Center for Food Safety v. S.M.R. Jewell ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CENTER FOR FOOD SAFETY, et al.,
Plaintiffs
v.
S.M.R. JEWELL, SECRETARY OF THE Civil Action No. 14-360 (CKK)
UNITED STATES DEPARTMENT OF THE
INTERIOR, et al.,
Defendants
MEMORANDUM OPINION
(March 16, 2015)
This challenge pertains to certain farming practices on five refuges that are part of the
National Wildlife Refuge System, the “largest system of lands managed primarily for wildlife
conservation in the world.” AR02568. That system is managed by the Fish and Wildlife Service
(“FWS” or “the Agency”), one of the defendants in this action. 1 Plaintiffs are four national
nonprofit organizations: the Center for Food Safety, Public Employees for Environmental
Responsibility, Sierra Club, and Beyond Pesticides. Plaintiffs filed this suit challenging FWS’s
decisions permitting the farming of genetically modified crops and the use of various pesticides
on refuge system lands within five refuges: the Detroit Lakes Wetlands Management District, in
northwestern Minnesota; the Iowa Wetlands Management District, in north central Iowa; the
Swan Lake National Wildlife Refuge, in north central Missouri; the Crab Orchard National
Wildlife Refuge, in southern Illinois; and the Cypress Creek National Wildlife Refuge, also in
southern Illinois. Each of these refuges is within Midwest Region—Region 3—of the National
Wildlife Refuge System, which encompasses national wildlife refuges and wetland management
1
The other defendants are S.M.R. Jewell, Secretary of the United States Department of the
Interior; Daniel Ashe, Director of United States Fish and Wildlife Service; and the U.S. Fish and
Wildlife Service, an Administrative Agency of the United States Department of the Interior. As
there is no need to differentiate between the defendants, the Court refers to all of them
collectively as “Defendants.”
1
districts within Illinois, Indiana, Iowa, Michigan, Minnesota, Missouri, Ohio, and Wisconsin.
AR002568.
First, Plaintiffs claim that FWS violated the National Environmental Policy Act
(“NEPA”) and the Administrative Procedure Act (“APA”) by allowing farming on the five
refuges subject to this action without NEPA analysis of the site-specific impacts of pesticide use
on refuge lands. Plaintiffs challenge both the use of seeds treated with neonicotinoid pesticides,
specifically, and the application of a variety of pesticides in farming activities, in general.
Second, Plaintiffs claim that FWS violated NEPA and the APA by allowing the farming of
genetically modified 2 crops—specifically, corn and soybeans—on refuge land within the Detroit
Lakes Wetlands Management District and the Iowa Wetlands Management District. Third,
Plaintiffs claim that FWS violated the National Wildlife Refuge System Administration Act of
1966 and the National Wildlife Refuge System Improvement Act of 1997, 16 U.S.C. §§ 668dd-ee
(together, “Refuge Act”) and their implementing regulations by failing to revise the
Comprehensive Conservation Plan for the Cypress Creek National Wildlife Refuge pursuant to
the statutorily-prescribed schedule. Plaintiffs seek declaratory and injunctive relief with respect
to each claim. Specifically, Plaintiffs ask that the Court vacate the FWS decisions that allow
pesticide use and farming of genetically modified crops at each of the five refuges until FWS
prepares an adequate NEPA analysis for the respective refuges and, with respect to the Cypress
Creek National Wildlife Refuge, updates the Comprehensive Conservation Plan as well.
2
It appears that, for the purposes of the motions before the Court, the terms “genetically
engineered crops,” “genetically modified crops,” and “transgenic crops” are synonymous. The
Court refers to such crops as genetically modified for the sake of consistency.
2
Before the Court is Plaintiffs’ [67] Motion for Summary Judgment and Defendants’ [82]
Cross-Motion for Summary Judgment. Upon consideration of the pleadings, 3 the relevant legal
authorities, and the record as a whole, the Court GRANTS IN PART and DENIES IN PART
Plaintiffs’ [67] Motion for Summary Judgment and GRANTS IN PART and DENIES IN PART
Defendants’ [82] Cross-Motion for Summary Judgment. Specifically, with respect to the NEPA
claims regarding the farming of genetically modified crops, the Court DENIES Plaintiffs’ Motion
and GRANTS Defendants’ Motion with respect to the Iowa Wetland Management District, and
the Court GRANTS Plaintiffs’ Motion and DENIES Defendants’ Motion with respect to the
Detroit Lakes Wetland Management District. With respect to the NEPA claims regarding
pesticide use, the Court GRANTS Plaintiffs’ Motion and DENIES Defendants’ Motion regarding
the use of neonicotinoid pesticides at all five refuges, and the Court DENIES Plaintiffs’ Motion
and GRANTS Defendants’ Motion regarding other pesticide use at those refuges. With respect to
the Refuge Act claim regarding the updating of the Cypress Creek National Wildlife Refuge
Comprehensive Conservation Plan, the Court DENIES Plaintiffs’ Motion and GRANTS
Defendants’ Motion.
3
The Court’s consideration has focused on the following documents:
• Pls.’ Motion for Summary Judgment (“Pls.’ Mot.”), ECF No. 67;
• Federal Defs.’ Cross-Motion for Summary Judgment and Opp’n to Pls.’ Mot. for
Summary Judgment (“Defs.’ Cross-Motion”), ECF No. 82;
• Brief of the Am. Farm Bureau Fed., et al., as Amici Curiae in Supp. of Defs.’ Mot. for
Summary Judgment and in Opp’n to Pls.’ Mot. for Summary Judgment (“Amici Br.”),
ECF No. 84-1;
• Pls.’ Opp’n to Defs.’ Cross-Motion and Reply in Supp. of Pls.’ Mot. for Summary
Judgment (“Pls.’ Opp’n”), ECF No. 89; and
• Federal Defs.’ Reply (“Defs.’ Reply”), ECF No. 94;
In an exercise of its discretion, the Court finds that holding oral argument in this action would
not be of assistance in rendering a decision. See LCvR 7(f).
3
In sum, the Court GRANTS Plaintiffs’ Motion (and denies Defendants’ Motion) with
respect to the use of genetically modified crops at the Detroit Lakes Wetland Management
District and with respect to the use of neonicotinoid pesticides but DENIES it (and grants
Defendants’ Motion) in all other respects.
