Alatna Village Council et al v. Heinlein et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
NORTHERN ALASKA
ENVIRONMENTAL CENTER, et al.,
Plaintiffs,
v.
DEBRA HAALAND, in her official
capacity, et al.,
Defendants.
and
AMBLER METALS, LLC, et al.,
Intervenor-
Defendants.
Case No. 3:20-cv-00187-SLG
ALATNA VILLAGE COUNCIL, et al.,
Plaintiffs,
v.
THOMAS HEINLEIN, in his official
capacity as Acting BLM Alaska State
Director, et al.,
Defendants,
and
AMBLER METALS, LLC, et al.,
Intervenor-
Defendants.
Case No. 3:20-cv-00253-SLG
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ORDER RE MOTIONS FOR VOLUNTARY REMAND
Before the Court are Federal Defendants’ Motions for Voluntary Remand.1
Alatna Plaintiffs,2 Northern Alaska Environmental Center (“NAEC”) Plaintiffs,3
Intervenor-Defendant the State of Alaska (“the State”), and Intervenor-Defendant
Alaska Industrial Development and Export Authority (“AIDEA”) responded in
opposition.4 Intervenor-Defendants Ambler Metals LLC (“Ambler Metals”) and
NANA Regional Corporation, Inc. (“NANA”) responded in non-opposition.5 Federal
Defendants replied in support of both motions.6 Only Ambler Metals has requested
1 Alatna Docket 111; NAEC Docket 113 at 2 (incorporating by reference the arguments made in
the Alatna motion).
2 The Alatna Plaintiffs group comprises the Alatna Village Council, the Allakaket Tribal Council,
the Evansville Tribal Council, the Huslia Tribal Council, the Tanana Tribal Council, and the
Tanana Chiefs Conference. See Alatna Docket 46 at 8–12 (Second Am. & Supp. Compl.).
3 The NAEC Plaintiffs group comprises NAEC, Alaska Wildlife Alliance, Center for Biological
Diversity, Earthworks, National Audubon Society, National Parks Conservation Association,
Sierra Club, The Wilderness Society, and Winter Wildlands Alliance. See NAEC Docket 48 at
2–3, 6 (Second Am. Compl.).
4 Alatna Docket 124 (State Opp’n); Alatna Docket 126 (AIDEA Opp’n); Alatna Docket 128 (Pls.’
Opp’n); NAEC Docket 127 (Pls.’ Opp’n); NAEC Docket 128 (State Opp’n); NAEC Docket 130
(AIDEA Opp’n).
5 Alatna Docket 125 (Ambler Metals Non-Opp’n); Alatna Docket 127 (NANA Non-Opp’n); NAEC
Docket 129 (Ambler Metals Non-Opp’n); NAEC Docket 131 (NANA Non-Opp’n).
6 Alatna Docket 132; NAEC Docket 132.
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oral argument on the pending motions,7 and the Court finds that oral argument is
not necessary to its determination.
BACKGROUND
In November 2015, AIDEA submitted an application to the Bureau of Land
Management (“BLM”), the National Park Service (“NPS”), the Army Corps of
Engineers (“the Corps”), and the U.S. Coast Guard seeking a right-of-way
connecting the Dalton Highway and the Ambler Mining District in the Brooks Range
in Alaska.8 In the course of considering AIDEA’s application, BLM prepared an
Environmental Impact Statement pursuant to the National Environmental Policy
Act (“NEPA”), BLM and NPS jointly evaluated the project’s impact on subsistence
uses pursuant to Section 810 of the Alaska National Interest Lands Conservation
Act (“ANILCA”), and BLM and NPS developed a Programmatic Agreement and
Cultural Resources Management Plan pursuant to the National Historic
Preservation Act (“NHPA”).9 BLM and the Corps ultimately issued a Joint Record
7 Alatna Docket 138 at 2 (Ambler Metals’ Statement re Need for Oral Arg.) (“Ambler Metals’
purpose in seeking oral argument was to provide the Court with an opportunity to negotiate a
remand schedule acceptable to all of the parties in the event that the Court decides to grant
Federal Defendants’ motion for remand.”); NAEC Docket 139 at 1–2 (Ambler Metals’ Statement
re Need for Oral Arg.) (same); see also Alatna Docket 133 at 2 (Pls.’ Notice re Oral Arg. &
Notice of New Information); NAEC Docket 133 at 1 (Notice re Plfs.’ Position on Oral Arg.);
Alatna Docket 134 at 1 (Defs.’ Notice re Oral Arg.); NAEC Docket 134 at 2 (Defs.’ Notice re Oral
Arg.); Alatna Docket 136 at 1–2 (AIDEA & State’s Notice re Oral Arg.); NAEC Docket 136 at 1–2
(AIDEA & State’s Notice re Oral Arg.).
