Audubon Society of Portland v. Deb Haaland

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

AUDUBON SOCIETY OF No. 20-35508
PORTLAND, An Oregon
nonprofit corporation; D.C. Nos.
OREGON WILD, An Oregon 1:17-cv-00069-CL
nonprofit corporation; 1:17-cv-00098-CL
WATERWATCH OF OREGON, 1:17-cv-00468-CL
An Oregon nonprofit 1:17-cv-00531-CL
corporation,
Plaintiffs-Appellants,
OPINION
and

CENTER FOR BIOLOGICAL
DIVERSITY; WESTERN
WATERSHEDS PROJECT,
Plaintiffs,

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
2 AUDUBON SOCIETY OF PORTLAND V. HAALAND

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 W. Fletcher
 AUDUBON SOCIETY OF PORTLAND V. HAALAND 3

SUMMARY*

Environmental Law

The panel affirmed the district court’s summary judgment
to the U.S. Fish and Wildlife Service in an action brought by
the Audubon Society of Portland (“ASP”) alleging that a
combined Environmental Impact Statement and
Comprehensive Conservation Plan (“EIS/CCP”) with respect
to the Tule Lake and Lower Klamath Refuges in the Klamath
Basin National Wildlife Refuge Complex violated various
laws.

Two key statutes govern the Service’s management of
refuges in the Klamath Refuge Complex: the Kuchel Act of
1964, and the National Wildlife Refuge System Improvement
Act, as amended by the Refuge Improvement Act.

The panel considered, and rejected, the four arguments
ASP raised on appeal.

First, ASP argued that the failure of the Service under the
EIS/CCP to provide sufficient water for the Lower Klamath
Refuge violated the Refuge Act. The panel noted its
sympathies to ASP’s concerns because the water currently
available for the Lower Klamath Refuge was inadequate to
serve the purposes of the refuge. The panel held, however, it
was satisfied on the record, given the constraints on the
Service, whose ability to provide water was severely limited,

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 AUDUBON SOCIETY OF PORTLAND V. HAALAND

that the EIS/CCP fulfilled the Service’s obligation under the
Refuge Act.

Second, ASP argued that the EIS/CCP’s continuation of
the present pattern of agricultural leasing in the Tule Lake
and Lower Klamath Refuges violated the Kuchel and Refuge
Acts, and was arbitrary and capricious in violation of the
Administrative Procedure Act (“APA”). ASP’s core
argument was that the EIS/CCP authorized an improper mix
of agricultural land and natural habitat. The panel held that in
the EIS/CCP, the Service considered the arguments made by
ASP. Given the extensive evidence in the record supporting
the choices made by the Service, the panel saw nothing that
authorized it, as the reviewing court, to make different
choices. The panel held that the balance struck by the
EIS/CCP, with respect to the issues raised in the appeal, was
consistent with the Kuchel and Refuge Acts, and with the
APA.

Third, ASP argued that the EIS/CCP delegated
administrative responsibilities to the Bureau of Reclamation
in violation of the Refuge Act. The panel held that the
Bureau’s responsibilities under the EIS/CCP were not
“administration” within the meaning of the Refuge Act’s anti-
delegation provision. The Bureau in this case was assigned
specified management functions and was, in all respects,
subject to the supervision and approval of the Service.

Fourth, ASP argued that the failure of the EIS/CCP to
consider a reduced-agriculture alternative violated the
National Environmental Policy Act (“NEPA”). The panel
held that the Service sufficiently considered whether to
reduce the acreage devoted to lease-land farming, and
 AUDUBON SOCIETY OF PORTLAND V. HAALAND 5

sufficiently explained why it did not list such reduction as an
alternative in the EIS/CCP.

The panel concluded that to the degree the present pattern
of agricultural leasing in the Tule Lake and Lower Klamath
Refuges was consistent with proper waterfowl management
in those refuges, the Kuchel and Refuge Acts directed the
Service to continue that present pattern of leasing. In
reviewing the EIS/CCP, the panel recognized constraints on
the Service and deferred to reasoned explanations provided
by the Service in support of its decisions.

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.
6 AUDUBON SOCIETY OF PORTLAND V. HAALAND

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

OPINION

W. FLETCHER, Circuit Judge:

In January 2017, the United States Fish and Wildlife
Service (“Service”) issued a Record of Decision (“ROD”)
adopting a combined Environmental Impact Statement and
Comprehensive Conservation Plan (“EIS/CCP”) for five of
the six refuges in the Klamath Basin National Wildlife
Refuge Complex (“Klamath Refuge Complex” or
“Complex”) in southern Oregon and northern California.
This appeal is one of four consolidated appeals from a district
court decision rejecting various challenges to the Service’s
action.

