Audubon Society of Portland v. Deb Haaland

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

AUDUBON SOCIETY OF PORTLAND, No. 20-35509
An Oregon nonprofit corporation;
OREGON WILD, An Oregon D.C. Nos.
nonprofit corporation; 1:17-cv-00069-CL
WATERWATCH OF OREGON, An 1:17-cv-00098-CL
Oregon nonprofit corporation; 1:17-cv-00468-CL
WESTERN WATERSHEDS PROJECT, 1:17-cv-00531-CL
Plaintiffs,

and

CENTER FOR BIOLOGICAL
DIVERSITY,
Plaintiff-Appellant,

v.

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; UNITED STATES
FISH AND WILDLIFE SERVICE, a
federal agency of the United
States Department of the Interior,
Defendants-Appellees,
2 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND

TULELAKE IRRIGATION DISTRICT;
KLAMATH WATER USERS
ASSOCIATION; TULELAKE
GROWERS ASSOCIATION; TALLY
HO FARMS PARTNERSHIP, DBA
Walker Brothers; FOUR H
ORGANICS, LLC; WOODHOUSE
FARMING AND SEED COMPANY;
MICHAEL BYRNE,
Intervenor-Defendants-Appellees.

AUDUBON SOCIETY OF PORTLAND, No. 20-35513
An Oregon nonprofit corporation;
OREGON WILD, An Oregon D.C. Nos.
nonprofit corporation; 1:17-cv-00069-CL
WATERWATCH OF OREGON, An 1:17-cv-00098-CL
Oregon nonprofit corporation; 1:17-cv-00468-CL
CENTER FOR BIOLOGICAL 1:17-cv-00531-CL
DIVERSITY,
Plaintiffs,
OPINION
and

WESTERN WATERSHEDS PROJECT,
Plaintiff-Appellant,

v.

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
 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 3

the United States Fish and
Wildlife Service; UNITED STATES
FISH AND WILDLIFE SERVICE, a
federal agency of the United
States Department of the Interior,
Defendants-Appellees,

TULELAKE IRRIGATION DISTRICT;
KLAMATH WATER USERS
ASSOCIATION; TULELAKE
GROWERS ASSOCIATION; TALLY
HO FARMS PARTNERSHIP, DBA
Walker Brothers; FOUR H
ORGANICS, LLC; WOODHOUSE
FARMING AND SEED COMPANY;
MICHAEL BYRNE,
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 Bress
4 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND

SUMMARY *

Environmental Law

The panel affirmed the district court’s summary
judgment to the U.S. Fish and Wildlife Service (“FWS”) on
challenges by the Center for Biological Diversity (“CBD”)
and Western Watershed Project to two discrete aspects of the
Comprehensive Conservation Plan for three of the five
National Wildlife Refuges in the Klamath Basin National
Wildlife Refuge Complex.

CBD challenged the Conservation Plan’s pest-
management approach for the Lower Klamath and Tule Lake
Refuges. Western Watersheds challenged the Plan’s limited
allowance of livestock grazing on portions of Clear Lake
Refuge. Appellants brought their challenges under the
National Environmental Policy Act (“NEPA”), the National
Wildlife Refuge System Administration Act of 1966, and the
Kuchel Act.

The panel considered, and rejected, CBD’s three
challenges to the Conservation Plan. First, CBD argued that
FWS failed to consider reduced-pesticide alternatives for
Lower Klamath and Tule Lake Refuges. The panel
concluded that CBD’s arguments were unavailing. FWS
adequately explained that some amount of pesticide use was
necessary on the Refuges to ensure sufficient crop
production, on which Refuge waterfowl now depend. Also,
FWS could conclude that reduced-pesticide alternatives
would not have been reasonable given the uses and purposes
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 5

of the Refuges. Thus, NEPA did not obligate FWS to
consider reduced-pesticide alternatives.

Second, CBD argued that FWS failed to take a
sufficiently hard look under NEPA at the environmental
effects of pesticides on the Refuges in concluding that
pesticides could continue to be used with minimal
environmental consequences. The panel held that the record
confirmed that FWS took a hard look at the direct, indirect,
and cumulative effects of its decision to re-adopt and extend
the Pesticide Use Proposal (PUP) process for reviewing
potential pesticide applications on the Refuges. Also, the
agency sufficiently explained its conclusions. The panel
rejected CBD’s argument that FWS was required to examine
specific pesticides in conducting the hard look analysis. The
panel held that CBD’s remaining challenges to FWS’s hard-
look analysis were equally unpersuasive.

Third, CBD argued that FWS violated the Refuge and
Kuchel Acts by permitting continued pesticide use on the
Refuges. The panel held that for the same reasons that
FWS’s inclusion of the PUP process for Lower Klamath and
Tule Lake Refuges did not violate NEPA, it did not violate
the Refuge Act or Kuchel Act either. The panel rejected
CBD’s challenges to the Conservation Plan’s approach to
pesticide applications on these Refuges.

The panel concluded that FWS did not act arbitrarily,
capriciously, or contrary to law by continuing to use the PUP
process to evaluate potential pesticide applications on the
Refuges, and by allowing for pesticide use as a last resort.

The panel next turned to Western Watersheds’ appeal
challenging FWS’s decision to continue managed livestock
grazing on Clear Lake Refuge.
6 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND

First, Western Watersheds argued that FWS violated
NEPA by failing to consider a formal reduced-grazing
alternative. The panel held that FWS adequately explained
in the Conservation Plan why reduced-grazing or no-grazing
alternatives were not reasonable. Also, FWS adequately
explained its reasons for not considering an alternative that
would eliminate limited grazing with cattle from the adjacent
Modoc National Forest. FWS reasonably explained that
managed grazing on Clear Lake Refuge was essential to
protecting and restoring sage-grouse habitat. Thus, FWS did
not violate NEPA by failing to consider a formal reduced-
grazing alternative.

Second, Western Watersheds argued that FWS violated
NEPA by failing to take a hard look at the effects of
continued grazing on the greater sage-grouse and two
species of suckerfish. As to the sage-grouse, the panel held
that the Conservation Plan discussed at length the potential
effects of grazing on sage-grouse and why grazing would be
beneficial to sage-grouse habitat. The panel concluded that
the agency took a sufficiently hard look at the effects on
grazing on sage-grouse, including the cumulative effect. As
to the suckerfish, the panel held that the Conservation Plan
took a sufficiently hard look at the effects of managed
livestock grazing on suckerfish in Clear Lake Refuge.

Third, Western Watersheds maintained that FWS
violated the Refuge Act because grazing was an
incompatible use of the Refuge. The panel held that for the
same reasons that FWS’s decision to continue managed
grazing on Clear Lake Refuge did not violate NEPA, it did
not violate the Refuge Act either.
 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 7

The panel concluded that FWS did not act arbitrarily,
capriciously, or contrary to law in continuing the long-
standing practice of managed grazing on Clear Lake Refuge.

COUNSEL

Maura C. Fahey (argued) and Oliver J. H. Stiefel, Crag Law
Center, Portland, Oregon, for Plaintiffs-Appellants.

Stephanie M. Parent (argued), Center for Biological
Diversity, Portland, Oregon; Hannah M.M. Connor, Center
for Biological Diversity, St. Petersburg, Florida; for Plaintiff
Center for Biological Diversity.

John S. Persell (argued), Western Watersheds Project,
Hailey, Idaho; David H. Becker, Law Office of David H.
Becker, LLC, Portland, Oregon; Paul D. Ruprecht, Western
Watersheds Project, Reno, Nevada; for Plaintiff Western
Watersheds Project.

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.

Brittany K. Johnson (argued), Paul S. Simmons, and Alexis
K. Stevens, Somach Simmons & Dunn, PC, Sacramento,
California, 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
8 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND

Bureau Federation, Modoc County Farm Bureau, and
Siskiyou County Farm Bureau.

OPINION

BRESS, Circuit Judge:

In 2017, after more than six years of research, planning,
and consultation, the U.S. Fish and Wildlife Service (FWS)
adopted a Comprehensive Conservation Plan for five
National Wildlife Refuges in the Klamath Basin National
Wildlife Refuge Complex. The Conservation Plan and its
appendices span over 3,500 pages and address hundreds of
public comments. In this opinion, we consider challenges
by two conservation groups, the Center for Biological
Diversity (CBD) and the Western Watersheds Project, to two
discrete aspects of the Conservation Plan, as it relates to
three of the five National Wildlife Refuges that the
Conservation Plan covers.

CBD challenges the Conservation Plan’s pest-
management approach for the Lower Klamath and Tule Lake
Refuges. CBD contends that the Conservation Plan violates
federal law by failing to include a reduced-pesticide
alternative, and by failing to give adequate consideration to
the alleged environmental effects of pesticides on wildlife.
Western Watersheds challenges the Plan’s limited allowance
of livestock grazing on portions of Clear Lake Refuge.
Western Watersheds argues that the Conservation Plan
violates federal law by failing to include a reduced-grazing
alternative, and by failing to give adequate consideration to
the effects of grazing on the greater sage-grouse and two
species of suckerfish. CBD and Western Watersheds bring
their challenges under the National Environmental Policy
 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 9

Act (NEPA), the National Wildlife Refuge System
Administration Act of 1966, and the Kuchel Act, a lesser-
known federal law specific to the Klamath Basin Refuges.