8 See Docket 111 at 6.
9 See Docket 111 at 9–10.
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of Decision authorizing the Ambler Road Project in July 2020, which constituted
BLM’s approval under NEPA and the Corps’ approval under Section 404 of the
Clean Water Act (“CWA”) and Section 10 of the Rivers and Harbors Act.10
NAEC Plaintiffs and Alatna Plaintiffs (collectively “Plaintiffs”) filed suit in
August 2020 and October 2020, respectively, seeking injunctive and declaratory
relief against Federal Defendants.11 They assert a broad range of claims under the
Administrative Procedure Act (“APA”) concerning Federal Defendants’ alleged
failures to comply with ANILCA, NHPA, NEPA, the CWA, and the Federal Land
Policy and Management Act (“FLPMA”) when authorizing the Ambler Road
Project.12 Plaintiffs have filed opening briefs in both cases, but as of yet no further
merits briefing has occurred.13
On February 22, 2022, Federal Defendants filed the instant motions for
voluntary remand.14 Both motions include a declaration from Tommy Beaudreau,
the Deputy Secretary of the Department of the Interior, stating that “the Department
10 See Docket 111 at 8–9.
11 NAEC Docket 1 (Compl.); Alatna Docket 1 (Compl.).
12 See Alatna Docket 46; NAEC Docket 48.
13 See Alatna Docket 99 (Opening Br.); NAEC Docket 99 (Opening Br.).
14 Alatna Docket 111; NAEC Docket 113.
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intends to suspend the ROW permits,”15 and Federal Defendants have since
suspended the right-of-way permits.16 For the reasons that follow, the Court grants
Federal Defendants’ motions for remand without vacatur.
LEGAL STANDARD
“[A] voluntary remand request made in response to a party’s APA challenge
may be granted only when the agency intends to take further action with respect
to the original agency decision on review.”17 An agency need not “confess error
or impropriety in order to obtain a voluntary remand” but “ordinarily does at least
need to profess intention to reconsider, re-review, or modify the original agency
decision that is the subject of the legal challenge.”18 When an agency “request[s]
a remand (without confessing error) in order to reconsider its previous
position. . . . , the reviewing court has discretion over whether to remand.”19
“Generally, courts only refuse voluntarily requested remand when the agency’s
15 See Alatna Docket 111-1 at 5, ¶ 12 (Beaudreau Decl.); NAEC Docket 113 at 5, ¶ 12
(Beaudreau Decl.).
16 See Alatna Docket 122 (Notice of Suspension Decisions); Alatna Docket 122-1 (Ex. 1) (BLM
suspension); Alatna Docket 122-2 (Ex. 2) (NPS suspension); NAEC Docket 125 (Notice of
Suspension Decisions); NAEC Docket 125-1 (Ex. 1) (BLM suspension); NAEC Docket 125-2
(Ex. 2) (NPS suspension).
17 Limnia, Inc. v. U.S. Dep’t of Energy, 857 F.3d 379, 386 (D.C. Cir. 2017) (emphasis omitted);
see also Cal. Cmtys. Against Toxics v. EPA, 688 F.3d 989, 992 (9th Cir. 2012).