In the appeal now before us, the Audubon Society of
Portland (“ASP”) brought suit against the Service in the
district court, arguing that the EIS/CCP violates the Kuchel
Act of 1964 (“Kuchel Act”), the National Wildlife Refuge
System Improvement Act as amended by the Refuge
Improvement Act (“Refuge Act”), the Administrative
Procedure Act (“APA”), the National Environmental Policy
Act (“NEPA”), and the Clean Water Act (“CWA”) with
 AUDUBON SOCIETY OF PORTLAND V. HAALAND 7

respect to the Tule Lake and Lower Klamath Refuges in the
Complex. The district court granted summary judgment to
the Service.

On appeal, ASP no longer argues that the EIS/CCP
violates the CWA, but it continues to press its other
arguments. ASP argues that the EIS/CCP violates the Refuge
Act because it fails to provide sufficient water for the Lower
Klamath Refuge. ASP further argues that the EIS/CCP
violates the Kuchel Act, the Refuge Act, and the APA
because it does not sufficiently prioritize the preservation of
wildlife habitat over agricultural uses of leased agricultural
land (“lease land”) in the refuges. ASP also argues that the
EIS/CCP violates the Refuge Act because it delegates day-to-
day administrative responsibilities to the Bureau of
Reclamation (“Bureau”). Finally, ASP argues that the
EIS/CCP violates NEPA because it does not adequately
evaluate an alternative that would reduce the acreage of lease
land in the Tule Lake and Lower Klamath Refuges.

We affirm the district court.

I. Statutory Background

The Klamath Refuge Complex encompasses
approximately 200,000 acres in northern California and
southern Oregon. It consists of six national wildlife refuges,
including the Tule Lake and Lower Klamath Refuges.
“Historically, the Klamath Basin was dominated by
approximately 185,000 acres of shallow lakes and freshwater
marshes.” Today, however, “less than 25% of these historic
marshes and shallow wetlands remain.” The wetlands
habitats that remain “provide[] home to many species of
migratory birds and other wildlife and plant species.”
8 AUDUBON SOCIETY OF PORTLAND V. HAALAND

Two key statutes govern the Service’s management of
refuges in the Klamath Refuge Complex. First, the Kuchel
Act, enacted in 1964, governs four of the six refuges in the
Complex. The Act provides in relevant part:

Notwithstanding any other provisions of law,
all lands owned by the United States lying
within the Executive order boundaries of the
Tule Lake National Wildlife Refuge, the
Lower Klamath National Wildlife Refuge, the
Upper Klamath National Wildlife Refuge, and
the Clear Lake Wildlife Refuge are hereby
dedicated to wildlife conservation. Such
lands shall be administered by the Secretary
of the Interior for the major purpose of
waterfowl management, but with full
consideration to optimum agricultural use that
is consistent therewith.

16 U.S.C. § 695l. The Kuchel Act requires the Secretary to,
“consistent with proper waterfowl management, continue the
present pattern of leasing” in designated areas in the Lower
Klamath and Tule Lake Refuges. Id. § 695n.

Second, the Refuge Act governs the entire National
Wildlife Refuge System, including the refuges in the Klamath
Refuge Complex. Id. § 668dd. The Refuge Act mandates the
preparation of Comprehensive Conservation Plans for all
wildlife refuges in the Refuge System. Id. § 668dd(e)(1)(A).
The Act requires that “each refuge . . . be managed to fulfill
the mission of the [National Wildlife Refuge System], as well
as the specific purposes for which that refuge was
established.” Id. § 668dd(a)(3)(A). The Secretary of the
Interior (“Secretary”) may permit any use of a refuge
 AUDUBON SOCIETY OF PORTLAND V. HAALAND 9

“whenever [s]he determines that such uses are compatible
with the major purposes for which such areas were
established.” Id. § 668dd(d)(1)(A). Uses are considered
compatible if they “will not materially interfere with or
detract from the fulfillment of the mission of the System or
the purposes of the refuge.” Id. § 668ee(1).

II. Water Scarcity

The fundamental wildlife management problem in the
Tule Lake and Lower Klamath Refuges is water scarcity.
The Service wrote in the EIS/CCP that a “key component” in
the development of alternative strategies for the refuges was
“the availability of water for refuge management purposes.”

The Service’s ability to provide water for use in the Tule
Lake and Lower Klamath Refuges is severely limited. The
two refuges, particularly the Lower Klamath Refuge, depend
heavily on the Klamath Reclamation Project (“Project”) for
water. In recent years, factors outside the control of the
Project have significantly reduced the amount of Project
water available for the refuges. In addition to the important
factors detailed in the paragraphs that follow, such factors
include increases in electrical power costs (which makes
pumping of water much more expensive), extended droughts,
and tribal trust obligations.

