CENTER FOR FOOD SAFETY et al v. SALAZAR et al

Filing 43

MEMORANDUM OPINION to 42 order denying Defendants' Motion to Dismiss and granting Plaintiffs' Motion for Summary Judgment. Signed by Judge James E. Boasberg on 10/23/2012. (lcjeb3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

CENTER FOR FOOD SAFETY, et al.,
Plaintiffs,
v.

Civil Action No. 11-1457 (JEB)

KEN SALAZAR, et al.,
Defendants.

MEMORANDUM OPINION
Three national nonprofit organizations – Beyond Pesticides, the Center for Food Safety,
and Public Employees for Environmental Responsibility – bring this challenge under the
Administrative Procedure Act to the United States Fish and Wildlife Service’s decision to allow
genetically modified corn and soybeans to be farmed on National Wildlife Refuge land in the
Southeast Region (Region 4). Plaintiffs assert that Defendants violated the National
Environmental Policy Act, the National Wildlife Refuge System Administrative Act of 1966, and
the APA by failing to conduct appropriate environmental analyses prior to authorizing such
farming.
Defendants have agreed that they will not permit such farming in 2013 until they have
performed the required environmental studies. As a result, when Plaintiffs moved for Summary
Judgment, Defendants moved to dismiss for lack of jurisdiction, arguing that the case was now
moot. Because the Court determines that Plaintiffs’ claim is not moot, it will deny Defendants’
Motion and grant Plaintiffs’.

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I.

Background
A. Statutory and Regulatory Background
The National Wildlife Refuge System contains 553 national wildlife refuges and 38

wetland management districts throughout the country. See FWS000001. “The mission of the
System is to administer 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 for the benefit of present and future generations of
Americans.” See National Wildlife Refuge System Improvement Act of 1997 § 4, 16 U.S.C. §
668dd(a)(2) (the Refuge Act). “Each refuge shall be managed to fulfill the mission of the
System, as well as the specific purposes for which that refuge was established.” §
668dd(a)(3)(A).
The National Environmental Policy Act (NEPA), 42 U.S.C. § 4331 et seq., requires
federal agencies to consider the environmental impact of “major Federal actions significantly
affecting the quality of the human environment.” 42 U.S.C. § 4332(C). Projects that
significantly affect the environment require the preparation of an Environmental Impact
Statement (EIS). See 42 U.S.C. § 4332(C). Projects whose environmental impact is not clearly
established require the preparation of an Environmental Assessment (EA), followed by either a
finding of “no significant impact” on the environment (FONSI), or the subsequent preparation of
an EIS. See 23 C.F.R. § 771.115; 40 C.F.R. §§ 1508.9, 1508.13.
B. Factual and Procedural Background
The Southeast Region (Region 4) of the National Wildlife Refuge System covers over
430,000 square miles in ten states. See Pl. Mot. at 2. The Region includes 128 national wildlife
refuges covering some 4 million acres of protected land. See id. In addition to serving as a

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haven for 322 endangered species, see id. at 3, the Southeastern refuges have permitted some
agricultural production since at least the 1930s. See id. Farming on refuge land is typically done
pursuant to cooperative farming arrangements, whereby local farmers plant on designated areas
in a refuge and harvest a share of the crop. See FWS000026. The Refuge Act requires the Fish
and Wildlife Service, which oversees the National Wildlife Refuge System, to conduct a
compatibility determination before allowing any use of refuge land, including for farming. 16
U.S.C. § 688dd(d)(1)(A). FWS has completed compatibility determinations approving farming
in 25 Southeastern refuges, see FWS000179-302, but these compatibility determinations do not
specifically address the use of genetically engineered crops. See Pl. Mot. at 4. FWS policy,
moreover, prohibits the use of genetically engineered crops on refuge land unless there is “no
feasible alternative” for accomplishing a refuge purpose. See FWS00007.
FWS has nonetheless allowed the planting of genetically engineered crops on some
44,000 acres of refuge land in the Southeast Region. See FWS000313. The most common
genetically modified crops planted in Southeastern refuges are corn and soybeans that have been
developed to be resistant to the broad application of the herbicide Roundup (glyophosphate),
known as “Roundup Ready” crops. See FWS000013-14. Plaintiffs assert that the use of such
genetically engineered herbicide-resistant crops has numerous adverse environmental impacts.
See Pl. Mot. at 7-10.
In 2009, Plaintiffs petitioned Interior Secretary Ken Salazar to request a “moratorium on
all [genetically engineered] crop cultivation in National Wildlife Refuges’ until the agency
complie[d] with NEPA and the Refuge Act.” See Pl. Mot. at 12. Shortly thereafter, the Acting
Director of FWS issued guidance stressing that refuge farming programs must comply with
NEPA, the APA, and relevant FWS policies. See FWS000008. FWS subsequently prepared a