After careful consideration, we conclude that CBD and
Western Watersheds have not demonstrated that FWS’s
Conservation Plan is arbitrary or capricious or otherwise
unlawful. FWS adequately considered its chosen
approaches to pest-management and grazing, and it
reasonably considered other alternatives. Our task is not to
second-guess FWS’s scientific judgment and institute our
own program for Refuge management, but to determine
whether FWS’s decision-making process was in accordance
with law. Because we conclude that it was, we affirm the
district court’s grant of summary judgment in FWS’s favor
on CBD’s and Western Watersheds’ claims. 1

I. Facts and Procedural History

A. The Klamath Basin

The Klamath Basin National Wildlife Refuge Complex
is a multi-use wetland area that spans approximately 200,000
acres at the border of southern Oregon and northern
California. It contains six different refuges, although we are
here concerned with three of them: Lower Klamath, Tule
Lake, and Clear Lake. This map in the record may be helpful
to orient the reader:

1
In separate opinions, we reject additional challenges to the
Conservation Plan brought by, among others, Tulelake Irrigation District
and the Audubon Society of Portland. Between our three opinions, we
therefore affirm in full the district court’s grant of summary judgment to
FWS.
10 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND

Like many other western locales, the history of this area is
characterized by deep-rooted disagreements over land and
water use and how to balance resource preservation with
longstanding ranching and farming operations. Although
the area was very different many generations ago, today it
reflects a highly complex interdependency between
agricultural uses and environmental preservation.

Under the National Wildlife Refuge System
Administration Act of 1966, as amended by the National
Wildlife Refuge System Improvement Act of 1997,
16 U.S.C. § 668dd, et seq. (together, the “Refuge Act”),
 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 11

FWS is required to prepare conservation plans for each
Refuge in the System. Id. § 668dd(e)(1)(A). We consider
here certain aspects of FWS’s 2017 Final Comprehensive
Conservation Plan / Environmental Impact Statement, which
covers the three Refuges at issue here. Some background on
these Refuges, with emphasis on the disputed issues in the
Conservation Plan, is necessary to frame this case.

B. Lower Klamath and Tule Lake Refuges

We begin with Lower Klamath and Tule Lake, which
relate to CBD’s challenge. In 1908, President Theodore
Roosevelt established Lower Klamath Refuge as a preserve
for native birds. This Refuge falls within the Klamath
Reclamation Project, a massive system of water diversion
and distribution that dates to the early twentieth century and
that serves approximately 200,000 acres of croplands and
50,000 acres of Refuges and wetlands. The water network
reflects more than a century of combined efforts by the
federal government and the States of California and Oregon
to distribute water to various stakeholders in the Basin
region.

Lower Klamath Refuge consists of about 54,000 acres,
of which 5,605 are leased for commercial farming. Barley,
oats, and wheat are all grown on leased lands in Lower
Klamath Refuge. Additional land within Lower Klamath
Refuge is cooperatively farmed by FWS and private parties,
subject to sharecrop agreements. While there are some
differences between the agricultural practices employed on
leased and cooperatively farmed lands, all farming is subject
to FWS’s ultimate control.

Although the entire Basin has experienced drought
conditions, Lower Klamath Refuge in particular has suffered
from severe water shortages in recent years. Disagreements
12 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND

over water in the Klamath Basin remain the subject of long-
running disputes in state and federal courts, and have also
led to multilateral negotiations that have been ongoing for
years. While we discuss these issues in greater detail in our
companion opinions, the point for present purposes is that
FWS in its Conservation Plan was constrained to devise
Refuge management strategies based on the limited
availability of water.

Tule Lake Refuge was established in 1928 as a refuge for
wild birds and animals. Like Lower Klamath, it falls within
the Klamath Reclamation Project. Tule Lake Refuge
consists of about 39,000 acres, of which roughly 14,800 are
leased for commercial farming. Tule Lake lease crops
include grains, alfalfa, potatoes, onions, and horseradish.
FWS and private parties cooperatively farm additional land
in the Refuge.

Relevant to both Tule Lake and Lower Klamath—and
CBD’s challenges to the Conservation Plan—are Congress’s
directives that these Refuges be used for both conservation
and agricultural purposes. In 1964, Congress passed the
Kuchel Act, see 16 U.S.C. §§ 695k–695r, which provides
that “all lands” within the subject Refuges are “dedicated to
wildlife conservation” and are to be administered “for the
major purpose of waterfowl management, but with full
consideration to optimum agricultural use that is consistent
therewith.” Id. § 695l. Mindful of its obligations under the
Kuchel Act, FWS in the Conservation Plan authorized
continued agriculture in both the Lower Klamath and Tule
Lake Refuges.

In doing so, FWS incorporated into the Conservation
Plan for all farmed lands an integrated pest management
(IPM) plan intended to “ensure that all potential pest
management strategies [are] considered for use (including
 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 13

physical, cultural, biological, and chemical),” based on
considerations of “human safety, environmental integrity,
effectiveness, and cost.” Pest prevention options under the
IPM plan include “crop rotation, cover crops, late or early
planting dates, crop variety selection, tillage practices, and
water and fertilizer management, as well as biological and
chemical controls.” The IPM plan and associated best
management practices “for mixing, handling, and applying
pesticides” are included in the stipulations in the lease
agreements. The IPM plan extended an existing IPM plan
that had been in place on the Refuges since 1998.

FWS incorporated an established Pesticide Use Proposal
(PUP) process into the IPM plan. The purpose of the PUP
process is “to evaluate the specifics of proposed chemicals,
treatment sites, application methods, and sensitive aspects of
use.” A PUP committee administers the PUP process and
oversees the approval of pesticides on the Refuges. That
committee consists of representatives from FWS, the Bureau
of Reclamation, and others “with expertise in integrated pest
management, pesticide toxicology, crop production, land
management, wildlife biology and the Endangered Species
Act.” Upon their review of pesticide data and ecological risk
assessments, PUP committee members “determine whether
or not a proposed pesticide use presents excessive risk to
Refuge wildlife resources and is consistent with Interior and
Service regulations and policies.”

The Conservation Plan explained that the “decision to
approve or disapprove a new chemical is based on extensive
toxicity data, proposed use of the pesticide, environmental
conditions, degradation rates, solubility, and availability of
other cultural, biological, or less toxic alternatives.” In
addition to complying with applicable federal laws and its
own regulations regarding pesticides, FWS engages in a
14 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND

variety of management practices on the Refuges to further
limit the adverse effects of pesticides, including the use of
“no spray zones” and specially approved pesticides near
water. The Conservation Plan does not approve any
particular pesticide for use on any Refuge; instead, it created
a series of processes for evaluating pesticides and managing
their use.

C. Clear Lake Refuge

Western Watersheds challenges the Conservation Plan’s
continuation of managed grazing on portions of Clear Lake
Refuge. President Taft established Clear Lake Refuge in
1911 as a preserve for native birds, including the greater
sage-grouse. The Refuge contains a “lek,” or breeding area,
for sage-grouse. The lek is located on what is called the “U,”
a 5,000-acre peninsula that extends into Clear Lake and that
contains sagebrush and native grasses. Sage-grouse depend
on sagebrush for nesting. This map shows the U jutting out
into Clear Lake with sagebrush habitat depicted in light blue,
primarily on the western portion of the peninsula:
 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 15

Clear Lake Refuge also includes habitat for two species of
endangered fish: the Lost River suckerfish and the shortnose
suckerfish. FWS listed both species as endangered in 1988.

Grazing has taken place in the Refuge area since the
1870s. And for decades, FWS has used “intensively
managed cattle grazing” in Clear Lake Refuge “to promote
16 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND

sage-steppe habitat to benefit greater sage-grouse.” 2 The
Plan discusses grazing in the context of the IPM plan
“because the primary purpose of the grazing program would
be to control invasive species.” Grazing is used “to control
invasive annual grasses and juniper seedlings, reduce
wildfire fuels, and create a mosaic of short-grass habitat to
meet wildlife objectives.” The grazing traditionally
occurred between mid-August and mid-November. The
Conservation Plan included the use of this long-standing
grazing tool as part of its no-action alternative for Clear Lake
Refuge.

In another alternative, which FWS ultimately adopted,
FWS considered an additional grazing period between
March and mid-April. Roughly 300 to 500 cattle would be
permitted to graze in one or two 1,500-acre pastures on east
side of the U. The Conservation Plan explained that FWS
“would use grazing to control exotic annual grasses and
assist with restoration of habitat on the east side of the ‘U’
that was damaged by the Clear Fire in 2001.”

The adopted alternative’s proposed spring grazing was
conditioned on “monitoring data” that would determine
whether both, either, or neither of the planned pastures on
the U should be grazed in a given year. To direct cattle away
from the shoreline and keep them off the western half of the
U (where sage-grouse nesting is more prevalent), the two
pastures would also include “flagged, electric wire fencing[,]
and water troughs would be installed at the upper ends of the
pastures away from Clear Lake.” “Experimental plots would
initially be established to fine-tune this strategy (e.g.,
number of cattle, duration, and timing),” and the “grazing

2
Sage-steppe is a grassland area dominated by sagebrush and other
shrubs.
 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 17

program would be phased out if it reduced the presence of
exotic annual grasses to a great enough extent that native
perennial grasses, forbs, and shrubs were successfully
reestablished.”

D. Procedural History

FWS began developing the Conservation Plan in spring
2010. In May 2010, FWS held four public meetings in
different locations in California and Oregon. FWS also
solicited and received numerous written comments and
provided briefings to various elected officials. Over the
years, FWS convened meetings with subject-matter experts
and reviewed extensive scientific literature.

In May 2016, spurred in part by a district court order
directing FWS to complete its review, FWS published a draft
Conservation Plan. FWS then held two more public
meetings and received nearly 800 additional comments.
FWS addressed the comments, made revisions, and
published the final Conservation Plan in December 2016.
After publication, Western Watersheds, among others,
submitted further comments to FWS.

In January 2017, the Department of the Interior adopted
the final Conservation Plan in a Record of Decision (ROD).
The ROD evaluated the alternatives FWS developed and
selected one alternative for each Refuge, with modifications.
The ROD also included an appendix responding to the
comments that Western Watersheds and others had
submitted after the Conservation Plan was finalized.