First, five species of fish found in the Klamath Basin have
been listed as threatened or endangered under the Endangered
Species Act (“ESA”), requiring the Project to prioritize the
diversion of water flows in order to protect these species. In
2013, the Service and the National Marine Fisheries Service
issued a joint Biological Opinion (“2013 BiOp”) that now
governs the Project’s compliance with the ESA. Nat’l Marine
10 AUDUBON SOCIETY OF PORTLAND V. HAALAND

Fisheries Serv. & U.S. Fish & Wildlife Serv., SWR-2012-
9372, Biological Opinions on the Effects of Proposed
Klamath Project Operations from May 31, 2013, through
March 31, 2023, on Five Federally Listed Threatened and
Endangered Species (2013). According to the EIS/CCP, “The
2013 BiOp has a large influence on how much and when
water is available within . . . the Klamath Reclamation
Project.”

Second, surface water rights in the Upper Klamath Basin
are largely determined under Oregon state law. The relative
priorities of Oregon water rights in the Basin are set out in a
March 2013 Final Order of Determination (“FOD”) issued by
the Oregon Water Resources Department (“OWRD”). The
FOD gave the Service nearly 85,000 acre-feet of senior water
rights, with an assigned priority date of 1905, for irrigation
uses in the Tule Lake and Lower Klamath Refuges. In a 2014
amendment to the FOD, the OWRD concluded that use of
water for the purpose of growing wetland plants is not an
irrigation use within the meaning of the Service’s 1905 water
rights. The United States has challenged the OWRD’s 2014
amendment in the Klamath County Circuit Court, but no final
decision is expected within the 15-year life of the EIS/CCP.
In the meantime, the 2014 amendment to the FOD controls.
The Service believes that use of water for its so-called
“walking wetlands” program, in which agricultural land in the
Tule Lake Refuge is periodically flooded on a rotating basis,
is irrigation within the meaning of its 1905 water rights. (See
below for a further description of the walking wetlands
program.) Remaining federally owned water rights for the
Tule Lake and Lower Klamath Refuges are not limited to
irrigation uses, but they have been assigned priority dates of
1925 and later.
 AUDUBON SOCIETY OF PORTLAND V. HAALAND 11

Third, rights to federally owned water within the Project
are determined by the federal Bureau of Reclamation. The
Bureau classifies water rights within the Project as having A,
B, or C priority, with “A priority” water users receiving water
first. The refuges have not fared equally well under the
Bureau’s classification system. Lease land in the Tule Lake
Refuge has an A priority. However, lease land in the Lower
Klamath Refuge has a B priority. Irrigated non-lease land in
the Lower Klamath Refuge has not been assigned a priority.
According to the EIS/CCP, unresolved within-Project
priorities have contributed to “drastic[] decline[s]” in the
amount of water diverted to Lower Klamath Refuge.

Finally, recent political attempts to resolve the myriad
water disputes in the Klamath Basin have been unsuccessful.
The United States; the States of California and Oregon; the
Klamath, Karuk, and Yurok Tribes; Klamath Project water
users; and various other stakeholders negotiated a Klamath
Basin Restoration Agreement (“KBRA”) in an effort to
resolve disputes in the region over natural resources.
However, Congress failed to take action to implement the
KBRA and allowed it to expire in 2016.

III. Agriculture in the Refuges

Portions of both the Tule Lake and Lower Klamath
Refuges are leased to individuals and private companies for
agricultural use. In the Tule Lake Refuge, 14,800 acres are
dedicated to lease-land farming of grains; alfalfa; and row
crops, predominantly potatoes and onions. In the Lower
Klamath Refuge, a 5,605-acre parcel is dedicated to lease-
land farming of barley, oats, wheat, and hay. In both refuges,
additional land is made available for agricultural use through
a Cooperative Farmland Program that is managed by the
12 AUDUBON SOCIETY OF PORTLAND V. HAALAND

Service. The Cooperative Program permits farmers to harvest
three-quarters of the crop grown on these lands if they leave
the remaining one-fourth standing in the field “for the benefit
of wildlife.”

Farming in the two refuges has a mixed impact on
wildlife. Lease-land farming directly reduces land that might
otherwise be available for waterfowl as wetlands. Most of
the crops grown on lease land are harvested rather than left
for wildlife. Some of the crops are left unharvested, but,
according to the EIS/CCP, these crops alone “do not meet
complete nutrition needs” for wildlife because they contain
“lower amounts of proteins, minerals, and key amino acids
than other natural foods.”