I. BACKGROUND
The National Wildlife Refuge system includes more than 150 million acres of public
lands and waters and includes 553 national wildlife refuges and 38 wetland management districts
throughout the United States. AR002566. “The mission of the System is to administer a national
network of lands and waters for the conservation, management, and where appropriate,
restoration of the fish, wildlife, and plant resources and their habitats within the United States for
the benefit of present and future generations of Americans.” 16 U.S.C. § 668dd(a)(2). “[E]ach
refuge shall be managed to fulfill the mission of the System, as well as the specific purposes for
which that refuge was established.” Id. § 668dd(a)(3)(A).
Row crops have been farmed on national wildlife refuges and wetland management
districts for decades to meet refuge objectives. AR002566. Frequently, those crops are farmed by
private individuals—rather than by FWS directly—through cooperative agreements or special
permits. See AR002584-85. Cooperative farming occurs on all five of the refuges challenged in
this action. See AR0000036-40. Genetically modified corn and soybeans are currently grown on
only two of the challenged refuges, the Iowa Wetland Management District and the Detroit Lakes
Wetland Management District. See id. No pesticide can be used on the refuge system land unless
it is approved by the FWS through a Pesticide Use Proposal. AR002603. Currently, a variety of
4
pesticides are approved for use on all five of the refuges challenged in this action. 4 AR004932-
4934 (Crab Orchard National Wildlife Refuge); AR005126-5128 (Cypress Creek National
Wildlife Refuge); AR005196-5200 (Detroit Lakes Wetland Management District); AR005247-
5249 (Iowa Wetland Management District); AR005335-5337 (Swan Lake National Wildlife
Refuge). The Refuge Act requires FWS to prepare a Comprehensive Conservation Plan for each
refuge. See 16 U.S.C. § 668dd(e)(1). A Comprehensive Conservation Plan is “a document that
describes the desired future conditions of a refuge or planning unit and provides long-range
guidance and management direction to achieve the purposes of the refuge.” 50 C.F.R. § 25.12. A
Comprehensive Conservation Plan has been prepared for each refuge subject to this action. See
AR000088-1328.
II. LEGAL STANDARD
Under Rule 56(a) of the Federal Rules of Civil Procedure, “[t]he court shall grant
summary judgment if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” However, “when a party seeks review
of agency action under the APA [before a district court], the district judge sits as an appellate
tribunal. The ‘entire case’ on review is a question of law.” Am. Bioscience, Inc. v. Thompson, 269
F.3d 1077, 1083 (D.C. Cir. 2001). Accordingly, “the standard set forth in Rule 56[ ] does not
apply because of the limited role of a court in reviewing the administrative record.... Summary
judgment is [ ] the mechanism for deciding whether as a matter of law the agency action is
4
The record reflects that pesticides were applied in each of these five refuges as recently as
2012. See AR005390-5404 (enumerating actual pesticide treatments for 2012). There is no
indication in the record that the application of approved pesticides has not continued since 2012,
and Defendants effectively acknowledge that pesticide use continues at each of the five
challenged refuges, see Defs.’ Cross-Motion at 13-14.
5
supported by the administrative record and is otherwise consistent with the APA standard of
review.” Southeast Conference v. Vilsack, 684 F. Supp. 2d 135, 142 (D.D.C. 2010).
The APA “sets forth the full extent of judicial authority to review executive agency
action for procedural correctness.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513
(2009). It requires courts to “hold unlawful and set aside agency action, findings, and
conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A). “This is a ‘narrow’ standard of review as courts
defer to the agency’s expertise.” Ctr. for Food Safety v. Salazar (Midwest I), 898 F. Supp. 2d 130,
138 (D.D.C. 2012) (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 43 (1983)). An agency is required to “examine the relevant data and articulate
a satisfactory explanation for its action including a rational connection between the facts found
and the choice made.” Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43 (internal quotation omitted).
The reviewing court “is not to substitute its judgment for that of the agency.” Id. Nevertheless, a
decision that is not fully explained may be upheld “if the agency’s path may reasonably be
discerned.” Bowman Transp., Inc. v. Arkansas–Best Freight Sys., Inc., 419 U.S. 281, 286 (1974).
III. DISCUSSION
Plaintiffs challenge the use of pesticides and the farming of genetically modified crops
pursuant to the National Environmental Policy Act (“NEPA”) and the Refuge Act. The Court
addresses the NEPA claims followed by the Refuge Act claim.
A. NEPA Claims
a. Background
NEPA “places upon an agency the obligation to consider every significant aspect of the
environmental impact of a proposed action,” Baltimore Gas & Elec. Co. v. Natural Res. Def.
6
Council, Inc., 462 U.S. 87, 97 (1983), and “it ensures that the agency will inform the public that
it has indeed considered environmental concerns in its decisionmaking process.” Id. NEPA’s
requirements are “procedural,” requiring “agencies to imbue their decisionmaking, through the
use of certain procedures, with our country’s commitment to environmental salubrity.” Citizens
Against Burlington, Inc. v. Busey, 938 F.2d 190, 193-94 (D.C. Cir. 1991). Courts may not
substitute their own policy judgments for those of the agency. See N. Slope Borough v. Andrus,
642 F.2d 589, 599, 606 n.93 (D.C. Cir. 1980). “NEPA merely prohibits uninformed—rather than
unwise—agency action.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351
(1989).
NEPA requires an agency to prepare an Environmental Impact Statement for any
proposed major federal action “significantly affecting the quality of the human environment.” 42
U.S.C. § 4332(2)(C). An Environmental Assessment is a “concise public document” that
“[b]riefly provide[s] sufficient evidence and analysis for determining whether to prepare an
environmental impact statement or a finding of no significant impact.” 40 C.F.R. § 1508.9(a).
See also id. § 1501.4(b). If the agency determines that a full Environmental Impact Statement is
not necessary—after preparing an Environmental Assessment—it must prepare a Finding of No
Significant Impact explaining why the action will not have a significant impact on the
environment. Id. §§ 1501.4(e), 1508.13; see Flaherty v. Bryson, 850 F. Supp. 2d 38, 45 (D.D.C.