A week after the ROD was signed, Western Watersheds
filed its complaint against FWS in federal court. CBD did
the same two months later. The two cases were consolidated
with two other challenges to the Conservation Plan.
18 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND

Affirming the magistrate judge’s comprehensive and well-
reasoned recommendation, the district court granted
summary judgment to FWS on all claims. We address some
of those claims in two separate, concurrently issued
opinions. In this opinion, we address CBD’s challenges to
pesticide management in Lower Klamath and Tule Lake
Refuges, and Western Watersheds’ challenges to grazing on
Clear Lake Refuge.

II. Legal Standards

We review CBD’s and Western Watersheds’ challenges
to the Conservation Plan under the Administrative Procedure
Act (APA), “which authorizes courts to set aside agency
actions, findings, and conclusions if they are ‘arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.’” Ctr. for Biological Diversity v.
Bernhardt, 982 F.3d 723, 733–34 (9th Cir. 2020) (quoting
5 U.S.C. § 706(2)(A)).

We review de novo the district court’s grant of summary
judgment under the APA. Alaska Oil & Gas Ass’n v.
Pritzker, 840 F.3d 671, 675 (9th Cir. 2016). Under the APA,
our review of FWS’s Conservation Plan is “deferential and
narrow” and presumes the “agency’s action is valid.” Id.
(quoting Alaska Oil & Gas Ass’n v. Jewell, 815 F.3d 544,
554 (9th Cir. 2016)). Agency action should be affirmed “so
long as the agency considered the relevant factors and
articulated a rational connection between the facts found and
the choices made.” Id. (quoting Jewell, 815 F.3d at 554).
We review an agency’s factual conclusions for substantial
evidence. Ctr. for Cmty. Action & Env’t Just. v. FAA,
18 F.4th 592, 598 (9th Cir. 2021).

CBD and Western Watersheds bring their challenges
under three laws: the Refuge Act, the Kuchel Act, and
 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 19

NEPA. 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 mission of the Refuge
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.” Id. § 668dd(a)(2). Refuge
purposes are defined as “purposes specified in or derived
from the law . . . establishing, authorizing, or expanding a
refuge.” Id. § 668ee(10).

The Refuge Act requires FWS to prepare comprehensive
conservation plans for each Refuge at least every 15 years.
Id. §§ 668dd(e)(1)(A). The conservation plans must, among
other things, “identify and describe . . . significant problems
that may adversely affect the populations and habitats of
fish, wildlife, and plants within the planning unit and the
actions necessary to correct or mitigate such problems.” Id.
§ 668dd(e)(2). The plans are meant to “provide[] long-range
guidance and management direction to achieve the purposes
of the refuge.” 50 C.F.R. § 25.12(a) (2000). The plans are
thus programmatic documents that govern the overall
management and strategic direction of the Refuge. FWS is
directed to “manage the refuge or planning unit in a manner
consistent with the plan.” 16 U.S.C. § 668dd(e)(1)(E).

The Refuge Act also governs FWS’s management of
Refuge uses. That Act provides that FWS “shall not initiate
or permit a new use of a refuge or expand, renew, or extend
an existing use of a refuge, unless the Secretary has
determined that the use is a compatible use.” Id.
§ 668dd(d)(3)(A)(i). The Refuge Act defines a compatible
use as one that, in the agency’s “sound professional
judgment . . . will not materially interfere with or detract
20 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND

from the fulfillment of the mission of the System or the
purposes of the refuge.” Id. § 668ee(1).

The Kuchel Act is specific to the Klamath Basin Refuges
and applies to the three refuges at issue here. The Kuchel
Act was enacted in 1964 to prohibit private homesteading of
Refuge lands, to “preserve intact the necessary existing
habitat for migratory waterfowl in this vital area of the
Pacific flyway, and to prevent depredations of migratory
waterfowl on agricultural crops in the Pacific Coast States.”
Id. § 695k. The Kuchel Act declared that “all lands” within
the subject Refuges were “hereby dedicated to wildlife
conservation” and were to be administered “for the major
purpose of waterfowl management, but with full
consideration to optimum agricultural use that is consistent
therewith.” Id. § 695l. The Kuchel Act also specified that
the Secretary of the Interior “shall, consistent with proper
waterfowl management, continue the present pattern of
leasing” in the Lower Klamath and Tule Lake Refuges. Id.
§ 695n.

NEPA, another environmental protection statute, forms
the basis for most of the challenges we address. NEPA “does
not mandate particular results, but simply provides the
necessary process to ensure that federal agencies take a hard
look at the environmental consequences of their actions.” N.
Alaska Env’t Ctr. v. Kempthorne, 457 F.3d 969, 975 (9th Cir.
2006) (quoting Muckleshoot Indian Tribe v. U.S. Forest
Serv., 177 F.3d 800, 814 (9th Cir. 1999)). NEPA thus
“protect[s] the environment by requiring that federal
agencies carefully weigh environmental considerations and
consider potential alternatives to the proposed action before
the government launches any major federal action.” League
of Wilderness Defenders–Blue Mountains Biodiversity
Project v. U.S. Forest Serv., 689 F.3d 1060, 1068 (9th Cir.
 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 21

2012) (quoting Barnes v. U.S. Dep’t of Transp., 655 F.3d
1124, 1131 (9th Cir. 2011)).

To that end, NEPA requires federal agencies to prepare
an Environmental Impact Statement (EIS) for “major
Federal actions significantly affecting the quality of the
human environment.” 42 U.S.C. § 4332(C). An EIS must
“study, develop, and describe appropriate alternatives to
recommended courses of action in any proposal which
involves unresolved conflicts concerning alternative uses of
available resources.” Id. § 4332(E). The EIS must “present
the environmental impacts of the proposal and alternatives
in comparative form” to give a “clear basis for choice among
options by the decisionmaker and the public.” 40 C.F.R.
§ 1502.14. 3 This requires disclosure of the environmental
impacts of the proposed action and its alternatives, including
their direct, indirect, and cumulative effects. See id.
§§ 1502.16, 1508.7, 1508.8; see also Ctr. for Env’t L. &
Pol’y v. U.S. Bureau of Reclamation, 655 F.3d 1000, 1006–
07 (9th Cir. 2011). NEPA also requires agencies to analyze
a reasonable range of alternatives to the proposed action.
42 U.S.C. § 4332(E); see also 40 C.F.R. §§ 1501.2(c),
1502.14(a). But “for alternatives which were eliminated
from detailed study,” an agency need only “briefly discuss
the reasons for their having been eliminated.” Id.
§ 1502.14(a).

“In reviewing the adequacy of an EIS under NEPA, we
employ ‘a rule of reason’ analysis to determine whether the
discussion of the environmental consequences included in
the EIS is sufficiently thorough.” Ctr. for Biological

3
While NEPA’s implementing regulations were amended in
September 2020, the 1978 versions were in effect at the time the ROD
was issued. We thus cite the 1978 versions, which govern here.
22 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND

Diversity, 982 F.3d at 734 (quoting Kern v. U.S. Bureau of
Land Mgmt., 284 F.3d 1062, 1071 (9th Cir. 2002)). “The
rule of reason guides ‘both the choice of alternatives as well
as the extent to which the [EIS] must discuss each
alternative.’” Am. Rivers v. FERC, 201 F.3d 1186, 1200 (9th
Cir. 1999) (quoting City of Carmel-by-the-Sea v. U.S. Dep’t
of Transp., 123 F.3d 1142, 1155 (9th Cir. 1997)). The rule
of reason analysis is “‘essentially the same’ as an abuse of
discretion analysis.” Ctr. for Biological Diversity, 982 F.3d
at 734 (quoting Kern, 284 F.3d at 1072). Thus, an “agency
will have acted arbitrarily and capriciously only when ‘the
record plainly demonstrates that [the agency] made a clear
error in judgment in concluding that a project meets the
requirements’ of NEPA.” Native Ecosystems Council v.
Weldon, 697 F.3d 1043, 1052 (9th Cir. 2012) (quoting Tri-
Valley CAREs v. U.S. Dep’t of Energy, 671 F.3d 1113, 1124
(9th Cir. 2012)) (alteration in original).

III. CBD Appeal

We begin with CBD’s challenges to the Conservation
Plan, which are threefold. First, CBD argues that FWS
failed to consider reduced-pesticide alternatives for Lower
Klamath and Tule Lake Refuges. Second, CBD argues that
FWS failed to take a sufficiently hard look at the effects of
pesticides on these Refuges. Third, CBD argues that FWS
violated the Refuge and Kuchel Acts by permitting
continued pesticide use on the Refuges.

These challenges lack merit. We hold that FWS did not
act arbitrarily, capriciously, or contrary to law by continuing
to use the Pesticide Use Proposal (PUP) process to evaluate
potential pesticide applications on the Refuges, and by
allowing for pesticide use as a last resort.
 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 23

A. Reasonable Range of Alternatives

First, FWS did not act unlawfully under NEPA by not
considering formal reduced-pesticide alternatives for Lower
Klamath and Tule Lake Refuges. “NEPA requires an EIS to
describe and analyze ‘every reasonable alternative within the
range dictated by the nature and scope of the proposal.’”
Alaska Survival v. Surface Transp. Bd., 705 F.3d 1073, 1087
(9th Cir. 2013) (quoting Friends of Southeast’s Future v.
Morrison, 153 F.3d 1059, 1065 (9th Cir. 1998)). But an EIS
“need not consider an infinite range of alternatives, only
reasonable or feasible ones.” City of Sausalito v. O’Neill,
386 F.3d 1186, 1207 (9th Cir. 2004) (quoting City of Carmel,
123 F.3d at 1155). And, as noted, alternatives eliminated
from detailed study need only be briefly discussed. See id.