However, some of the crops grown on lease land can
provide nutritional benefits to wildlife that foods on natural
wetlands do not. According to the EIS/CCP, “some
agricultural crops, including standing grains[,] provide a rich
source of carbohydrates and provide more food (kcal/acre) for
less water than wetland plant crops, which is particularly
important for migrating dabbling ducks and geese.” Further,
assuming that the relative priority of water rights does not
change in the future, lease land is, and will be, useful in
drought years because of lease-land agricultural-use priority
under the Service’s 1905 water rights. In those years, lease
land “provide[s] some of the only food resources available to
waterfowl on the Refuge.” The Cooperative Farmland
Program of the Klamath Refuge Complex also provides
benefits to waterfowl, guaranteeing that a minimum amount
of unharvested crops will be preserved as food for wildlife.

In the 1990s, the Service adopted a “walking wetlands”
program for the Tule Lake Refuge, under which the Service
 AUDUBON SOCIETY OF PORTLAND V. HAALAND 13

rotationally floods agricultural fields for anywhere from one
to four years to turn them into short-term wetlands before
they are returned to agricultural production. This program
has benefitted both waterfowl that use the flooded fields as
wetland habitat and farmers who have experienced improved
agricultural productivity and reduced costs after the flooding
period. Additionally, the program is useful because, as noted
above, although Oregon prevents use of 1905 irrigation water
rights for purely wetlands purposes, the Service believes that
such rights can be used to deliver water to the walking
wetlands.

IV. The Combined EIS/CCP

In its combined EIS/CCP, the Service considered three
agricultural habitat management alternatives for the Tule
Lake Refuge, and four alternatives for the Lower Klamath
Refuge. None of the alternatives would have substantially
reduced the lease land acreage available for agriculture in the
two refuges.

For the Tule Lake Refuge, the Service selected
Alternative C. That alternative continues many of the
agricultural management strategies that were already in place.
In addition, Alternative C increases the required acreage of
unharvested standing grain from 1,100 to 1,500 acres, half of
which is to come from cooperative farm lands and the other
half from lease land. Alternative C also “strive[s] to increase
acreage and interspersion of walking wetlands within lease
lands so that all fields are within 1 mile of a wetland.” The
walking wetlands program was framed as an aspiration rather
than a mandate because in some drought years not enough
water will be available for the program.
14 AUDUBON SOCIETY OF PORTLAND V. HAALAND

For the Lower Klamath Refuge, the Service selected
Alternative C. Like Alternative C for Tule Lake Refuge, that
alternative incorporates many of the agricultural management
strategies that were already in place, including an increase in
the acreage of cooperative farming when water is not
available for seasonal wetlands, as well as incentives for
cooperative farmers to provide wetlands on private lands
outside the refuge. Alternative C also adds new practices,
including an increase in the amount of grain cooperative
farmers must leave unharvested by 1,500 acres. In years
when this goal cannot be met, the Service would work with
the Bureau to revise lease contracts so that lessees would be
required to leave 25% of their fields unharvested. Further,
“[s]ubject to the availability of water, the Service would . . .
increase the use of the flood fallow agricultural practice on
fields with expiring contracts. . . .”

V. Proceedings Below

A magistrate judge issued a Report and Recommendation
in which he recommended granting summary judgment to the
Service. The district court adopted the recommendation of
the magistrate judge in its entirety. ASP timely appealed.

VI. Standard of Review

“We review summary judgment rulings de novo.” Native
Ecosystems Council v. Marten, 883 F.3d 783, 789 (9th Cir.
2018) (citing Defs. of Wildlife v. Zinke, 856 F.3d 1248, 1256
(9th Cir. 2017)). For APA challenges, courts uphold agency
action unless it is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.”
5 U.S.C. § 706(2)(A). Arbitrary and capricious review is
“deferential,” Sierra Club v. Bosworth, 510 F.3d 1016, 1022
 AUDUBON SOCIETY OF PORTLAND V. HAALAND 15

(9th Cir. 2007), but an agency must “articulate a satisfactory
explanation for its action including a ‘rational connection
between the facts found and the choice made,’” Motor
Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines
v. United States, 371 U.S. 156, 168 (1962)).

VII. Arguments on Appeal

ASP argues on appeal that the failure of the Service under
the EIS/CCP to provide sufficient water for the Lower
Klamath Refuge violates the Refuge Act; that the EIS/CCP’s
continuation of the present pattern of agricultural leasing in
the Tule Lake and Lower Klamath Refuges violates the
Kuchel and Refuge Acts, and is arbitrary and capricious in
violation of the APA; that the EIS/CCP delegates
administrative responsibilities to the Bureau of Reclamation
in violation of the Refuge Act; and that the failure of the
EIS/CCP to consider a reduced-agriculture alternative
violates NEPA. We address each argument in turn.

A. Failure to Provide Sufficient Water for the Lower
Klamath Refuge

The Refuge Act provides in relevant part:

(4) In administrating the [Refuge] System, the
Secretary shall—

...