2012); In re Polar Bear Endangered Species Act Listing and § 4(d) Rule Litig., 818 F. Supp. 2d
214, 222 (D.D.C. 2011).
Because of the development and growth in the use of genetically modified crops, FWS
identified, in 2010, a need to develop a consistent policy across Region 3 regarding the impacts
of farming using genetically modified crops. Midwest I, 898 F. Supp. 2d at 135. To address
7
concerns about the effect of genetically modified crops on the environment, particularly the use
of genetically modified glyphosate tolerant (“GMGT”) corn and soybeans, 5 FWS developed a
programmatic Environmental Assessment for Region 3. Id. After considering comments on the
Draft Environmental Assessment, FWS selected an alternative that combined features of the
other proposed alternatives. See id. at 136. Under the selected alternative, GMGT farming would
be allowed only for habitat restoration. Id. However, non-GMGT farming would be allowed as a
“management tool to achieve multiple objectives, such as, habitat management, supplemental
food for wildlife, and attracting wildlife for viewing and photography.” Id. With the Final
Environmental Assessment, the Agency issued a Finding of No Significant Impact, concluding
that the action was not a major Federal action that would significantly impact the quality of the
human environment and that a full Environmental Impact Statement was not required. See id.
Several non-profit groups—including four of the five plaintiffs in this action—challenged that
conclusion, arguing that FWS violated NEPA by failing to prepare a full Environmental Impact
Statement. See id. at 134. In Midwest I, Judge James E. Boasberg, another district judge in this
district, rejected that challenge, concluding that FWS’s actions were not arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law. 6 See id.
Regarding the argument that FWS should have conducted a site-specific analysis of the
use of GMGT crops—with respect to their use at specific refuges—Judge Boasberg concluded
that site-specific analyses were not necessary as part of the programmatic Environmental
5
GMGT crops “have been genetically modified through insertion of a gene that allows the plant
to tolerate application of the herbicide glyphosate.” Midwest I, 898 F. Supp. 2d at 135. “These
crops allow[] for the effective control and elimination of noxious weeds and other undesirable
plants prior to the area being reseeded or allowed to revegetate to more desirable species.” Id.
(citation omitted).
6
In Midwest I, the plaintiffs also argued that FWS violated the organic acts for the National
Wildlife Refuge System. See 898 F. Supp. 2d at 134. Judge Boasberg rejected that claim as well.
See id. at 134, 152-53.
8
Assessment for Region 3. See id. at 150. In addition, because the complaint in that action
challenged only the region-wide Environmental Assessment—not the site-specific plans
developed for individual refuges—Judge Boasberg did not address the adequacy of the site-
specific plans that had already been developed with respect to specific refuges. See id. The court
noted that, in addition to the region-wide Environmental Assessment, FWS had previously
conducted site-specific analysis with respect to individual refuges, creating Comprehensive
Conservation Plans as required by the Refuge Act. Without explicitly determining whether those
site-specific analyses were necessary for the regional Environmental Assessment to survive
NEPA scrutiny, the court stated that it would “not substitute Plaintiffs’ view as to the timing of
the site-specific analysis for that of the expert agency.” Id. at 150.
Plaintiffs now claim that FWS failed to provide the requisite environmental analysis
before initiating the farming of genetically modified crops and the use of pesticides on the
refuges challenged in this action. Plaintiffs further argue that neither the previous Region 3
Environmental Assessment nor previous conservation planning activities for specific refuges
provide the site-specific environmental analysis that, Plaintiffs argue, is required for compliance
with NEPA. First, the Court addresses Plaintiffs’ claim regarding the farming of genetically
modified crops at two of the challenged refuges. Second, the Court addresses Plaintiffs’ claim
about the use of seeds treated with neonicotinoid pesticides at all five refuges subject to this
action. And, third, the Court addresses Plaintiffs’ claim about the use of other pesticides at all
five refuges subject to this action.
b. Genetically Modified Crops
Currently, genetically modified crops are only farmed on two refuges subject to this
action, the Iowa Wetland Management District and the Detroit Lakes Wetland Management
9
District. See AR0000036-40. In the Iowa Wetland Management District, genetically modified
glyphosate tolerate (“GMGT”) corn and soybeans are planted on a total of 994 acres of refuge
system lands. AR000039. In the Detroit Lakes Wetland Management District, GMGT corn and
soybeans are planted on a total of 518 acres. AR000038. Plaintiffs argue that the FWS has never
conducted site-specific environmental analysis of the farming of genetically modified crops on
these specific refuges. Defendants respond that the impacts of farming GMGT crops were
analyzed in the Region 3 Environmental Assessment and in previous refuge-specific NEPA
analyses. Defendants also respond that Plaintiffs’ challenge is barred with respect to the Detroit
Lakes Wetland Management District because Plaintiffs failed to raise—through public comments
addressed to the agency—the issues now being raised. See Defs.’ Cross-Motion at 15-16.
As discussed above, another district judge considered FWS’s region-wide Environmental
Assessment with respect to the farming of GMGT crops in FWS’s Region 3, concluding that
site-specific analysis was not necessary as part of the programmatic, region-wide Environmental
Assessment. See Midwest I, 898 F. Supp. 2d at 150. That court noted that Comprehensive
Conservation Plans had been completed for individual refuges, but that the court did not evaluate
whether the site-specific analysis in those plans sufficiently covered the use of GMGT crops. See
id. However, it appears that FWS conceded in further proceedings in that action that additional
site-specific analysis was necessary before GMGT crops could be introduced on refuge system
lands. After the Midwest I Memorandum Opinion was issued, plaintiffs in that action moved for
clarification, asking the court to confirm that its Memorandum Opinion did not authorize the
planting of genetically modified crops on any particular refuge. See Pls.’ Mot. for Clarification of
Mem. Op., ECF No. 41, 11-cv-1934 (JEB). In response, FWS stated, “[t]he clarification is
unnecessary because Plaintiffs can point to nothing in the Court’s opinion that even implies that
10
the regional programmatic [Environmental Assessment] addresses the planting of GMGT crops
on specific refuges.” 7 Defs.’ Opp’n to Pls.’ Mot. for Clarification of Mem. Opinion, ECF No. 42,
11-cv-1934 (JEB), at 2. In declining to clarify its opinion, the court noted that “[t]o the extent
that Plaintiffs do not challenge the substance of the [Comprehensive Conservation Plans] and
only seek confirmation that site-specific analyses are required, Defendants concede as much in
their Opposition.” Order, ECF No. 44, 11-cv-1934-JEB (D.D.C. Dec. 11, 2012), at 2 (citing
Defs.’ Opp’n at 2). Altogether the implication of Midwest I, as well as of the related filings in
that action, is that site-specific analysis of GMGT farming is necessary in order to comply with
NEPA. The Court now reviews, in turn, site-specific documents prepared regarding the Iowa
Wetland Management District and the Detroit Lakes Wetland Management District, the two
challenged refuges on which GMGT crops are planted.
