Blue Mountains Biodiversity Project v. Wilkes et al

Page 1 – OPINION & ORDER
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION
BLUE MOUNTAINS BIODIVERSITY 	No. 1:22-cv-01500-CL
PROJECT,
OPINION & ORDER
Plaintiff,
v.
HOMER WILKES; UNITED STATES
DEPARTMENT OF AGRICULTURE;
GLENN CASAMASSA; SHANE JEFFRIES;
MICHAEL RAMSEY; UNITED STATES
FOREST SERVICE,
Defendants.
_______________________________________
AIKEN, District Judge.
This case comes before the Court on a Findings and Recommendation (“F&R”)
filed by Magistrate Judge Mark D. Clarke. ECF No. 87. Judge Clarke recommends
that the Court grant Defendants’ Motion to Dismiss. ECF No. 70.
LEGAL STANDARD
Under the Federal Magistrates Act, the Court may “accept, reject, or modify,
in whole or in part, the findings or recommendations made by the magistrate judge.”
28 U.S.C. § 636(b)(1). If a party files objections to a magistrate judge’s findings and
recommendations, “the court shall make a de novo determination of those portions of
the report or specified proposed findings or recommendations to which objection is
made.” Id.; Fed. R. Civ. P. 72(b)(3).
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For those portions of a magistrate judge’s findings and recommendations to
which neither party has objected, the Act does not prescribe any standard of review.
See Thomas v. Arn, 474 U.S. 140, 152 (1985) (“There is no indication that Congress,
in enacting [the Act], intended to require a district judge to review a magistrate’s
report to which no objections are filed.”). 	Although no review is required in the
absence of objections, the Magistrates Act “does not preclude further review by the
district judge[] sua sponte . . . under a de novo or any other standard.” Id. at 154. The
Advisory Committee Notes to Fed. R. Civ. P. 72(b) recommend that “[w]hen no timely
objection is filed,” the court should review the recommendation for “clear error on the
face of the record.”
DISCUSSION
Here, Plaintiff filed Objections, ECF No. 89, and Defendants filed a Response
to Objections, ECF No. 90. 	The Court has reviewed the filings and the record. 	For
the reasons that follow, the Court REJECTS the F&R and DENIES Defendants’
Motion to Dismiss.
Defendants contend that Plaintiff’s claims are moot and move to dismiss them
under Federal Rule of Civil Procedure 12(b)(1). 	Defendants contend that Plaintiff’s
NFMA, NEPA, and APA challenges to the 2021 Eastside Screens Amendment (the
“Amendment”) are moot because “the Amendment has been vacated in all material
aspects by this Court in a different case.” Def. Mot. at 1, ECF No. 70 (emphasis added)
(citing Greater Hells Canyon v. Wilkes, 790 F. Supp. 3d 1029, 1039, 1058 (D. Or.
2024)). 	Plaintiff contends that its claims are not moot because Plaintiff challenges
the 	Amendment’s 	snag 	and 	green 	tree 	retention 	provisions—the 	part 	of 	the
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Amendment that Greater Hells Canyon did not vacate. 	Pl. Obj. at 2–3. 	Plaintiff
challenges the application of the Amendment’s snag and green tree retention
provisions to the South Warner Habitat Modification Project (the “South Warner
Project”) in the Fremont-Winema National Forest of eastern Oregon. 	Id.
“Article III of the Constitution restricts the power of federal courts to ‘Cases’
and ‘Controversies.”’ 	Chafin v. Chafin, 568 U.S. 165, 171 (2013). 	“There is . . . no
case or controversy, and a suit becomes moot, when the issues presented are no longer
‘live’ or the parties lack a legally cognizable interest in the outcome.” 	Id. at 172
(internal citation and quotation marks omitted). So, a case “becomes moot only when
it is impossible for a court to grant any effectual relief whatever to the prevailing
party[.]” 	Id. (internal citation omitted). 	“As long as the parties have a concrete
interest, however small, in the outcome of the litigation, the case is not moot.” 	Id.
Further, “[t]he party asserting mootness bears the burden of establishing that there
is no effective relief that the court can provide.” 	Forest Guardians v. Johanns, 450
F.3d 455, 461 (9th Cir. 2006). Government defendants asserting mootness must meet
that 	“formidable 	burden” 	just 	like 	any 	private 	defendant. 	Fed. 	Bureau 	of
Investigation v. Fikre, 601 U.S. 234, 241–42 (2024).
