Tulelake Irrigation District v. Usfws ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TULELAKE IRRIGATION No. 20-35515
DISTRICT; KLAMATH WATER
USERS ASSOCIATION; TALLY D.C. Nos.
HO FARMS PARTNERSHIP, 1:17-cv-00069-CL
DBA Walker Brothers; FOUR 1:17-cv-00098-CL
H ORGANICS, LLC; 1:17-cv-00468-CL
WOODHOUSE FARMING AND 1:17-cv-00531-CL
SEED COMPANY; TULELAKE
GROWERS ASSOCIATION,
Plaintiffs-Appellants, OPINION
v.
UNITED STATES FISH AND
WILDLIFE SERVICE, a federal
agency of the United States
Department of the Interior;
DEB HAALAND, in her official
capacity as Secretary of the
United States Department of
the Interior; AURELIA
SKIPWITH, in her official
capacity as Director of the
United States Fish and
Wildlife Service; PAUL
SOUZA, his official capacity
as Regional Director of the
United States Fish and
2 TULELAKE IRRIGATION DISTRICT V. USFWS
Wildlife Service, Pacific
Southwest Region,
Defendants-Appellees,
AUDUBON SOCIETY OF
PORTLAND, An Oregon
nonprofit corporation;
OREGON WILD, An Oregon
nonprofit corporation;
WATERWATCH OF OREGON,
An Oregon nonprofit
corporation,
Intervenor-Defendants-
Appellees.
Appeal from the United States District Court
for the District of Oregon
Michael J. McShane, District Judge, Presiding
Argued and Submitted October 5, 2021
Portland, Oregon
Filed July 18, 2022
Before: William A. Fletcher, Sandra S. Ikuta, and
Daniel A. Bress, Circuit Judges.
Opinion by Judge W. Fletcher
TULELAKE IRRIGATION DISTRICT V. USFWS 3
SUMMARY*
Environmental Law
The panel affirmed the district court’s summary judgment
to the U.S. Fish and Wildlife Service (the “Service”) in an
action brought by Tulelake Irrigation District and associated
agricultural groups (collectively “TID”) alleging that, in
imposing restrictions on the agricultural uses of lease land in
the Tule Lake and Lower Klamath Refuges in the Klamath
Basin National Wildlife Refuge Complex in southern Oregon
and northern California, the Service violated environmental
laws.
On appeal, TID argued that the Service violated the
Kuchel Act of 1964 and the National Wildlife Refuge System
Improvement Act as amended by the Refuge Improvement
Act (“Refuge Act”).
First, TID argued that in approving the combined
Environmental Impact Statement and Comprehensive
Conservation Plan (“EIS/CCP”) for five of the six wildlife
refuges in the Klamath Refuge Complex, the Service
misconstrued the Kuchel Act to require the Service to
regulate uses of leased agricultural land in the two refuges to
ensure that the uses were “consistent” with “proper wildfowl
management.” 16 U.S.C. § 695n. The panel rejected TID’s
interpretation of § 695n. The panel held that with respect to
the textual argument made by TID, the language of § 695n,
whether considered in isolation or in the context of the rest of
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 TULELAKE IRRIGATION DISTRICT V. USFWS
the Kuchel Act, was unambiguous. The panel held that it did
not, therefore, need to proceed to step two of the Chevron
analysis. The panel concluded that the Kuchel Act required
the Service to regulate the pattern of lease land agriculture in
the refuges to ensure consistency with proper waterfowl
management.
Second, TIL argued that agriculture was a “purpose,” not
a “use,” of the Tule Lake and Lower Klamath Refuges, and
that a compatibility determination by the Service was
therefore not authorized under the Refuge Act. The panel
rejected TID’s argument that agriculture was a coequal
purpose rather than a “use” within the meaning of the Refuge
Act. With respect to the textual argument made by TID, the
language of § 695l was unambiguous, making it unnecessary
to proceed to step two of the Chevron analysis. The panel
held that the Refuge Act permitted agricultural “use” within
the Klamath Refuge Complex only when the Service
determines that it is “compatible with the major purposes” for
which the area was established.
