The Farm Risk Management Almanac – Public Nuisance Determinations
January – March 2017
America’s farmers face a growing risk of loss from being labeled a public nuisance. That is in addition to concerns over risk of loss associated with food safety, accidents, hazards, weather and price. This publication is intended to assist in understanding how and where the American agricultural risk portfolio is evolving as a result of public interest litigation in the area of public nuisance.
There are three branches of government. In addition to legislation and administrative rules, the Court system is an active player in changing the laws governing agriculture. Public interest litigation has been and continues to be a major player in Court cases designed to make significant changes in American agricultural law. Looking at the Complaints being filed by public interest litigation programs provides a real time look at that effort.
To that end this publication provides a list of new lawsuits filed under the Clean Water Act and the Endangered Species Act that could result in stylized public nuisance determinations about American farming. The list shows the case number, case caption and excerpts from complaints filed in Federal District Courts around the country that fit that criteria. The query and sorting process used to come up with this list is hardy, but there is no guaranty that all the relevant new lawsuits have been identified. Others may exist that were not captured by the process.
The excerpts show some of each public interest litigant’s more interesting and innovative new allegations. The reader needs to remember that the filing of a Complaint starts a lawsuit and therefore sets the stage for new litigation at the very beginning of the process. No decision has been made by a judge or jury. The facts alleged have not been proven.
Of primary interest to the person concerned about farm risk management are the legal theories contained in the complaints. Many are an attempt to change the law governing whether an agricultural practice will be labeled a public nuisance. Each legal theory identified, if adopted by the Court, could have a significant impact on American agriculture’s list of risk management concerns.
Of significant additional interest is the volume of new lawsuits meeting the criteria. A good judicial decision depends on full representation from both sides of an argument. The question is whether an adequate defense of agriculture is being presented in all of these cases?
Comprehensive Conservation Plans Under Refuge Act
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
MEDFORD DIVISION
AUDUBON SOCIETY OF PORTLAND,
an Oregon non-profit corporation,
OREGON WILD, an Oregon non-profit
corporation, and WATERWATCH OF
OREGON, an Oregon non-profit
corporation, Plaintiffs
V
SALLY JEWELL, in her official capacity
as Secretary of United States Department of
Interior; DANIEL M. ASHE, in his official
capacity as Director of United States Fish
and Wildlife Service; and the UNITED
STATES FISH AND WILDLIFE
SERVICE, a federal agency of the United
States Department of the Interior, Defendants
Court Case Number 1:17-cv-00069-CL
Selected allegations from the Complaint:
1. Plaintiffs AUDUBON SOCIETY OF PORTLAND, OREGON WILD, and
WATERWATCH OF OREGON (collectively “Plaintiffs”) challenge the January 17, 2017
issuance of the Record of Decision (“ROD”) for the Final Comprehensive Conservation Plan
(“CCP”) and Final Environmental Impact Statement (“FEIS”) (collectively the “Plan”) prepared
by Defendants SALLY JEWELL, Secretary of the Interior, DANIEL M. ASHE, Director of the
U.S. Fish and Wildlife Service, and the U.S. FISH AND WILDLIFE SERVICE (collectively the
“Service” or “Defendants”) pursuant to the following federal laws: Administrative Procedure Act
(“APA”), 5 U.S.C. §§ 551–559, 701–706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2016);
National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. §§ 4321–4370h (2016);
Kuchel Act of 1964, 16 U.S.C. §§ 695k–695r (2016); National Wildlife Refuge System
Administration Act, as amended by the National Wildlife Refuge System Improvement Act
(“Refuge Act”), 16 U.S.C. §§ 668dd–668ee (2016); and Clean Water Act (“CWA”), 33 U.S.C.
§§ 1251–1387 (2016).
……..
