Audubon Society of Portland v. Haaland

• Decision Date: 18 July 2022
• Docket Number: 20-35509, No. 20-35513
• Citation: 40 F.4th 967
• Parties: AUDUBON SOCIETY OF PORTLAND, an Oregon nonprofit corporation; Oregon Wild, an Oregon nonprofit corporation; Waterwatch of Oregon, an Oregon nonprofit corporation; Western Watersheds Project, Plaintiffs, and Center for Biological Diversity, Plaintiff-Appellant, v. Deb HAALAND, in her official capacity as Secretary of the United States Department of the Interior; Aurelia Skipwith, in her official capacity as Director of the United States Fish and Wildlife Service; United States Fish and Wildlife Service, a federal agency of the United States Department of the Interior, Defendants-Appellees, Tulelake Irrigation District ; Klamath Water Users Association; Tulelake Growers Association ; Tally Ho Farms Partnership, DBA Walker Brothers; Four H Organics, LLC; Woodhouse Farming and Seed Company; Michael Byrne, Intervenor-Defendants-Appellees. Audubon Society of Portland, an Oregon nonprofit corporation; Oregon Wild, an Oregon nonprofit corporation; Waterwatch of Oregon, an Oregon nonprofit corporation; Center for Biological Diversity, Plaintiffs, and Western Watersheds Project, Plaintiff-Appellant, v. Deb Haaland, in her official capacity as Secretary of the United States Department of the Interior; Aurelia Skipwith, in her official capacity as Director of the United States Fish and Wildlife Service; United States Fish and Wildlife Service, a federal agency of the United States Department of the Interior, Defendants-Appellees, Tulelake Irrigation District ; Klamath Water Users Association; Tulelake Growers Association ; Tally Ho Farms Partnership, DBA Walker Brothers; Four H Organics, LLC; Woodhouse Farming and Seed Company; Michael Byrne, Intervenor-Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

40 F.4th 967

AUDUBON SOCIETY OF PORTLAND, an Oregon nonprofit corporation; Oregon Wild, an Oregon nonprofit corporation; Waterwatch of Oregon, an Oregon nonprofit corporation; Western Watersheds Project, Plaintiffs,

and

Center for Biological Diversity, Plaintiff-Appellant,

v.Deb HAALAND, in her official capacity as Secretary of the United States Department of the Interior; Aurelia Skipwith, in her official capacity as Director of the United States Fish and Wildlife Service; United States Fish and Wildlife Service, a federal agency of the United States Department of the Interior, Defendants-Appellees,Tulelake Irrigation District ; Klamath Water Users Association; Tulelake Growers Association ; Tally Ho Farms Partnership, DBA Walker Brothers; Four H Organics, LLC; Woodhouse Farming and Seed Company; Michael Byrne, Intervenor-Defendants-Appellees.

Audubon Society of Portland, an Oregon nonprofit corporation; Oregon Wild, an Oregon nonprofit corporation; Waterwatch of Oregon, an Oregon nonprofit corporation; Center for Biological Diversity, Plaintiffs,

and

Western Watersheds Project, Plaintiff-Appellant,

v.Deb Haaland, in her official capacity as Secretary of the United States Department of the Interior; Aurelia Skipwith, in her official capacity as Director of the United States Fish and Wildlife Service; United States Fish and Wildlife Service, a federal agency of the United States Department of the Interior, Defendants-Appellees,Tulelake Irrigation District ; Klamath Water Users Association; Tulelake Growers Association ; Tally Ho Farms Partnership, DBA Walker Brothers; Four H Organics, LLC; Woodhouse Farming and Seed Company; Michael Byrne, Intervenor-Defendants-Appellees.

No. 20-35509

No. 20-35513

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 5, 2021 Portland, Oregon

Filed July 18, 2022

Maura C. Fahey (argued) and Oliver J. H. Stiefel, Crag Law Center, Portland, Oregon, for Plaintiffs-Appellants.

Stephanie M. Parent (argued), Center for Biological Diversity, Portland, Oregon; Hannah M.M. Connor, Center for Biological Diversity, St. Petersburg, Florida; for Plaintiff Center for Biological Diversity.

John S. Persell (argued), Western Watersheds Project, Hailey, Idaho; David H. Becker, Law Office of David H. Becker, LLC, Portland, Oregon; Paul D. Ruprecht, Western Watersheds Project, Reno, Nevada; for Plaintiff Western Watersheds Project.

Andrew M. Bernie (argued), Andrew C. Mergen, and Ellen J. Durkee, Attorneys; Jean E. Williams, Acting Assistant Attorney General; Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellees.

Brittany K. Johnson (argued), Paul S. Simmons, and Alexis K. Stevens, Somach Simmons & Dunn, PC, Sacramento, California, for Intervenor-Defendants-Appellees.

Timothy Beau Ellis, Vial Fotheringham LLP, Lake Oswego, Oregon, for Amici Curiae Oregon Farm Bureau Federation, Klamath-Lake County Farm Bureau, California Farm Bureau Federation, Modoc County Farm Bureau, and Siskiyou County Farm Bureau.

Before: William A. Fletcher, Sandra S. Ikuta, and Daniel A. Bress, Circuit Judges.

BRESS, Circuit Judge:

In 2017, after more than six years of research, planning, and consultation, the U.S. Fish and Wildlife Service (FWS) adopted a Comprehensive Conservation Plan for five National Wildlife Refuges in the Klamath Basin National Wildlife Refuge Complex. The Conservation Plan and its appendices span over 3,500 pages and address hundreds of public comments. In this opinion, we consider challenges by two conservation groups, the Center for Biological Diversity (CBD) and the Western Watersheds Project, to two discrete aspects of the Conservation Plan, as it relates to three of the five National Wildlife Refuges that the Conservation Plan covers.