In Greater Hells Canyon, this Court vacated the 2021 Amendment, which
modified the Forest Service’s Eastside Screens, the longstanding timber harvest
policy for Eastern Oregon and Southeast Washington. Greater Hells Canyon, 790 F.
Supp. 3d at 1039, 1058; see also Compl. ¶¶ 48, 49, ECF No. 1 (describing the Forest
Service’s Eastside Screens timber harvest rules that screened from timber sales the
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harvest of trees greater than 21” in diameter at breast height (“DBH”) because the
dry and fragile “eastside ecosystems are stressed and unstable”). The Court vacated
the Amendment after determining that the Environmental Assessment (“EA”) and
Finding of No Significant Impact (“FONSI”) were arbitrary and capricious under the
APA. 	Id. at 1057. 	And the Court ordered the Forest Service to prepare an
Environmental Impact Statement (“EIS”). Id. at 1039, 1058. However, the Court did
not vacate all portions of the Amendment. 	At the request of the federal defendants
and absent objection from the plaintiffs, the Court left intact the Amendment’s snag
and green tree provisions for the duration of the remand period. Id.
Here, the parties do not dispute that this Court ordered a partial vacatur. Pl.
Obj. at 7 (“The Greater Hells Canyon order . . . is best read as a partial vacatur.”);
Def. Mot. at 1 (explaining that after Greater Hells Canyon, the agency amended the
South Warner Project Decision Memo “to authorize action that would only rely on the
non-vacated portion of the Amendment[.]”).
Plaintiff 	challenges 	the 	Amendment’s 	non-vacated 	snag 	and 	green 	tree
provisions.1 Plaintiff also challenges the South Warner Project, which allegedly uses
the Amendment’s snag and green tree provisions to subvert the Eastside Screens rule
1 Plaintiff contends that the Amendment replaced the Eastside Screens’ snag
and green tree provisions to allow the logging of large trees and large snags—actions
that were prohibited under the Eastside Screens. Pl. Resp. at 2–3, ECF No. 71. The
plaintiffs in Greater Hells Canyon did not challenge the snag and green tree
provisions. 	Greater Hells Canyon, 790 F. Supp. 3d at 1058 (“Defendants argue that
if vacatur is ordered, the Court should only vacate the 21 inch-rule Amendment and
leave intact the parts of the EA and FONSI that relate to the snag and green tree
amendments, which replaced Sections 4(a) and 4(a)(1) of the Eastside Screens,
AR34754-55, and were not challenged.”).
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that is currently still in place.2 	Pl. Obj. at 10; Buchele Decl., Ex. 1, July 15, 2025,
USFS Screens Guidance Memo, ECF No. 72-1. 	Plaintiff seeks full vacatur of the
Amendment or an order that prohibits or restricts the agency from using the snag
and green tree provisions until a proper EIS is prepared. 	Pl. Resp. at 19, ECF No.
71; Pl. Obj. at 12; see also Compl. at 22 (seeking full vacatur of the Amendment).
Defendants argue that vacatur of the Amendment’s snag and green tree
provisions would not provide effectual relief to Plaintiff because the provisions are
“environmentally friendly” and thus presumably aligned with Plaintiff’s interests.
Def. Mot. at 1, 3. 	Plaintiff responds that the provisions are not environmentally
friendly. Pl. Obj. at 6; Pl. Resp. at 2. Plaintiff maintains that the Amendment’s snag
and green tree provisions would adversely affect the “ecological health of the
Fremont-Winema National Forest.” Pl. Resp. at 2. Plaintiff further maintains that
Defendants plan to use the provisions to subvert the Eastside Screens’ protection of
old growth trees by “allowing the logging of ecologically valuable and rare large trees
throughout the region[.]” 	Pl. Obj. at 9 (citing Ex. 1, July 15, 2025, USFS Screens
Guidance Memo). 	Finally, Plaintiff argues that the Amendment’s snag and green
2 Plaintiff alleges that the Forest Service’s July 15, 2025, Screens Guidance
Memo, which it obtained through a FOIA request, shows that “the Forest Service
believes that the [Amendment’s] snag and green tree retention portions . . . authorize
the logging of large trees greater than or equal to 21” DBH with impunity.” Pl. Resp.
at 19. 	The Memo provides that, given the Greater Hells Canyon order to retain the
Amendment’s snag and green tree retention provisions, the agency is “not bound to
the [Eastside Screens] requirements” that “restrict[] removal of live green trees 21-
inches and larger for any type of sale activity” in the Northwest Forest Plan area.