6. Defendants have failed to meet their procedural and substantive duties under
federal environmental law, including by: (1) failing to consider a reasonable range of alternatives
and failing to disclose and assess the direct, indirect, and cumulative impacts of the Plan in
violation of NEPA; (2) issuing a plan that is inconsistent with the mandate of the Kuchel Act to
manage the Refuges for the major purpose of waterfowl management; (3) authorizing the
continuation of the incompatible agricultural leasing program on Lower Klamath and Tule Lake
Refuges; (4) failing to create a plan that provides for conservation of wildlife and their habitats;
ensures the maintenance of biological integrity, diversity, and environmental health; and ensuresadequate water quantity and water quality to fulfill the Refuge System mission and Refuge purposes; (5) transferring authority over administration of the agricultural leasing program to the Bureau of Reclamation; and (6) violating the CWA and state water quality standards that limit agricultural pollution.
Comprehensive Conservation Plans Under Refuge Act
01202017-2 Western Watersheds Project v US Fish and Wildlife Service
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION
WESTERN WATERSHEDS
PROJECT, Plaintiffs
V
UNITED STATES FISH AND
WILDLIFE SERVICE, an agency in the
Department of Interior, Defendants
Court Case Number Case No.: 1:17-cv-00098-CL
Selected allegations from the Complaint:
1. This action challenges the United States Fish and Wildlife Service’s (Service)
adoption of a Comprehensive Conservation Plan (CCP) for five National Wildlife Refuges in the
Klamath Basin. The CCP will govern management of the Upper Klamath, Lower Klamath, Tule
Lake, Clear Lake, and Bear Valley Refuges in southern Oregon and Northern California for the
next 15 years. The Service issued its Record of Decision (ROD) to implement the CCP on
January 13, 2017.
2. The Klamath Basin Refuges contain critically important habitat for waterbirds,
providing stopover refugia for millions of waterfowl and other migratory birds each year on a
path that may stretch from the Arctic to South America. They contain some of the last remnants
of the hundreds of thousands of acres of wetlands that once existed in the Klamath Basin. The
refuges also provide a wide range of habitats for many other fish and wildlife species year-round.
3. Despite their designation and purpose as wildlife refuges, the Service currently
allows extensive commercial agriculture, including private livestock grazing and haying, to
occur within the refuges. Under the CCP, the Service will authorize increased livestock grazing
on the Upper Klamath, Lower Klamath, and Clear Lake Refuges, despite the fact that grazing has
numerous adverse impacts on native species, ecosystems, and ecological processes, and
undermines the biological integrity, diversity, and environmental health of the refuges, contrary
to the National Wildlife Refuge System Administration Act (Refuge Act).
4. In making determinations that these private economic uses could occur on the
Klamath Refuges, the Service failed to apply sound scientific principles, consider available
information, or adhere to legal obligations and its own policies for analyzing their likely impacts.
5. Clear Lake National Wildlife Refuge is home to an imperiled population of
greater sage-grouse, a species that has experienced marked declines in the Klamath Basin over
the past decades. The refuge is now home to the last known lek (or breeding ground) for the
population. Livestock grazing adversely impacts sage-grouse in a number of ways, including by
reducing the frequency and height of the native vegetation that sage-grouse rely upon for food
and cover. Despite these impacts, the CCP allows increased grazing in essential sage-grouse
habitat at Clear Lake Refuge, which is incompatible with the seasonal habitat needs of the
dwindling population.
6. Two species of endangered fish, the shortnose and Lost River suckers, are also
found at Clear Lake Refuge. The refuge is critical habitat for both species, and is one of only
several places where they still exist. Juvenile suckers rely on shallow water habitat along the
edges of Clear Lake Reservoir. Again, the CCP authorized increased livestock grazing along the
shoreline, where livestock have direct access to shallow water habitat, which is also incompatible
with the protection and recovery of these species.