(F) assist in the maintenance of adequate
water quantity and water quality to fulfill
16 AUDUBON SOCIETY OF PORTLAND V. HAALAND

the mission of the System and purposes of
each refuge;

(G) acquire, under State law, water rights
that are needed for refuge purposes.

16 U.S.C. § 668dd(a)(4)(F), (G).

ASP argues with respect to the Lower Klamath Refuge
that the EIS/CCP does not do enough to “assist in the
maintenance of adequate water quantity,” id.
§ 668dd(a)(4)(F), and to “acquire, under State law, water
rights that are needed for refuge purposes,” id.
§ 668dd(a)(4)(G). The EIS/CCP admits that Alternative C,
its selected management alternative, does not guarantee
sufficient water delivery to the Lower Klamath Refuge to
meet waterfowl habitat objectives. For example, the
EIS/CCP states forthrightly that, under estimates of water
delivery based on the 2013 BiOp prepared jointly by the
Service and the National Marine Fisheries Service, “[i]n all
but the wettest years . . . water deliveries [in the Lower
Klamath Refuge] would fall well short of habitat needs.”

ASP characterizes the EIS/CCP, with respect to the
Lower Klamath Refuge, as “devoid of any management
action that will assist in maintaining adequate water resources
or securing needed water rights for the Refuge during the 15-
year life of the Plan,” and as having a “management
‘strategy’ [that] is effectively a commitment by the Service to
do nothing.” While it is true that the EIS/CCP is pessimistic
about the ability of the Service to increase water delivery to
the Lower Klamath Refuge, it is not true that under the
EIS/CCP the Service is doing, or will do, nothing. The CCP
is designed, in the words of the Service, “to provide a
 AUDUBON SOCIETY OF PORTLAND V. HAALAND 17

conceptual, flexible approach, which will necessarily be
fleshed out further in subsequent planning.” As the EIS/CCP
notes, the government has sought an amendment to Oregon’s
water rights adjudication FOD that would allow the Service’s
1905 water rights to be used for purely wetlands purposes.
The EIS/CCP acknowledges that an adjudication of this issue
is not likely within the life of the EIS/CCP, but it is hardly the
case that the government has taken no action.

We are sympathetic to the concerns of ASP. All agree
that the water currently available for the Lower Klamath
Refuge is inadequate to serve the purposes of the refuge. But
we are also cognizant of the constraints on the Service, whose
ability to provide water is severely limited. We are satisfied
on the record before us, given the constraints on the Service,
that the EIS/CCP fulfills the Service’s obligation to “assist in
the maintenance of adequate water quantity . . . to fulfill the
mission of the System and purposes of each refuge,” and to
“acquire, under State law, water rights that are needed for
refuge purposes.” 16 U.S.C. § 668dd(a)(4)(F), (G). Cf. Defs.
of Wildlife v. Salazar, 651 F.3d 112, 117 (D.C. Cir. 2011)
(holding, in interpreting 16 U.S.C. § 668dd(a)(4)(E), that the
“Secretary [has] broad managerial discretion in how to pursue
the Act’s objectives”).

B. Continuation of Present Pattern of Agricultural Leasing
in the Tule Lake and Lower Klamath Refuges

The Kuchel Act, applicable to four of the five refuges
covered by the Service’s EIS/CCP, including the Tule Lake
and Lower Klamath Refuges, provides in relevant part:

[A]ll lands owned by the United States lying
within the Executive order boundaries of the
18 AUDUBON SOCIETY OF PORTLAND V. HAALAND

Tule Lake National Wildlife Refuge, the
Lower Klamath National Wildlife Refuge, the
Upper Klamath National Wildlife Refuge, and
the Clear Lake Wildlife Refuge are hereby
dedicated to wildlife conservation. Such
lands shall be administered by the Secretary
of the Interior for the major purpose of
waterfowl management, but with full
consideration to optimum agricultural use
that is consistent therewith.

16 U.S.C. § 695l (emphasis added). The Act further
provides:

The Secretary shall, consistent with proper
waterfowl management, continue the present
pattern of leasing [specified] reserved lands
. . . within . . . the Executive order boundaries
of the Lower Klamath and Tule Lake National
Wildlife Refuges . . . .

Id.§ 695n (emphasis added).

The Refuge Act governs the National Wildlife Refuge
System, including the Klamath Refuge Complex. The Act
defines the mission of the System as “administer[ing] a
national network of lands and waters for the conservation,
management, and where appropriate, restoration of the fish,
wildlife, and plant resources and their habitats within the
United States.” Id. § 668dd(a)(2). The Act provides 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.” Id. § 668dd(a)(3)(A) (emphasis added).
 AUDUBON SOCIETY OF PORTLAND V. HAALAND 19

The Act authorizes the Secretary of Interior to “permit the use
of any [refuge] . . . for any purpose . . . whenever he
determines that such uses are compatible with the major
purposes for which such areas were established.” Id.
§ 668dd(d)(1)(A) (emphasis added).