For the Detroit Lakes Wetland Management District, an Environmental Assessment was
prepared jointly with a Comprehensive Conservation Plan. 8 See AR002178-79. On April 17,
2003, the Comprehensive Conservation Plan received final approval, and the Agency issued a
Finding of No Significant Impact with respect to the alternative for the refuge. See AR000841,
2178-79. Defendants argue that the 2003 Detroit Lakes Wetland Management District
Environmental Assessment contained site-specific analysis of the use of GMGT crops. 9 See
Defs.’ Cross-Motion at 14. In support of that argument, Defendants point to only two pages
within the Environmental Assessment, as well as to the two-page Finding of No Significant
7
FWS also indicated that, at that time, no refuges in the Midwest Region had yet to authorize the
planting of genetically modified crops. See Defs.’ Opp’n to Pls.’ Mot. for Clarification of Mem.
Opinion, ECF No. 42, 11-cv-1934 (JEB), at 2.
8
The Environmental Assessment covered the Detroit Lakes Wetland Management District, as
well as the five other Wetland Management Districts in Minnesota. AR002184-85.
9
FWS presents similar arguments with respect to the use of pesticides, which are discussed
below.
11
Impact itself. See id. None of the pages to which Defendants refer demonstrate any analysis of
the use of GMGT crops—or of any other genetically modified crops. First, Defendants point to a
section of the Environmental Assessment that actually discusses the Litchfield Wetland
Management District—not the Detroit Lakes Wetland Management District. See AR002233.
Moreover, while the referenced discussion of the Litchfield Wetland Management District
mentions cooperative farming, it does not mention the use of genetically modified crops, let
alone analyze the impacts of their use. Neither does the separate discussion of the Detroit Lakes
Wetland Management District elsewhere in the Environmental Assessment discuss the impacts of
farming genetically modified crops. Defendants’ reliance on their second reference to the
Environmental Assessment is similarly unavailing: that reference points to a single sentence
discussing the use of farming for the purpose of habitat restoration and management; it does not,
however, reference the use of genetically modified crops for such purposes. See AR002245.
Beyond these specific references, the Court could not locate any discussion of farming
genetically modified crops on refuge system lands in either the Environmental Assessment or the
Comprehensive Conservation Plan. 10 The two page-Finding of No Significant Impact also has no
discussion of farming genetically modified crops. See AR002178-79. In sum, Defendants have
not identified any site-specific discussion of the impact of farming GMGT crops on refuge
system lands within the Detroit Lakes Wetland Management District.
Defendants in turn argue that Plaintiffs are barred from raising claims regarding site-
specific analysis of GMGT farming because they did not comment on the draft Comprehensive
10
The Court notes that the Comprehensive Conservation Plan includes a single paragraph that
discusses the “external threat” posed by the farming of genetically modified crops on lands
“surrounding” Waterfowl Production Areas (lands within Wetland Management Districts
acquired by FWS). AR000894. If anything, the brief discussion of genetically modified crops on
lands other than refuge system lands, without any mention of the use of such crops on refuge
system lands, suggests that genetically modified crops would not be used on refuge system lands.
12
Conservation Plan for the Detroit Lakes Wetland Management District circulated for public
comment as part of the 2003 NEPA process. See Defs.’ Cross-Motion at 16. Plaintiffs respond
that they should not be barred from presenting the arguments raised in this action because they
are not challenging the Detroit Lakes Wetland Management District Environmental Assessment
and because the draft Comprehensive Conservation Plan would not have put them on notice that
commenting regarding farming genetically modified crops was required at that time. See Pls.’
Opp’n at 32-35. The Court agrees with Plaintiffs. Generally, parties are required to “‘forcefully
present [ ]’ their arguments ‘at the time appropriate under [agency] practice.’” Vill. of Barrington,
Ill. v. Surface Transp. Bd., 636 F.3d 650, 655 (D.C. Cir. 2011) (quoting Vermont Yankee Nuclear
Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 554 (1978), and United States
v. L.A. Tucker Truck Lines, 344 U.S. 33, 37 (1952)) (citations omitted). However, there was no
reason for Plaintiffs to comment on the Environmental Assessment with respect to genetically
modified crops. Neither the Comprehensive Conservation Plan nor the Environmental
Assessment even suggested that genetically modified crops would be planted on refuge system
lands. Therefore, Plaintiffs were not on notice that they should have presented their opposition to
such practices at that time. Accordingly, the Court concludes that Plaintiffs’ failure to comment
on the 2003 Environmental Assessment and Comprehensive Conservation Plan does not bar their
current claims regarding genetically modified crops. 11 Because their claims are not barred and
because Defendants never conducted any site-specific analysis of the use of GMGT crops on
refuge lands within the Detroit Lakes Wetland Management District, the Court grants summary
judgment to Plaintiffs on the GMGT claim regarding this refuge. The Court remands this claim
11
Because the Court concludes that the exhaustion doctrine does not bar Plaintiffs’ claim, the
Court need not consider Plaintiffs’ alternative argument that an exception to the exhaustion
doctrine is appropriate here.
13
to the agency to consider the environmental impacts of using GMGT crops on this refuge in light
of this Memorandum Opinion. The Court next turns to the use of GMGT crops on refuge system
lands within the Iowa Wetland Management District.
With respect to the Iowa Wetland Management District, Plaintiffs argue that FWS has not
adequately analyzed the site-specific impacts of farming genetically modified crops. See Pls.’