In this case, the Conservation Plan considered four
formal alternatives for Lower Klamath Refuge and three
alternatives for Tule Lake. Each alternative, while differing
in various other respects, incorporated and expanded the
integrated pest management (IPM) plan that FWS had been
using on the Refuges since 1998. The PUP process, by
which specific pesticide applications may be studied and
approved—“as a last line of defense against pests, not as the
first option of control”—is just one of the IPM plan’s many
pest-control components. Alternative C, FWS’s selected
alternative for Lower Klamath Refuge, committed FWS to
“evaluate and permit chemical applications according to
Service and [Interior] policies,” “scout, map, and control
priority weed species with an emphasis on protecting high-
priority wildlife habitats,” and “[e]xpand use of non-
pesticide tools to control invasive species in wetland and
upland units (e.g., grazing, restoration plantings).” The
selected alternative for Tule Lake Refuge, also
Alternative C, included similar commitments.
24 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND

CBD does not maintain that FWS should have
considered a complete prohibition on chemical pesticide use
on the Refuges. But it claims that FWS failed to consider a
reasonable range of alternatives under NEPA because FWS
did not consider mandating a reduction in existing pesticide
use. We conclude that CBD’s arguments are unavailing.
FWS adequately explained that some amount of pesticide
use was necessary on the Refuges to ensure sufficient crop
production, on which Refuge waterfowl now depend. And
FWS could conclude that reduced-pesticide alternatives
would not have been reasonable given the uses and purposes
of the Refuges. Thus, NEPA did not obligate FWS to
consider reduced-pesticide alternatives.

The range of alternatives that an agency must consider
under NEPA is based on the purpose and need of the
proposed agency action. Westlands Water Dist. v. U.S.
Dep’t of Interior, 376 F.3d 853, 865 (9th Cir. 2004). So we
“begin[] by determining whether or not the Purpose and
Need Statement was reasonable.” Id. Here, FWS defined
the purposes and needs of the Conservation Plan (which
included the EIS) as “develop[ing] and implement[ing] a
comprehensive 15-year management plan for the Refuge
Complex consistent with refuge purposes; refuge goals and
objectives; and applicable laws, regulations, and policies.”
FWS further articulated particular purposes for the covered
Refuges, including “provid[ing] wetland and agricultural
habitats that meet food and cover requirements sufficient to
support migratory waterfowl.” The agency’s explanation of
the purposes and needs of its proposed action was
reasonable, and CBD does not argue otherwise.

The next question is whether FWS considered
reasonable alternatives given the Conservation Plan’s
purposes and needs. Westlands, 376 F.3d at 868. “The
 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 25

touchstone for our inquiry is whether an EIS’s selection and
discussion of alternatives fosters informed decision-making
and informed public participation.” Id. (quoting California
v. Block, 690 F.2d 753, 767 (9th Cir. 1982)); see also Pac.
Coast Fed’n of Fishermen’s Ass’ns v. Blank, 693 F.3d 1084,
1099 (9th Cir. 2012) (explaining that agencies are required
“to set forth only those alternatives necessary to permit a
reasoned choice” (quoting Presidio Golf Club v. Nat’l Park
Serv., 155 F.3d 1153, 1160 (9th Cir. 1998))). In this case,
FWS considered multiple pest-control methods and
reasonably included a long-standing PUP process by which
a committee of experts could review and, if necessary,
approve, pesticide applications.

FWS fostered informed public participation in the
Conservation Plan, which included consideration of
reducing pesticide use. During the Conservation Plan’s
scoping process, which took place years before the Plan was
eventually adopted, FWS solicited and received numerous
public comments and held four public meetings. FWS
summarized the scoping discussion in a report issued in
January 2011. FWS explained that some commenters
suggested that “agriculture enhances uses of the refuge[s] by
many waterfowl” and that “crops supply more than 50% of
feed for the Pacific Flyway.” But it recounted how others
argued that “agriculture is incompatible on national wildlife
refuges.” Similarly, “[m]any respondents called for totally
prohibiting the use of chemicals including pesticides and
fertilizers,” with some maintaining “that non-organic
farming should cease.” There were also public comments
about row crops, like onions, which were criticized for
having “minimal wildlife use” and “requir[ing] pesticides
and fertilizers.” From the beginning of the planning process,
therefore, FWS provided for “informed decision-making and
informed public participation” as to pesticide use on the
26 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND

Refuges, and specifically whether it should be reduced. See
Protect Our Cmtys. Found. v. Jewell, 825 F.3d 571, 579 (9th
Cir. 2016) (quoting Churchill Cnty. v. Norton, 276 F.3d
1060, 1071 (9th Cir. 2001)).

Following the scoping process, FWS determined that
agriculture was a compatible use of the Refuges, subject to
certain stipulations. That determination is the subject of one
of our companion opinions in these consolidated appeals, in
which we hold that FWS’s decision to permit continued
farming on Lower Klamath and Tule Lake Refuges was not
arbitrary, capricious, or contrary to law. And in this case,
FWS’s decision to continue allowing a process by which
specific pesticide applications can be approved largely
followed from the decision to continue farming certain
portions of the Refuges.

The Plan specifically explained that over time,
agricultural crops had become an “integral” source of food
for Refuge wildlife: grains grown on the Refuges “provide a
rich source of carbohydrates” for waterfowl and “provide[]
more food (kcal/acre) for less water than wetland plants,”
which is critical given water shortages. FWS thus concluded
that Refuge agricultural programs are “a component of the
overall habitat management program,” and that crops grown
on the Refuges are “an integral part of achieving waterfowl
population objectives.” Although some crops grown on Tule
Lake Refuge, like horseradish and onions, “have no food
value for waterfowl,” FWS found that they were still
“important crops in soil rotation for reducing pests and
improving soil health,” and they had historically been
permitted “to obtain maximum lease revenues while
consistent with proper waterfowl management.”

Crop cultivation requires pest management.
Underscoring this, the Conservation Plan recounted the
 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 27

history of pesticide applications in Lower Klamath and Tule
Lake Refuges, dating back to 1946, citing over a dozen
studies and explaining that studies show low concentrations
of pesticides in water bodies and limited adverse impacts on
wildlife. To that end, the Conservation Plan merely
incorporates and expands an IPM plan that has now been in
place on the Refuges since 1998.

The Conservation Plan’s allowance of pesticides was
also limited, in that the IPM plan does not itself authorize the
use of any particular pesticide. Instead, it provides a
rigorous process through which farmers can request
permission to apply a specific pesticide to a specific crop at
a specific time. For this reason, among others, FWS
reasonably declined to consider alternatives so detailed as to
address individual pesticides, as that would have required a
wider range of alternatives than would have been reasonable
given the Conservation Plan’s purposes and needs. See
Westlands, 376 F.3d at 868. Adaptive management plans
like the IPM plan, which provide “flexibility in responding
to environmental impacts,” are permissible under NEPA.
Protect Our Communities, 825 F.3d at 582.

In responding to multiple public comments, FWS
explained that pesticide applications are necessary to
manage pests in the “highly altered nature of the refuge
environment and surrounding area.” FWS thus reasonably
included a process by which some pesticide applications
could be approved in each of the alternatives it developed.
“Those challenging the failure to consider an alternative
have a duty to show that the alternative is viable.” Alaska
Survival, 705 F.3d at 1087. And here, CBD has not provided
a sufficient basis for questioning FWS’s determination not
to further consider reduced pesticide options.
28 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND

CBD acknowledges that there are “fewer options to
reduce pesticide use” in Lower Klamath Refuge, given how
limited the pesticide use in that Refuge already is. CBD
instead argues that FWS should have considered allowing
only organic farming on Lower Klamath Refuge. But FWS
explained in response to public comments that it would “not
make organic agriculture a strict requirement” because it “is
dependent on a consistent water supply and external
economic forces that are beyond [FWS’s] control.” The
Conservation Plan explained in detail the challenging water
shortages that Lower Klamath Refuge faces. FWS also
explained that “even in organic systems[,] over time crop
pests tend to build up in the system, often precipitating a
need to convert land back to conventional agriculture.”

FWS’s explanations for not mandating organic-only
agriculture in Lower Klamath Refuge were based on its
scientific judgment and are entitled to deference. See Alaska
Survival, 705 F.3d at 1087 (explaining that “[w]ithout
evidence to the contrary, we defer to the [agency’s] technical
expertise regarding” the feasibility of a proposed
alternative); Native Ecosystems, 697 F.3d at 1051 (“A court
generally must be ‘at its most deferential’ when reviewing
scientific judgments and technical analyses within the
agency’s expertise under NEPA.” (quoting N. Plains Res.
Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067, 1075
(9th Cir. 2011))). FWS therefore sufficiently explained its
reasons for not considering an organic-only alternative. See
40 C.F.R. § 1502.14(a) (requiring agency to “briefly discuss
the reasons” for eliminating alternatives from detailed
study).

As to Tule Lake Refuge, CBD argues that FWS should
have limited pesticide use “to only a few herbicides” and
should have disallowed the planting of “insecticide-
 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 29

intensive potatoes and onions,” as FWS already does on
Lower Klamath Refuge. But FWS explained that row crops
like potatoes and onions, despite providing limited food
value for waterfowl, are nonetheless valuable in reducing
crop pests and improving soil health. The Kuchel Act also
specifically contemplates row crops. See 16 U.S.C. § 695n
(requiring that “not more than 25 per centum of the total
leased lands may be planted to row crops”). Row crops
require different and additional pesticides than the crops
grown on Lower Klamath Refuge, justifying the flexibility
that the PUP process provides in evaluating pesticide
applications on the two Refuges.

