Wetlands in Klamath Basin

Standing grain is left for migrating birds as part of the Walking Wetlands Program in the Klamath Basin. Environmental groups and agricultural organizations are suing over management of the Klamath Basin National Wildlife Refuge Complex.

MEDFORD, Ore. — The federal government has been defending its management of six national wildlife refuges against legal challenges from both farmers and environmentalists.

The U.S. Interior Department is facing three lawsuits filed by three environmental groups who allege its plans for the 200,000-acre Klamath Basin National Wildlife Refuge Complex along the Oregon-California border violates several federal laws.

A fourth complaint from six farms and agricultural groups alleges the agency has unlawfully exceeded its authority by restricting leases of refuge land for agricultural purposes.

The agricultural plaintiffs —Tulelake Irrigation District, Klamath Water Users Association, Tally Ho Farms Partnership, Four H Organics, Woodhouse Farming and Seed Co. and Tulelake Growers Association — claim a comprehensive conservation plan adopted in 2017 will substantially reduce acreage available for farming within the refuge complex.

“Agriculture is a purpose of this lease land. It has been for 114 years. It’s never been used for anything else,” said Paul Simmons, attorney for the Tulelake Irrigation District and associated plaintiffs, during oral arguments Jan. 8.

Under the plan, certain new agricultural leases will be subject to “special use permits” that include new requirements for “compatibility” between agriculture and waterfowl habitat.

These “stipulations” include flooding fields after harvest, limiting tillage in the autumn, prohibiting the planting of genetically engineered crops and disallowing the hazing of waterfowl during the first four months of the year.

According to the farm plaintiffs, these restrictions will render agriculture less productive and undermine its future viability in the area by reducing revenues and creating operational difficulties.

Their complaint alleges these requirements overreach the authority of the U.S. Fish and Wildlife Service — an Interior Department agency overseeing the refuges — by interfering in farming operations contrary to the intent of the Kuchel Act, a 55-year-old federal law governing how the refuges are managed.

The statute explicitly says that agricultural leases within the refuges “shall continue,” which limits the government’s power over farming in the area, Simmons said.

“That is not the language of discretion,” he said.

The Tule Lake and Lower Klamath national wildlife refuges were established with the purpose of leasing land for agriculture, which is worth about $30 million in the two areas and supports about 600 jobs in the region, the complaint said.

The farm plaintiffs argue the government’s restrictions will result in less food being grown on refuge land for water fowl, but the environmental effects of that reduction weren’t properly evaluated by the agency.

Sarah Izfar, an attorney for the government, called the agricultural plaintiffs’ interpretation of the refuge laws “invalid on its face and unreasonable.”

Waterfowl management is the primary purpose of the refuge land, and agriculture is only a purpose insofar as it’s consistent with that goal, she said.

“There is no question this includes the lease lands,” Izfar said.

Environmental groups suing over the management of the refuges take aim at other aspects of the government’s plan: the amount of water allotted for waterfowl habitat, the continued use of pesticides and the impacts of grazing on federally protected species.

In the case, filed by the Audubon Society of Portland, Oregon Wild and Waterwatch of Oregon, the plaintiffs claim the government hasn’t ensured enough water flows into wetland habitats and instead directs it toward agriculture, which is inconsistent with proper waterfowl management.

They argue these errors violate the Refuge Act — another law governing the national wildlife refuges — as well as the Clean Water Act and the National Environmental Policy Act, which justifies overturning the 2017 comprehensive conservation plan and ordering the Fish and Wildlife Service to reconsider it.

The agency should have examined buying or transferring water rights to increase water deliveries to the refuges, said Maura Fahey, attorney for the Aububon Society and associated plaintiffs.

The Fish and Wildlife Service has over-emphasized using water to irrigate alfalfa and crops that aren’t edible by waterfowl, she said.

“Natural food should be given priority over agricultural crops, Fahey said.

The government has already determined that acquiring more water rights isn’t feasible, while curtailing or eliminating agriculture on the refuges wouldn’t improve the water situation, said Jessica Held, attorney for the government.

Restricting agriculture would just mean the water would be used by higher-priority irrigators elsewhere, she said.

“It’s governed by a complex system of water priority rights the Service has no control over,” Held said. “The Service doesn’t have control over water that is available.”

Another complaint filed by the Center for Biological Diversity claims the Fish and Wildlife Service didn’t sufficiently evaluate alternatives to the ongoing spraying of agricultural pesticides on refuge lands, which violates the agency’s obligation to take a “hard look” at environmental consequences under NEPA.

The lawsuit alleges that the government has largely ignored the toxic effects of pesticides on wildlife and the ecosystem to benefit commercial farmers by mischaracterizing studies on the impacts of such chemicals.

“Pesticides that are used on these refuges are poisons, your honor,” said Stephanie Parent, attorney for the Center for Biological Diversity. “These pesticides can drift, they can run off and they can persist in soil and water.”

Decisions over pesticide use on the refuges are made by a committee that’s shielded from public scrutiny, she said.

“There is nothing in the record to support the conclusion the effects of pesticides are minor.”

Izfar, an attorney for the government, said that pesticides are only one component of an “integrated pest management” strategy that includes grazing and tillage, with chemicals deployed only as a tool of last resort.

Alternatives such as curtailing agriculture have been discussed and found not to be feasible, since fallow land would not benefit water fowl, she said.

“Respectfully, I believe that debate did happen,” Izfar said.

In the third environmental complaint, the Western Watersheds Project claims that livestock grazing in the Clear Lake National Wildlife Refuge harms the habitat of the Greater sage grouse, a sensitive rangeland species, as well as two species of sucker fish protected under the Endangered Species Act.

Unlike federal property administered by the Forest Service or the Bureau of Land Management, the government cannot allow grazing within national wildlife refuges unless the practice actually helps their environmental condition, the organization claims.

The Fish and Wildlife Service should have considered reducing or eliminating grazing from the national wildlife refuge but instead the agency claimed the practice wouldn’t harm species without a sound factual basis, the plaintiff claimed.

The agency should also have studied the cumulative impacts of grazing on public lands that surround the refuge, said Paul Ruprecht, attorney for Western Watersheds.

Jessica Held, attorney for the government, said the spring grazing challenged in the lawsuit is an experimental program aimed at restoring land damaged in a wildfire.

Grazing was determined not to have adverse impacts on the sage grouse or sucker fish, so an analysis of cumulative effects wasn’t required, she said.

I've been working at Capital Press since 2006 and I primarily cover legislative, regulatory and legal issues.

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