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Defendant's Attorney: United States Attorney's Office

Description: Portland, Oregon environmental law lawyers represented Plaintiffs, who sued Defendants challenging
a combined Environmental Impact Statement and Comprehensive Conservation Plan ("EIS/CCP") with respect to the Tule Lake and Lower Klamath Refuges in the Klamath Basin National Wildlife Refuge Complex violated various laws.

Two key statutes govern the Service's management of refuges in the Klamath Refuge Complex: the Kuchel Act of 1964, and the National Wildlife Refuge System Improvement Act, as amended by the Refuge Improvement Act.

The panel considered, and rejected, the four arguments ASP raised on appeal.

First, ASP argued that the failure of the Service under the EIS/CCP to provide sufficient water for the Lower Klamath Refuge violated the Refuge Act. The panel noted its sympathies to ASP's concerns because the water currently available for the Lower Klamath Refuge was inadequate to serve the purposes of the refuge. The panel held, however, it was satisfied on the record, given the constraints on the Service, whose ability to provide water was severely limited,
that the EIS/CCP fulfilled the Service's obligation under the Refuge Act.

Second, ASP argued that the EIS/CCP's continuation of the present pattern of agricultural leasing in the Tule Lake and Lower Klamath Refuges violated the Kuchel and Refuge Acts, and was arbitrary and capricious in violation of the Administrative Procedure Act ("APA"). ASP's core argument was that the EIS/CCP authorized an improper mix of agricultural land and natural habitat. The panel held that in the EIS/CCP, the Service considered the arguments made by ASP. Given the extensive evidence in the record supporting the choices made by the Service, the panel saw nothing that authorized it, as the reviewing court, to make different choices. The panel held that the balance struck by the EIS/CCP, with respect to the issues raised in the appeal, was consistent with the Kuchel and Refuge Acts, and with the APA.

Third, ASP argued that the EIS/CCP delegated administrative responsibilities to the Bureau of Reclamation in violation of the Refuge Act. The panel held that the Bureau's responsibilities under the EIS/CCP were not "administration" within the meaning of the Refuge Act's antidelegation provision. The Bureau in this case was assigned specified management functions and was, in all respects, subject to the supervision and approval of the Service.

Fourth, ASP argued that the failure of the EIS/CCP to consider a reduced-agriculture alternative violated the National Environmental Policy Act ("NEPA"). The panel held that the Service sufficiently considered whether to reduce the acreage devoted to lease-land farming, and sufficiently explained why it did not list such reduction as an alternative in the EIS/CCP.

The panel concluded that to the degree the present pattern of agricultural leasing in the Tule Lake and Lower Klamath Refuges was consistent with proper waterfowl management in those refuges, the Kuchel and Refuge Acts directed the Service to continue that present pattern of leasing. In reviewing the EIS/CCP, the panel recognized constraints on the Service and deferred to reasoned explanations provided by the Service in support of its decisions.

Outcome:
To the degree the present pattern of agricultural leasing in the Tule Lake and Lower Klamath Refuges is consistent with proper waterfowl management in those refuges, the Kuchel and Refuge Acts direct the Service to continue that present pattern of leasing. In developing a Comprehensive Conservation Plan for the Tule Lake and Lower Klamath Refuges, the Service was constrained by the fact that frequent droughts in the region prevent the refuges from fully realizing the goals of proper waterfowl management in those refuges. The Service was further constrained by a complex system of water rights that is largely beyond its control. In reviewing the EIS/CCP, we recognize these constraints and defer to the reasoned explanations provided by the Service in support of its decisions.
Audubon Soc'y of Portland v. Haaland (9th Cir. 2022)

Plaintiff's Experts:

Defendant's Experts:

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