CBD identifies no authority that would have required
FWS to simplistically limit pesticide applications on Tule
Lake Refuge to those permitted on Lower Klamath. FWS
leases about 14,800 acres for farming on Tule Lake Refuge,
versus only approximately 5,600 acres on Lower Klamath
Refuge. It is understandable that the much larger farming
area in Tule Lake would require a broader pesticide
approach. The two Refuges also differ in terms of soil
health, hydrology, and climate, which in turn leads to
different crop-growing strategies. Given these differences,
CBD has not shown that it would have been reasonable or
feasible, see City of Sausalito, 386 F.3d at 1207, for FWS to
impose identical restrictions on pesticide use on the two
Refuges.

In sum, FWS adequately explained why a process by
which pesticides could be approved for use on the Refuges
was essential to meeting the Conservation Plan’s purposes,
and CBD has not shown that FWS unreasonably failed to
address any feasible reduced-pesticide alternative.
30 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND

B. “Hard Look” Analysis

We next consider whether, under NEPA, FWS took a
sufficiently thorough “hard look” at the environmental
effects of pesticides on the Refuges in concluding that
pesticides could continue to be used with minimal
environmental consequences. See Ctr. for Biological
Diversity, 982 F.3d at 734. In performing this review, we do
not “fly-speck” FWS’s analysis and “hold it insufficient on
the basis of inconsequential, technical deficiencies.”
Swanson v. U.S. Forest Serv., 87 F.3d 339, 343 (9th Cir.
1996) (quoting Or. Env’t Council v. Kunzman, 817 F.2d 484,
492 (9th Cir. 1987)). Instead, we “employ a ‘rule of reason’
to determine whether it contains ‘a reasonably thorough
discussion of the significant aspects of the probable
environmental consequences.’” Id. (quoting Or. Env’t
Council, 817 F.2d at 492). Under NEPA, we “refrain from
acting as a type of omnipotent scientist,” Tri-Valley CAREs,
671 F.3d at 1126, and “must defer to an agency’s decision
that is ‘fully informed and well-considered,’” N. Alaska
Env’t Ctr., 457 F.3d at 975 (quoting Save the Yaak Comm. v.
Block, 840 F.2d 714, 717 (9th Cir. 1988)).

The record confirms that FWS took a “hard look” at the
direct, indirect, and cumulative effects of its decision to re-
adopt and extend the PUP process for reviewing potential
pesticide applications on the Refuges. See 40 C.F.R.
§§ 1502.16, 1508.7, 1508.8. The Conservation Plan
explained that “[e]vidence of adverse impacts associated
with current pesticide use on the refuges is limited.” FWS
further determined that the PUP process, which it described
in considerable detail, ensures that only pesticide
applications that “would likely cause minor, temporary, or
localized effects to refuge biological resources and
 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 31

environmental quality would be allowed for use.” The
agency sufficiently explained these conclusions.

The PUP process has been in use on the Refuges since it
was analyzed and adopted as part of the 1998 IPM plan,
which FWS incorporated into the Conservation Plan. In the
Conservation Plan’s 53-page appendix dedicated solely to
the IPM plan, FWS thoroughly described the PUP process
and explained how the process enables careful review of
pesticide applications. FWS explained that the

selective use of pesticides is based upon pest
ecology (including mode of reproduction),
the size and distribution of its populations,
site-specific conditions (e.g., soils and
topography), known efficacy under similar
site conditions, and the capability to utilize
best management practices . . . to
reduce/eliminate potential effects to non-
target species, sensitive habitats, and
potential to contaminate surface and
groundwater.

FWS has also emphasized that the PUP process is a
“screening risk assessment . . . intended to be complemented
by the National Pesticide Consultations done by the National
Marine Fisheries Service, [FWS], and EPA.” FWS’s
judgment that the PUP process is sufficiently rigorous for
evaluation of pesticide applications is entitled to deference.
See Native Ecosystems, 697 F.3d at 1051.

Although CBD suggests that FWS was required to revisit
the 1998 IPM plan’s analyses and reevaluate whether the
PUP process remained sufficient, it was reasonable for FWS
to decline to do so when it had no indication that the PUP
process was inadequate. See Dep’t of Transp. v. Pub.
32 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND

Citizen, 541 U.S. 752, 767 (2004) (requiring no new EIS
based on “new potential information” where it “would serve
‘no purpose’ in light of NEPA’s regulatory scheme as a
whole”). Nor has CBD shown that the 1998 IPM plan’s
analysis was so stale—only 12 years old at the time the
planning process here began—that FWS could not
reasonably rely on it. See League of Wilderness
Defenders/Blue Mountains Biodiversity Project v.
Connaughton, 752 F.3d 755, 763 (9th Cir. 2014) (explaining
that although the agency’s “surveys were aged—more than
15 years old by the time the Final EIS was released,” there
“was no reliable evidence that showed their results were
likely incorrect,” so the agency’s conduct was not arbitrary
or capricious). That is particularly so in the absence of CBD
identifying any materially changed circumstances. See
40 C.F.R. § 1500.1(a) (“NEPA’s purpose is not to generate
paperwork or litigation, but to provide for informed decision
making and foster excellent action.”).

We also reject CBD’s argument that FWS was required
to examine specific pesticides in conducting the “hard look”
analysis. The Conservation Plan did not approve particular
pesticides, but instead re-adopted and extended the rigorous
PUP process to approve pesticide applications where
necessary. CBD points to nothing in NEPA or our case law
that required granular evaluation of specific pesticides under
these circumstances, particularly when, as here, FWS
already publishes annually a complete listing of the
approved pesticide applications. In any event, in an
appendix to the Conservation Plan and in response to public
comments, FWS included tables showing the current and
potential future uses of pesticides on Lower Klamath and
Tule Lake and provided a detailed spreadsheet containing
information on pesticides that had been approved for use on
the Refuges. The record thus reflects that FWS familiarized
 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 33

itself with the specific pesticides that had been used on the
Refuges.

In addition to the stiff controls that the PUP process
imposes, and further supporting its “hard look,” FWS based
its conclusion that pesticide effects are minor on (1) an
earlier analysis from the 1998 IPM plan’s Environmental
Assessment (“EA”), (2) a 2007 Formal Section 7
Consultation for the Implementation of the Pesticide Use
Program on Federal Leased Lands, Tule Lake and Lower
Klamath National Wildlife Refuges (“2007 BiOp”), and
(3) recent monitoring data. Although CBD concedes that
FWS properly incorporated these analyses into the
Conservation Plan, CBD argues that they were insufficient
to support a “hard look.” We disagree.

The 1998 IPM plan’s EA supports the agency’s
conclusions about the manageable effects of pesticides on
the Refuges. See Tri-Valley CAREs, 671 F.3d at 1124
(explaining that “[a] court generally must be ‘at its most
deferential’ when reviewing scientific judgments and
technical analyses within the agency’s expertise” (quoting
N. Plains, 668 F.3d at 1075)). The EA found that “[n]o
mortalities have been documented from current-generation
pesticides in waterfowl, fish-eating birds, or raptors on the
refuges.” The EA also found “that no pesticide-related
wildlife deaths ha[d] been documented on the [Refuges]
since 1990.” The EA described how “waterfowl numbers
have risen dramatically where new wetlands . . . have been
created, despite the use of pesticides adjacent to these
wetlands.” And the EA discussed a variety of studies
showing declines in pesticide concentrations on the Refuges,
including one that specifically found in the Tule Lake sumps
“only ultratrace to nondetectable concentrations of
pesticides.” See 43 C.F.R. § 46.120(a) (“When available,
34 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND

the [agency] should use existing NEPA analyses for
assessing the impacts of a proposed action and any
alternatives.”).

Consistent with the EA, the 2007 BiOp on which FWS
relied similarly found that “the use of pesticides and
fertilizers on federal lease lands would not likely adversely
affect Lost River sucker or shortnose sucker.” In addition to
these two earlier analyses, FWS relied on various other
studies that supported its findings. For example, citing three
past studies, FWS noted that “more recently, no pesticides
have been documented in refuge waters at concentrations
that are toxic to fish and wildlife.” And given the absence
of material changes at the Refuges in the intervening years,
FWS could reject CBD’s contention that these studies were
too dated. See Native Ecosystems, 697 F.3d at 1051 (“[A]n
agency must have discretion to rely on the reasonable
opinions of its own qualified experts.”).

Recent monitoring data underscores the Conservation
Plan’s hard-look analysis and supports FWS’s view that the
PUP process has not led to adverse environmental
consequences. In 2007 and 2011, FWS conducted water
sampling at four locations in Tule Lake adjacent to leased
land farming operations (Tule Lake is the Refuge that CBD
identifies as involving greater pesticide use). FWS’s
sampling was conducted every two weeks during the
pesticide application seasons.

During the first monitoring season, of the 51 samples,
160 compounds, and 3,260 analyses that were examined,
only two pesticide detections raised any concerns, and both
were low-level detections. During the second monitoring
season, which took place after the Conservation Plan’s
scoping had concluded, only two pesticide compounds were
detected, and the overall monitoring “suggest[ed] that no
 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 35

pesticides are entering Tule Lake from the application of
pesticides on federal lease lands.” FWS thus concluded that
the data “shows that of the pesticides applied to croplands on
Tule Lake Refuge only a few are present in the water body
and at concentrations low enough that they should not be
adversely affecting fish within the lake.” Collectively, these
various findings support FWS’s determination that existing
pesticide use under the PUP process did not produce adverse
environmental effects on the Refuges.

