Water battle in drought-plagued wildlife refuges ends in draw

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The seal of the U.S. Fish and Wildlife Service is seen at their headquarters in Bailey's Crossroads, Virginia, U.S., May 11, 2021. REUTERS/Andrew Kelly
  • Agribusiness, environmentalists attacked different parts of government’s conservation plan
  • 9th Circuit rejects both sides' arguments, upholds Fish and Wildlife Service plan for farming with restrictions

(Reuters) - A federal appeals court on Monday upheld a 15-year plan for several drought-stricken wildlife refuges along the Oregon and California border against challenges by agribusiness and conservation groups alike.

The three decisions by the 9th U.S. Circuit Court of Appeals mark a stalemate in a century-old water war in the Klamath Basin, where a federal irrigation project to support farming began in 1906 and the nation’s first wildlife refuge was established in 1908.

The U.S. Fish and Wildlife Service’s 2017 Comprehensive Conservation Plan drew fire from agribusiness for regulating farming practices in the Klamath Basin National Wildlife Refuge Complex, while conservationists argued the restrictions did not go far enough.

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The agribusiness groups, led by Tulelake Irrigation District, argued that FWS had no legal authority to favor wildlife over agriculture on land the agency had leased to farmers. The 9th Circuit said the groups were misreading laws that govern wildlife refuges generally and the Klamath complex specifically.

Those laws require FWS to ensure that any farming in the refuges is “consistent with” wildlife preservation, Circuit Judge Daniel Bress wrote, joined by Circuit Judges William Fletcher and Sandra Ikuta.

Fletcher authored the other two opinions, which rejected the conservation groups’ arguments under the same refuge laws and the National Environmental Protection Act.

The Audubon Society of Portland said the agency failed to consider the option of cutting or eliminating the land-leasing program to benefit wetlands in the complex’s Lower Klamath and Tule Lake refuges, which are stopping spots for migratory birds on the Pacific Flyway.

The 9th Circuit said FWS reasonably concluded that eliminating farms would remove a valuable food source for wildlife without benefiting the wetlands, because the water would simply go to other users with priority under state or federal laws or treaties.

Separately, the Center for Biological Diversity said FWS should eliminate or substantially curtail the use of pesticides at Lower Klamath and Tule Lake, while the Western Watersheds Project challenged the use of grazing permits to control invasive vegetation at Clear Lake Refuge. The 9th Circuit said FWS adequately explained both decisions and had substantial scientific evidence to support them.

Bob Sallinger of the Audubon Society of Portland and Hanna Connor of the Center for Biological Diversity expressed disappointment with the rulings in separate emails on Monday.

“Continuing to allow Lower Klamath and Tule Lake Refuge wetlands to go bone dry and putting tens of thousands of birds at risk of death … while refuge land continues to be irrigated to grow onions and potatoes for big agribusinesses, is not ‘consistent with’ the purposes for which these refuges were set aside,” Sallinger added.

Attorneys for the other parties had no immediate response.

The cases are Audubon Society of Portland et al v. Haaland, Secretary of the Interior, et al., 9th U.S. Circuit Court of Appeals No. 20-35508; Center for Biological Diversity v. Haaland, consolidated with Western Watersheds Project v. Haaland, No. 20-35509; and Tulelake Irrigation District et al. v. U.S. Fish and Wildlife Service et al., No. 35515.

For Audubon Society of Portland: Maura Fahey and Oliver Stiefel of Crag Law Center

For Center for Biological Diversity: Hannah Connor and Stephanie Parent of Center for Biological Diversity

For Western Watersheds Project: John Persell of Western Watersheds Project

For Tulelake Irrigation District et al.: Brittany Johnson, Paul Simmons, and Alexis Stevens of Somach Simmons & Dunn

For Haaland and the U.S. Fish and Wildlife Service: Andrew Bernie, U.S. Justice Department

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