18 Limnia, 857 F.3d at 387.
19 SKF USA Inc. v. United States, 254 F.3d 1022, 1029 (Fed. Cir. 2001).
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request is frivolous or made in bad faith.”20 Additionally, some courts “consider
whether remand would unduly prejudice the non-moving party.”21 “Nevertheless,
if the agency’s concern is substantial and legitimate, a remand is usually
appropriate.”22
In cases where the district court has already determined that the disputed
agency action was invalid, the Ninth Circuit has stated that remand without vacatur
should be ordered only in “limited circumstances” where “equity demands” doing
so.23 When determining whether to leave an invalid rule in place, the Ninth Circuit
employs the D.C. Circuit’s two-part Allied-Signal test, which “weigh[s] the
seriousness of the agency’s errors against ‘the disruptive consequences of an
interim change that may itself be changed.’”24 However, the Ninth Circuit has not
addressed whether remand without vacatur is appropriate when, as here, an
20 Cal. Cmtys. Against Toxics, 688 F.3d at 992 (citing SKF USA, 254 F.3d at 1029).
21 Util. Solid Waste Activities Grp. v. Env’t Prot. Agency, 901 F.3d 414, 436 (D.C. Cir. 2018).
22 SKF USA, 254 F.3d at 1029.
23 Pollinator Stewardship Council v. U.S. E.P.A., 806 F.3d 520, 532 (9th Cir. 2015) (quoting Cal.
Cmtys. Against Toxics, 688 F.3d at 994).
24 Id. (quoting Cal. Cmtys. Against Toxics, 688 F.3d at 992); see also Allied-Signal, Inc. v. U.S.
Nuclear Regul. Comm’n, 988 F.2d 146, 150–51 (D.C. Cir. 1993).
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agency seeks voluntary remand before the district court has considered the merits
of the case.25
DISCUSSION
I. Remand
Federal Defendants move for an order remanding the challenged decisions
to the agencies for reconsideration, explaining that “[a]dditional scrutiny in
defending the fully briefed merits of Plaintiffs’ claims has illuminated legal flaws
that Defendants intend to reconsider through a further administrative process.”26
In particular, Federal Defendants identify deficiencies in their analysis of impacts
to subsistence uses under ANILCA Section 810 and their consultation with Tribes
pursuant to NHPA Section 106.27 They request remand in order to supplement the
administrative record in these regards and to determine “whether to affirm, amend,
25 See In re Clean Water Act Rulemaking, __ F. Supp. 3d __, Case Nos. C 20-04636, C 20-
04869, C 20-06137, 2021 WL 4924844, at *4 (N.D. Cal. Oct. 21, 2021), appeal filed, Case No.
21-16961 (9th Cir. Nov. 22, 2021), stay granted, Louisiana v. Am. Rivers, 142 S. Ct. 1347, 1347
(2022) (“Contrasting policy implications have led to a split in authority regarding whether a court
may order vacatur without first reaching a determination on the merits of the agency’s
action. . . . Our court of appeals has not had the opportunity to address this question
directly . . . .” (citations omitted)); see also, e.g., Nat’l Fam. Farm Coal. v. U.S. Env’t Prot.
Agency, 960 F.3d 1120, 1144 (9th Cir. 2020) (considering vacatur only after holding that EPA
decision required remand because it was not supported by substantial evidence); Pollinator
Stewardship Council, 806 F.3d at 532 (same).
26 Alatna Docket 111 at 2.
27 See Alatna Docket 111 at 12–20.
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or terminate the right-of-way permits.”28 Remand is appropriate here, Federal
Defendants maintain, because the agencies have “identified ‘a substantial and
legitimate’ concern regarding the challenged decision[s]” and “intend[] to take
further action with respect to the original agency decision[s] on review.”29
While Intervenor-Defendant Ambler Metals “does not agree or concede that
there are deficiencies in the analysis or that remand is warranted,” it does not
oppose the instant motions.30 However, as discussed further below, it proposes
that the Court impose “reasonable conditions” on any remand.31 Similarly, NANA
states that it believes remand is unnecessary, but it “is not opposed to the [remand]
so long as the Court exercises its inherent authority to closely supervise the
remand.”32
Plaintiffs, by contrast, argue that the Court should deny the instant motions
because the requested remand only constitutes “a partial reconsideration [that]