Mot. at 32. Defendants respond that they have conducted adequate site-specific analysis of that
practice. It is necessary to evaluate the parties’ claims in light of the chronology of the
environmental analysis regarding this refuge. On August 19, 2013, FWS issued an
Environmental Assessment and Draft Comprehensive Conservation Plan for the Iowa Wetland
Management District. AR002276. Plaintiffs filed the Complaint in this action shortly thereafter.
See generally Compl. On March 13, 2014, FWS issued a final Comprehensive Conservation Plan
for the Iowa Wetland Management District together with a Finding of No Significant Impact,
concluding that the selected alternative for the Iowa Wetland Management District was not a
major federal action significantly affecting the quality of the human environment and, therefore,
that further environmental review was not necessary. See Iowa Wetland Management District,
Final Comprehensive Conservation Plan, App. K. (“Iowa WMD CCP”), at 274-75. The briefing
in this case was filed subsequent to that action. In Plaintiffs’ Complaint, Plaintiffs claimed that
the draft Comprehensive Conservation Plan did not address the site-specific impacts of
genetically modified crops planted on Wetland Management District lands. See Compl. ¶ 100.
Insofar as Plaintiffs maintain this claim, it is now moot because Defendants issued the final
Comprehensive Conservation Plan, which included site-specific analysis of the use of genetically
modified crops. Plaintiffs argue in their motion for summary judgment, filed after the final
Comprehensive Conservation Plan was issued, that the analysis in the final Comprehensive
14
Conservation Plan is inadequate as well. The Court disagrees. 12 In the final Comprehensive
Conservation Plan, FWS responded directly to several public comments regarding the use of
genetically modified crops on refuge system lands. See Iowa WMD CCP at 259, 263, 265-66,
272. The final plan included significant discussion of farming genetically modified crops that
was absent from the draft Comprehensive Conservation Plan. See id. at 9-19. Plaintiffs argue that
this is “too little, too late.” Pls.’ Mot. at 32. However, by analyzing the particular setting of the
Iowa Wetland Management District, including proper references to previous analyses done by
FWS and other agencies, FWS concluded that there were no significant effects expected from the
proposed farming of genetically modified crops on refuge system lands within this refuge.
Plaintiffs have not identified any site-specific threats particular to lands within the Iowa Wetland
Management District that require additional analysis beyond the analysis conducted by the
Agency. “An agency’s decision to issue a FONSI [“Finding of No Significant Impact”]—and
therefore not to prepare an EIS—will only be overturned ‘if the decision was arbitrary,
capricious, or an abuse of discretion.’” Midwest I, 898 F. Supp. 2d at 142-43 (quoting Sierra
Club v. Peterson, 717 F.2d 1409, 1413 (D.C. Cir. 1983). Regarding the use of genetically
modified crops on the Iowa Wetland Management District, the Court cannot conclude that the
decision to issue the March 2014 Finding of No Significant Impact was arbitrary, capricious, or
an abuse of discretion. Accordingly, the Court grants summary judgment to Defendants with
respect to the NEPA claim regarding farming GMGT crops at the Iowa Wetland Management
District. The Court now turns to Plaintiffs’ challenges regarding the use of pesticides on the
challenged refuges.
12
Although the final Comprehensive Conservation Plan is not in the designated Administrative
Record, the Court considers it because the parties reference it and because their arguments
regarding the adequacy of the site-specific analysis of the impacts on this refuge are intertwined
with the adequacy of the final Plan.
15
c. Neonicotinoid Pesticides
The Court first addresses Plaintiffs’ challenge to the planting of seeds treated with
neonicotinoid pesticides. As an initial matter, the record is not clear on whether such seeds are
actually planted on the challenged refuges. See AR005458 (FWS email noting absence of
pesticide use proposals for neonicotinoid seeds); AR000035 (stating requirement of pesticide use
proposal for neonicotinoid seed use in 2014 and 2015). FWS is phasing out the use of these
pesticides in agricultural activities, and they will no longer be used as of January 2016. See
Defs.’ Reply, Ex. 1. But the Court notes that Defendants have not claimed that these pesticides
have been eliminated already. See generally Defs.’ Reply.
Defendants did not respond, in their Cross-Motion and Opposition to Plaintiffs’ Motion
for Summary Judgment, to Plaintiffs’ argument that FWS had not conducted any environmental
analysis of the use of neonicotinoid pesticides. In their Motion, Plaintiffs’ argument regarding
neonicotinoid-treated seeds was framed as a separate argument—separate from their argument
about pesticides generally—and yet Defendants’ Cross-Motion and Opposition contains nary a
mention of neonicotinoid pesticides or of the specific concerns associated with the planting of
pesticide-treated seeds. Accordingly, the Court considers Defendants to have conceded this
argument. In their Reply in support of their Cross-Motion for Summary Judgment, Defendants
reference neonicotinoid pesticides but appear to conflate Plaintiffs’ challenge to the use of
pesticides generally with their specific challenge to the use of neonicotinoid pesticides,
particularly neonicotinoid-treated seeds. See, e.g., Defs.’ Reply at 3 (“Plaintiffs’ entire argument,
however, is that the FWS did not comply with NEPA when authorizing the use of GMGT crops
and neonicotinoid pesticides.”). While Defendants argue, in their Reply, that the Agency
previously conducted sufficient analysis of the use of neonicotinoid pesticides, they never
mention the planting of seeds treated with such pesticides—let alone point to a place in the
16
record where the use of such seeds is analyzed. Because the Court considers Defendants to have
conceded the argument regarding the planting of neonicotinoid-treated seeds—and because
Defendants have not identified any portion of the record showing that FWS analyzed the impacts
of planting such seeds—the Court grants Plaintiffs’ motion with regard to neonicotinoid
pesticides.
