ELR Citation: ELR 20016
No(s). 93-35591 (9th Cir. Oct 14, 1994)

The court holds that in an environmental group's National Environmental Policy Act (NEPA) challenge, the Bureau of Reclamation's maintenance of water levels in lakes and spraying of herbicides in canals at the Klamath Irrigation Project in Oregon are not final agency actions ripe for review under the Administrative Procedure Act (APA). The court first holds that the environmental group's claims that the Bureau's actions violate NEPA do not meet the finality requirement of the APA. The court next holds that the claims are unreviewable under NEPA. Ongoing operations of a pre-NEPA project, such as maintaining water levels in lakes and spraying herbicides in canals of the Klamath Irrigation Project, are not subject to NEPA unless, after NEPA became law, the activities underwent changes that themselves amount to major federal actions. The Bureau is in the best position to marshal the facts necessary to determine initially whether such continuing operations have undergone changes amounting to major federal action, but the Bureau has made no such determination.

The court next holds that the environmental group's claims that the Bureau's dredging of a silted-up irrigation channel and implementation of sucker salvage operations violated NEPA are moot. No effective relief is available because the Bureau completed the dredging activity. Moreover, there is no reasonable expectation that further dredging will occur. Finally, the court affirms the district court's holding that salvaging the sucker fish from drained irrigation canals and transporting some of them to hatcheries was activity categorically excluded from NEPA. Agency action mandated by statute does not trigger NEPA, and here the Fish and Wildlife Service required the Bureau to undertake the salvage operation as part of its compliance with the Endangered Species Act.

Counsel for Plaintiffs
Peter C. Sorenson
Law Offices of Peter C. Sorenson
P.O. Box 10836, Eugene, OR 97440
(503) 683-1378

Counsel for Defendants
Robert L. Klarquist
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Browning, Kozinski, and Noonan, JJ.