would leave many of Plaintiffs’ claims unaddressed,” including their claims
28 Alatna Docket 111 at 3.
29 Alatna Docket 111 at 12 (first quoting SKF USA Inc. v. United States, 254 F.3d 1022, 1029
(Fed. Cir. 2001); then quoting Util. Solid Waste Activities Grp., 901 F.3d at 436).
30 Alatna Docket 125 at 1 & n.1; see also NAEC Docket 129 at 1 & n.1.
31 See Alatna Docket 125 at 1–2
32 Alatna Docket 127 at 1–2; see also NAEC Docket 131 at 1–2.
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regarding the CWA permit.33 They point to Center for Food Safety v. Wheeler, an
ongoing case in which the Ninth Circuit recently denied the EPA’s request for
remand without vacatur, and assert that the denial occurred because the EPA “only
planned to address violations under one statute and had not committed to
addressing claims under another.”34 Plaintiffs also cite three cases from the D.C.
Circuit and District of D.C.—Limnia, Inc. v. U.S. Department of Energy,35 Lutheran
Church–Missouri Synod v. FCC,36 and American Waterways Operators v.
Wheeler37—as evidence that courts outside the Ninth Circuit have “likewise
refused to allow voluntary remand where agencies did not commit to addressing
the main issues in dispute.”38 Accordingly, Plaintiffs maintain, the Federal
Defendants’ requested remand “fails to satisfy the most basic requirement for
remand without vacatur—that the key issues will be revisited.”39
33 Alatna Docket 128 at 3; see also NAEC Docket 127 at 6–10 (“Here, a partial remand would
be inappropriate because Defendants would potentially ignore Plaintiffs’ challenges to their
decisions under the CWA, ANILCA, and FLPMA, and most if not all the legal issues Plaintiffs
raised under NEPA.”).
34 Alatna Docket 128 at 16 (citing Order at 2, Center for Food Safety v. Wheeler, Case No. 19-
72109 (9th Cir. Jan. 12, 2021), ECF No. 67); see also NAEC Docket 127 at 10 & nn.39–40.
35 857 F.3d 379.
36 141 F.3d 344, 349 (D.C. Cir. 1998).
37 427 F. Supp. 3d 95 (D.D.C. 2019).
38 See Alatna Docket 128 at 18 & n.73; see also NAEC Docket 127 at 9 nn.32–35, 10 n.38.
39 Alatna Docket 128 at 17.
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Plaintiffs also contend that remand without vacatur would be highly
prejudicial to them because “harmful on-the-ground activities” could otherwise
continue during the reconsideration period despite the suspended right-of-way
permits.40 Among several reasons for this assertion, Plaintiffs highlight the fact
that the Corps has not explicitly committed to suspending the CWA permit, which
“authorizes dredge-and-fill activities along the entire 211-mile road corridor,
including dozens of river crossings, thousands of stream crossings, and thousands
of acres of wetlands.”41 Further, Plaintiffs assert that remand without vacatur
would not promote judicial economy because granting the instant motions would
“singl[e] out a narrow set of issues on remand and leav[e] the remaining issues in
this case unresolved,” meaning that Plaintiffs “would almost certainly need to
return to this Court for further proceedings” regarding issues not addressed by
Federal Defendants on remand.42
Both AIDEA and the State agree with Plaintiffs that remand should not be
granted, though in contrast to Plaintiffs, they oppose remand because they believe
Federal Defendants properly complied with ANILCA and the NHPA when
40 Alatna Docket 128 at 3, 7–12; see also NAEC Docket 127 at 11–12.
41 Alatna Docket 128 at 6–7, 10 (citing Alatna Docket 99 at 15–16, 19, 25–26); see also NAEC
Docket 127 at 11–13.