In terms of ordering an appropriate remedy, it is important that Defendants have stated
that, by January 2016, neonicotinoid pesticides will no longer be used in the National Wildlife
Refuge System as a result of a new nation-wide policy, see id. at 1 n.1., ex. 1. It is also important
that the extent to which these pesticides are currently used is unclear from the record. Therefore,
as specified in the accompanying Order, by no later than APRIL 15, 2015, Defendants shall file
a Notice indicating the extent to which neonicotinoid pesticides are currently used on the five
challenged refuges and where those pesticides are used. Assuming that these pesticides are
currently used, this claim is remanded to the agency to devise a plan to phase out their use as
soon as practicable, but no later than January 1, 2016. If they are not currently being used and
Defendants do not contemplate their use before January 1, 2016, there is no claim remaining for
the Court to resolve.
d. Pesticides
Next, Plaintiffs argue that FWS violated NEPA by failing to analyze the site-specific
impacts of pesticide use generally—separate and apart from the failure to analyze the impact of
neonicotinoid pesticides discussed above. Defendants respond that FWS addressed any site-
specific impacts of pesticide use through previous site-specific NEPA documents and through the
Environmental Assessment for Region 3. With respect to three of the refuges—the Cypress
Creek National Wildlife Refuge, the Detroit Lakes Wetland Management District, and the Swan
17
Lake National Wildlife Refuge—Defendants also argue that Plaintiffs’ claims are barred because
they failed to raise these issues before the agency previously. The Court reviews the arguments
with respect to each challenged refuge in turn.
Detroit Lakes Wetland Management District. Defendants argue both that they
adequately considered the impacts of pesticide use within this refuge and that Plaintiffs have
forfeited the opportunity to raise this claim because they failed to raise these issues before the
agency. The Court disagrees with respect to the former, but agrees with Defendants with respect
to the latter: FWS did not adequately consider the impact of pesticide use on the refuge, but
Plaintiffs have forfeited their opportunity to bring this claim now.
As evidence of the analysis of the impact of pesticide use on this refuge, Defendants refer
the Court to a brief discussion of habitat restoration and management, as well as of invasive
species control, in the 2003 Detroit Lakes Wetland Management District Environmental
Assessment. 13 See AR002245. The Environmental Assessment discusses the use of farming to
restore habitat, but does not discuss the use of pesticides in that context; it also references the use
of herbicides after land is restored to natural habitat. Id. In addition, the Environmental
Assessment specifies that the preferred alternative would involve burning, chemical application
and biological control to control invasive species. Id. Notwithstanding Defendants’ claim to the
contrary, this discussion does not analyze—let alone adequately analyze—the impact of pesticide
use on this refuge. However, the Court concludes that Plaintiffs’ failure to comment bars its
NEPA claim. By discussing both farming and herbicide use in a section regarding habitat
restoration, Plaintiffs were on notice that habitat restoration techniques could involve pesticide
13
As discussed above regarding the use of genetically modified crops on this refuge, one of the
two references on which Defendants rely points toward the discussion of a different refuge not
challenged in this action. See AR002233.
18
use. In particular, given that the Environmental Assessment discusses the use of herbicides after
land was restored to natural habitat and given that the Environmental Assessment discusses the
use of chemical and biological control of invasive species, the question of pesticide use in
farming—that is, on land not yet restored as natural habitat—was apparent from the face of the
Environmental Assessment. Accordingly, in order to preserve their right to bring this action,
Plaintiffs’ were required to “‘forcefully present [ ]’ their arguments” at that time before the
Agency. Vill. of Barrington, Ill., 636 F.3d at 655. Because they did not do so, their NEPA claim is
barred.
Iowa Wetland Management District. As discussed above with respect to genetically
modified crops, this action was filed between the issuance of the Environmental Assessment and
draft Comprehensive Conservation Plan and the issuance of the final Comprehensive
Conservation Plan for this refuge. See AR002276; Iowa Wetland Management District, Final
Comprehensive Conservation Plan. In their Complaint, Plaintiffs claimed that the draft plan did
not address the site-specific impacts of genetically modified crops on Wetland Management
District lands. See Compl. ¶ 100. Insofar as Plaintiffs maintain this claim, it is now moot because
Defendants issued the final Comprehensive Conservation Plan, which included site-specific
analysis of the use of pesticides. Plaintiffs argue in their motion for summary judgment, filed
after the final Comprehensive Conservation Plan was issued, that the analysis in the final
Comprehensive Conservation Plan is inadequate as well. 14 The Court disagrees. In the final
Comprehensive Conservation Plan, FWS responded to several comments submitted in response
to the draft plan regarding the use of pesticides on refuge system lands. See id. at 263, 267-68.
The final plan also includes a significant discussion of pesticide use in agriculture that was
14
The Court consider the final Comprehensive Conservation Plan even though it is not in the
formal administrative record. See supra note 12.
19
absent from the draft Comprehensive Conservation Plan. Compare id. at 9-19 with AR002297-
98. The Court concludes that Defendants adequately analyzed the site-specific impacts of
pesticide use on this refuge. Moreover, the final Comprehensive Conservation Plan also properly
relies on the Region 3 Pesticide Use Policy, which outlines the permitting process for use of
specific pesticides on each refuge, as a mitigation measure. Together with the other procedures in
place for pesticide use, the “agency has shown that ‘safeguards in the project sufficiently reduce
the impact to a minimum.’” Midwest I, 898 F. Supp. 2d at 150 (quoting Michigan Gambling
Opposition v. Kempthorne, 525 F.3d 23, 29 (D.C. Cir. 2008)). Therefore, neither additional
analysis nor an environmental impact statement is necessary. See id.
Crab Orchard National Wildlife Refuge. Defendants argue that they adequately
considered the environmental impacts of pesticide use on this refuge in the Environmental
Impact Statement and Comprehensive Conservation Plan issued in 2006. The Court concurs.
Defendants discussed the impact of pesticides in response to comments to the draft
Environmental Impact Statement. See AR001562-63. Plaintiffs have not identified any particular
site-specific impacts of pesticide use on this refuge that the Agency has neglected to consider. In
addition, the Court recognizes that the Pesticide Use Policy that establishes a permitting process
for the use of specific pesticides on each refuge mitigates the harms that result from the use of
pesticides in agriculture, particularly given that the use of agriculture is limited to farming that
serves the objectives of the refuge. This Court’s role “is not to substitute its judgment for that of
the agency.” Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43. It is only for the Court to determine
whether the agency’s judgment is “uninformed,” not whether it is “unwise.” Methow Valley
Citizens Council, 490 U.S. at 351. Accordingly, the Court concludes that the agency has
20
adequately considered the impacts of pesticide use in permitting farming on this refuge and that
the agency has complied with NEPA in doing so.
