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Center for Food Safety v. Salazar

United States District Court, District of Columbia

October 23, 2012

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

Page 2

Kathryn Douglass, Paula Naomi Dinerstein, Public Employees for Environmental Responsibility, Washington, DC, George A. Kimbrell, Paige M. Tomaselli, San Francisco, CA, for Plaintiffs.

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

MEMORANDUM OPINION

JAMES E. BOASBERG, District Judge.

Three national nonprofit organizations— Beyond Pesticides, the Center for Food Safety, and Public Employees for Environmental Responsibility— bring this challenge under the Administrative Procedure Act to the United States Fish and Wildlife Service's decision to allow genetically modified corn and soybeans to be farmed on National Wildlife Refuge land in the Southeast Region (Region 4). Plaintiffs assert that Defendants violated the National Environmental Policy Act, the National Wildlife Refuge System Administrative Act of 1966, and the APA by failing to conduct appropriate environmental analyses prior to authorizing such farming.

Defendants have agreed that they will not permit such farming in 2013 until they have performed the required environmental studies. As a result, when Plaintiffs moved for Summary Judgment, Defendants moved to dismiss for lack of jurisdiction, arguing that the case was now moot. Because the Court determines that Plaintiffs' claim is not moot, it will deny Defendants' Motion and grant Plaintiffs'.

I. Background

A. Statutory and Regulatory Background

The National Wildlife Refuge System contains 553 national wildlife refuges and 38 wetland management districts throughout the country. See FWS000001. " The mission of the System is to administer a

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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) (the Refuge Act). " 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 National Environmental Policy Act (NEPA), 42 U.S.C. § 4331 et seq., requires federal agencies to consider the environmental impact of " major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). Projects that significantly affect the environment require the preparation of an Environmental Impact Statement (EIS). See 42 U.S.C. § 4332(2)(C). Projects whose environmental impact is not clearly established require the preparation of an Environmental Assessment (EA), followed by either a finding of " no significant impact" on the environment (FONSI), or the subsequent preparation of an EIS. See 23 C.F.R. § 771.115; 40 C.F.R. §§ 1508.9, 1508.13.

B. Factual and Procedural Background

The Southeast Region (Region 4) of the National Wildlife Refuge System covers over 430,000 square miles in ten states. See Pl. Mot. at 2. The Region includes 128 national wildlife refuges covering some 4 million acres of protected land. See id. In addition to serving as a haven for 322 endangered species, see id. at 3, the Southeastern refuges have permitted some agricultural production since at least the 1930s. See id. 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 FWS000026. The Refuge Act requires the Fish and Wildlife Service, which oversees the National Wildlife Refuge System, to conduct a compatibility determination before allowing any use of refuge land, including for farming. 16 U.S.C. § 668dd(d)(1)(A). FWS has completed compatibility determinations approving farming in 25 Southeastern refuges, see FWS000179-302, but these compatibility determinations do not ...


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