WildEarth Guardians v. United States Department of Agriculture

795 F.3d 1148, 81 ERC (BNA) 1338, 2015 U.S. App. LEXIS 13485, 2015 WL 4604142
CourtCourt of Appeals for the Ninth Circuit
DecidedAugust 3, 2015
Docket13-16071
StatusPublished
Cited by54 cases

This text of 795 F.3d 1148 (WildEarth Guardians v. United States Department of Agriculture) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
WildEarth Guardians v. United States Department of Agriculture, 795 F.3d 1148, 81 ERC (BNA) 1338, 2015 U.S. App. LEXIS 13485, 2015 WL 4604142 (9th Cir. 2015).

Opinion

OPINION

FRIEDLAND, Circuit Judge:

Environmental organization WildEarth Guardians sued to enjoin the federal government’s participation in the killing of predatory animals in Nevada. WildEarth alleged that the program’s continued reliance on a decades-old programmatic environmental impact statement (“PEIS”) causes the government to use outdated and unnecessarily harmful predator control techniques that interfere with Wild-Earth’s members’ enjoyment of outdoor activities. The district court dismissed for lack of standing, holding that WildEarth had not shown that its alleged injuries were caused by the government’s reliance on the PEIS, and that, in any event, Nevada could choose to implement an independent predator damage management program if the federal government ceased its activities, so WildEarth’s injuries were not redressable. Both of these reasons for dismissal were erroneous, so we reverse.

I. Background

A. National Environmental Policy Act

The National Environmental Policy Act (“NEPA”) requires federal agencies to assess and publicly disclose the environmental impacts of proposed federal actions. 42 U.S.C. §§ 4321-4347. For federal actions that “significantly affect[] the quality of the human environment,” the agency must develop an environmental impact statement (“EIS”) that “provide[s] full and fair discussion of significant environmental impacts” and “inform[s] decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment.” 42 U.S.C. § 4332(C); 40 C.F.R. § 1502.1. When it is unclear whether the federal action will have a significant effect on the environment, the agency must prepare an “environmental assessment” to determine whether an EIS is required. 40 C.F.R. § 1501.4(b). If, after completing the environmental assessment, the agency decides not to prepare an EIS, the agency must prepare a “finding of no significant impact” to explain its decision. Id. § 1501.4(e).

An agency with an existing EIS must supplement it if the “agency makes substantial changes in the proposed action that are relevant to environmental concerns” or if “[tjhere are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” Id. § 1502.9(c)(1). “If there remains major Federal action to occur, and if the new information is sufficient to show that the remaining action will affect the quality of the human environment in a significant manner or to a significant extent not already considered, a supplemental EIS must be prepared.” Marsh v. Or. Natural Res. Council, 490 U.S. 360, 374, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (brackets omitted).

B. APHIS and Its 1994/1997 Programmatic Environmental Impact Statement

The United States Department of Agriculture is authorized to protect the nation’s agricultural resources from damage associated with predatory wildlife. See 7 U.S.C. §§ 426-426c. The Department’s Animal and Plant Health Inspection Service (“APHIS”) carries out wildlife control pro *1152 grams through Wildlife Services. 1 See 7 C.F.R. §§ 371.6, 371.11. APHIS conducts its programs in cooperation with other federal, state, and local agencies, as well as with private organizations and individuals.

In 1994, APHIS assessed the environmental impact of its full program of ongoing wildlife damage control nationwide and issued an EIS, referred to as a “programmatic BIS” (“PEIS”). The PEIS was revised in 1997 to make technical corrections. The 1994/1997 PEIS discusses thirteen alternatives for wildlife management and identifies a preferred approach — the “Current Program Alternative.” 2 Rather than requiring the preferred approach to be implemented nationwide, however, the Record of Decision for the PEIS identifies five “viable alternatives discussed” in the PEIS and states that they would be forwarded to regional and local decision makers “for consideration as management approaches.” Animal Damage Control Program, Record of Decision Based on Final Environmental Impact Statement, 60 Fed.Reg. 13,399, 13,400 (Mar. 13, 1995).

C. Predator Damage Control Activities in Nevada

APHIS and the Nevada Department of Wildlife currently share responsibility for predator damage control in Nevada. Together, the two form the Nevada Wildlife Services Program (“NWSP”). NWSP has been conducting predator damage management in Nevada for over eighty years. APHIS provides significant funding, staffing, and supervision for NWSP’s activities. Nevada also provides some funding and personnel.

In 2010, the then-Director of the Nevada Department of Wildlife, Kenneth Mayer, wrote a letter to APHIS (the “Mayer Letter”) stating that, if APHIS stopped conducting predator damage management in Nevada, the Nevada Department of Wildlife would retain statutory responsibility for wildlife control and would either “carry out the management of wildlife with existing personnel or contract the work to other capable entities.”

In June 2011, APHIS issued an environmental assessment for NWSP’s ongoing predator damage management program in Nevada. The 2011 environmental assessment incorporated by reference APHIS’s 1994/1997 PEIS.

The assessment considered five alternatives for predator management in Nevada, including ending federal involvement. The assessment stated that, if federal involvement ceased, Nevada likely would engage in some predator damage management, but that it was “unlikely” that Nevada would conduct predator eontrol-at the level of the current program. The assessment noted that the effects on the environment of ceasing federal involvement were uncertain because they would depend on the actions of private individuals, who might attempt predator management on their own. The assessment nevertheless made some predictions about the likely rates of certain methods of predator control. Specifically, the assessment stated that the killing of ravens (a Nevada predator) “would be likely to decrease substantially” *1153 because Nevada would not have access to the same avicide used by APHIS. The assessment further hypothesized that ending federal involvement would greatly reduce aerial hunting of predator species, but would increase other forms of predator hunting.

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795 F.3d 1148, 81 ERC (BNA) 1338, 2015 U.S. App. LEXIS 13485, 2015 WL 4604142, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wildearth-guardians-v-united-states-department-of-agriculture-ca9-2015.