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Center for Food Safety v. Salazar

United States District Court, District of Columbia

October 15, 2012

CENTER FOR FOOD SAFETY, et al., Plaintiffs,
v.
Ken SALAZAR, et al., Defendants.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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George A. Kimbrell, Paige M. Tomaselli, Center For Food Safety, San Francisco, CA, Kathryn Douglass, Public Employees

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for Environmental Responsibility, Washington, DC, for Plaintiffs.

Ruth Ann Storey, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

JAMES E. BOASBERG, District Judge.

The National Wildlife Refuge System includes more than 150 million acres of public lands and waters dedicated to habitat and wildlife conservation. The Refuge System is managed by the United States Fish and Wildlife Service and comprises various geographic regions. In April 2011, FWS released an Environmental Assessment evaluating the impacts of allowing genetically modified corn and soybeans to be farmed on refuge land in the Midwest Region (Region 3). The Assessment considered the potential environmental effects of four different alternatives for farming on refuge land. Following a period of public comment, the Agency ultimately selected a fifth alternative, which allows genetically modified corn and soybeans to be farmed on refuge land for the limited purpose of habitat restoration.

Three national nonprofit organizations— the Center for Food Safety, Beyond Pesticides, and Public Employees for Environmental Responsibility— and a research, education, and farm policy group, the Cornucopia Institute, filed this suit challenging the Agency's decision permitting these crops on refuge lands. Plaintiffs assert two causes of action. First, they claim that given the significant environmental consequences of the decision, Defendants violated the National Environmental Policy Act by failing to prepare a full Environmental Impact Statement. Second, they argue that Defendants violated the National Wildlife Refuge System Administrative Act of 1966 and the National Wildlife Refuge Improvement Act of 1997 by failing to make a Compatibility Determination for each refuge and by finding that cultivation of genetically modified crops is a compatible use for some refuges. All parties have now moved for summary judgment. Because the Court concludes that the Agency's actions were not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, the Court will grant the Defendants' Motion and deny Plaintiffs'.

I. Background

A. National Wildlife Refuge System

The Refuge System contains 553 national wildlife refuges and 38 wetland management districts throughout the country. See FWS005400. " 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." See National Wildlife Refuge System Improvement Act of 1997 § 4, 16 U.S.C. § 668dd(a)(2). " Each refuge shall be managed to fulfill the mission of the System, as well as the specific purposes for which that refuge was established." § 668dd(a)(3)(A). The Midwest Region (Region 3) includes 54 national wildlife refuges and 12 wetland management districts in Illinois, Iowa, Indiana, Michigan, Minnesota, Missouri, Ohio, and Wisconsin. See FWS005400.

Farming has historically been an " important tool used to manage refuge lands." See FWS000323. It has been used for a number of purposes, including habitat restoration, habitat management, provision of supplemental food for wildlife, and attracting wildlife for viewing and photography. See FWS005405. Farming's role in habitat restoration is " to maximize the destruction of seeds and unwanted plant parts

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from invasive or unwanted plant species and to create less competition and purer stands of native species." Id. It is used for habitat management purposes to " remove invasive or even native plants and woody vegetation from wetlands," and it provides an additional food source for wildlife, given the decreasing availability of native foods over the past century. Id. Finally, to a lesser extent than the other three uses, row crops have " been a useful tool for attracting wildlife to areas where people can view and photograph them." FWS005406. Farming on refuge land is typically done pursuant to cooperative farming arrangements, whereby local farmers plant on designated areas in a refuge and harvest a share of the crop. See FWS000323, FWS005404. Refuge and District Managers set forth the terms and conditions of the farming that will be permitted on the land, including how long farming will be allowed on a specific tract and which crops will be grown and how the crops will be rotated. See FWS005416. Managers are also responsible for enforcing the terms set forth in these cooperative agreements, as well as in any other agreements governing the terms of the farming on refuge lands, such as Pesticide Use Proposals. See FWS005491.

B. Factual and Procedural Background

In 2010, FWS identified a need to develop a " consistent regional position for farming" in Region 3. FWS000292. Specifically, the Service believed it should prepare National Environmental Policy Act documents in light of " concern[s] about the potential for impacts on refuges and on neighboring lands" from the advance of genetically modified crops. See FWS000294. The Service further noted that " several eastern refuges have [recently] been sued over the use of genetically modified crops and the NEPA process." Id. Such crops include glyphosate-tolerant corn and soybeans, which have been genetically modified through insertion of a gene that allows the plant to tolerate applications of the herbicide glyphosate. See FWS000321. 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. The use of genetically modified, herbicide-tolerant crops has increased substantially in recent years, constituting 92 percent of soybean acres and 80 percent of corn acres in 2008. See FWS005404 (citing Brookes 2010).

To address concerns about the effect of genetically modified (GM)— also called genetically engineered (GE)— crops on the environment, the Agency decided that it would develop a programmatic Environmental Assessment (EA) for Region 3. See FWS000292; see also FWS000299 (" R3 to complete programmatic EA." ). The Agency formulated a process to develop the EA, which included public scoping of issues, completion of a draft EA, a public-comment period, and ultimately, finalization of the EA. See FWS000302, FWS000320. Consistent with this approach, a draft of the EA was made available for public comment on January 10, 2011, with comments due by February 14. See FWS003400-01.

