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Feds defend ag irrigation in drought-stricken wetland refuge

Migratory birds are about to return to one of the most important wetland refuges on the Pacific Flyway. But this year, historic drought conditions mean the vast Klamath Refuge Complex is mostly dry — and the water that is there is contaminated with toxic algae blooms.

PORTLAND, Ore. (CN) — The government’s continued prioritization of agriculture on four wildlife refuges straddling the Oregon-California border is making drought conditions there worse, attorneys told a Ninth Circuit panel Tuesday.

The Klamath Basin is in an unprecedented drought. This summer, the Klamath Tribes feared the imminent extinction of c’waam and koptu, prehistoric sucker fish they have eaten out of Upper Klamath Lake for millennia. In the Klamath River, fed by the lake, 70% of juvenile salmon died this year before they reached the ocean, killed by bacteria that thrives in the river’s artificially low water level. And a complex of wildlife refuges straddling the California-Oregon border didn’t get their usual water allocations from the lake, because the government is scrambling to prevent the extinction of the c’waam and koptu.

But not all the water that feeds the refuges was shut off. Irrigation bound for farming and ranching leases there continued.

During the final days of the Obama administration, the U.S. Fish and Wildlife Service issued a record of decision finalizing the first ever comprehensive conservation plan for the 200,000-acre Klamath Basin National Wildlife Refuge Complex.

Environmental groups say the plan doesn’t address the growing water crisis and allows agriculture, cattle grazing and pesticide use to continue unabated on wildlife refuges intended to be safe resting points for migrating birds.

It’s a situation caused by over a century of mismanagement, and compounded by climate change. Added to that is a complex web of laws governing water rights, where state water laws often contradict federal environmental laws. But none of that means the government is off the hook, Maura Fahey, an attorney for the Audubon Society, said in an interview.

“They need to do more than just say how complicated it is and say how little control they have over getting the water to the refuge,” Fahey said.

Environmental groups filed four lawsuits in 2017 over various aspects of U.S. Fish & Wildlife Service’s management plan for the refuges that make up the Klamath Basin National Wildlife Refuge Complex. The government leases about 10%, or roughly 20,000 acres of the refuge complex to commercial farmers. Some grow grain, potatoes, horseradish or onions. Others graze cattle.

While the 1964 Kuchel Act allowed that volume of agriculture on the refuges, the environmental groups say the act requires the government to prioritize the actual purpose of the refuges: the preservation of wildlife habitat, specifically for migrating waterfowl. The act’s secondary purpose was to preserve crops in surrounding areas, by offering migrating birds a reliably verdant resting spot along the Pacific Flyway, which covers the entire western portion of North America.

The four cases were consolidated, and farmers and ranchers intervened, claiming Fish & Wildlife had gone too far in protecting birds on the refuge, and had imposed restrictions that damaged the economic viability of their farms and illegally reduced agriculture allowed on the refuges.

In April 2020, U.S. District Judge Michael McShane adopted a magistrate judge's findings and dismissed all claims by the environmental groups and farmers.

McShane found the U.S. Fish & Wildlife Service doesn’t have authority to send more water to the refuges, since they have junior priority water rights in the Klamath Basin. All parties appealed.

On Tuesday, attorneys for all four environmental groups, plus farmers and ranchers intervening in the case argued their appeals before a three-judge panel of the Ninth Circuit Court of Appeals.

Fahey, the Audubon attorney, said the refuges have gone dry, and disease outbreaks have killed thousands of birds. But agricultural irrigation there continues.  

“The refuge is almost entirely failing to support waterfowl because there’s no water for wetlands,” Fahey said. “It’s not justifiable for the agency to continue 20,000 acres of commercial agriculture.”

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Fahey said Congress had explicitly prioritized bird habitat over agriculture in the Kuchel Act. While the law allows a certain amount of agriculture on the refuges, it doesn’t require the government to continue to lease refuge land for agriculture.

But Brittany Johnson, arguing on behalf of the farmers in Tulelake Irrigation District, said the agricultural leases are the only reason the refuges are getting any water at all — because the government is currently keeping all it can in the Upper Klamath Lake to prevent extinction of the c’waam and koptu and sending the remainder down the Klamath River to protect endangered salmon.

Johnson said that’s because the agricultural lands on the refuge have water rights dating to 1905, while the refuges themselves have more junior water rights, claimed in 1928.