42 NAEC Docket 127 at 13–14; see also Alatna Docket 128 at 21.
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assessing the Ambler Road Project’s impact.43 Thus, they assert, “Interior has
failed to provide a bona fide, good faith basis for remand.”44 Further, they assert
that a voluntary remand would prejudice AIDEA because it would “undermine [its]
rights under its permits, and result in an open-ended delay in the Ambler Road
Project.”45
Federal Defendants reply that “Plaintiffs’ fears of interim environmental harm
are speculative or based on a misunderstanding of the decisions or [] protective
measures.”46 They maintain that the Programmatic Agreement covers “the full
length of the Ambler Road, not just those portions crossing federally owned land,”
and “governs the ‘Pre-Construction Phase’ and all other aspects of Project-related
activities that ‘occur within the jurisdiction of a state or federal agency.’”47 Under
the Programmatic Agreement, Federal Defendants assert, AIDEA cannot
undertake ground-disturbing activities that could affect historic properties without
43 Alatna Docket 124 at 4–5, 12–23; Alatna Docket 126 at 19.
44 Alatna Docket 124 at 4–5.
45 NAEC Docket 128; see also Alatna Docket 124; Alatna Docket 126-1 at 10, ¶ 19 (San Juan
Decl.). While the State asserts that Defendants improperly suspended the right-of-way permits,
see Alatna Docket 124 at 11, the legality of the suspensions is not a matter before the Court in
this litigation.
46 See Alatna Docket 132 at 9.
47 Alatna Docket 132 at 8–9.
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receiving approval from the BLM.48 Further, Federal Defendants maintain that
Plaintiffs are incorrect in their suggestion that “AIDEA can proceed unrestrained
on nonfederal lands, or under its Clean Water § 404 permit.”49 Finally, they
highlight AIDEA’s representation that it has deferred its geotechnical drilling plans
referenced by Plaintiffs in their motions and has “otherwise ‘effectively cancelled’
the bulk of its planned 2022 fieldwork.”50 With regard to the State and AIDEA’s
assertions of prejudice, Federal Defendants contend that “AIDEA presumably
submitted its application and tempered any expectations under the realization that
any economic benefits from the Ambler Road Project depend on an uncertain and
lengthy timeline.”51
The Court finds that remand is appropriate under these circumstances.
Because Federal Defendants have not “confess[ed] error” in the ultimate decisions
to issue the right-of-way permits but rather identified deficiencies in the analyses
underlying those decisions, the Court has discretion over whether to remand.52
Here, remand is warranted because Federal Defendants have committed to
48 Alatna Docket 132 at 9.
49 Alatna Docket 132 at 9.
50 Alatna Docket 132 at 9 (quoting Docket 126-1 at 7–9, ¶¶ 13–16 (San Juan Decl.)).
51 Alatna Docket 111 at 22.
52 See SKF USA, 254 F.3d at 1029.
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“tak[ing] further action with respect to the original agency decision on review,”53 the
potential issues they have identified are “substantial and legitimate,”54 and there is
no indication that they are acting in bad faith.55
The fact that Federal Defendants have not committed to specifically
addressing each of Plaintiffs’ claims on remand does not bar remand. The
suitability of voluntary remand hinges on whether the agency has committed to
revisiting “the original agency decision on review,” not whether the agency will
address every manner in which a party claims that decision was erroneous.56
Some of the cases that Plaintiffs cite are thus inapposite because they involved
circumstances in which the agency did not adequately commit to reexamining the
original decision underlying the litigation.57 In Limnia, for example, the plaintiff was
challenging the agency’s denial of loan applications that the plaintiff had submitted
in 2009, and the agency only offered to review any new applications that the
53 See Limnia, 857 F.3d at 386.
54 See SKF USA, 254 F.3d at 1029.
55 See id.
56 Limnia, 857 F.3d at 386.
57 The Court does not find Wheeler persuasive on this point as Ninth Circuit panel there simply
denied remand in a single sentence without offering the reasoning behind its decision. See
Order at 2, Wheeler, Case No. 19-72109 (“The motion to remand without vacatur (Docket Entry
No. 51) is denied.”).