The terms “proper waterfowl management” and “present
pattern of leasing” are not defined in the Kuchel Act. In
Appendix M to the EIS/CCP, the Service analyzed the Act to
define these terms. The EIS/CCP defines “proper waterfowl
management” as:

providing habitats sufficient to support
waterfowl population objectives throughout
the annual cycle while promoting the highest
possible natural biological diversity of refuge
habitats. A sufficient quantity and diversity
of foraging resources should be provided that
will meet the energy requirements and
nutritional demands of all waterfowl species.
Where feasible, natural foods should be given
priority over agricultural crops.

The EIS/CCP does not define “present pattern of leasing,” but
it does specify that whatever the “cropping pattern,” that
pattern must be “consistent with proper waterfowl
management.” In order to be consistent,

the overall program must provide sufficient
food resources to support population
objectives for waterfowl (dabbling ducks and
geese) during the spring and fall migration. In
addition, post-harvest farming practices and
20 AUDUBON SOCIETY OF PORTLAND V. HAALAND

other practices must be implemented that will
increase the attractiveness of the fields for
foraging waterfowl and disperse waterfowl
use as widely in the leased lands as possible.

ASP argues that the EIS/CCP violates the Kuchel and
Refuge Act by continuing the current pattern of agricultural
leasing in the Tule Lake and Lower Klamath Refuges. It
argues that “[t]he Service . . . acted arbitrarily and
capriciously when it authorized uses pursuant to the present
pattern of leasing to continue in a manner that will impair
Refuge habitats and interfere with proper waterfowl
management,” in violation of the APA. See 5 U.S.C.
§ 706(2)(A).

ASP disagrees with a number of choices made by the
Service in the EIS/CCP. Its core argument is that the
EIS/CCP authorizes an improper mix of agricultural land and
natural habitat. ASP writes that “[b]y authorizing the full
scale of leasing to continue, even in times of drought, the
Service is prioritizing commercial agricultural crops over
natural foods and wetland habitats . . . .” ASP argues that the
“prioritizing” of agriculture in the refuges results in an
inappropriate ratio of natural and farmed foods available for
waterfowl. ASP particularly objects to cultivation of
horseradish and onions, two of the row crops grown on lease
lands in the Tule Lake Refuge, pointing out that these two
crops provide no nourishment to waterfowl. ASP praises the
“walking wetlands” program implemented in the Tule Lake
Refuge, but argues that the program should have been
extended to the Lower Klamath Refuge. It also points out
that the EIS/CCP allows agricultural runoff from the lease
land that degrades the quality of water available for wildlife.
 AUDUBON SOCIETY OF PORTLAND V. HAALAND 21

In the EIS/CCP, the Service considered the arguments
made by ASP. The Service recognized that grains grown on
farmed land in the refuges are nutritionally incomplete as
compared to natural foods, but, at the same time, it noted in
the EIS/CCP that such grains provide more concentrated
calories than natural foods. The Service recognized that
horseradish and onions do not provide any nutritional benefit
to wildfowl, but it wrote in the EIS/CCP that they “may be
important crops in soil rotation for reducing pests and
improving soil health.” Further, the Kuchel Act specifically
contemplates that row crops will be grown on lease land,
allowing up to twenty-five percent of lease land to be used for
that purpose. See 16 U.S.C. § 695n (“The leases shall
provide for the growing of grain, forage, and soil-building
crops, except that not more than 25 per centum of the total
leased lands may be planted to row crops.”). The Service
considered extending the walking wetlands program to the
Lower Klamath Refuge, but concluded that such an extension
was unnecessary because “grain [in the Lower Klamath
Refuge] is sufficiently interspersed throughout the wetland
units[.]”

The EIS/CCP recognized that poor water quality in the
refuges is caused in part by agricultural runoff, some of it
coming from upstream of the refuges and some of it coming
from within the refuges. The EIS/CCP noted that poor water
quality is also attributable in part to “nutrients and other
chemicals from nonpoint sources [upstream from the
refuges], including flood irrigation and cattle use of pasture
lands, and urban, logging, and agricultural land disturbances,”
as well as point sources upstream from the refuges, including
upstream sewage treatment plants and dairies. The EIS/CCP
also noted that “refuge staff” will participate in developing a
22 AUDUBON SOCIETY OF PORTLAND V. HAALAND

plan for the Upper Klamath Basin as part of an “Agricultural
Discharge program” implemented by the California North
Coast Water Quality Control Board. The EIS/CCP provides,
“When completed, the Service will assess what modifications
to the farming program might be warranted to be in
compliance with the plan.”

