Remand without vacatur can be appropriate where "serious irreparable environmental injury" would result from vacatur. Ctr. for Food Safety v. Vilsack , 734 F. Supp. 2d 948, 951 (N.D. Cal. 2010). Further, other practical concerns may be weighed in considering the consequences of vacatur.

Relatedly, Plaintiffs contend that "because Congress intended that endangered species conservation be given paramount importance, courts cannot use equities to strike a different balance" as is the case here where the endangered Cook Inlet beluga whales are impacted. Docket 79 at 20–21 (quoting Ctr. for Food Safety v. Vilsack , 734 F. Supp. 2d 948, 952 (N.D. Cal. 2010) ). Docket 79 at 21–22 (citing Ctr. for Food Safety , 734 F. Supp. 2d at 953 ; Nat'l Family Farm Coal. v. U.S. EPA , 960 F.3d 1120, 1144–45 (9th Cir. 2020) ; and Ctr. for Native Ecosystems v. Salazar , 795 F. Supp. 2d 1236, 1243 (D. Colo. 2011) ).

Klamath–Siskiyou , 109 F.Supp.3d at 1242 (quoting League of Wilderness Defs. , 2012 WL 13042847, at *6 ). Courts have considered remand without vacatur to be appropriate where "serious irreparable environmental injury" would result from vacatur. Ctr. for Food Safety v. Vilsack , 734 F.Supp.2d 948, 951 (N.D. Cal. 2010). In addition to environmental harm, it is appropriate to consider other practical concerns when weighing the consequences of vacatur.

Second, even accepting Mr. Gibson's statements as true, the alleged economic harm alone is not the disruptive consequence that generally tips the scale away from the presumed remedy of vacatur. SeeCtr. for Food Safety v. Vilsack, 734 F. Supp. 2d 948, 951 (N.D. Cal. 2010) ("Nevertheless, the Ninth Circuit has only found remand without vacatur warranted by equity concerns in limited circumstances, namely serious irreparable environmental injury."); Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, 471 F. Supp. 3d 71, 84 (D.D.C. 2020), aff'd in part, rev'd in part sub nom. Standing Rock Sioux Tribe v. United States Army Corps of Engineers, 985 F.3d 1032 (D.C. Cir. 2021) ("while economic disruption is a proper consideration for the second Allied-Signal prong, it may not necessarily be 'determinative.' ").

As this Court and other district courts have noted, “the Ninth Circuit has only found remand without vacatur warranted by equity concerns in limited circumstances, namely serious irreparable environmental injury.” Ctr. for Food Safety v. Vilsack, 734 F.Supp.2d 948, 953 (N.D. Cal. 2010).

Such interruption would clearly result in an irreparable negative impact on the recovery of the severely limited SRKW population. See Ctr. for Food Safety v. Vilsack, 734 F.Supp.2d 948, 951 (N.D. Cal. 2010) (“[T]he Ninth Circuit has only found remand without vacatur warranted by equity concerns in limited circumstances, namely serious irreparable environmental injury.”).

SeeHumane Soc'y v. Locke , 626 F.3d 1040, 1053 n.7 (9th Cir. 2010) ("In rare circumstances, when we deem it advisable that the agency action remain in force until the action can be reconsidered or replaced, we will remand without vacating the agency's action."); Ctr. for Food Safety v. Vilsack , 734 F. Supp. 2d 948, 951 (N.D. Cal. 2010) ("[T]he Ninth Circuit has only found remand without vacatur warranted by equity concerns in limited circumstances, namely serious irreparable environmental injury."). A. Plaintiffs’ Motion for Summary Judgment

Id. (internal citation and quotation marks omitted); Ctr. for Food Safety v. Vilsack, 734 F.Supp.2d 948, 951 (N.D. Cal. 2010) (“[T]he Ninth Circuit has only found remand without vacatur warranted by equity concerns in limited circumstances, namely serious irreparable environmental injury.”). Courts consider two factors when assessing whether an agency's decision should be vacated: (1) “how serious the agency's errors are” and (2) “the disruptive consequences of an interim change that may itself be changed.”

(Dkt. No. 39 at 14.) SeeCtr. for Food Safety v. Vilsack , 734 F.Supp.2d 948, 951 (N.D. Cal. 2010) ("[T]he Ninth Circuit has only found remand without vacatur warranted by equity concerns in limited circumstances, namely serious irreparable environmental injury."). Remand with vacatur—the default remedy for a rule that lacks the force of law—is thus appropriate here.

One such circumstance exists where "vacating a faulty rule could result in possible environmental harm"; in that situation, a court may decide "to leave a rule in place when vacating would risk such harm." Id. (citation omitted); see alsoCtr. for Food Safety v. Vilsack , 734 F. Supp. 2d 948, 951 (N.D. Cal. 2010) ("[T]he Ninth Circuit has only found remand without vacatur warranted by equity concerns in limited circumstances, namely serious irreparable environmental injury."). For example, courts have declined to vacate an illegal agency action when vacatur would increase risks to imperiled species, Idaho Farm Bureau Fed'n , 58 F.3d at 1405-06, or increase harmful pollution, Cal. Cmties. Against Toxics , 688 F.3d at 994.