Cascadia Wildlands v. Usda ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 14 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CASCADIA WILDLANDS; et al., No. 17-35508
Plaintiffs-Appellants, D.C. No. 6:16-cv-00177-MC
v.
MEMORANDUM*
UNITED STATES DEPARTMENT OF
AGRICULTURE, a federal department; et
al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Michael J. McShane, District Judge, Presiding
Argued and Submitted July 11, 2018
Portland, Oregon
Before: WARDLAW and OWENS, Circuit Judges, and LEFKOW,** District
Judge.
Cascadia Wildlands, Center for Biological Diversity, WildEarth Guardians,
Predator Defense, and Project Coyote (collectively Cascadia) appeal the district
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Joan Lefkow, United States District Judge for the
Northern District of Illinois, sitting by designation.
court’s partial grant of summary judgment in favor of the U.S. Department of
Agriculture, the Department’s Animal and Plant Health Inspection Services-
Wildlife Services (Wildlife Services), and David Williams, and its denial of
Cascadia’s motion for summary judgment. We have jurisdiction pursuant to 28
U.S.C. § 1291, and we affirm.
1. The district court correctly concluded that Wildlife Services’ decision
to assist the State of Oregon in its removal of gray wolves was not a “major federal
action” under the National Environmental Policy Act (NEPA). “Under NEPA,
federal agencies are required to prepare either an [Environmental Assessment
(EA)] or [Environmental Impact Statement (EIS)] for major Federal actions
significantly affecting the quality of the human environment.” Alaska Ctr. for the
Env’t v. U.S. Forest Serv., 189 F.3d 851, 853 (9th Cir. 1999) (citing 42 U.S.C.
§ 4332(C)). “There are no clear standards for defining the point at which federal
participation transforms a state or local project into [a] major federal action. The
matter is simply one of degree.” Almond Hill Sch. v. U.S. Dep’t of Agric., 768
F.2d 1030, 1039 (9th Cir. 1985) (citation omitted); see generally 40 C.F.R.
§ 1508.18. In general, we make this determination by considering: (1) the degree
to which the given action is funded by the federal agency, and (2) the extent of the
federal agency’s involvement and control in the action. See, e.g., Ka Makani ‘O
Kohala Ohana Inc. v. Water Supply, 295 F.3d 955, 960 (9th Cir. 2002).
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“‘Marginal’ federal action will not render otherwise local action federal.” Almond
Hill Sch., 768 F.2d at 1039. Neither Wildlife Services’ financial contribution to
the Oregon Wolf Conservation and Management Plan (Oregon Wolf Plan or the
Plan) nor its control over the Plan’s operation, alone or in combination, are
sufficient to render its involvement a “major federal action.”1
First, Wildlife Services contributed only a marginal level of federal funding
to the Oregon Wolf Plan. Pursuant to the Intergovernmental Agreement between
Wildlife Services and the Oregon Department of Fish and Wildlife (ODFW),
ODFW has reimbursed Wildlife Services for its costs incurred from wolf removal
actions under the Plan, including the salaries and in-state travel for Wildlife
Services’ employees. In 2012 and 2013, Wildlife Services’ unreimbursed
expenses amounted to only about eight percent of the Plan’s total costs.2 We
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We are not persuaded by Cascadia’s argument that Wildlife Services’
participation is a “major federal action” because Wildlife Services would not have
gone through the expense of preparing NEPA-required analyses, as well as
consulting with U.S. Fish and Wildlife Service, unless it believed it was required to
do so under NEPA. As Cascadia notes, Wildlife Services prepared the NEPA
analyses in exchange for settlement of a separate lawsuit. That Wildlife Services
may have concluded that taking these measures was worth the expense of avoiding
litigation, independent of any legal requirement, does not affect our analysis.
2
Cascadia argues that Wildlife Services’ participation results in a cost savings
to ODFW, which should be treated as additional “federal funding” in our analysis.