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plaintiff chose to submit rather than revisiting the original 2009 decision.58 In other
cases that Plaintiffs cite, such as Lutheran Church, the merits had been fully
briefed and the agency made a last-minute, seemingly bad-faith request for
voluntary remand.59
Here, by contrast, the merits have not been fully briefed, Federal Defendants
have identified potential issues with the analyses underlying their original
decisions, and they credibly assert that this reconsideration process may result in
amendment of or outright reversal of those decisions.60 As Federal Defendants
explain, they have “ask[ed] to revisit foundational elements of an integrated
decisional whole”61—thus, changes to the ANILCA Section 810 analysis, the
NHPA Section 106 process, or the Environmental Impact Statement have the
potential to alter other aspects of decisions that Plaintiffs have challenged, such
as the issuance of the CWA permit. Further, the requested remand is unlikely to
prejudice Plaintiffs; as discussed above, Federal Defendants have assured the
Court in strong terms that their suspension of the right-of-way permits and position
on preventing environmental harm during the reconsideration period will avoid
58 See Limnia, 857 F.3d at 387.
59 See Lutheran Church, 141 F.3d at 349; see also Am. Waterways, 507 F. Supp. 3d at 58.
60 See Alatna Docket 111 (“The Department may decide to affirm, amend or terminate the right-
of-way permits.”).
61 Alatna Docket 132 at 5.
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prejudice to Plaintiffs.62 Remand is also not overly prejudicial to AIDEA in light of
the lengthy timeline of the project and the fact that the Court is not imposing
vacatur.
II. Vacatur
Federal Defendants contend that the remand should be without vacatur,
primarily because vacating the challenged agency decisions would require the
Court to make an independent determination on the merits, which would
“undermine a principal rationale for remand: ‘preserv[ing] scarce judicial
resources by allowing agencies to “cure their own mistakes.”’”63 Federal
Defendants also maintain that remand without vacatur is appropriate because
their suspension of the right-of-way permits will avoid environmental harm and
prejudice to Plaintiffs during the reconsideration period.64 Both Ambler Metals and
NANA agree that any remand should be without vacatur.65
62 If these representations turn out to be inaccurate or misleading, Plaintiffs, as they
acknowledge, “retain their right to seek any relief necessary to protect their interests during the
course of the remand.” NAEC Docket 127 at 23.
63 Alatna Docket 111 at 21 (quoting Carpenters Indus. Council v. Salazar, 734 F. Supp. 2d 126,
132 (D.D.C. 2010)) (alteration in original).
64 Alatna Docket 111 at 21–22 (citing Alatna Docket 111-1 (Beaudreau Decl. at 5, ¶ 12)).
65 Ambler Metals asserts that “[v]acatur would be unnecessary, given the suspensions;
improper, given the absence of any judicial findings of a legal violation; and disproportionate,
given the nature and extent of the modest and wholly curable deficiencies Federal Defendants
identify.” Alatna Docket 125 at 2; NAEC Docket 129 at 2. Further, Ambler Metals raises
“economic and practical concerns” with vacatur, stating that vacatur would “thwart Congress’
clearly expressed goals in ANILCA Section 1108” and harm the intervenor-defendants’ interests
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Plaintiffs disagree, asserting that if the Court grants remand, it should vacate
the disputed agency decisions because “[v]acatur is the default, presumptive
remedy under the APA for an invalid agency action.”66 Citing the Northern District
of California’s recent decision in In re Clean Water Act Rulemaking, NAEC
Plaintiffs contend that “[w]hen considering vacatur of agency actions prior to a
decision on the merits, the normal vacatur test applies” and the Court need not
reach the merits to vacate.67 In that case, the district court acknowledged a “split
in authority regarding whether a court may order vacatur without first reaching a
determination on the merits of the agency’s action,” but ultimately concluded that
the Ninth Circuit’s holding “that even a flawed rule need not be vacated supports
the corollary proposition that a flaw need not be conclusively established to vacate
a rule.”68 Further, the district court noted that although the Ninth Circuit has not
yet considered the issue, other district courts in the Circuit “have consistently
by postponing their ability to use the road and see a return on their investments. Alatna Docket
125 at 14–16. NANA agrees with these arguments against vacatur. See Alatna Docket 127 at
7–8.