Buchele Decl., Ex. 1 at 2–3, July 15, 2025, USFS Screens Guidance Memo, ECF No.
72-1 	(citing 	Section 	6(d)(4)(a)(1), 	Revised 	Environmental 	Assessment 	for 	the
Continuation of Interim Management Direction Establishing Riparian, Ecosystem,
and Wildlife Standards for Timber Sales (USDA Forest Service, Region 6, 1995)).
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tree 	provisions, 	which 	were 	not 	challenged 	in 	Greater 	Hells 	Canyon, 	were
promulgated unlawfully, as were the other Amendment provisions, because the
agency failed to provide an administrative objections process.3 	Id. at 6. 	Plaintiff
contends 	that 	Defendants 	mischaracterize 	the 	provisions 	as 	“environmentally
friendly” yet “illegally prevented [Plaintiff] from raising its objections to [the]
amendment” and “offer[ing] evidence of just how environmentally unfriendly all
portions of [the] amendment actually are.” Id. at 6 n.5. Plaintiff thus contends that
its substantive and procedural challenges to the snag and green tree provisions and
the application of those provisions to the South Warner Project remain to be litigated.
Defendants 	argue 	that 	in 	Greater 	Hells 	Canyon, 	this 	Court 	ordered 	a
“mandatory injunction” that “requires the Forest Service to retain the snag and green
tree provisions[.]” 	Def. Resp. to Obj. at 1–2. 	Defendants rely on the fact that the
Order contains the words “shall maintain” under a heading titled “INJUNCTION[.]”
Id. at 2. 	Defendants contend that “such an injunction would squarely foreclose the
relief Plaintiff belatedly seeks in this case (i.e. vacatur of those same provisions)[.]”
Id.
In Greater Hells Canyon, this Court did not issue an injunction as to the
Amendment’s snag and green tree provisions. 	The Court simply excluded the
provisions from vacatur and left them intact. Greater Hells Canyon, 790 F. Supp. 3d.
3 As Plaintiff notes, Magistrate Judge Clarke and this Court (which adopted
Judge 	Clarke’s 	reasoning 	and 	conclusion) 	have 	already 	determined 	that, 	in
formulating the Amendment, the Forest Service violated the NFMA by failing to
provide an objection process. Pl. Obj. at 6 (citing Greater Hells Canyon, 790 F. Supp.
3d. at 1038, 1046–47 (citing Blue Mountains Biodiversity Project v. Wilkes et al., 1:22-
cv-01500-CL, ECF No. 39)).
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at 1039, 1058. 	As the Court explained in Greater Hells Canyon, the federal
defendants requested that the snag and green tree provisions be left intact, and the
plaintiffs did not object. Id. at 1058. No party requested a mandatory injunction as
to the provisions, and the Court did not undertake the requisite injunction analysis.
Id.
The Greater Hells Canyon F&R recommended the following relief, which was
headed “INJUNCTION”:
1. A declaration that the Service violated NEPA by failing to conduct an
EIS or taking a hard look at the effect of the Screens Amendment as a
guideline and on aquatic species, NFMA by failing to hold the objection
period, and the ESA by failing to address the effects of the Amendment
on aquatic species;
2. An injunction requiring the Service to prepare an EIS for the Screens
Amendment;
3. An injunction vacating the EA and FONSI; and
4. An order allowing the Service to maintain the snag and green tree
retention portions of the Amendment, which replaced Sections 4(a) and
4(a)(1) of the Eastside Screens, while the Service prepares an EIS.
Id. at 1058. 	The Court adopted the F&R in full, provided the recommended
declaratory relief, and ordered the other recommended relief, under the same
“INJUNCTION” heading:
1. Defendant shall prepare an Environmental Impact Statement for the
Amendment.
2. The Forest Service’s Environmental Assessment and Finding of No
Significant Impact is VACATED.