However, Cascadia does not quantify this potential cost savings, and moreover, we
decline to address this argument as Cascadia failed to raise it before the district
court. See Baccei v. United States, 632 F.3d 1140, 1149 (9th Cir. 2011) (“Absent
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generally have been unwilling to impose the NEPA requirements when federal
funding falls below ten percent of a state project’s total costs. See, e.g.,
Rattlesnake Coal. v. U.S. EPA, 509 F.3d 1095, 1101–02 (9th Cir. 2007)
(concluding that federal funding accounting for six percent of the estimated budget
“does not federalize” the state project); Ka Makani, 295 F.3d at 960 (concluding
that federal funding constituting “less than two percent of the estimated total
project cost . . . . alone could not transform the entire [state project] into a ‘major
federal action’”).
Second, Wildlife Services lacks “actual power to control” the Oregon Wolf
Plan. Ka Makani, 295 F.3d at 961 (citation omitted); see also Alaska v. Andrus,
591 F.2d 537, 540 (9th Cir. 1979) (“NEPA mandates that federal agencies file
impact statements when they propose to take a leading role in activity affecting the
environment.”). The Plan is a state-run program covered by state administrative
rules and led by ODFW. See Ka Makani, 295 F.3d at 961 (concluding the federal
“involvement was not sufficient to constitute ‘major federal action’” because “the
final decision-making power remained at all times” with the state agency). ODFW
has sole discretion to determine when a wolf should be killed under its rules, and
where and when to remove problem wolves. Notably, Oregon would continue to
exceptional circumstances, we generally will not consider arguments raised for the
first time on appeal, although we have discretion to do so.”).
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kill gray wolves if Wildlife Services were not involved, which suggests that
Wildlife Services’ involvement does not control the Plan’s outcomes.
Under this state regulatory framework, Wildlife Services exercises only
marginal discretion as to whether to accept or reject ODFW’s request to remove a
specific problem wolf. But this choice is limited, as Wildlife Services must
remove the wolf only under conditions set by ODFW and the Plan. Wildlife
Services determines the method it will use for the removal, but must consult with
ODFW to make this determination, and must select one of the methods permitted
by ODFW and the Plan.3 Wildlife Services also lacks “regulatory authority or
latitude to implement other approaches, nor can it require alternative actions of
ODFW.”
3
Cascadia characterizes Wildlife Services’ actions as the “[d]evelopment of
program plans that seek to adopt strategies, methods, and techniques as the means
of dealing with particular animal . . . risks that may arise in the future,” 7 C.F.R.
§ 372.5(b)(1)(i), which would “normally requir[e] environmental assessments”
under NEPA, id. § 372.5(b). But Cascadia waived this argument by failing to raise
it before the district court. Baccei, 632 F.3d at 1149. Moreover, this
characterization is not persuasive because here Oregon and ODFW, not Wildlife
Services, developed the Plan and the available wolf removal methods.
Cascadia also compares Wildlife Services’ discretion here to the discretion
that Wildlife Services exercised in Washington’s wolf management program, as
discussed in Cascadia Wildlands v. Woodruff, 151 F. Supp. 3d 1153 (W.D. Wash.
2015). But the district court in Woodruff discussed Wildlife Services’
“considerable discretion” only in relation to the plaintiffs’ standing, and did not
address whether there was a “major federal action.” Id. at 1160–62. And
importantly, unlike Washington’s wolf management program, id. at 1161, the
Oregon Wolf Plan’s terms are mandatory and bind Wildlife Services.
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2. Because the district court correctly concluded that Wildlife Services’
participation in the Oregon Wolf Plan is not a “major federal action,” NEPA does
not apply. Sierra Club v. Penfold, 857 F.2d 1307, 1313 (9th Cir. 1988) (“NEPA
compliance is required only where there is ‘major Federal action’ which
significantly affects the environment.”) (citing 42 U.S.C. § 4332(C)). Thus,
Wildlife Services was not required to comply with NEPA. We therefore need not
reach the question whether Wildlife Services failed to take a “hard look” in its EA
or issued an adequate statement of reasons justifying its decision to not prepare an
EIS. See Campidoglio LLC v. Wells Fargo & Co., 870 F.3d 963, 973 (9th Cir.
2017) (“[W]e may affirm summary judgment on any ground supported by the
record.”) (citation omitted).
AFFIRMED.
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