Fahey said that’s not true. Fish & Wildlife can use its agricultural water right to flood the land earmarked for agricultural leases. Doing so creates desperately needed wetland habitat, while also regenerating the soil for future agricultural use, Fahey said.

One throughline in arguments by the government and farmers Tuesday was the suggestion that the government can’t -- or shouldn't -- change agricultural practices that have been in place since white settlers arrived in the area. But the judges didn’t appear convinced.  

Johnson said Fish & Wildlife can’t disrupt agricultural use that has been in place there “for over 100 years.” Andrew Berne, attorney for the government, echoed that claim, saying the government’s plan is “consistent with history and long-standing practices on the refuges.”

He noted that agricultural leasing has happened on the refuges since 1916 — “pretty much exactly a century” before the service adopted its new management plan. He added that people have been grazing cattle there since the 1800s.

The point of the Kuchel Act, according to Johnson, was to reach a compromise between environmental groups in the 1950s who wanted the entire area maintained as wildlife habitat, and settlers who wanted to homestead and farm the land. Congress decided to balance those competing desires by maintaining federal ownership of the land, while leasing a portion of it to farmers.

Johnson said that means the Kuchel Act requires agriculture on the refuge complex, on a certain percentage of the land and to maximize lease revenues for the benefit of local agencies like the Tulelake Irrigation District.

U.S. Circuit Judge Daniel Bress, a Donald Trump appointee, challenged that assertion.

“So hypothetically, if it were to become crystal clear that the present pattern of leasing was devastating to the waterfowl, Fish & Wildlife would have no power to address that?” Bress asked.

“Not under the Kuchel Act,” Johnson said.

Under the National Environmental Policy Act, the government is required to weigh the harm caused by its actions against the effects of other potential actions that it could take instead. But it refused to consider reducing or ending the use of pesticides by farms on the refuge, according to Stephanie Parent, attorney for the Center for Biological Diversity.

Over 100 pesticides, fungicides and herbicides are approved for use on the Tulelake Refuge alone, Parent said. Parent added that the government refused to consider reducing its leases for onion farming, which is the most chemical-intensive crop grown in the complex.

Arguing for the government, Andrew Berne appeared to concede that point.

“It’s true that the service did not include a no- or reduced-pesticide proposal in any of its alternatives,” Berne said. But he added that pesticides are necessary to grow crops that are, in part, meant to feed migrating birds.

U.S. Circuit Judge William A. Fletcher, a Bill Clinton appointee, disagreed.

“We know from the record that the highest incidence of pesticides is on the row crops — potatoes and onions — and we know that’s not what the waterfowl eat,” Fletcher said. “So if we’re talking about preserving food for the waterfowl, that’s not the same thing as saying we need the pesticides for food for the waterfowl.”

Fletcher said reducing row crops would reduce pesticides while having “no effect whatsoever on feeding waterfowl.” But the service didn’t consider doing that.

“It’s very clear that you’ve got to consider viable alternatives,” Fletcher said. “You can reject them, but you’ve got to consider them. And as I go through the challenges, I don’t see that the service has considered them.”

Another thing the government didn’t consider: reducing or eliminating cattle grazing on the refuges.

Grazing is currently allowed during spring nesting season for endangered sage grouse, in an area where the birds are known to nest, attorney John Persell told the judges on behalf of Western Watersheds. Cattle can trample the nests, which nestle into the ground around grasses and sage brush. And the birds are less likely to build nests in areas where they see cows. But instead of considering a reduction in grazing, the government decided to expand it.

The service declared that increased grazing benefits refuge habitat, while decreased grazing is detrimental. It was a statement devoid of factual support, Purcell told the judges, and one that doesn’t meet NEPA requirements to engage in a rigorous public comparison of alternatives.

Similarly, the service declared that grazing wouldn’t affect endangered fish in Clear Lake Refuge. But that determination ignored the government’s own data showing grazing harms the fish when cows trample shores along lakes and streams — as they will for half of the year, under the service’s plan.

Persell said the service had used the data it had gathered internally, showing that sage grouse don’t nest in the areas where it had approved grazing, while ignoring data gathered by the state of California showing nests are in fact there.

“So you’re saying they cherry-picked the data,” Fletcher said.

U.S. Circuit Judge Sandra Ikuta, a George W. Bush appointee, rounded out the panel. The judges took the arguments under advisement and did not say when they would issue a ruling.

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