The panel held that under both the Kuchel and Refuge
Acts the Service was required to ensure that agricultural use
of leased land in the Lower Klamath and Tule Lake Refuges
was “consistent” with (under the Kuchel Act) and
“compatible” with (under the Refuge Act) “proper wildlife
management.” The panel further held that the regulation in
the EIS/CCP of agricultural uses of lease land was a proper
exercise of the Service’s authority under the Kuchel and
Refuge Acts.
TULELAKE IRRIGATION DISTRICT V. USFWS 5
COUNSEL
Brittany K. Johnson (argued), Paul S. Simmons, and Alexis
K. Stevens, Somach Simmons & Dunn, PC, Sacramento,
California, for Plaintiffs-Appellants.
Andrew M. Bernie (argued), Andrew C. Mergen, and Ellen J.
Durkee, Attorneys; Jean E. Williams, Acting Assistant
Attorney General; Environment and Natural Resources
Division, United States Department of Justice, Washington,
D.C.; for Defendants-Appellees.
Maura C. Fahey (argued) and Oliver J. H. Stiefel, Crag Law
Center, Portland, Oregon, for Intervenor-Defendants-
Appellees.
Timothy Beau Ellis,Vial Fotheringham LLP, Lake Oswego,
Oregon, for amici curiae Oregon Farm Bureau Federation,
Klamath-Lake County Farm Bureau, California Farm Bureau
Federation, Modoc County Farm Bureau, and Siskiyou
County Farm Bureau.
6 TULELAKE IRRIGATION DISTRICT V. USFWS
OPINION
W. FLETCHER, Circuit Judge:
In January 2017, the United States Fish and Wildlife
Service (“Service”) issued a Record of Decision (“ROD”)
adopting a combined Environmental Impact Statement and a
Comprehensive Conservation Plan (“EIS/CCP”) for five of
the six wildlife refuges in the Klamath Basin National
Wildlife Refuge Complex (“Klamath Refuge Complex” or
“Complex”) in southern Oregon and northern California.
This appeal is one of four consolidated appeals from a district
court decision rejecting various challenges to the Service’s
action.
Tulelake Irrigation District and associated agricultural
groups (collectively, “TID”) have interests in leased
agricultural land (“lease land”) in the Tule Lake and Lower
Klamath Refuges. In the appeal before us, TID brought suit
in federal district court alleging that, in imposing restrictions
on the agricultural uses of lease land in those refuges, the
Service violated the Kuchel Act of 1964 (“Kuchel Act”), the
National Wildlife Refuge System Improvement Act as
amended by the Refuge Improvement Act (“Refuge Act”),
the National Environmental Policy Act (“NEPA”), and the
Clean Water Act (“CWA”). The district court granted
summary judgment to the Service.
On appeal, TID argues only that the Service violated the
Kuchel and Refuge Acts. TID argues that in approving the
EIS/CCP the Service misconstrued the Kuchel Act to require
the Service to regulate uses of leased agricultural land in the
two refuges to ensure that the uses are “consistent” with
“proper wildfowl management.” 16 U.S.C. § 695n.
TULELAKE IRRIGATION DISTRICT V. USFWS 7
According to TID, the Kuchel Act does not authorize the
Service to regulate uses of lease land to ensure such
consistency. TID further argues that the Service
misconstrued the Refuge Act as requiring the Service to
regulate uses of lease land to ensure that those uses are
“compatible with the major purposes for which such [refuges]
were established.” 16 U.S.C. § 668dd(d)(1)(A). TID argues
that agriculture is a “purpose,” not a “use,” of the Tule Lake
and Lower Klamath Refuges, and that a compatibility
determination by the Service is therefore not authorized under
the Refuge Act.
We affirm the district court.