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six-page Finding of No Significant Impact (FONSI) regarding farming genetically engineered
crops on refuge land. Such FONSI merely adopted a series of 89 NEPA analyses conducted by
the United States Department of Agriculture. See FWS000315. FWSI posted the FONSI for
public comment at the Southeast refuges growing genetically engineered crops on November 21,
2010. Id. The final FONSI was signed thirty days later. Id.
Plaintiffs filed this lawsuit on August 11, 2011, on behalf of themselves and their
members, alleging that Defendants’ continued authorization of the cultivation of genetically
modified crops on refuge land without conducting a Compatibility Determination violated the
Refuge Act, see Compl., ¶¶ 41-44, and that Defendants’ FONSI violated NEPA. See id., ¶¶ 4552. They named as Defendants Ken Salazar, Secretary of the United States Department of the
Interior; Daniel Ashe, Director of FWS; and FWS itself. The Court also permitted the
Biotechnology Industry Association to submit a brief as amicus curiae. Plaintiffs have now
moved for Summary Judgment; in response, Defendants have moved to dismiss for lack of
jurisdiction, asserting that Plaintiffs’ claims are moot.
II.

Analysis
On the merits of their APA claim, Plaintiffs assert that Defendants violated the Refuge

Act, NEPA, and the APA by authorizing farming with genetically modified crops in Wildlife
Refuges in the Southeast Region without first conducting a Compatibility Determination
required by the Refuge Act or an adequate Environmental Assessment or Environmental Impact
Statement required under NEPA. See Pl. Rep. and Opp. at 1-2. Defendants take no issue with
any of these arguments. Instead, Defendants contend that because they have voluntarily decided
to cease such authorization at the end of the 2012 growing season until “appropriate
environmental analysis under NEPA and a Compatibility Determination” have been completed,

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Plaintiffs’ claims are moot. See Def. Mem. at 1-2. The only issue for the Court, therefore, is a
consideration of the parties’ mootness arguments. Because the controversy is ongoing and this
Court has the power to grant effective relief, the Court ultimately finds Plaintiffs’ claim is not
moot. As Defendants have conceded the merits of Plaintiffs’ claims, the Court will grant
Plaintiffs’ Motion for Summary Judgment and hold a hearing to discuss an appropriate remedy.
Under Article III, Section 2 of the Constitution, this Court’s power “depends on the
existence of a case or controversy.” Preiser v. Newkirk, 422 U.S. 395, 401 (1975). Federal
courts may not “give opinions upon moot questions or abstract propositions, or . . . declare
principles or rules of law which cannot affect the matter in issue in the case before it.” Church of
Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992). “‘Simply stated, a case is moot
when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in
the outcome.’” County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979) (quoting Powell v.
McCormack, 395 U.S. 486, 469 (1969)). A case may become moot if the defendant ceases its
objectionable acts during the proceedings and “it can be said with assurance that there is no
reasonable expectation . . . that the alleged violation will recur . . . and interim relief or events
have completely and irrevocably eradicated the effects of the alleged violation.” Id. (internal
citations omitted; emphasis added). Both conditions must be satisfied for a case to be considered
moot, and “the burden of demonstrating mootness ‘is a heavy one.’” Id. (quoting United States
v. W.T. Grant Co., 345 U.S. 629, 632-33 (1953)). Indeed, a case is only moot if the court is
unable to grant “any effectual relief whatever to the prevailing party.” City of Erie v. Pap’s
A.M., 529 U.S. 277, 287 (2000) (internal citations and quotation marks omitted; emphasis
added). Defendants have not met this heavy burden.