7. As part of its process of developing the CCP, the Service issued an environmental
impact statement (EIS). In the EIS, the Service was required to analyze the benefits of reducing
or eliminating livestock grazing on the Upper and Lower Klamath Refuges and at Clear Lake,
but refused to even consider doing so. The Service was also required to take a “hard look” at the
effects of management under the CCP, including the direct, indirect, and cumulative impacts of
the agricultural uses it authorizes. The Service failed in that regard as well because it ignored
impacts to sage-grouse or Lost River and shortnose suckers from livestock grazing on Clear Lake
Refuge and adjacent lands on the Modoc National Forest.
8. Plaintiff Western Watersheds Project seeks a declaration that the Service violated
the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., the Refuge Act, as
amended by the National Wildlife Refuge System Improvement Act, 16 U.S.C. § 668dd et seq.,
and the Kuchel Act, 16 U.S.C. § 695k et seq. through its issuance of the ROD approving the
CCP. Plaintiff requests that this Court vacate the ROD and CCP. Additionally, Plaintiff requests
that the Court issue injunctive relief to remedy these violations of law.
CWA – Water Quality Standards – Toxics
02212017-1 Northwest Environmental Advocates v US EPA
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
NORTHWEST ENVIRONMENTAL
ADVOCATES, an Oregon non-profit
corporation, Plaintiffs
V
UNITED STATES
ENVIRONMENTAL PROTECTION
AGENCY, Defendants
Court Case Number 2:17-cv-00263-RSL
Selected allegations from the Complaint:
1. This is an action against the U.S. Environmental Protection Agency (“EPA”) for
failing to respond within a reasonable time to Plaintiff Northwest Environmental Advocates’
(“NWEA”) Petition for Rulemaking Under the Clean Water Act to Update the Water Quality
Criteria for Toxics in the State of Washington (“Petition”). This action arises under and alleges
violations of the Administrative Procedure Act (“APA”) (5 U.S.C. §§ 551–706), specifically
sections 553(e), 555(b) and (e), and 706(l).
2. As described in further detail below and in NWEA’s Petition, which is attached
hereto as Exhibit A and fully incorporated by reference, the Clean Water Act (“CWA”) requires
each state to develop, and every three years review and update if appropriate, water quality
standards in order to “protect the public health or welfare[.]” 33 U.S.C. § 1313(c)(2)(A). During
this process, the CWA specifically requires states to adopt water quality criteria—part of a water
quality standard—for toxic pollutants for which EPA has published recommended criteria. Id. §
1313(c)(2)(B). When a state fails to meet these requirements, or when a state’s standards are
inadequate, the CWA requires EPA to promulgate standards for the state’s waters. Id. §§
1313(c)(3), (4).
3. Washington’s water quality criteria intended to protect aquatic life and human
health, and the data that the state relies upon to establish those criteria, are outdated and
inadequate. Washington has not adopted new or revised aquatic life criteria for many toxic
pollutants for at least 19 years and many of these state criteria are significantly less protective
than EPA’s recommended criteria for these pollutants. Washington and EPA have known for
years that continued use of the state’s outdated toxics criteria violates the CWA and poses a risk
of harm to species that are listed as threatened or endangered under the Endangered Species Act
(“ESA”), including Chinook salmon and Southern Resident orca whales, yet neither Washington
nor EPA has taken any action to update these aquatic life criteria.
4. Based on these and other concerns, on October 28, 2013—over three years ago—
NWEA submitted its Petition to EPA pursuant to the APA, 5 U.S.C. §§ 553(e) and 555(e),
requesting that EPA take the following actions: (1) make a determination pursuant to CWA
section 303(c)(4)(B) that Washington’s federally-promulgated water quality toxics criteria for
the protection of human health, set out in 40 C.F.R. § 131.36(d)(14), fail to provide full protection for the state’s designated uses; (2) determine that Washington has failed to adopt the
human health and aquatic life criteria as are required by section 303(c)(2)(B) in each triennial
review of its water quality standards conducted since 1992; and (3) promulgate federal
regulations applicable to Washington, pursuant to section 303(c)(4), setting forth new and
revised water quality standards as necessary to meet the CWA’s requirements.
