest would be the proper remedy if it prevailed—Defendants
challenge the remedy that it should have responded to earlier on. See Morrissey, 17 F.4th at
1160–61.
Defendants argue that they could not have known whether they wanted to request remand
without vacatur “[u]ntil the Court issued its decision” because a violation of the ESA or NEPA
may have been more difficult to redress on remand than a violation of the APA. Reply at 3.
That argument is not wholly without merit, as the appropriateness of a remand without vacatur
depends in part on the nature of the legal violation. But Defendants do not explain why they did
not at least preserve a remand without vacatur argument in their summary judgment briefing.
See, e.g., Friends of the Cap. Crescent Trail v. Fed. Transit Admin., 218 F. Supp. 3d 53, 59–60
(D.D.C. 2016) (Rule 59(e) motion provided additional facts in support of remand without
vacatur, which was raised in initial briefing). The traditional Rule 59(e) standard therefore
applies to this case.
Even if the court applied a less stringent standard, however, the outcome would be the
same. As the court has explained, neither factor that could tip the balance in favor of remand
without vacatur—a lack of serious deficiency in the agency’s decision and a showing of
disruptive consequences from vacatur—applies here. Supra at 3–4. Remand without vacatur is
not warranted in this case.
Page 6 of 7
III. CONCLUSION
For the foregoing reasons, Defendants’ Motion to Alter Judgment, ECF No. 47, will be
DENIED. An Order will accompany this Memorandum Opinion.
Date: October 8, 2024
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
Page 7 of 7