CBD’s remaining challenges to FWS’s hard-look
analysis are equally unpersuasive. CBD complains that,
even if the Conservation Plan reflects sufficient
consideration of the direct effects of pesticides, FWS failed
to consider indirect and cumulative effects. CBD chiefly
relies on our decision in Neighbors of Cuddy Mountain v.
United States Forest Service, 137 F.3d 1372 (9th Cir. 1998),
which remanded for further analysis a Forest Service
decision involving timber sales. Id. at 1382. But Neighbors
of Cuddy Mountain is readily distinguishable because it
involved a truly bare record. There, the Forest Service
included almost no quantitative data and failed to include
information about the core aspects of the proposed agency
action. See id. at 1379 (explaining that the agency “ha[d]
failed to even mention the number or percentage of trees”
affected).

In this case, by contrast, FWS has reviewed and provided
extensive information about the years-long process of
developing the multi-thousand-page Conservation Plan and
appendices, of which pesticide use is just one component.
As we have described, even as to that component, the PUP
process prescribes a detailed review for every pesticide use,
and FWS has incorporated and reasonably relied upon earlier
analyses, including the 1998 IPM plan’s EA, the 2007 BiOp,
36 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND

and recent monitoring data. FWS also provided extensive
details on every pesticide that had been approved for use on
the Refuges. Against this substantial body of scientific
evidence, FWS’s recognition that some of the studies it
relied on contained gaps, and that a lack of data made certain
detailed assessments difficult, does not render the agency’s
NEPA analysis inadequate. See San Luis & Delta-Mendota
Water Auth. v. Jewell, 747 F.3d 581, 592 (9th Cir. 2014)
(explaining that an agency need not support its findings
“with anything approaching scientific certainty” (quoting
Indus. Union Dep’t v. Am. Petroleum Inst., 448 U.S. 607,
656 (1980) (plurality opinion))).

In addition, FWS further addressed the indirect effects of
potential pesticide applications in response to public
comments, pointing out, among other things, that the PUP
process itself considers indirect effects. FWS also explained
that because it “would follow all pesticide label restrictions
and [best management practices], pesticides would not be
applied directly to, or within the no-spray buffer of, surface
waters.” This meant that “indirect impacts to aquatic and
terrestrial species that use refuge aquatic resources for food,
cover, nesting, etc. would not be likely to occur.”

As to cumulative effects, and in addition to the scientific
evidence we have already discussed, the Conservation Plan
included an additional section reviewing the cumulative
effects of various Refuge projects. CBD identifies no
authority requiring FWS to consider the cumulative effect of
every pesticide application approved by the PUP process
when the Conservation Plan did not approve any specific
pesticides for use. See, e.g., Selkirk Conservation All. v.
Forsgren, 336 F.3d 944, 964 (9th Cir. 2003) (holding that
FWS “may employ any method that adequately considers
cumulative impacts” under the Endangered Species Act
 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 37

(ESA) and was not required to “list, detail, and discuss each
and every forest practices application”); Mont. Wilderness
Ass’n v. Connell, 725 F.3d 988, 1003 (9th Cir. 2013)
(affirming an agency’s resource management plan in
relevant part “notwithstanding the absence of a cumulative
impact section” where the agency’s cumulative impact
analysis was reflected elsewhere in the EIS). FWS need only
study those cumulative effects that are “reasonably
foreseeable,” 40 C.F.R. § 1508.7, and CBD has not
demonstrated that FWS acted contrary to this mandate.

In sum, the Conservation Plan adopts and expands a
pesticide-approval process that has been successfully used
on the Refuges for over 20 years. Under the PUP process,
every specific pesticide application is reviewed in detail by
a committee of experts, pesticides are approved only “when
other IPM methods are impractical or incapable of providing
adequate control, eradication, or containment,” and
pesticides are applied subject to various restrictions and best
practices. Various studies have confirmed the effectiveness
of the PUP process in controlling the potentially harmful
effects of pesticides on the Refuges. On these facts, the
Conservation Plan’s discussion of the effects of pesticides
reflected the required “hard look.”

C. Refuge Act and Kuchel Act

For the same reasons that FWS’s inclusion of the PUP
process for Lower Klamath and Tule Lake Refuges does not
violate NEPA, it does not violate the Refuge Act or the
Kuchel Act either. As we have explained, FWS’s inclusion
of the PUP process reflected its reasoned scientific judgment
that some pesticide applications could be necessary to ensure
a continued food supply for waterfowl, and that PUP-
approved pesticide applications would have only minor
effects on wildlife. Just as CBD has not shown that FWS
38 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND

acted unreasonably under NEPA, it has not shown that FWS
failed to ensure that pesticide use is a compatible use of the
Refuges or that it is not consistent with proper waterfowl
management under the Kuchel Act. See 16 U.S.C.
§ 668dd(d)(3)(A)(i); id. §§ 695l, 695n. We thus reject
CBD’s challenges to the Conservation Plan’s approach to
pesticide applications on Lower Klamath and Tule Lake
National Wildlife Refuges.

IV. Western Watersheds’ Appeal

We turn next to Western Watersheds’ appeal. Western
Watersheds challenges FWS’s decision to continue managed
livestock grazing on Clear Lake Refuge. Western
Watersheds argues that FWS violated NEPA by failing to
consider a formal reduced-grazing alternative and by failing
to take a hard look at the effects of continued grazing on the
greater sage-grouse and two species of suckerfish. Western
Watersheds further maintains that FWS violated the Refuge
Act because, in its view, grazing is an incompatible use of
the Refuge. We hold, however, that FWS did not act
arbitrarily, capriciously, or contrary to law in continuing the
long-standing practice of managed grazing on Clear Lake
Refuge.

A. Reasonable Range of Alternatives

The Conservation Plan considered two alternatives for
grazing on Clear Lake Refuge. Under Alternative A, the no-
action alternative, FWS would continue authorizing
“intensively managed cattle grazing” on the Refuge between
mid-August to mid-November. Under Alternative B, FWS
would add an experimental grazing period in the spring,
creating new pastures to be “grazed with 300 to 500 cattle
from March 1 to mid-April.” The agency ultimately adopted
Alternative B.
 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 39

Western Watersheds argues that FWS violated NEPA by
not considering a reduced-grazing or no-grazing alternative.
But FWS adequately explained in the Conservation Plan
why these alternatives were not reasonable. We again start
with the Conservation Plan’s unchallenged statement of
purposes and needs, see Westlands, 376 F.3d at 865, which
explained that the agency’s objective was to “develop and
implement a comprehensive 15-year management plan for
the Refuge Complex consistent with refuge purposes; refuge
goals and objectives; and applicable laws, regulations, and
policies.” The very first goal that FWS included for Clear
Lake Refuge was to “[p]rotect, maintain, and restore
sagebrush-steppe and associated upland and wetland
communities characteristic of the Great Basin ecosystem.”

FWS was required only to “‘briefly discuss’ the reasons”
for eliminating from detailed consideration a reduced-
grazing alternative. See Protect Our Communities, 825 F.3d
at 581 (quoting 40 C.F.R. § 1502.14(a)). And “[t]he rule of
reason ‘guides both the choice of alternatives as well as the
extent to which the [Plan] must discuss each alternative.’”
City of Sausalito, 386 F.3d at 1207 (quoting City of Carmel,
123 F.3d at 1155).

Here, FWS provided sufficient reasons for not including
a reduced-grazing alternative for Clear Lake Refuge. Most
centrally, the Conservation Plan explained grazing was
necessary to promote sage-steppe habitat, on which the
greater sage-grouse depends. In particular, grazing was
needed to “control priority weed species with an emphasis
on protecting high-priority wildlife habitats,” “control
invasive annual grasses and juniper seedlings,” “reduce
wildfire fuels,” “assist with restoration of habitat on the east
side of the ‘U’ Unit that was damaged by the Clear Fire,”
40 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND

and “allow for accelerated sagebrush restoration and prevent
further destruction of this desired habitat.”

To ensure that grazing “would support the Refuge’s
habitat goals, would not conflict with the other Refuge goals,
and would not materially interfere with or detract from
fulfillment of Clear Lake NWR’s purposes or the Refuge
System’s mission,” FWS discussed various scientific
analyses, cited nearly thirty academic sources, and imposed
more than a dozen stipulations on participating ranchers. Far
from consisting of “only narratives of expert opinions,”
Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt.,
387 F.3d 989, 996 (9th Cir. 2004), the Conservation Plan
described the manner in which grazing would continue to be
implemented and explained that, for the spring grazing
period, “[e]xperimental plots would initially be established
to fine tune th[e] strategy (e.g., number of cattle, duration,
and timing).” In addition, the “mix, acreage, locations, and
timing of management techniques deployed during any
particular year would be based on an assessment of current
and likely future habitat conditions and wildlife needs.”

In response to Western Watersheds’ comments about the
potential harm that grazing could cause wildlife, FWS
“disagree[d] that habitat management using prescriptive
grazing, herbicide treatments, and juniper removal would
harm resources on the refuge.” FWS described “invasive
annual grasses and the western juniper” as a “management
challenge,” with western juniper constituting “one of the
greatest risks to the continued existence of sage grouse in
this area.” Juniper “out-competes desirable vegetation (e.g.,
sagebrush, other shrubs, forbs, and grasses)” that sage-
grouse rely on, with the Conservation Plan noting that
“[j]uniper expansion has been documented as one cause for
greater sage-grouse to abandon leks.” Other invasive
 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 41

grasses, like cheatgrass and medusahead, also “out-compete
perennial bunchgrasses and some other native plants (e.g.,
forbs and sagebrush) that provide valuable wildlife habitat.”
These invasive grasses at the same time “provide an
abundance of fine fuels for wildfires and can increase the
intensity and severity of wildfires.” FWS thus explained that
grazing “is used to create short grass areas for spring
foraging by geese; reduce the extent of exotic annual
grasses; help rehabilitate previously burned sagebrush
habitats by providing native shrubs, bunchgrasses, and forbs
with a competitive edge; and reduce the quantity of fine fuels
and the potential for future wildfires” (which, FWS noted,
“can set back sagebrush restoration for decades”). In short,
FWS concluded that managed grazing was necessary for
ensuring sage-grouse habitat, and it sufficiently explained
that position.