5. NWEA sent EPA follow-up letters to its Petition on August 31, 2015 and
February 9, 2016, reminding the agency of the importance of the pending Petition and providing
additional information with respect to the need for revised aquatic life criteria in particular to
protect species in Washington’s waters. These follow-up letters are attached as Exhibits B and C
(respectively), and fully incorporated herein by reference.
6. While Washington and EPA have recently taken action to update Washington’s
water quality criteria for human health, see 81 Fed. Reg. 85,417 (Nov. 28, 2016), that action does
not obviate the need for a prompt response to NWEA’s Petition for several reasons. First, EPA
took no action with respect to the human health criteria proposed by Washington for three toxic
pollutants—arsenic, dioxin and thallium, see id. at 85,421—and as a result Washington’s human
health criteria for those pollutants remain woefully out of date. Second, neither Washington nor
EPA has made any effort to revise Washington’s decades-old water quality criteria for the
protection of aquatic life from toxic contaminants. Third, the updating of Washington’s toxic
criteria for human health does not relieve the ongoing risk to aquatic species because for many
toxic pollutants EPA’s nationally recommended aquatic life criteria are far more stringent than
the human health criterion.
7. As of the filing of this Complaint, EPA has not responded to (i.e., granted or
denied) Plaintiff’s Petition. Plaintiff therefore brings this action pursuant to the APA to compel EPA to respond to its Petition. Plaintiff seeks declaratory and injunctive relief for EPA’s failure
to timely respond to its Petition.
Comprehensive Conservation Plans Under Refuge Act
03232017-1 Center for Biological Diversity v US Fish and Wildlife Service
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION
CENTER FOR BIOLOGICAL DIVERSITY, Plaintiffs
V
UNITED STATES FISH AND WILDLIFE SERVICE, an agency in the National
Department of the Interior, Defendants
Court Case Number: 1:17-cv-00468-CL
Selected allegations from the Complaint:
1. This action challenges the United States Fish and Wildlife Service’s (Service) final decision to adopt a Comprehensive Conservation Plan (CCP) for five National Wildlife Refuges in the Klamath Basin as set forth in the Service’s Record of Decision (ROD), issued on January 13, 2017. The CCP is a comprehensive 15-year management plan for the Upper Klamath, Lower Klamath, Tule Lake, Clear Lake, and Bear Valley Refuges to achieve the purposes of the refuges and contribute to the mission of the National Wildlife Refuge System (the Refuge System). The Service must ensure the “programs” on the refuges are compatible with the purposes of the refuges as well as the maintenance of biological integrity, diversity, and environmental health.
2. The Tule Lake and Lower Klamath National Wildlife Refuges were established as refuges and breeding grounds for birds. The purposes of the refuges also include wildlife conservation and the major purpose of wildlife management. The Service may allow agricultural use of these two refuges only if compatible with the purposes of the refuges and consistent with the major purpose of waterfowl management.
3. The Service currently allows extensive agricultural use of Tule Lake and Lower Klamath Refuges to grow crops. As a component of the “Lease Land Farming Program” and the “Cooperative Farming Program,” the Service allows the use of pesticides – insecticides, fungicides, herbicides, and rodenticides – on thousands of acres of refuge land. Under the CCP, the Service will continue to allow the use of pesticides in the same manner as prior to the adoption of the CCP, despite the fact that the application of pesticides has numerous adverse effects on native species, their food, ecosystems, and ecological processes, undermines the biological integrity, diversity, and environmental health of the refuges, and is contrary to the National Wildlife Refuge System Administration Act (Refuge Act) and the purposes of these refuges.
4. In making determinations that private economic use of pesticides for commercial agriculture on the Tule Lake and Lower Klamath Refuges are compatible and consistent with their purposes, the Service failed to apply sound scientific principles, consider available information, and adhere to legal obligations and its own policies for analyzing the likely impacts.