Cypress Creek National Wildlife Refuge. Defendants argue that they adequately
considered the environmental impacts of pesticide use on this refuge and that Plaintiffs forfeited
their right to bring this claim because of their failure to comment on the earlier site-specific
NEPA analysis. The Court concludes that FWS adequately considered the site specific impacts of
pesticide use. In the Comprehensive Management Plan for the Cypress Creek National Wildlife
Refuge, issued in December 1996, FWS discussed comments that it received in response to the
publicly circulated draft Comprehensive Management Plan. The Agency addressed the location
and scope of farming activities, as well as the use of pesticides for those activities. AR000742-
43. The Agency stated that, although continued farming use was planned, “the Refuge does not
use nor does the Plan call for pesticide use for insect control.” AR000743. The agency did not
specifically respond regarding the use of pesticides to control unwanted vegetation. Currently,
pesticides are permitted for the control of various undesirable plant species. See, e.g., AR003424.
It appears that FWS adequately considered impacts of pesticide use and determined that farming
would continue, pesticide use would not be allowed for insect control, but that it would be
allowed for control of undesirable vegetation. Given that context, it is important that, in the
Region 3 Environmental Assessment regarding GMGT crops, FWS concluded that the use of
herbicides will not impact wildlife if (1) they are applied following label instructions; (2)
conditions in the cooperative farming agreements, including best management practices to
protect soil and water, are followed; and (3) Pesticide Use Proposals are completed as required
by FWS policy. AR002622. Plaintiffs have not indicated that the agency has failed to implement
these conditions. Nor have they identified any site-specific impacts particular to farming
21
activities within the Cypress Creek National Wildlife Refuge that were not sufficiently
considered in the Region 3 Environmental Assessment. Accordingly, the Court concludes that the
agency has adequately considered the use of pesticides on refuge land within this refuge.
Moreover, the Court considers the conditions enumerated here—as well as the more specific
conditions laid out in the cooperative farming agreements, the special permits, and pesticide use
proposals that permit farming and pesticide use on refuge land—as proper mitigation measures
that reduce the impact of pesticide use on the refuge. Once again, the “agency has shown that
‘safeguards in the project sufficiently reduce the impact to a minimum.’” Midwest I, 898
F. Supp. 2d at 150. Further environmental analysis, therefore, is not required. 15 See id.
Swan Lake National Wildlife Refuge. Defendants argue that environmental impacts of
pesticide use were adequately analyzed and that Plaintiffs have forfeited their claim regarding
this refuge by failing to comment on the previously issued NEPA documents pertaining to this
refuge. In the Environmental Assessment issued for this refuge, FWS indicated that farming was
ongoing. AR002679. In addition, the agency stated that its preferred alternative entailed retaining
approximately 400 acres as cropland. See also AR001318-21 (responses to comments on draft
Comprehensive Conservation Plan regarding farming). But there is no indication that FWS
actually considered the implications of pesticide use associated with farming. Therefore, the
Court concludes that these references do not reveal an adequate discussion of any site-specific
impacts of pesticide use. However, the Court agrees that Plaintiffs have forfeited their right to
15
Because the Court concludes that FWS conducted adequate analysis of the use of pesticides on
this refuge, it need not reach the question of whether Plaintiffs have forfeited their ability to
bring this claim now because of their failure to comment in the earlier NEPA process. However,
were the Court to reach that claim, the same evidence in the record that supports the conclusion
that FWS adequately analyzed the use of pesticides all the more so supports the conclusion that
the issue of pesticide use was clearly presented in the 1997 NEPA analysis. Therefore, Plaintiffs’
failure to comment on the use of pesticides at that time would bar Plaintiffs’ challenge to the use
of pesticides more than 15 years later.
22
bring this claim because of their failure to raise the issue before the agency. Because it was
apparent from the Environmental Assessment that farming was ongoing on the refuge and
alternatives proposed by the agency entailed continued farming and because it is well known that
pesticide use is a common feature of conventional farming practices, Plaintiffs were on notice
that they should have commented at the time of the NEPA proceedings regarding the
Comprehensive Conservation Plan. Because they did not do so, they have forfeited the right to
claim, now, that the agency has not adequately analyzed the environmental impacts of pesticide
use associated with farming on refuge land at this refuge.
In sum, the Court grants summary judgment to Defendants with respect to the general
pesticide claims—separate and apart from the claim regarding neonicotinoid pesticides—with
respect to all five challenged refuges.
B. The Cypress Creek National Wildlife Refuge Comprehensive Conservation Plan
The Refuge Act requires that a Comprehensive Conservation Plan be in place for each
National Wildlife Refuge within 15 years after the passage of the National Wildlife Refuge
System Improvement Act of 1997. 16 U.S.C. § 668dd(e)(1)(B). It also requires that FWS must
“revise the conservation plan as may be necessary” within “15 years after the date of issuance of
a conservation plan.” Id. § 668dd(e)(1)(A)(iv). The most recent plan for the Cypress Creek
National Wildlife Refuge was approved on April 14, 1997, AR000633, and the fifteen year
period beginning on that date ended in April 2012. 16 Plaintiffs argue that FWS has unreasonably
delayed the revision of this plan. Plaintiffs ask the Court, in response, to vacate all of the
16
The 1997 plan for Cypress Creek National Wildlife Refuge was titled a Comprehensive
Management Plan. AR000633. The title “Comprehensive Management Plan” reflected the pre-
1997 statutory scheme, but the Agency determined at that time that the plan qualified as a
Comprehensive Conservation Plan for the purposes of the Refuge Act. See AR002164. Plaintiffs
do not argue otherwise.
23
cooperative farming agreements on this refuge until FWS prepares a current Comprehensive
Conservation Plan. See Pls.’ Mot. at 44. Notably, they do not seek to compel FWS to update the
plan. See id. Defendants respond that the revision of the Comprehensive Conservation Plan is not
unreasonably delayed.