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Although Defendants have indicated that they will no longer permit farming of
genetically modified crops in Southeastern Refuges after the 2012 growing season, Plaintiff’s
case is not moot because this decision has not “completely and irrevocably eradicated the effects
of the alleged violation.” Davis, 440 U.S. at 631; see also United States v. Microsoft, 1998 WL
614485, at *20 n.21 (D.D.C. Sept. 14, 1998) (“[T]he Court retains jurisdiction to consider even
the ‘waived’ practices if they caused anticompetitive effects.”) (citing Northwest Environmental
Defense Ctr. v. Gordon, 849 F.2d 1241, 1245 (9th Cir. 1988)). In other words, Plaintiffs allege
harms that are currently occurring and will continue throughout 2012. Waiting for 2013 is not
good enough.
More specifically, Plaintiffs cite a litany of ongoing environmental effects, including
“harm [to] beneficial insects, increase[ed] prevalence of [herbicide] resistant weeds, alter[ed] soil
ecology, and [genetic] contaminat[ion] [of] natural plants.” See Pl. Mot. at 6; Compl., ¶ 32.
Plaintiffs further assert that herbicide-resistant genetically modified crops may harm amphibians
and birds that eat herbicide-tainted crops. See Compl., ¶ 34. Because Defendants here move for
dismissal, the Court must take these factual allegations as true. See Sparrow v. United Air Lines,
Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (citing Leatherman v. Tarrant County Narcotics
Intelligence and Coordination Unit, 507 U.S. 163, 164 (1993)); see also Jerome Stevens Pharms.,
Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). Defendants’ assertion that FWS will cease
permitting the farming of genetically modified crops after the current growing season does
nothing to mitigate the alleged ongoing environmental effects of its decision to allow such
planting. See also Fund for Animals v. Jones, 151 F. Supp. 2d 1, 7 (D.D.C. 2001) (holding
Plaintiffs’ claim not moot where agency withdrew objected-to authorization while litigation was

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pending, because withdrawal of authorization “may have stopped the killing of the bison, [but
the related, underlying program] continue[d] to affect the environment”).
Likewise, Plaintiffs’ case is not moot because the Court could still grant them some form
of effective relief. See City of Erie, 529 U.S. at 287. For purposes of a mootness analysis, “any
effective relief whatever” is expansively defined. See id. “While a court may not be able to
return the parties to the status quo ante,” a court’s ability “to effectuate a partial remedy” is
“sufficient to prevent [a] case from being moot.” Church of Scientology, 506 U.S. at 12-13.
Indeed, the availability of any form of relief will save a case from mootness, even if the party
cannot “prove that ‘the requested relief is certain to alleviate their injury.’” Public Citizen v.
National Highway Traffic Safety Administration, 848 F.2d 256, 263 (D.C. Cir. 1988) (quoting
International Ladies’ Garment Workers’ Union v. Donovan, 722 F.2d 795, 811 (D.C. Cir. 1983))
(emphasis in International Ladies’ Garment Workers’ Union). Effective relief “encompasses
acts that may not necessarily undo a fait accompli, but that may serve to mitigate it.” Citizens
Alert Regarding the Environment v. Leavitt, 355 F. Supp. 2d 366, 369 (D.D.C. 2005). “Courts
of equity have broad discretion in shaping remedies; . . . . [t]hus, in deciding a mootness issue,
‘the question is not whether the precise relief sought at the time the application for an injunction
was filed is still available. The question is whether there can be any effective relief.’” Gordon,
849 F.2d at 1244-45 (quoting Garcia v. Lawn, 805 F.2d 1400, 1403 (9th Cir. 1986)).
Plaintiffs, for their part, claim that this Court could grant “a myriad of effective relief.”
See Pl. Opp. and Rep. at 2. Beyond remand to the agency and vacatur of Defendants’ decision
approving the planting of genetically engineered crops, Plaintiffs identify a list of “mitigation
measures with respect to the already-planted crops” that the Court might order. Id. at 9. These
measures include requiring farmers of genetically engineered crops to “survey, identify and

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eliminate any bolters in their fields before they produce pollen or seed to prevent or minimize the
potential of transgenic contamination to neighboring fields or wild relatives”; requiring “that no
genetically engineered crops . . . be left in the field after harvest, in order to prevent bolting and
transgenic contamination”; requiring Defendants to “survey the land surrounding refuge
farmland and institute isolation distances where there is a possibility of gene flow to neighboring
crops or wild relatives”; requiring Defendants to survey and disclose the locations of genetically
modified crops currently growing in wildlife refuges; and requiring a ban on “all further spraying
of pesticides on all genetically engineered crops on refuge lands in the Southeast.” Id. at 9-10.
Without passing on the wisdom of any of these proposed measures, the Court finds that
Plaintiffs have demonstrated that it could grant some form of effective relief. Cases from this
Circuit and our sister Circuits – even cases to which the Government has been a party, involving
identical subject matter – have found that the availability of measures to mitigate the ongoing
effects of unlawful agency action are sufficient to save a case from mootness. For example, in
Lemon v. Geren, 514 F.3d 1312 (D.C. Cir. 2008), the D.C. Circuit held that plaintiff’s claim
challenging the transfer of a decommissioned Army base to a private entity after the transfer had
been completed was not moot because “[i]f unraveling the transfer is necessary after the district
court decides the merits, it will be within the court’s power to do so.” Id. at 1316.
Other circuits have reached similar conclusions. In Airport Neighbors Alliance, Inc. v.
United States, 90 F.3d 426 (10th Cir. 1996), the Tenth Circuit held that plaintiffs’ NEPA claim
regarding the construction of a new runway was not mooted by the completion of construction
because the court “could order that the runway be closed or impose restrictions on its use.” Id. at
429. In Gordon, plaintiffs challenged a fisheries management plan that led to the overharvesting
of coho salmon during the 1986 fishing season. The district court held that the case was moot