5. The Service attempted to address its obligations under the National Environmental Policy Act (NEPA) prior to adopting the CCP. The Service issued an environmental impact statement (EIS) that should have disclosed and evaluated the direct, indirect, and cumulative effects of the proposed CCP, and each alternative of a reasonable range of alternatives to sharply define the issues and provide a clear basis for choice among the options by the public and the agency decisionmaker. Instead, with respect to agricultural use of pesticides, the Service allows the continued use of pesticides in the same manner as prior to the CCP for all alternatives. The Service did not consider any alternatives that would reduce the effects of pesticides by prohibiting the use of pesticides known to be harmful to wildlife or to their food, by prohibiting crops that require extensive pesticide use, by prohibiting aerial spraying of pesticides, or by allowing only organic farming or other reasonable alternatives.
6. In the EIS, the Service also failed to disclose and analyze the specific direct, indirect, and cumulative effects of the agricultural use of pesticides. Instead, the Service relies on a 1998 programmatic Integrated Pest Management Plan and a 2007 programmatic biological opinion, which in turn rely upon a Pesticide Use Proposal process that is not open to the public and does not involve NEPA analysis or result in a NEPA document. As of 2007, the Service had not conducted any systematic field-wide studies of pesticide impacts since it began using the Pesticide Use Proposal process and no recent systematic studies are discussed in the EIS. The EIS only lists pesticides approved for use and makes the same general statements about the potential effects of the use of pesticides for each alternative.
7. Plaintiff Center for Biological Diversity seeks a declaration that the Service violated NEPA, 42 U.S.C. § 4321 et seq.; the Refuge Act, as amended by the National Wildlife Refuge System Improvement Act, 16 U.S.C. § 668dd et seq.; and the Kuchel Act, 16 U.S.C. § 695k et seq. through its issuance of the ROD approving the CCP. Plaintiff requests that this Court set aside the ROD and CCP pursuant to the Administrative Procedure Act (AP), 5 U.S.C. § 706(2). Additionally, Plaintiff requests that the Court issue injunctive relief to remedy these violations of law. Should Plaintiff prevail, Plaintiff will seek reasonable attorneys’ fees and costs pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d).
03282017-1 Central Sierra Environmental Resource Center v Stanislaus National Forest
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
CENTRAL SIERRA ENVIRONMENTAL
RESOURCE CENTER; SIERRA FOREST
LEGACY, Plaintiffs
V
JEANNE M. HIGGINS, STANISLAUS
NATIONAL FOREST, U.S. FOREST
SERVICE, Defendants
Court Case Number 1:17-cv-00441-LJO-SAB
Selected allegations from the Complaint:
1. Plaintiffs Central Sierra Environmental Resource Center and Sierra Forest Legacy hereby
respectfully file this suit against Defendants Jeanne M. Higgins, Stanislaus National Forest and the U.S. Forest Service (“Forest Service”), challenging their actions authorizing cattle grazing in
sensitive forest habitats and wetland areas and along forest streams on three livestock grazing
allotments in the Stanislaus National Forest, because their actions violate the Clean Water Act,
California’s Porter Cologne Act, the National Environmental Policy Act (“NEPA”), and the
National Forest Management Act (“NFMA”).
2. The Forest Service has authorized cattle grazing on the Bell Meadow, Eagle Meadow, and
Herring Creek (“BEH”) allotments in a manner that contaminates streams in the public forest and
in a manner that significantly degrades sensitive natural resources, including meadows, fens and
stream and lake environments, violating standards applicable to grazing activities. The Forest
Service has continued to authorize grazing without the required waste discharge permit or waiver.
Further, the Forest Service has continued to authorize grazing that has caused and will continue to
cause repeated violations of water quality standards for fecal coliform in streams in the allotments.
The Forest Service has authorized grazing without any required completed NEPA process
analyzing its effects.
3. Plaintiffs bring this action to require the Forest Service to comply with federal and state
laws and to ensure that any continued grazing protects and restores sensitive habitat areas and
streams in the Stanislaus National Forest.