66 NAEC Docket 127 at 15; see also Alatna Docket 128 at 15–17.
67 NAEC Docket 127 at 16–17 (citing In re Clean Water Act Rulemaking, 2021 WL 4924844, at
*27–28).
68 In re Clean Water Act Rulemaking, 2021 WL 4924844, at *4.
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acknowledged they have the authority to vacate agency actions upon remand prior
to a final determination of the action’s legality.”69
Thus, employing the two-part Allied-Signal vacatur test, Plaintiffs contend
that Federal Defendants have “failed to carry their heavy burden to show that this
is a rare circumstance where the court should not vacate the underlying
decisions.”70 Regarding the first prong of the test, they assert that “the legal
violations that [Federal Defendants] do admit are serious legal errors.”71 And
regarding the second prong, Plaintiffs maintain that vacatur would not result in
disruptive environmental or economic consequences “ris[ing] to the level
contemplated by the Ninth Circuit to warrant remand without vacatur.”72
Notably, the State has filed a notice of supplemental authority drawing the
Court’s attention to the Supreme Court’s April 6, 2022 order in Louisiana v.
American Rivers.73 That order stayed the district court’s order in In re Clean Water
Act Rulemaking “insofar as it vacates the current certification rule,” pending
69 Id. (citing Pascua Yaqui Tribe v. U.S. Env’t Prot. Agency, 557 F. Supp. 3d 949, 954–55 (D.
Ariz. 2021); All. for Wild Rockies v. Marten, Case No. CV 17-21, 2018 WL 2943251, at *2–3 (D.
Mont. June 12, 2018); N. Coast Rivers All. v. U.S. Dep’t of the Interior, Case No. 16-cv-00307,
2016 WL 8673038, at *6 (E.D. Cal. Dec. 16, 2016)).
70 NAEC Docket 127 at 17; see also Alatna Docket 128 at 14–15, 28, 30.
71 NAEC Docket 127 at 17–20; see also Alatna Docket 128 at 18–21.
72 NAEC Docket 127 at 21–22; see also Alatna Docket 128 at 28–29.
73 Alatna Docket 135 at 2.
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disposition of the appeal in the Ninth Circuit and a timely petition for a writ of
certiorari, if sought.74
Given the Supreme Court’s recent stay order and the dearth of Ninth Circuit
authority on the matter, the Court is not persuaded that it has the authority to
vacate the challenged agency action absent a determination on the merits. This
approach accords with the APA, which only directs a reviewing court to “hold
unlawful and set aside agency action, findings, and conclusions if they are found
to be” arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law.75 Further, as other courts have reasoned, granting vacatur without a
merits determination would run contrary to the APA’s goals because it would in
some cases “allow the [government] to do what [it] cannot do under the APA,
repeal a rule without public notice and comment, without judicial consideration of
the merits.”76 Further, as discussed above, the Court finds that vacatur is
unnecessary to avoid prejudice to Plaintiffs and environmental harm during the
reconsideration period. Thus, the Court will order remand without vacatur.
74 Louisiana v. Am. Rivers, 142 S. Ct. 1347, 1347 (2022).
75 5 U.S.C. § 706(2) (emphasis added).
76 See Carpenters Indus. Council, 734 F. Supp. 2d at 135–36 (quoting Nat’l Parks Conservation
Ass’n v. Salazar, 660 F. Supp. 2d 3, 5 (D.D.C. 2009)).