“Resolution of a claim of unreasonable delay is ordinarily a complicated and nuanced
task requiring consideration of the particular facts and circumstances before the court.” Mashpee
Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1100 (D.C. Cir. 2003). In
Telecommunications Research & Action Ctr. v. F.C.C. (“TRAC”), 750 F.2d 70 (D.C. Cir. 1984),
the D.C. Circuit Court of Appeals set out a six-factor standard for assessing unreasonable delay
claims, which entails considering the following factors:
(1) the time agencies take to make decisions must be governed by a “rule of
reason[;]” (2) where Congress has provided a timetable or other indication of the
speed with which it expects the agency to proceed in the enabling statute, that
statutory scheme may supply content for this rule of reason; (3) delays that might
be reasonable in the sphere of economic regulation are less tolerable when human
health and welfare are at stake; (4) the court should consider the effect of
expediting delayed action on agency activities of a higher or competing priority;
(5) the court should also take into account the nature and extent of the interests
prejudiced by delay; and (6) the court need not “find any impropriety lurking
behind agency lassitude in order to hold that agency action is ‘unreasonably
delayed.’ ”
Id. at 80 (citations omitted). The Court analyzes these factors in turn.
It is undisputed that FWS has not updated the Cypress Creek Comprehensive
Conservation Plan within the 15-year period set out by statute. The Court assumes that the 15-
year deadline “indeed supplies content for item one’s ‘rule of reason.’” In re Barr Labs., Inc.,
930 F.2d 72, 75 (D.C. Cir. 1991). “[B]ut a finding that delay is unreasonable does not, alone,
justify judicial intervention.” Id. The parties disagree about the applicability of the third and fifth
factors. While Plaintiffs argue that the delay in updating the Comprehensive Conservation Plan
has left the “environmental and health impacts of farming and pesticide use unexamined,” Pls.’
24
Mot. at 42, Defendants argue that FWS officials had, in fact, already examined those impacts.
The Court agrees with Defendants. Specifically, in April 2011, FWS issued a Compatibility
Determination, which concluded that certain farming activities were compatible with the
objectives of the refuge and therefore allowed minimal herbicide use. See AR00044-47. This is
not a case where an agency has delayed all analysis of certain risks. Nor is this a case where, if
the agency were to engage in the delayed action, any particular substantive outcome would be
guaranteed; it would only guarantee that the analysis would be done. Finally, with respect to the
sixth factor, Defendants note, and Plaintiffs do not contest, that there is no claim of any
impropriety behind the agency’s failure to update the Comprehensive Conservation Plan within
the statutorily mandated deadline. Based on these factors, the Court concludes that the agency’s
delay in revising the Comprehensive Conservation Plan for this refuge is not one that warrants
the Court’s intervention.
Moreover, even assuming that there had been an unreasonable delay with respect to the
revision of the Comprehensive Conservation Plan—contrary to the Court’s conclusion above—
the remedy Plaintiffs seek is not viable. Plaintiffs do not ask the Court to “compel agency action
unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). Instead, they ask the Court to
set aside all of the cooperative farming agreements currently in place at the Cypress Creek
National Wildlife Refuge until such point that the Comprehensive Conservation Plan is updated.
However, Plaintiffs have provided no basis for the Court to conclude that an unreasonably
delayed plan should require an immediate cessation of cooperative farming at the refuge. It
would be purely speculative for the Court to conclude that a revised Comprehensive
Conservation Plan would eliminate farming or farm-related pesticide use at the refuge. The D.C.
Circuit Court of Appeals has framed the unreasonable delay analysis as a determination of the
25
appropriateness of mandamus requiring an agency to take the delayed or withheld action. See
Telecommunications Research & Action Ctr. v. F.C.C., 750 F.2d 70, 79 (D.C. Cir. 1984) (“In the
context of a claim of unreasonable delay, the first stage of judicial inquiry is to consider whether
the agency’s delay is so egregious as to warrant mandamus.”). Plaintiffs have not identified any
authority to support using a claim of unreasonable delay to require the agency to take actions not
directly linked to the delayed action or to otherwise punish the agency for the delay. Accordingly,
even if the TRAC factors indicated that the revision of the Comprehensive Conservation Plan
were unreasonably delayed, the Court would conclude that such a delay is not properly the basis
for setting aside existing cooperative farming agreements. With respect to the Refuge Act claim,
the Court grants summary judgment to Defendants.
IV. CONCLUSION
For the foregoing reasons, Plaintiffs’ [67] Motion for Summary Judgment is GRANTED
IN PART and DENIED IN PART and Defendants’ [82] Cross-Motion for Summary Judgment is
GRANTED IN PART and DENIED IN PART.
Specifically, with respect to the NEPA claims regarding the farming of genetically
modified crops, the Court DENIES Plaintiffs’ Motion and GRANTS Defendants’ Motion with
respect to the Iowa Wetland Management District, and the Court GRANTS Plaintiffs’ Motion
and DENIES Defendants’ Motion with respect to the Detroit Lakes Wetland Management
District. With respect to the Detroit Lakes Wetland Management District, this claim is remanded
to the agency to consider the environmental impact of using genetically modified crops on this
refuge in light of this Memorandum Opinion.
With respect to the NEPA claim regarding pesticide use, the Court GRANTS Plaintiffs’
Motion and DENIES Defendants’ Motion regarding the use of neonicotinoid pesticides at all five
26
refuges and DENIES Plaintiffs’ Motion, and the Court GRANTS Defendants’ Motion regarding
other pesticide use at those refuges. By no later than APRIL 15, 2015, Defendants shall file a
Notice indicating the extent to which neonicotinoid pesticides are currently used on the five
challenged refuges and where those pesticides are used. Assuming that these pesticides are
currently used—or Defendants plan for them to be used—this claim is remanded to the agency to
devise a plan to phase out their use as soon as practicable, but no later than January 1, 2016. If
they are not currently being used and Defendants do not contemplate their use before January 1,
2016, there is no claim remaining for the Court to resolve.
With respect to the Refuge Act claim regarding the revision of the Cypress Creek
National Wildlife Refuge Comprehensive Conservation Plan, the Court DENIES Plaintiffs’
Motion and GRANTS Defendants’ Motion.
An appropriate Order accompanies this Memorandum Opinion.
Dated: March 16, 2015
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
27