An attorney for the federal government argued that a review is only mandatory when a federal agency has control over an activity.
By Matuesz Perkowski
Capital Press
PORTLAND — Environmentalists hope to convince a federal appeals court that USDA must study the environmental effects of assisting Oregon wildlife regulators with killing wolves.
Last year, a federal judge decided that an agreement by USDA’s Wildlife Services to kill wolves at the direction of the Oregon Department of Fish and Wildlife doesn’t qualify as a “major federal action” warranting analysis under the National Environmental Policy Act.
During oral arguments in Portland on July 11, Cascadia Wildlands and four other environmental groups asked the 9th U.S. Circuit Court of Appeals to overturn that ruling.
According to legal precedent, NEPA review is required even when the government simply provides grant money for a building project, said John Mellgren, an attorney for the environmental plaintiffs.
“Here, by contrast, there is actual federal action,” Mellgren said, noting that USDA would send out federal employees with federally owned equipment to kill wolves.
Although U.S. District Judge Michael McShane found that the decision to kill wolves rested with ODFW, the state agency can’t force USDA to perform a lethal operation — that’s still at the discretion of federal officials and should be studied under NEPA, he said.
Sean Martin, an attorney for the federal government, countered that NEPA review is only mandatory when a federal agency has control over an activity.
“Here, that kind of supervision is absent,” Martin said. “Those kinds of judgment calls are left to Oregon and Oregon alone. … It’s the state calling the shots.”
In this case, USDA did conduct a NEPA environmental assessment but the environmental groups claim it was insufficient.
The government argues it only completed the analysis to settle a previous lawsuit and McShane correctly decided the review wasn’t otherwise legally required.
Even if it was required, the USDA properly concluded the assistance of Wildlife Services in killing problem wolves wouldn’t harm the overall population, which is increasing, Martin said.
“Limited control isn’t going to impair that trend,” he said.
The primary limiting factor for wolf survival in Oregon is human acceptance, which necessitates resolving livestock conflicts and managing the species, he said.
However, Mellgren argued that USDA failed to take a “hard look” at the effects of killing wolves as required under NEPA.
The agency should have considers the impacts of wolf killing in Idaho, which is a prime source of wolves migrating into Oregon, he said.