40 F.4th 967
9th Cir.2022Background
- The U.S. Fish and Wildlife Service (FWS) adopted a 2017 Comprehensive Conservation Plan (with an EIS) for five Klamath Basin National Wildlife Refuges; this appeal concerns Lower Klamath, Tule Lake, and Clear Lake Refuges.
- Lower Klamath and Tule Lake include long-standing agricultural leases; Congress’s Kuchel Act requires wildlife conservation with "full consideration" of compatible agricultural uses.
- FWS retained an Integrated Pest Management (IPM) approach and the Pesticide Use Proposal (PUP) committee process to review and approve specific pesticide applications as a last resort.
- Clear Lake Refuge has long‑used managed cattle grazing (fall, and proposed experimental spring grazing) to control invasive grasses/juniper, reduce wildfire fuels, and restore sage‑grouse habitat; two endangered suckerfish also inhabit Clear Lake.
- Plaintiffs (Center for Biological Diversity and Western Watersheds Project) challenged the Plan under NEPA, the Refuge Act, and the Kuchel Act; the district court granted summary judgment to FWS and the Ninth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FWS violated NEPA by failing to consider a reduced‑pesticide alternative for Lower Klamath and Tule Lake | CBD: FWS should have analyzed an alternative requiring reduced pesticide use (short of total ban) | FWS: Purpose/need (maintain agricultural habitat for waterfowl) made reduced‑pesticide alternatives unreasonable; PUP/IPM process is part of reasonable alternatives set | Held: FWS acted reasonably — NEPA did not require a formal reduced‑pesticide alternative given plan purposes and existing IPM/PUP process |
| Whether FWS failed to take a "hard look" at pesticide environmental effects and violated Refuge/Kuchel Acts by allowing continued pesticide use | CBD: EIS/EIS appendices insufficiently analyzed direct, indirect, cumulative effects and FWS unlawfully permitted pesticide use | FWS: Extensive record (1998 EA/IPM, 2007 BiOp, monitoring data), PUP screening risk assessment, and mitigation/stipulations provided adequate hard look; pesticide use remains a compatible, limited tool | Held: Held for FWS — NEPA hard‑look satisfied; Refuge/Kuchel Act claims fail because use is compatible and lawfully limited via PUP |
| Whether FWS violated NEPA by not analyzing a reduced‑grazing (or no‑grazing) alternative at Clear Lake | Western Watersheds: FWS should have studied reduced or eliminated grazing alternatives | FWS: Plan’s purpose prioritizes sage‑steppe restoration; grazing is a needed management tool to control invasives, restore sagebrush, and reduce fire risk; brief explanation for eliminating reduced‑grazing alternatives suffices | Held: Held for FWS — agency adequately explained why reduced/no grazing alternatives were not reasonable under the plan’s purposes |
| Whether FWS failed to take a hard look at grazing effects on sage‑grouse and endangered suckers, or violated Refuge Act by allowing grazing | Western Watersheds: FWS did not adequately evaluate direct, indirect, cumulative impacts on sage‑grouse and Lost River/shortnose suckers; grazing is incompatible | FWS: EIS addressed potential harms and benefits; monitoring data, recovery plans, and a subsequent Biological Assessment/ESA section 7 process informed conclusions; grazing is managed and stipulations mitigate impacts | Held: Held for FWS — NEPA hard‑look and cumulative analysis adequate; grazing deemed a compatible, professionally justified management tool under the Refuge Act |
Key Cases Cited
- Westlands Water Dist. v. U.S. Dep’t of Interior, 376 F.3d 853 (9th Cir.) (purpose‑and‑need shapes reasonable alternatives under NEPA)
- City of Sausalito v. O’Neill, 386 F.3d 1186 (9th Cir.) (EIS need only consider reasonable/feasible alternatives)
- City of Carmel‑by‑the‑Sea v. U.S. Dep’t of Transp., 123 F.3d 1142 (9th Cir.) (rule of reason guides alternatives scope and discussion depth)
- Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062 (9th Cir.) (rule‑of‑reason standard for adequacy of EIS discussion)
- Dep’t of Transp. v. Public Citizen, 541 U.S. 752 (U.S.) (no new EIS required where new information would serve no NEPA purpose)
- Native Ecosystems Council v. Weldon, 697 F.3d 1043 (9th Cir.) (deference to agency scientific judgments in NEPA review)
- Western Watersheds Project v. Abbey, 719 F.3d 1035 (9th Cir.) (distinguishes programmatic vs. site‑specific grazing analyses under NEPA)
- Neighbors of Cuddy Mountain v. U.S. Forest Serv., 137 F.3d 1372 (9th Cir.) (insufficient record and data require remand)
- Protect Our Cmtys. Found. v. Jewell, 825 F.3d 571 (9th Cir.) (adaptive/ programmatic management approaches can be permissible under NEPA)
- Selkirk Conservation Alliance v. Forsgren, 336 F.3d 944 (9th Cir.) (acceptable methods for considering cumulative impacts)