Judge: Feds “Cherry-Picked Legal Interpretations” to Favor Agribusiness Over Waterfowl on Klamath Basin Refuges U.S. Fish and Wildlife Service ordered to release documents acknowledging law allows removal of harmful commercial agribusiness from refuge lands

For Immediate Release

April 9, 2018

Jim McCarthy, WaterWatch of Oregon, 541-708-0731
Bob Sallinger, Audubon Society of Portland, 503-380-9728
Steve Pedery, Oregon Wild, 503-283-6343
Maura Fahey, Crag Law Center, 503-525-2722

Medford, OR – A U.S. Magistrate Judge has issued a ruling ordering the U.S. Fish and Wildlife Service (USFWS) to release key portions of a heavily-redacted planning document showing that the federal government “cherry-picked legal interpretations” to favor agribusiness interests at the expense of waterfowl and other birds on some of America’s most important National Wildlife Refuges. The order, issued on March 27th by U. S. Magistrate Judge Mark Clarke, centers around the agency’s interpretation of a federal law known as the Kuchel Act, and could mark the beginning of the end for a government program conservationists say has contributed to the deaths of tens of thousands of birds on Lower Klamath and Tule Lake National Wildlife Refuges in recent years.

The key win came during ongoing litigation over the Comprehensive Conservation Plan (CCP) for the Klamath Basin National Wildlife Refuge Complex. Conservationists allege that the legally-mandated plan is deeply flawed because, among other problems, it avoided considering the option to remove a harmful commercial agribusiness leasing program on refuge lands. In 2017, Audubon Society of Portland, WaterWatch of Oregon, and Oregon Wild filed litigation in federal court against the USFWS for failure to follow federal law in the creation of a CCP for the Complex, which includes Lower Klamath and Tule Lake National Wildlife Refuges. In 2015, the three groups won a court order to compel the agency to finally produce the long-overdue plan, which also requires the USFWS to ensure commercial activities on refuge lands do not harm wildlife.

“This ruling shows that the government knows that the law is on the side of eagles and ducks on these refuges, but ignored this fact in their plan, and then tried to hide it from the public and the court, all to favor local agribusiness interests,” said Bob Sallinger, Conservation Director of Audubon Society of Portland. “Armed with this knowledge, wildlife advocates will be able to make a compelling case against the refuges’ harmful commercial land leasing program. This program – which is unique in the nation and distinct from more well-known cooperative farming programs on many National Wildlife Refuges ¬– annually displaces some 22,000 acres of refuge wetland habitat, allows the use of toxic pesticides, and oversees the wholesale mechanized destruction of baby and adult birds in their nests each spring.”

The ruling came on the same week that the USFWS agreed to allow the U.S. Bureau of Reclamation in Klamath Falls to drain the limited water remaining in wetlands on Lower Klamath National Wildlife Refuge during the peak of spring waterfowl migration. The move comes as the Klamath River Basin is experiencing another harsh drought. In order to maximize water deliveries to private agribusiness interests on the Klamath Project ¬– already set to receive some $10 to $12 million in federal drought assistance – the Bureau plans to take 11,000 acre-feet of publicly-owned water from the drought-diminished refuges, then direct the refuges’ most senior water rights during the spring, summer, and fall to supply private agribusiness crops grown on the refuges.

“The federal government’s decisions here put refuge waterfowl at increased risk during drought,” said Jim McCarthy, WaterWatch Communication Director. “A similar move by the Bureau in early 2013 left the refuge at its driest point in seventy years by that summer, then sparked a massive die-off of birds that fall.”

Since 2012, tens of thousands of birds on these refuges have died for lack of water as a result of decisions made by the U.S. Department of Interior, which oversees both the Bureau and the USFWS. With few wetland acres available due to lack of water, large numbers of waterfowl pack together during migration periods, leading to lethal disease outbreaks. Refuge staff estimated that some 20,000 birds perished this way in 2014. Similar conditions on these refuges sparked massive waterfowl die-offs in 2012 and 2013.

Under the law, the federal government could stop accepting new bids on leases and instead phase out the refuge lease program. This would free up some 85,000 acre-feet of water (27.7 billion gallons) under the refuges’ senior water rights, enough to provide adequate habitat for migratory and breeding birds and prevent die-offs during drought years.

The National Wildlife Refuge System Improvement Act of 1997 requires that the US Fish and Wildlife Service develop and implement a “Comprehensive Conservation Plan” (CCP) for each unit within the national wildlife refuge system. The CCP describes desired future conditions and provides long-range guidance and management direction to achieve the purposes of the refuge and ensure commercial activities on refuge lands do not undermine wildlife conservation.

“We applaud the judge’s ruling, and look forward to making the case before the court that wildlife like eagles and geese actually take priority over agribusiness on National Wildlife Refuge lands,” said Steve Pedery, Conservation Director of Oregon Wild.

The Plaintiffs are represented by Crag Law Center, a public interest environmental law center based in Portland.