Western Watersheds also focused its public comments
on the fact that no “reductions or removal of livestock” were
analyzed in the Conservation Plan. But FWS in response
reiterated that “grazing is a management method that is
highly controlled at Clear Lake,” and that the “the timing,
intensity[,] and duration of grazing are all managed to
produce a specific result based on the habitat objectives.” In
the spring, for instance, “non-native cheatgrass and
medusahead are preferentially grazed by cattle,” so FWS
therefore proposed “short-term, intense grazing at this time
of year specifically to help slower growing native
bunchgrasses flourish.” FWS cited supporting research
“indicat[ing] that this kind of grazing . . . reduces annual
grasses and increases native perennials and forbs,” and
concluded that grazing opens “areas that would otherwise be
choked with vegetation and sub-optimal for use by
waterfowl.”
42 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND

FWS also rejected using only alternative methods of
controlling invasive plants, without using grazing. In
particular, FWS explained that other alternatives, such as
herbicides or machine mowing, would not be fully effective
in controlling invasive species, and that mowing in some
areas posed particular fire risks. In doing so, FWS did not
“end[] its inquiry at the beginning” or “uncritically
assume[]” a particular result. Block, 690 F.2d at 767.
Instead, FWS reasonably explained that grazing was
necessary for sage-grouse habitat preservation and
restoration, and then considered a reasonable range of
grazing alternatives.

Western Watersheds nonetheless argues that reduced
grazing and no grazing were reasonable alternatives that had
to be considered. In this regard, Western Watersheds relies
principally on our decision in Western Watersheds Project
v. Abbey, 719 F.3d 1035 (9th Cir. 2013). But Abbey was a
very different case. There, we held that the Bureau of Land
Management was required to consider reduced-grazing
alternatives in planning a national monument. Id. at 1050–
53. But Abbey involved a challenge to both an EIS for the
national monument as well as an Environmental Assessment
(EA) for a particular allotment of land. Id. at 1039. Abbey
held that the EIS complied with NEPA, but the site-specific
EA did not. Id. at 1045, 1053. The distinction mattered:
“Where modification of grazing practices is not considered
at a programmatic level . . . it is all the more important that
agency actions on site-specific areas give a hard and careful
look at grazing impacts.” Id. at 1051.

Here, the Conservation Plan is a programmatic
document covering five National Wildlife Refuges, similar
to the EIS that withstood a NEPA challenge in Abbey. And
even so, unlike the EA in Abbey, the Conservation Plan
 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 43

sufficiently analyzes site-specific grazing effects. For
instance, the Clear Lake Refuge compatibility determination
acknowledged that excessive grazing can “result in
vegetation trampling” and “soil disturbance/erosion,” and
can “transfer invasive species,” among other undesirable
effects. But FWS concluded that its grazing program is
properly managed and would be unlikely to produce these
harms, particularly as “grazing has occurred on the Refuge
for decades without major problems associated with these
effects.”

Abbey does not mandate consideration of reduced-
grazing alternatives in situations, like here, in which the
agency has provided sufficient explanation for its decision
not to analyze an alternative that it does not view as
reasonable. FWS sufficiently explained that a reduced-
grazing alternative was not reasonable, given the
Conservation Plan’s purposes and needs. See Protect Our
Communities, 825 F.3d at 581; Alaska Survival, 705 F.3d at
1087. Ultimately, FWS concluded that continued grazing
would “help achieve its wildlife and habitat objectives,”
while reduced grazing would “have the opposite overall
effect.” It is not our role to question that informed scientific
judgment. See Ctr. for Biological Diversity v. Ilano,
928 F.3d 774, 782–83 (9th Cir. 2019) (explaining that the
Forest Service had not acted arbitrarily or capriciously
because it had “relied upon scientific studies and its own
expert judgment, to which we must defer”).

Western Watersheds further argues that FWS should
have at least considered an alternative that would eliminate
livestock grazing on the western portion of Clear Lake
Refuge on the adjacent Modoc National Forest (which is not
part of the U). Based on an interagency agreement with
Modoc, about 300 head of cattle are allowed to access only
44 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND

part of the Refuge, and even then only for about three weeks
a year beginning in mid-July, long after the sage-grouse
nesting period in the spring.

FWS explained the benefits of limited grazing on the
Refuges generally, and as to Modoc in particular: grazing in
that specific area “provide[s] the refuge biological benefits
by enhancing Canada goose grazing and reducing fuels and
fire threats.” The Conservation Plan also relied on an earlier
analysis of the effects of Modoc grazing prepared by the
Forest Service that was only two years old at the beginning
of the planning process, and that permitted the grazing to
continue. Western Watersheds has not shown that Modoc
livestock would materially interfere with sage-grouse on the
U, let alone with any other wildlife. FWS thus adequately
explained its reasons for not considering an alternative that
would eliminate limited grazing with cattle from the adjacent
Modoc National Forest. And while Western Watersheds
argues that FWS should have simply fenced the western
boundary to keep cattle out of the Refuge, FWS reasonably
explained that a fence could harm wildlife and impede their
travel. 4

In short, FWS reasonably explained that managed
grazing on Clear Lake Refuge was essential to protecting

4
In letters filed pursuant to Federal Rule of Appellate Procedure
28(j), Western Watersheds and CBD argue that our recent decision in
Environmental Defense Center v. Bureau of Ocean Energy Management,
36 F.4th 850 (9th Cir. 2022), indicates that FWS’s alternatives analyses
were deficient. But in Environmental Defense Center, which involved
an agency’s consideration of oil well stimulation treatments that it
wrongly believed would not be used more than five times per year, the
agency failed to consider a reasonable range of alternatives. Id. at 876–
78. Here, by contrast, FWS considered a reasonable range of alternatives
given the Conservation Plan’s purpose and need.
 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 45

and restoring sage-grouse habitat. FWS thus did not violate
NEPA by failing to consider a formal reduced-grazing
alternative.

B. “Hard Look” Analysis

FWS also took a sufficiently hard look at the effects of
grazing on Clear Lake Refuge. We again apply a “‘rule of
reason’ analysis to determine whether the discussion of the
environmental consequences included in the EIS is
sufficiently thorough.” Ctr. for Biological Diversity,
982 F.3d at 734 (quoting Kern, 284 F.3d at 1071). Western
Watersheds argues that FWS failed to give adequate
consideration to the effects of grazing on greater sage-grouse
and two species of endangered suckerfish. As we now
explain, these additional challenges fail.

1

We start with the sage-grouse. The Conservation Plan
discussed at length the potential effects of grazing on sage-
grouse and why grazing would be beneficial to sage-grouse
habitat. Grazing “would give native perennial grasses and
forbs a competitive advantage, help restore native habitats,
and reduce the abundance of fine fuels,” thus lessening “the
frequency, intensity, and spread of wildfires” and
“enhanc[ing] the growth and survival of shrubs, such as
sagebrush, that are very slow-growing.” “This would all
benefit sage brush-obligate species, such as sage grouse, that
prefer habitats composed of forbs, moderate-height grasses,
and larger-diameter sagebrush.” With respect to the new
spring grazing period, FWS explained that “light to
moderate spring grazing could also make forbs more
accessible to pre-laying sage grouse hens by removing
standing herbage.”
46 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND

But FWS also recognized that improperly managed
grazing could “prevent nesting attempts; cause nest
abandonment; trample nests, eggs, and young; and otherwise
disturb ground-nesting birds.” FWS acknowledged some
uncertainty as to the amount of competition “for food
resources on the lakeshore between cattle, mule deer,
pronghorn, and sage grouse,” and thus committed to
investigating experimental enclosures to allow “grasses and
forbs [to] grow tall and become available to deer and sage
grouse broods (as they are able to access the area inside the
e[n]closure while cattle are not able to enter).” Overall,
FWS concluded that the negative effects of the limited,
managed grazing program on sage-grouse were outweighed
by the positive effects of the program.

Western Watersheds principally takes issue with the
agency’s determination that the planned spring grazing
would not significantly disturb sage-grouse nests. But FWS
explained that the spring grazing—the only grazing that
would overlap with the sage-grouse nesting season—would
occur on the fire-damaged east side of the U, and “no hens
are known to nest in that area due to the lack of sage brush
cover.” Western Watersheds disputes this, but the agency’s
factual determination, which is based on nearly a decade of
monitoring data, merits deference. See Native Ecosystems,
697 F.3d at 1051; N. Plains, 668 F.3d at 1075.

The record also demonstrates that in 2013, the most
recent year that data was available, nesting attempts only
took place on the western portion of the U. Western
Watersheds dismisses the 2013 nesting season as
anomalous, pointing instead to data from the California
Department of Fish and Game. But Western Watersheds has
not demonstrated that this data establishes more than a
handful of successful nesting attempts between 2007 and
 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 47

2012 in the new areas that FWS would allow for grazing.
And FWS did not rule out the possibility of future hens
nesting on the east side of the U. Indeed, a driving purpose
of the grazing program is to restore sagebrush habitat in that
area, and hopefully increase successful sage-grouse nesting.
FWS thus emphasized that the spring grazing program was
experimental and subject to monitoring. Moreover, FWS
reasonably determined that even to the extent grazing would
disturb sage-grouse nests, “the larger and longer-term habitat
benefits of a properly conducted program would far
outweigh such negative effects.” 5

Western Watersheds also maintains that FWS failed to
evaluate the combined effects on sagebrush habitat of adding
a spring grazing period to the existing fall grazing period.
That argument is unavailing. Western Watersheds’
argument is at odds with the agency’s considered view of the
grazing program, which FWS believes will improve sage-
grouse habitat over time, not deplete it. FWS explained that
“when properly managed, this habitat management practice
would be expected to increase the value of Refuge habitats
for a diversity of wildlife species, including sage grouse and
geese.” (Emphasis added).