The Kuchel Act requires nothing more. The Service
defined “proper wildfowl management,” recognized that the
“present pattern of leasing” must be consistent with such
management, and exercised its considered professional
judgment in striking an appropriate balance between the two.
Given the extensive evidence in the record supporting the
choices made by the Service, we see nothing that would
authorize us, as a reviewing court, to make different choices.
We hold that the balance struck by the EIS/CCP, with respect
to the issues raised in this appeal, is consistent with the
Kuchel and Refuge Acts, and with the APA.

C. Delegation to Bureau of Reclamation

Section 668dd(a)(1) of the Refuge Act provides that all
refuge lands “shall be administered by the Secretary through
the United States Fish and Wildlife Service.” 16 U.S.C.
§ 668dd(a)(1). ASP contends that the EIS/CCP violates
§ 668dd(a)(1) because it authorizes the Bureau of
Reclamation to administer lease land in the Tule Lake and
Lower Klamath Refuges. We hold that the Bureau’s
responsibilities under the EIS/CCP are not “administration”
within the meaning of the Refuge Act’s anti-delegation
provision.
 AUDUBON SOCIETY OF PORTLAND V. HAALAND 23

The EIS/CCP incorporates a 1977 Cooperative
Agreement between the Service and Bureau that assigns to
the Bureau specified management functions with respect to
lease land in the Lower Klamath and Tule Lake Refuges. The
Bureau’s performance of those functions is subject to the
Service’s direction and approval. The Agreement provides
that any action by the Bureau is “subject to the ultimate
administrative control of the Service.” For example, the
Bureau must “consult with and obtain the approval of the
Service in developing the agricultural leasing program”; all
lease advertisements must be submitted to the Service for
approval; and the Bureau must “practice soil moisture
conservation” and “conduct salt balance studies” as directed
by the Service. Further, the Bureau is required to re-apply
annually to the Service for a special-use permit, which
requires agreement by the Bureau that the lease land program
will be administered according to the Service’s stipulations.
Finally, “[a]ny management function of the Bureau . . . may
be terminated at any time” by the Service.

Our decision in Trustees for Alaska v. Watt, 524 F. Supp.
1303 (D. Ala. 1981), aff’d per curiam, 690 F.2d 1279 (9th
Cir. 1982) (affirming “[o]n the basis of the district court’s
thorough and well-reasoned opinion”), is not to the contrary.
In Trustees for Alaska, we upheld the district court in striking
down as inconsistent with the Refuge Act the Service’s
transfer of “lead responsibility for the Arctic National
Wildlife Refuge report and exploration regulations from U.
S. Fish and Wildlife Service (FWS) to U. S. Geological
Survey (USGS).” Trs. for Alaska, 524 F. Supp. at 1307. The
functions transferred to USGS included promulgating
regulatory guidelines, accompanied by environmental impact
statements; approving plans for oil and gas exploration of the
24 AUDUBON SOCIETY OF PORTLAND V. HAALAND

refuge; and reporting to Congress the results of exploration in
the refuge, the effect of that exploration on fish and wildlife,
and making recommendations with respect to further
exploration. Id. at 1309–10; see 16 U.S.C. § 3142 (d), (e),
(h). In contrast to the extensive and unsupervised transfer of
functions in Trustees for Alaska, the Bureau in the case
before us is assigned specified management functions and is,
in all respects, subject to the supervision and approval of the
Service.

D. Failure to Consider a Reduced-Agriculture Alternative

NEPA requires agencies to “study, develop, and describe
appropriate alternatives to recommended courses of action in
any proposal which involves unresolved conflicts concerning
alternative uses of available resources.” 42 U.S.C. § 4332(E).
“[F]or alternatives which were eliminated from detailed
study,” an agency must “briefly discuss the reasons for their
having been eliminated.” 40 C.F.R. § 1502.14(a). (We cite
to the 1978 versions of NEPA’s implementing regulations,
which were in effect at the time the record of decision in the
present case was issued.) An EIS need not consider and
address every conceivable alternative, only those that are
“viable” and that further a particular project’s policy
objectives. Or. Nat. Desert Ass’n v. Bureau of Land Mgmt.
(ONDA II), 625 F.3d 1092, 1122 (9th Cir. 2010). “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 Diversity v.
Bernhardt, 982 F.3d 723, 734 (9th Cir. 2020) (quoting Kern
v. U.S. Bureau of Land Mgmt., 284 F.3d 1062, 1071 (9th Cir.
2002)).
 AUDUBON SOCIETY OF PORTLAND V. HAALAND 25

ASP argues that the EIS/CCP violates NEPA by failing to
consider and analyze a listed alternative that would decrease
the acreage of lease land available for agriculture. We
disagree.