I. Background
A. Statutory Background
The Klamath Refuge Complex is located in northern
California and southern Oregon. The Complex encompasses
approximately 200,000 acres and consists of six separate
national wildlife refuges: the Tule Lake Refuge, the Lower
Klamath Refuge, the Upper Klamath Refuge, the Clear Lake
Refuge, the Klamath Marsh Refuge, and the Bear Valley
Refuge. The EIS/CCP describes the Complex as
“internationally renowned for its great abundance and
diversity of birdlife.” TID challenges restrictions in the
EIS/CCP on agricultural uses of lease land in the Tule Lake
and Lower Klamath Refuges.
The Kuchel Act, enacted in 1964, codified a compromise
between wildlife conservation groups and agricultural
interests. The Act applies to four of the wildlife refuges in
the Klamath Refuge Complex—the Tule Lake, Lower
8 TULELAKE IRRIGATION DISTRICT V. USFWS
Klamath, Upper Klamath, and Clear Lake Refuges.
16 U.S.C. § 695k. As relevant to this appeal, the Act
provides:
Notwithstanding any other provisions of law,
all lands owned by the United States lying
within the Executive order boundaries of the
Tule Lake National Wildlife Refuge, the
Lower Klamath National Wildlife Refuge, the
Upper Klamath National Wildlife Refuge, and
the Clear Lake Wildlife Refuge are hereby
dedicated to wildlife conservation. Such
lands shall be administered by the Secretary
of the Interior for the major purpose of
waterfowl management, but with full
consideration to optimum agricultural use
that is consistent therewith.
Id. § 695l (emphases added). The Act further provides:
The Secretary shall, consistent with proper
waterfowl management, continue the present
pattern of leasing [specified] reserved lands .
. . within the Executive order boundaries of
the Lower Klamath and Tule Lake National
Wildlife Refuges . . . .
Id. § 695n (emphasis added).
Two years after enacting the Kuchel Act, Congress
enacted the National Wildlife Refuge System Administration
Act of 1966—later amended in 1997 by the Refuge
Improvement Act—to govern the entire National Wildlife
Refuge System, including refuges in the Klamath Refuge
TULELAKE IRRIGATION DISTRICT V. USFWS 9
Complex. We refer to the 1966 Act, together with the 1997
amendment, as the “Refuge Act.” The Refuge Act declares
that “each refuge shall be managed to fulfill the mission of
the System, as well as the specific purposes for which that
refuge was established.” 16 U.S.C. § 668dd(a)(3)(A). The
Act defines the mission of the System as “administer[ing] a
national network of lands and waters for the conservation,
management, and where appropriate, restoration of the fish,
wildlife, and plant resources and their habitats within the
United States.” Id. § 668dd(a)(2). The Act requires the
Secretary of the Interior to “ensure that . . . the purposes of
each refuge are carried out.” Id. § 668dd(a)(4)(D). The Act
authorizes the Secretary to “permit the use of any [refuge]
. . . for any purpose . . . whenever he determines that such
uses are compatible with the major purposes for which such
areas were established.” Id. § 668dd(d)(1)(A) (emphases
added).
The Refuge Act requires the Secretary to “propose a
comprehensive conservation plan for each refuge or related
complex of refuges”; “publish a notice of opportunity for
public comment in the Federal Register on each proposed
conservation plan”; “issue a final conservation plan for each
planning unit consistent with the provisions of [the] Act”;
and, “not less frequently than 15 years after the date of
issuance of a conservation plan . . . and every 15 years
thereafter, revise the conservation plan as may be necessary.”
Id. § 668dd(e)(1)(A). The challenged EIS/CCP was adopted
by the Service pursuant to this requirement.
B. Factual Background
In the spring of 2010, the Service began the formal
scoping process for the first ever Comprehensive
10 TULELAKE IRRIGATION DISTRICT V. USFWS
Conservation Plan for the Klamath Refuge Complex. In May
2016, the Service issued a draft CCP, accompanied by an
EIS. After soliciting public comments to the draft, the
Service filed the final joint EIS/CCP in December 2016. The
Service issued the ROD in January 2017.