On this score, the Conservation Plan included as support
for its cumulative impact analysis the joint “Conservation
and Recovery Strategy for Sage-Grouse (Centrocercus
urophasianus) and Sagebrush Ecosystems Within the

5
Western Watersheds argues the Conservation Plan provided only
a brief response to a study by Michael D. Reisner, et al., suggesting that
large-scale grazing could harm native grasses. But that does not render
FWS’s NEPA analysis deficient. The record reflects a robust
consideration of the available scientific evidence, and “FWS is free to
choose among experts.” Zinke, 900 F.3d at 1068 (citing Conner v.
Burford, 848 F.2d 1441, 1454 (9th Cir. 1988)).
48 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND

Devil’s Garden / Clear Lake Population Management
Unit”—or “Sage-Grouse Recovery Plan” for short. That
separate multi-agency plan to grow Clear Lake Refuge’s
sage-grouse population was developed just two years before
the Conservation Plan’s scoping process began. And it
specifically included spring and fall grazing periods as part
of the sage-grouse recovery strategy. While Western
Watersheds may disagree with the agency’s reasoned
scientific judgment about the effects of grazing on sage-
grouse habitat, the Conservation Plan does not reflect a
failure to consider the cumulative effects of grazing on sage-
grouse. 6

For the same reason, we reject Western Watersheds’
argument that FWS failed to evaluate the cumulative effects
to sage-grouse of grazing on the adjacent Modoc National
Forest. The Modoc livestock do not access the U. FWS’s
conclusion that managed grazing would be conducive to
sage-grouse recovery, based on its considered evaluation of
the grazing program as a whole, a fortiori applies to the
effects of the more minimal, incidental Modoc grazing on
the Refuge.

6
In referencing the Sage-Grouse Recovery Plan, FWS did not
improperly “tier” to it. “‘Tiering refers to the coverage of general
matters in broader environmental impact statements . . . with subsequent
narrower statements . . . incorporating by reference the general
discussions and concentrating solely on the issues specific to the
statement subsequently prepared.’” Klamath-Siskiyou, 387 F.3d at 997
(quoting 40 C.F.R. § 1508.28). FWS did not tier to the Sage-Grouse
Recovery Plan or attempt to use it as a substitute NEPA analysis.
Instead, FWS performed its own NEPA analysis and merely cited the
Sage-Grouse Recovery Plan for additional support.
 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 49

We thus hold that the agency took a sufficiently hard
look at the effects of grazing on sage-grouse, including the
cumulative effects.

2

We further conclude that the Conservation Plan took a
sufficiently hard look at the effects of managed livestock
grazing on suckerfish in Clear Lake Refuge.

FWS acknowledged that grazing “can adversely affect
aquatic environments,” but concluded that it had “no
empirical data that shows that current grazing practices
adversely affect the primary constituent elements (PCEs) of
critical habitat for suckers in Clear Lake.” The Conservation
Plan explained that suckerfish spawn in upstream rivers from
February through May (when the spring grazing would
occur). The Plan also recognized that “[l]arval habitat is
generally along the shoreline,” which grazing cattle could
access. Shoreline habitat is often “associated with emergent
aquatic vegetation,” which “provides cover from predators,
protection from currents and turbulence, and abundant
prey.” But although “[e]xcessive grazing could result” in
“turbidity” if “livestock were allowed access to surface
waters,” FWS believed that because grazing at the Refuge is
“localized and seasonal,” any such effect would likely be
“only occasional, of short duration[,] and no more than
minor.” FWS’s experimental spring grazing pastures would
also include water troughs distant from the lakeshore to
discourage livestock from accessing the shoreline.

In addition, FWS emphasized that “grazing has occurred
on the Refuge for decades without major problems
associated with [negative] effects, and stipulations
associated with this use would greatly reduce the likelihood
and significance of any potential impacts of this nature.”
50 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND

This was not an admission that the effects of grazing on
Clear Lake suckerfish was “unknown,” see Nat’l Parks &
Conservation Ass’n v. Babbitt, 241 F.3d 722, 732–733 (9th
Cir. 2001), abrogated on other grounds by Monsanto Co. v.
Geertson Seed Farms, 561 U.S. 139 (2010), but a
recognition that grazing was not known to have been
harmful based on extensive past experience. And in any
event, the agency added that “consultation for the
[Conservation Plan] will be conducted pursuant to section 7
of the federal ESA, for federally-listed species and their
critical habitat,” which includes suckerfish, and
“conservation measures . . . will be implemented to protect
listed species and their habitat that occur on the refuge, as
applicable.”

To this end, within days of adopting the Conservation
Plan, and as it indicated it would, FWS issued a 2017
Biological Assessment (BA) to evaluate further the effects
of the Conservation Plan’s management actions, including
Clear Lake grazing, on eleven threatened species. The 2017
BA, though not a replacement for the NEPA analysis that
FWS included in the Conservation Plan, was contemplated
in the Plan as a further protective measure for threatened
species. Like the Conservation Plan, the BA acknowledged
the potential for indirect “contamination of aquatic habitats”
and “increased turbidity” when grazing is “done without
consideration of the timing of entrance and egress,
placement of watering systems, and mineral blocks.” But
the 2017 BA concluded that “[t]here are no direct effects to
suckers with grazing on the refuge where it is used.” The
BA also addressed possible reductions in suckerfish food
supply but found that the “reductions would likely be a
secondary effect to impacts that resulted from direct effects
and may not be notic[ed] or measurable for multiple years.”
The BA ultimately concluded that “[b]ased on available
 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 51

species occurrence data, knowledge of seasonal habitat
usage, discussions with species experts, and implementation
of best management practices, [the] management actions
outlined above and in the [Conservation Plan] may affect[]
but are not likely to adversely affect Lost River or shortnose
suckers.”

FWS also was not obligated to conduct additional studies
into the effects of grazing on suckerfish. When there is
“incomplete information relevant to reasonably foreseeable
significant adverse impacts” that is “essential to a reasoned
choice among alternatives and the overall costs of obtaining
it are not exorbitant,” an agency must obtain and include the
missing information. 40 C.F.R. § 1502.22(a); see also
WildEarth Guardians v. Mont. Snowmobile Ass’n, 790 F.3d
920, 927 (9th Cir. 2015). But here the agency reasonably
determined—based on the long history of grazing on the
Refuge and the limits FWS imposed on it—that grazing
would not have materially adverse effects on suckerfish.
Western Watersheds has not demonstrated that other
information was “essential to a reasoned choice among
alternatives.” See 40 C.F.R. § 1502.22(a). 7

Western Watersheds also maintains that FWS failed to
give adequate consideration to the cumulative effects of
grazing on suckerfish. But FWS said in the Conservation
Plan’s “Cumulative Impacts” section that “adverse affects to
[suckers, among others] are not likely.” FWS also relied on
a joint Biological Opinion issued in 2013 by FWS and the

7
To the extent that Western Watersheds relies on an internal
reviewer’s comments about the Conservation Plan’s treatment of
suckerfish, FWS responded to that comment by committing to producing
the BA that was issued within days of the Conservation Plan, and that
addressed the reviewer’s concerns.
52 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND

National Marine Fisheries Service, where “[c]umulative
effects to both species of sucker [we]re enumerated.” FWS
proceeded to discuss a variety of threats to suckerfish
populations, including “ongoing warming and drought,” and
concluded that the best way to support suckerfish
populations was “to improve water quality” and quantity—
which, for reasons previously discussed, remains a
substantial challenge for FWS in managing the Refuges.
The 2017 BA similarly considered the cumulative effects to
suckerfish of “future, State, tribal, local, or private actions
that are reasonably certain to occur,” and did not anticipate
any adverse cumulative effects to suckerfish as a result of
Clear Lake grazing.

Finally, the Conservation Plan explained that the
suckerfish population was threatened for reasons
independent of grazing. The Conservation Plan describes
suckers as “relatively abundant in Clear Lake,” but with
“lower frequency of large individuals present compared to
data from the 1990s,” suggesting “relatively good
recruitment but low adult survivorship.” The Plan recounted
how the suckerfish population was dependent on sufficient
water levels. In other words, the threat to sucker populations
is not that larvae have inadequate shoreline habitat, as one
might expect if grazing were significantly degrading the
shoreline. To this point, FWS has explained that the decline
in suckerfish population over time is attributable to a 64%
loss of lake and wetland habitat and to “blocked access to
spawning and rearing areas, low instream flows, entrainment
losses resulting from diversions, and other factors.”

For all of these reasons, the agency took a sufficiently
hard look at the effects of grazing on suckerfish.
 CENTER FOR BIOLOGICAL DIVERSITY V. HAALAND 53

C. Refuge Act

For the same reasons that FWS’s decision to continue
managed grazing on Clear Lake Refuge does not violate
NEPA, it does not violate the Refuge Act either. Western
Watersheds argues that the agency failed to ensure that
grazing was a compatible use of the Refuge. See 16 U.S.C.
§ 668dd(d)(3)(A)(i). But, as explained, FWS reasonably
decided to continue managed grazing for the benefit of sage-
grouse, and, for the same reasons, reasonably determined
that grazing would “not materially interfere with or detract
from the fulfillment of the mission of the System or the
purposes of the refuge.” See 16 U.S.C. § 668ee(1). FWS
thus did not violate the Refuge Act in authorizing continued
grazing on Clear Lake Refuge.

* * *

For the foregoing reasons, the district court’s grant of
summary judgment to FWS on CBD’s and Western
Watersheds’ challenges is

AFFIRMED.