We hold the Service sufficiently considered whether to
reduce the acreage devoted to lease-land farming, and
sufficiently explained why it did not list such reduction as an
alternative in the EIS/CCP. For the Tule Lake and Lower
Klamath Refuges, the Service briefly considered the
alternatives of eliminating lease land farming entirely and of
“[c]urtail[ing] agriculture in years when only partial water
deliveries are made.” It rejected both alternatives and
declined to list them as formal alternatives in the EIS/CCP.

For both refuges, the EIS/CCP gave two reasons why it
did not include the elimination of lease land farming as a
listed alternative:

For migrating and wintering waterfowl, food
is believed to be the most limiting resource.
As a result, conservation planning for
waterfowl outside of the breeding season is
largely focused on providing sufficient
foraging habitat. A Service review of
waterfowl management (see Appendix M) on
Lower Klamath and Tule Lake Refuges
determined that leased agricultural lands
represent a component of the overall refuge
habitat mosaic and contribute to proper
waterfowl management.
26 AUDUBON SOCIETY OF PORTLAND V. HAALAND

Also, . . . agriculture on the refuge is generally
assured of receiving water in most years
whereas wetland areas are not. Without some
degree of water supply reliability, which is
provided through irrigation water, sufficient
food resources for waterfowl could not be
produced. Although the Service has filed
exceptions to the [2013 Oregon FOD]
adjudication in court, the issue likely will not
be resolved for many years.

For the Tule Lake Refuge, the EIS/CCP gave a reason
why it did not include the curtailment of agriculture on lease
lands “in years when only partial water deliveries are made”:

[A]ny water savings from a reduced irrigation
program on the refuge would simply make
more water available to higher priority Project
water users rather than to refuge wetlands. In
addition, changes in the purpose of water
rights to allow use of the water in wetlands
are not permitted until the Klamath River
Basin adjudication is finalized. . . . In
addition, curtailing agriculture is also likely to
result in large weed infestations on lease
lands. . . . Therefore, this management action
was not included in any of the alternatives.

ASP objects that these explanations address only the
questions why the EIS/CCP did not include the alternative of
entirely eliminating lease land agriculture, and, for the Tule
Lake Refuge, did not include the alternative of eliminating
lease land agriculture in drought years. We agree with ASP
 AUDUBON SOCIETY OF PORTLAND V. HAALAND 27

that these explanations in the EIS/CCP do not directly address
the question why the alternative of reducing lease land
agriculture was not included. But such reasons may be easily
inferred from the reasons given for not listing the elimination
of lease land agriculture or curtailing of agriculture on lease
lands during drought years. See State Farm, 463 U.S. at 43
(upholding “a decision of less than ideal clarity if the
agency’s path may reasonably be discerned” (quoting
Bowman Transp. Inc. v. Arkansas-Best Freight Sys., 419 U.S.
281, 286 (1974)).

As the EIS/CCP explains, lease land agriculture in the two
refuges provides two benefits. First, it provides a
supplemental food source for waterfowl. Second, reducing
the amount of lease land acreage would reduce the amount of
water available to the refuges. Because the Service’s 1905
water rights are available only for irrigation of crops and for
the Service’s walking wetlands program on lease land,
reducing the amount of lease land acreage “would simply
make more water available to higher priority Project water
users [outside the refuges] rather than to refuge wetlands.”
These two reasons support the Service’s decision not to list as
a formal alternative the complete elimination of lease land
agriculture in the refuges. They equally support its decision
not to list as an alternative the reduction of such agriculture.

The Service has requested an amendment to the FOD that
would allow water available under its 1905 water rights to be
used for purely wetland uses. The EIS/CCP repeatedly, and
properly, points to that request in response to ASP’s argument
that the Service has “done nothing” to increase the supply of
water to the refuges. If and when the Service’s request is
granted, the Service may need to revisit its reasons for
28 AUDUBON SOCIETY OF PORTLAND V. HAALAND

rejecting the reduction of lease land agriculture as a formal
alternative, for if the request is granted reduction in lease land
agriculture will not result in a reduction of the water available
for the refuges. But unless and until that request is granted,
the Service has sufficiently explained why it did not present
such reduction as a formal alternative in the EIS/CCP.

Conclusion

To the degree the present pattern of agricultural leasing in
the Tule Lake and Lower Klamath Refuges is consistent with
proper waterfowl management in those refuges, the Kuchel
and Refuge Acts direct the Service to continue that present
pattern of leasing. In developing a Comprehensive
Conservation Plan for the Tule Lake and Lower Klamath
Refuges, the Service was constrained by the fact that frequent
droughts in the region prevent the refuges from fully realizing
the goals of proper waterfowl management in those refuges.
The Service was further constrained by a complex system of
water rights that is largely beyond its control. In reviewing
the EIS/CCP, we recognize these constraints and defer to the
reasoned explanations provided by the Service in support of
its decisions.

AFFIRMED.