CBD challenges the Conservation Plan's pest-management approach for the Lower Klamath and Tule Lake Refuges. CBD contends that the Conservation Plan violates federal law by failing to include a reduced-pesticide alternative, and by failing to give adequate consideration to the alleged environmental effects of pesticides on wildlife. Western Watersheds challenges the Plan's limited allowance of livestock grazing on portions of Clear Lake Refuge. Western Watersheds argues that the Conservation Plan violates federal law by failing to include a reduced-grazing alternative, and by failing to give adequate consideration to the effects of grazing on the greater sage-grouse and two species of suckerfish. CBD and Western Watersheds bring their challenges under the National Environmental Policy Act (NEPA), the National Wildlife Refuge System Administration Act of 1966, and the Kuchel Act, a lesser-known federal law specific to the Klamath Basin Refuges.

After careful consideration, we conclude that CBD and Western Watersheds have not demonstrated that FWS's Conservation Plan is arbitrary or capricious or otherwise unlawful. FWS adequately considered its chosen approaches to pest-management and grazing, and it reasonably considered other alternatives. Our task is not to second-guess FWS's scientific judgment and institute our own program for Refuge management, but to determine whether FWS's decision-making process was in accordance with law. Because we conclude that it was, we affirm the district court's grant of summary judgment in FWS's favor on CBD's and Western Watersheds' claims.¹

I. Facts and Procedural History

A. The Klamath Basin

The Klamath Basin National Wildlife Refuge Complex is a multi-use wetland area that spans approximately 200,000 acres at the border of southern Oregon and northern California. It contains six different refuges, although we are here concerned with three of them: Lower Klamath, Tule Lake, and Clear Lake. This map in the record may be helpful to orient the reader:

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Like many other western locales, the history of this area is characterized by deep-rooted disagreements over land and water use and how to balance resource preservation with longstanding ranching and farming operations. Although the area was very different many generations ago, today it reflects a highly complex interdependency between agricultural uses and environmental preservation.

Under the National Wildlife Refuge System Administration Act of 1966, as amended by the National Wildlife Refuge System Improvement Act of 1997, 16 U.S.C. § 668dd, et seq. (together, the "Refuge Act"), FWS is required to prepare conservation plans for each Refuge in the System. Id. § 668dd(e)(1)(A). We consider here certain aspects of FWS's 2017 Final Comprehensive Conservation Plan / Environmental Impact Statement, which covers the three Refuges at issue here. Some background on these Refuges, with emphasis on the disputed issues in the Conservation Plan, is necessary to frame this case.

B. Lower Klamath and Tule Lake Refuges

We begin with Lower Klamath and Tule Lake, which relate to CBD's challenge. In 1908, President Theodore Roosevelt established Lower Klamath Refuge as a preserve for native birds. This Refuge falls within the Klamath Reclamation Project, a massive system of water diversion and distribution that dates to the early twentieth century and that serves approximately 200,000 acres of croplands and 50,000 acres of Refuges and wetlands. The water network reflects more than a century of combined efforts by the federal government and the States of California and Oregon to distribute water to various stakeholders in the Basin region.

Lower Klamath Refuge consists of about 54,000 acres, of which 5,605 are leased for commercial farming. Barley, oats, and wheat are all grown on leased lands in Lower Klamath Refuge. Additional land within Lower Klamath Refuge is cooperatively farmed by FWS and private parties, subject to sharecrop agreements. While there are some differences between the agricultural practices employed on leased and cooperatively farmed lands, all farming is subject to FWS's ultimate control.

Although the entire Basin has experienced drought conditions, Lower Klamath Refuge in particular has suffered from severe water shortages in recent years. Disagreements over water in the Klamath Basin remain the subject of long-running disputes in state and federal courts, and have also led to multilateral negotiations that have been ongoing for years. While we discuss these issues in greater detail in our companion opinions, the point for present purposes is that FWS in its Conservation Plan was constrained to devise Refuge management strategies based on the limited availability of water.

Tule Lake Refuge was established in 1928 as a refuge for wild birds and animals. Like Lower Klamath, it falls within the Klamath Reclamation Project. Tule Lake Refuge consists of about 39,000 acres, of which roughly 14,800 are leased for commercial farming. Tule Lake lease crops include grains, alfalfa, potatoes, onions, and horseradish. FWS and private parties cooperatively farm additional land in the Refuge.

Relevant to both Tule Lake and Lower Klamath—and CBD's challenges to the Conservation Plan—are Congress's directives that these Refuges be used for both conservation and agricultural purposes. In 1964, Congress passed the Kuchel Act, see 16 U.S.C. §§ 695k – 695r, which provides that "all lands" within the subject Refuges are "dedicated to wildlife conservation" and are to be administered "for the major purpose of waterfowl management, but with full consideration to optimum agricultural use that is consistent therewith." Id. § 695l. Mindful of its obligations under the Kuchel Act, FWS in the Conservation Plan authorized continued agriculture in both the Lower Klamath and Tule Lake Refuges.

In doing so, FWS incorporated into the Conservation Plan for all farmed lands an integrated pest management (IPM) plan intended to "ensure that all potential pest management strategies [are] considered for use (including physical, cultural, biological, and chemical)," based on considerations of "human safety, environmental integrity, effectiveness, and...