A CCP is “a programmatic document intended to analyze
proposed management actions on a conceptual level,” except
in those cases where sufficient information is available to
provide project-specific analysis. The EIS/CCP at issue here
contains the Service’s refuge management strategies for five
of the six refuges in the Klamath Refuge Complex. For many
years prior to the promulgation of the EIS/CCP, portions of
both the Tule Lake and Lower Klamath Refuges had been
leased by the government to private entities for agricultural
use. In the EIS/CCP, the Service adopted management
strategies that required modifications to agricultural uses on
lease land in both refuges.
The Service based the EIS/CCP’s required modifications
of agricultural uses on the leased land on its interpretations of
the Kuchel and Refuge Acts. In Appendix M to the EIS/CCP,
the Service provided an extensive analysis of the Kuchel Act.
The Service wrote that “‘proper waterfowl management’ is
the major purpose of the Act.” (Emphasis added.) The
Service added:
[T]here are additional secondary refuge
purposes related to agriculture derived from
the Kuchel Act. The Kuchel Act directs that
the Secretary continue the “present pattern of
leasing,” maximize lease revenues in
specifically identified areas of the refuges,
and optimize agriculture, all consistent with
TULELAKE IRRIGATION DISTRICT V. USFWS 11
waterfowl management. . . . Because the
Kuchel Act provides that agricultural leasing
will continue in specific areas of the refuges if
consistent with proper waterfowl
management, the Service must continually
evaluate agricultural uses and cropping
patterns to ensure that they are consistent
with proper waterfowl management.
(Emphasis added.)
The Service interpreted the Refuge Act to require the
same evaluation of agricultural uses as the Kuchel Act. In
Appendix G to the EIS/CCP, the Service wrote, “In reviewing
the language in both statutes, the Service concluded that the
term ‘consistent therewith’ in the Kuchel Act has the same
meaning as ‘compatible’ under the [Refuge Act].”
For the Tule Lake Refuge, the Service considered three
agricultural management alternatives. One was a no-action
alternative. The other two alternatives contained provisions
regulating agricultural uses on lease land in the refuge, such
as requiring a lessee to leave an increased acreage of standing
grain unharvested for dappling duck and geese, and
expanding a flooding program known as the “walking
wetlands” program. The Service selected Alternative C,
which included expansions of both the unharvested standing
grain requirement and the walking wetlands program. Under
the EIS/CCP, lease land contracts on the Tule Lake Refuge
are also subject to additional conditions, such as a
requirement to flood lease lands post-harvest, restrictions on
harvesting methods, and a prohibition of post-harvest field
work.
12 TULELAKE IRRIGATION DISTRICT V. USFWS
For the Lower Klamath Refuge, the Service considered
four alternatives. One was a no-action alternative. The other
three alternatives contained provisions applicable to
agriculture on leased land in the refuge, similar to those for
the leased land in the Tule Lake Refuge. The Service
selected Alternative C, which included an increase in the
unharvested grain requirement, a requirement for annual
Special Use Permit (“SUP”) applications by the Bureau of
Reclamation to ensure support of waterfowl habitats, and an
increase of flood fallow agricultural practice “if needed to
achieve habitat objectives.”
II. Proceedings Below
A magistrate judge issued a Report and Recommendation
in which he recommended granting summary judgment to the
Service. The district court adopted the recommendation of
the magistrate judge in its entirety and entered summary
judgment to the Service. TID timely appealed.
III. Standard of Review
“We review summary judgment rulings de novo.” Native
Ecosystems Council v. Marten, 883 F.3d 783, 789 (9th Cir.
2018) (citing Defs. of Wildlife v. Zinke, 856 F.3d 1248, 1256
(9th Cir. 2017)). When reviewing an agency’s statutory
interpretation, we apply Chevron, USA, Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984). We
first ask “whether Congress has directly spoken to the precise
question at issue.” Id. at 842. If it has not, we defer to the
agency’s construction as long as it “is based on a permissible
construction of the statute.” Id. at 843.