The Draft EA evaluated four alternatives " based on a review of authorities, policies, and regulations as well as review of the comments received during the initial public comment period held to determine what issues should be addressed in this EA." See FWS000757. The alternatives evaluated in the Draft EA were:

• Alternative A: Continue Farming for Multiple Objectives, GMGT Corn and Soybeans Allowed (No Action) (Preferred Alternative), see FWS000760-61;

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• Alternative B: Farming for Habitat Restoration Objectives Only, GMGT Corn and Soybeans Allowed, see FWS000761-62;
• Alternative C: Farming for Multiple Objectives, No GMGT Corn and Soybeans, see FWS000762; and
• Alternative D: Limited Row Crop Farming, No GMGT Corn and Soybeans.

See FWS000762-63. The EA " considered" but did not " develop[ ]" two additional alternatives: no farming and unmanaged succession, which occurs when land is allowed to grow back with no human land management. See FWS000757. The Agency did not pursue either of these alternatives because it determined that neither would " fulfill the establishing purposes of refuges and wetland management districts." See id. Specifically, the Agency stated that it lacked the necessary resources to restore lands under the " no farming" alternative, and " unmanaged succession" would take more time and would likely result in " vegetation dominated by undesirable, non-native plants." Id.

The Agency sought input from the public on the Draft EA, with outreach efforts that included

sending news releases to more than 790 media outlets, posting information at refuges and wetland management districts throughout the Midwest Region, providing information to local farming interests, and providing information to 107 congressional staff within the eight-state Region. In addition, the Midwest Region posted information on a website[ ] throughout the planning process.... More than 30 written comments and e-mails were received from farmers participating in the Refuge System farming program, neighboring landowners, agricultural organizations, nongovernmental organizations and biochemical interest for the Midwest Region scoping.

FWS005406. The comments received by the Agency fall into three general categories: wildlife issues, habitat issues, and socioeconomic issues. See FWS005407; see also EA Appendix F (Responses to Comments) at FWS005489-92.

Following completion of the public-review period,

comments were evaluated and as a result of this process a fifth alternative was developed and ultimately selected. Alternative E: Continue Farming for Multiple Objectives, GMGT Corn and Soybeans Allowed for Habitat Restoration Only is the selected alternative. This alternative promotes long-term restoration of native habitats, such as, prairie, wetlands, bottomland hardwoods, and other critical habitats.

FWS005392 (emphasis added). " Under the selected alternative, farming could continue to be used as a management tool to achieve multiple objectives, such as, habitat management, supplemental food for wildlife, and attracting wildlife for viewing and photography, but the use of GMGT crops would not be allowed to achieve these objectives." Id.

The Agency released the Final EA on April 1, 2011, with a Finding of No Significant Impact (FONSI), concluding that the proposed management action " is not a major Federal action which would significantly affect the quality of the human environment, within meaning of Section 102(2)(c) of the National Environmental Policy Act of 1969." Id. Because the Agency determined that there would be no significant environmental impact, it was not required to complete a full Environmental Impact Statement (EIS).

The Final EA contains a chapter discussing the potential effects common to all of the proposed alternatives, including the

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effects on endangered and threatened species and on organic soybeans, ultimately determining that no negative impacts are anticipated as to either issue. See FWS005427-29. The EA further analyzes wildlife issues, habitat issues, and socioeconomic issues specific to each alternative. See FWS005429-5462. Potential environmental impacts identified and discussed in the EA include:

• Development of herbicide (glyphosate) resistance in weeds due to widespread use of GMGT corn and soybeans, see FWS005430, FWS005434;
• Potential risks " to aquatic species when some commercial formulations of glyphosate are applied too closely to water," including negative impacts on amphibians (citing Dinehart et al. 2010) and aquatic communities in general (citing Relyea 2005, Vera et al. 2010), see FWS005431; and
• Negative effects on organic farmers due to inadvertent gene flow from GM to organic crops.

See FWS005435. For each of the identified environmental impacts, the EA discusses practices or policies in place to minimize their risk, such as

• Following herbicide label instructions to avoid application of the herbicide " around water, near sensitive habitats, and near threatened and endangered species," FWS005431;
• Using less toxic formulations of glyphosate, see id.;
• Applying pesticides pursuant to the conditions set forth in the cooperative farming agreements and in Pesticide Use Proposals, see FWS005431-32;
• Employing Integrated Pest Management techniques to " minimize the likelihood of herbicide resistance by regularly changing the technique used to control weeds: rotating type of herbicide used, rotating crop planted, and using mechanical methods," see FWS005434; and
• Providing buffer zones of 660 feet to curb inadvertent gene flow from GM to organic crops.

See FWS005435-36.

The selected alternative— Alternative E, " Continue Farming for Multiple Objectives, GMGT Corn and Soybeans Allowed for Habitat Restoration Only" — was developed to address the concerns raised with alternatives discussed in the Draft EA. See FWS00392. Under this alternative, the use of GM corn and soybeans on refuge lands in the region would continue only for the purposes of habitat restoration and would be limited to five years for any individual tract. See FWS005418. Farming could continue to be used for other objectives, such as habitat management, supplemental food for wildlife, and attracting wildlife for viewing and photography; however, such farming could only be done with non-GM crops. See id. The selected option thus allows for a more limited use of GM crops than Alternative A (the original " Preferred Alternative" ), as each tract is limited to five years of GM crops, and GM crops are permitted for only one objective— habitat restoration— rather than for multiple objectives. See FWS005460-61, FWS005418.

On November 2, 2011, Plaintiffs filed this suit on behalf of themselves and their members alleging that Defendants' region-wide EA and FONSI violated NEPA (Count I) and that their failure to perform Compatibility Determinations and their decision that cultivating genetically engineered crops on refuges is a " compatible use" violated the ...


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