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III. Conditions
Plaintiffs request that if the Court grants remand, it “retain jurisdiction,
require Defendants provide a schedule for completion of the remand process, and
require Defendants provide regular status reports on their progress.”77 They
maintain that “courts ‘regularly retain jurisdiction until a federal agency has
complied with its legal obligations, and have the authority to compel regular
progress reports in the meantime.’”78
Similarly, Ambler Metals proposes that the Court impose “reasonable
conditions” on the remand in order to “minimize harm” and “further the important
interests Congress created in ANILCA Section 201(4), which prescribes surface
transportation access from the Dalton Road to the Ambler Mining District.”79
Specifically, Ambler Metals suggests: (1) imposing a nine-month time limit on
remand; (2) requiring 60-day status reports from the parties during the remand;
and (3) requiring the government to “lodge any new, superseding decisions, and
the administrative record(s) supporting those decisions, within 30 days of issuing
them.”80 In addition to echoing Ambler Metals’ suggested conditions, NANA
77 NAEC Docket 127 at 23; see also Alatna Docket 128 at 30.
78 NAEC Docket 127 at 23 (quoting Cobell v. Norton, 240 F.3d 1081, 1109 (D.C. Cir. 2001)).
79 Alatna Docket 125 at 10.
80 Alatna Docket 125 at 11.
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requests that the Court “closely supervise the remand to ensure that it is
substantively targeted to” the ANILCA and NHPA issues that Federal Defendants
have identified.81 Further, NANA suggests that the Court should conduct quarterly
status conferences and require the 60-day status reports “to include reference to
the various government-to-government consultations held during the remand
period with all affected Tribal entities and ANCSA Corporations.”82
The State and AIDEA, too, maintain that the Court should retain jurisdiction
over this case, particularly because doing so could “minimize further prejudice” to
AIDEA.83 They suggest that the Court “limit the scope of remand to the specific
concerns identified in the Motion and which the Court finds valid and supported by
the record.”84 Further, the State suggests imposing a 90-day deadline for the
completion of reconsideration,85 and AIDEA suggests a multi-stage timeline
concluding on December 1, 2022.86
81 Alatna Docket 131 at 2.
82 Alatna Docket 131 at 6–7.
83 See Alatna Docket 126 at 10.
84 Alatna Docket 124 at 24.
85 Alatna Docket 124 at 24.
86 Alatna Docket 126 at 12–14.
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Federal Defendants agree that the Court should retain jurisdiction; however,
they contend that “other parties’ efforts to predetermine the schedule on remand
are impractical, and would invite error.”87 They maintain that they are “‘committed
to undertaking the necessary consultation, analysis, and supplementation in a
timely manner,’ and to keeping the Court and the other parties apprised of their
progress.”88 Accordingly, they suggest that the Court require them to “file a status
report within 90 days and every 90 days thereafter.”89
Given that all parties agree that the Court should retain jurisdiction during
the pendency of the reconsideration, the Court will exercise its discretion and do
so here.90 The Court will require that Federal Defendants file a status report with
the Court within 60 days from the date of this order and every 60 days
thereafter. In addition, any party may move for a status conference upon a
showing of good cause.
87 Alatna Docket 132 at 10.
88 Alatna Docket 132 at 11.
89 Alatna Docket 132 at 11.
90 See Cobell v. Norton, 240 F.3d 1081, 1109 (D.C. Cir. 2001). However, the Court observes
that this exercise of discretion is “typically reserved for cases alleging unreasonable delay of
agency action or failure to comply with a statutory deadline, or for cases involving a history of
agency noncompliance with court orders or resistance to the fulfillment of legal duties.” Baystate
Med. Ctr. v. Leavitt, 587 F. Supp. 2d 37, 41 (D.D.C. 2008).
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CONCLUSION
In light of the foregoing, Federal Defendants’ motions for voluntary remand
at NAEC Docket 113 and Alatna Docket 111 are GRANTED without vacatur. The
Court shall retain jurisdiction of this matter, and Federal Defendants are ordered
to file status reports at 60 day intervals as detailed herein.
DATED this 17th day of May, 2022 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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