TULELAKE IRRIGATION DISTRICT V. USFWS 13
IV. Arguments on Appeal
TID argued in the district court and argues here that the
EIS/CCP’s requirements, applicable to leased agricultural
lands in the Tule Lake and Lower Klamath Refuges, violate
the Kuchel and Refuge Acts. First, TID argues that under the
Kuchel Act “all lease land farming is automatically consistent
with waterfowl management,” and that the Service is
therefore not authorized to limit agricultural uses on leased
land in the two refuges to ensure “consistency” with proper
waterfowl management. Second, TID argues under the
Refuge Act that lease land farming is a “purpose,” not a
“use,” of the Klamath Refuges, and that the Service is
therefore not authorized to regulate agriculture practices to
ensure “compatibility” with the purposes of the refuges. We
address each argument in turn.
A. The Kuchel Act
TID argues that the Kuchel Act does not authorize the
Service to regulate agricultural uses of lease land in the
refuges to ensure consistency with “proper waterfowl
management.” TID relies on § 695n of the Act to support its
argument. We quoted § 695n above. For the convenience of
the reader, here it is again in relevant part:
The Secretary shall, consistent with proper
waterfowl management, continue the present
pattern of leasing [specified] reserved lands .
. . within the Executive order boundaries of
the Lower Klamath and Tule Lake National
Wildlife Refuges . . . .
14 TULELAKE IRRIGATION DISTRICT V. USFWS
16 U.S.C. § 695n (emphasis added). TID argues that because
the phrase “consistent with proper waterfowl management”
is set off by commas it is a “nonrestrictive” clause. TID
writes in its brief to us: “‘Consistent with proper waterfowl
management’ is not an operative phrase in the sentence. It is
a nonrestrictive clause that, by definition, is not essential to
the meaning of the sentence.” TID argues that the clause
simply clarifies that “the present pattern of leasing is
consistent with proper waterfowl management.” (Emphasis
in original.)
Even if we were to consider the language of § 695n in
isolation from the rest of the Kuchel Act, we would disagree.
When construing a statute, courts should “avoid any statutory
interpretation that renders any section superfluous.” Cent.
Mont. Elec. Power Co-op, Inc. v. Adm’r of Bonneville Power
Admin., 840 F.2d 1472, 1478 (9th Cir. 1988). This canon
holds true, as well, for interpretations of language within a
single section. See Lockhart v. United States, 577 U.S. 347,
354–57 (2016). TID admits that its proposed interpretation
of § 695n would render superfluous the phrase “consistent
with proper waterfowl management.” In contrast, the
Service’s interpretation gives the phrase a distinct meaning
and function within the section. Under the Service’s
interpretation, the phrase requires the Service to ensure that
the agricultural uses of lease land are consistent with proper
waterfowl management.
However, we do not consider the language of § 695n in
isolation. Rather, as TID itself recognizes, we must construe
it in light of the rest of the Kuchel Act. Even if the meaning
of § 695n were unclear, “[i]t is necessary and required that an
interpretation of a phrase of uncertain reach is not confined to
a single sentence when the text of the whole statute gives
TULELAKE IRRIGATION DISTRICT V. USFWS 15
instruction as to its meaning.” Maracich v. Spears, 570 U.S.
48, 65 (2013). Unlike TID’s interpretation of § 695n, the
Service’s interpretation comports with the entirety of the
Kuchel Act. Other parts of the Act unambiguously prioritize
wildlife management objectives over agricultural uses on
leased land. Section 695k of the Act specifies that the
“policy” of Congress in the Klamath Refuge Complex is “to
preserve intact the necessary existing habitat for migratory
waterfowl.” 16 U.S.C. § 695k. Section 695l, quoted above,
requires the Secretary to administer “all lands” in the
Klamath Refuge Complex “for the major purpose of
waterfowl management, but with full consideration to
optimum agricultural use that is consistent therewith.” Id.
§ 695l (emphasis added).
