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,

(D.C. Cir.

2018), by granting courts “discretion” to alter or amend a judgment under a limited set of

circumstances, Firestone v. Firestone,

(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,

(D.C. Cir. 2004) (quoting Firestone,

). “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,

, 1160–61 (D.C. Cir. 2021) (quoting Ciralsky,

).

Granting a Rule 59(e) motion is “an extraordinary measure.” Leidos, Inc.,

(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.”

(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,

(D.C. Cir. 2021) (citation omitted); accord Env’t Def. Fund v. FERC,

(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,

(citation omitted). But see Comcast Corp. v. FCC,

, 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,

, 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,

(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.”

. 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,

(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.,

. 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,

(citation omitted). Applying this factor, the D.C. Circuit declined to vacate unlawful agency

action in Sugar Cane Growers Cooperative of Florida v. Veneman,

(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

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,

.

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.,

. 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,

.

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;

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,

, 241–42 (D.D.C. 2017); additional citations omitted). In AARP,

,

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.”

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.,

, 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

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