3. The Forest Service shall maintain the “snag and green tree retention”
portions of the Amendment, which replaced Sections 4(a) and 4(a)(1) of
the Eastside Screens, while the Service prepares an Environmental
Impact Statement.
Id. 	Despite the INJUNCTION heading, the Greater Hells Canyon F&R did not
recommend, nor did this Court order, an injunction as to the snag and green tree
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provisions. 	The second entry under the INJUNCTION heading effectively vacates
the Amendment and the third entry excludes from vacatur the snag and green tree
portions of the Amendment. Neither entry is an injunction.
There are “meaningful differences” between a vacatur and an injunction. Nat’l
TPS All. v. Noem, 773 F. Supp. 3d 807, 826 (N.D. Cal. 2025), aff’d, 150 F.4th 1000
(9th Cir. 2025) (quoting Texas v. United States, 40 F.4th 205, 219 (5th Cir. 2022)). A
vacatur is a judicial ruling under the APA § 706 and differs from an injunction, which
is a “drastic and extraordinary remedy.” Id. “A court’s decision to issue an injunction
constitutes an unwarranted ‘extraordinary remedy’ if a less drastic remedy, such as
vacatur, could sufficiently redress plaintiff’s injury.” 	Klamath-Siskiyou Wildlands
Ctr. v. Nat’l Marine Fisheries Serv., 109 F. Supp. 3d 1238, 1247 (N.D. Cal. 2015)
(citing Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165–66 (2010)). Further,
“a vacatur does nothing but re-establish the status quo absent the unlawful agency
action.” Texas, 40 F.4th at 220. Unlike an injunction, “[a]part from the constitutional
or statutory basis on which the court invalidated an agency action, vacatur neither
compels nor restrains further agency decision-making.” Id.
In Greater Hells Canyon, this Court reviewed the agency decisions that
resulted in the Amendment under NEPA and the APA. Greater Hells Canyon, 790 F.
Supp. 3d at 1043–44. 	The Court determined that the decisions were arbitrary and
capricious under APA 5 U.S.C. § 706(2). Id. at 1057. Accordingly, the Court vacated
the Amendment except for the snag and green tree provisions, which were left intact.
Contrary to Defendants’ assertion, the Court did not issue a mandatory injunction to
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require 	the 	Forest 	Service 	to 	retain 	the 	Amendment’s 	snag 	and 	green 	tree
provisions.4
In sum, Defendants have failed to carry their formidable burden to show that
Plaintiff’s claims are moot. 	Plaintiff’s substantive and procedural challenges to the
Amendment’s snag and green tree provisions and its challenge to the South Warner
Project are live and remain to be litigated. 	The Court can provide effectual relief
during the remand period such as vacatur of the Amendment’s snag and green tree
provisions—which would provide vacatur of the entire Amendment—or interim
injunctive relief that prohibits the agency from using the Amendment’s snag and
green tree provisions. Since vacatur of the snag and green tree provisions during the
remand period would provide effectual relief, interim injunctive relief would likely
not be necessary.
Accordingly, 	Defendants’ 	Motion 	to 	Dismiss 	for 	lack 	of 	subject 	matter
jurisdiction, ECF No. 70, is DENIED.
4 Even if the Court had issued an injunction in Greater Hells Canyon, that
injunction would not prevent the Court from providing effectual relief. 	A court has
equitable authority to modify an injunction. 	See United States v. Swift & Co., 286
U.S. 106, 114−15 (1932) (“[A] court does not abdicate its power to revoke or modify its
mandate, if satisfied that what it has been doing has been turned through changing
circumstances into an instrument of wrong.”); see also Armstrong v. Brown, 768 F.3d
975, 980 (9th Cir. 2014) (“[A] district court may sua sponte order or modify injunctive
relief.”); Brown v. Plata, 563 U.S. 493, 542 (2011) (“The power of a court of equity to
modify a decree of injunctive relief is long-established, broad, and flexible.”).
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CONCLUSION
For the reasons explained above, the Findings and Recommendation, ECF No.
87, is rejected. Defendant’s Motion to Dismiss, ECF No. 70, is DENIED.
It is so ORDERED and DATED this _______ day of October 2026.
ANN AIKEN
United States District Judge
9th
/s/Ann Aiken
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