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because the fishing season was over, and “‘no decree by the court granting injunctive or
declaratory relief can undo the harvesting of coho salmon that took place during the 1986
season.’” Gordon, 849 F.2d at 1244. The Ninth Circuit reversed, holding that “the damage
[could] still be repaired or mitigated – obviously not by restoring the fish harvested in 1986, but
by allowing more fish to spawn in 1989.” Id. at 1245; see also Pyramid Lake Paiute Tribe of
Indians v. Hodel, 882 F.2d 364, 368 (9th Cir. 1989) (holding similar challenge to water
management plan not moot where “harm [to fish population] [could] be remedied by storing . . .
an equivalent amount of water . . . for possible use during future spawning seasons”). While
these cases are not binding precedent here, the Court finds their reasoning instructive.
This case is not unique: it is one in a series of challenges to a variety of federal agency
decisions authorizing or expanding the use of genetically modified crops. Plaintiffs and their
peer organizations have brought NEPA challenges to the initial approval of several “Roundup
Ready” crops and to the planting of those crops throughout the National Wildlife Refuge System.
See, e.g., Center for Food Safety v. Salazar, --- F. Supp. 2d ---, No. 11-1934 (JEB), 2012 WL
4857793 (D.D.C. Oct. 15, 2012); Delaware Audubon Society, Inc. v. Secretary of the Interior,
612 F. Supp. 2d 442 (D. Del. 2009) (Prime Hook); Center for Food Safety v. Vilsack, 753 F.
Supp. 2d 1051 (N.D. Cal. 2010) (Sugar Beets II); Geertson Farms, Inc. v. Johanns, No. 06-1075,
2007 WL 1302981 (N.D. Cal. May 3, 2007) (Alfalfa I). In both Alfalfa I and Sugar Beets II, the
Northern District of California awarded plaintiffs relief similar to that requested here. In Sugar
Beets II, the court entered an injunction requiring the removal of already-planted genetically
modified crops. Sugar Beets II, 753 F. Supp. 2d at 1062. In the Alfalfa I litigation, the court
required a variety of steps to “attempt to minimize the risk of gene flow from the already-planted
genetically engineered alfalfa to organic and conventional alfalfa.” Alfalfa I, 2007 WL 1302981,

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at *9. These measures included a ban on the use of pollinators in fields planted with Roundup
Ready Alfalfa, specified cleaning procedures for farm equipment used in Roundup Ready Alfalfa
production, specified handling requirements for the Roundup Ready Alfalfa harvested at the end
of the season, and public disclosure of the locations of fields containing the Roundup Ready
crops. Id.
This Court is not bound by these decisions, nor does the Court take any position on any
of the forms of relief at issue in them. Rather, these cases are useful only in that they show that
these forms of relief were available on similar facts. The bar for Plaintiffs here is not high: to
demonstrate a “live controversy,” they need only show that some form of effective relief could
be available to them should they prevail – however partial the remedy, however uncertain its
potential to truly address Plaintiffs’ concerns. See City of Erie, 529 U.S. at 287; Church of
Scientology, 506 U.S. at 13; Public Citizen, 848 F.2d at 263. The extensive record of courts
granting – or even considering – relief similar to that requested by Plaintiffs here suggests that it
is squarely within this Court’s power to grant Plaintiffs some form of effective relief. As a
result, Plaintiffs’ case is not moot.
The Court believes a decision now on what specific relief to order would be uninformed
and premature. The Court, accordingly, will hold a hearing to discuss the parties’ positions on
various forms of relief. In the interim, the Court urges the parties to meet and confer to
determine if they can reach agreement on at least some potential remedies.
III. Conclusion
For the foregoing reasons, the Court will grant Plaintiffs’ Motion for Summary Judgment,
deny Defendants’ Motion to Dismiss, and set the case for a hearing on November 5, 2012, to

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determine an appropriate remedy. A separate Order consistent with the Opinion will issue this
day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge

Date: October 23, 2012

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