We therefore reject TID’s interpretation of § 695n. With
respect to the textual argument made by TID, the language of
§ 695n, whether considered in isolation or in the context of
the rest of the Kuchel Act, is unambiguous. We therefore do
not need to proceed to step two of the Chevron analysis. We
hold that the Kuchel Act requires the Service to regulate the
pattern of lease land agriculture in the refuges to ensure
consistency with proper waterfowl management.
B. The Refuge Act
The Refuge Act requires a CCP to “identify and describe
. . . the purposes of each refuge.” 16 U.S.C.
§ 668dd(e)(2)(A). The Secretary may “permit the use of any
area” within a refuge “whenever [s]he determines that such
uses are compatible with the major purposes for which such
areas were established.” Id. § 668dd(d)(1)(A). Subject to an
exception not relevant here, the Secretary “shall not . . .
expand, renew, or extend an existing use of a refuge, unless
16 TULELAKE IRRIGATION DISTRICT V. USFWS
the Secretary has determined that the use is a compatible
use.” Id. § 668dd(d)(3)(A)(i). A “compatible use” is a “use
of a refuge that . . . will not materially interfere with or
detract from the fulfillment of the . . . purposes of the refuge.”
Id. § 668ee(1).
TID argues that agriculture on lease land in the refuges is
a “purpose” rather than a “use” within the meaning of the
Refuge Act, and that agriculture on lease land therefore has
co-equal status with waterfowl management. As a result,
according to TID, agricultural use of lease land is not subject
to a compatibility determination by the Service. We disagree.
“It is an elementary principle of statutory construction
that similar language in similar statutes should be interpreted
similarly.” United States v. Sioux, 362 F.3d 1241, 1246 (9th
Cir. 2004) (citing Northcross v. Bd. of Educ. of Memphis City
Schs., 412 U.S. 427, 428 (1973)); see also Jett v. Dallas
Indep. Sch. Dist., 491 U.S. 701, 738–39 (1989) (Scalia, J.,
concurring). When the Refuge Act is read in conjunction
with the Kuchel Act, it is apparent that agriculture on lease
land in the refuges is not a “purpose” holding co-equal status
with waterfowl management, and that lease land agriculture
is not insulated from a compatibility determination.
We look to the Kuchel Act to understand the distinction
drawn in the Refuge Act between a “purpose” and a “use.”
Section 695l of the Kuchel Act, quoted above, characterizes
“waterfowl management” as the “major purpose” of the
refuges, and provides that agriculture is a “use.” For the
convenience of the reader, here it is again in relevant part:
Notwithstanding any other provisions of law,
[refuge] lands . . . are hereby dedicated to
TULELAKE IRRIGATION DISTRICT V. USFWS 17
wildlife conservation. Such lands shall be
administered by the Secretary of the Interior
for the major purpose of waterfowl
management, but with full consideration to
optimum agricultural use that is consistent
therewith.
16 U.S.C. § 695l (emphases added). We recognize that the
Executive Orders establishing the Lower Klamath and Tule
Lake Refuges in the 1920s characterized reclamation (i.e.,
agriculture) as a purpose of the refuges. However, as made
clear by its introductory phrase “[n]otwithstanding any other
provision of law,” § 695l supersedes those orders.
We therefore reject TID’s argument that agriculture is a
co-equal purpose rather than a “use” within the meaning of
the Refuge Act. With respect to the textual argument made
by TID, the language of § 695l is unambiguous, making it
unnecessary to proceed to step two of the Chevron analysis.
We hold that the Refuge Act permits agricultural “use” within
the Klamath Refuge Complex only when the Service
determines that it is “compatible with the major purposes” for
which such the area was established.
Conclusion
We hold under both the Kuchel and Refuge Acts that the
Service is required to ensure that agricultural use of leased
land in the Lower Klamath and Tule Lake Refuges is
“consistent” with (Kuchel Act) and “compatible” with
(Refuge Act) “proper wildlife management.” We hold,
further, that the regulation in the EIS/CCP of agricultural uses
18 TULELAKE IRRIGATION DISTRICT V. USFWS
of lease land is a proper exercise of the Service’s authority
under the Kuchel and Refuge Acts.
AFFIRMED.