# Defenders of Wildlife v. United States Fish and Wildlife Service

> District Court, E.D. North Carolina · July 23, 2025

URL: https://www.frixlaw.com/law-library/cases/11106538

## Case

- **Court:** District Court, E.D. North Carolina
- **Decided:** July 23, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
No. 4:24-CV-73-BO-BM

DEFENDERS OF WILDLIFE and )
SIERRA CLUB, )
Plaintiffs, )
)
v. ) ORDER
)
THE UNITED STATES FISH AND )
WILDLIFE SERVICE, MARTHA )
WILLIAMS, in her official capacity as )
Director of the United States Fish and )
Wildlife Service; MICHAEL OETKER, )
in his official capacity as Southeast Regional)
Director of the United States Fish and )
Wildlife Service; COUNCIL ON )
ENVIRONMENTAL QUALITY; BRENDA)
MALLORY, in her official capacity as )
Chair of the Council on Environmental )
Quality, )
Defendants. )

This cause comes before the Court on the parties’ cross-motions for summary judgment.
The appropriate responses and replies have been filed and a hearing on the motions was held before
the undersigned on May 2, 2025, at Raleigh, North Carolina. In this posture, the motions are ripe
for ruling. For the reasons that follow, both motions are granted in part and denied in part.
BACKGROUND
I. Parties
The United States Fish and Wildlife Service (the “Service”) is a federal agency responsible
for management and conservation efforts in the National Wildlife Refuge System, which includes
the Mattamuskeet National Wildlife Refuge (the “Refuge’”). See 16 U.S.C. §§ 668dd-668ee. As

part of their duties, the Service is required to ensure agency compliance with the National
Environmental Policy Act (“NEPA”), the National Wildlife Refuge System Improvement Act
(“Refuge Act”), and other laws. [DE 21] 32, 33. The Council on Environmental Quality
(“CEQ”) is a federal agency within the Executive Office of the President which is responsible for
overseeing the implementation of NEPA and promulgating regulations to be utilized by federal
agencies in following NEPA. [DE 1] § 37; [DE 21] 37.
Along with the various local, state, and federal agencies responsible for conservation
efforts, plaintiffs Defenders of Wildlife and the Sierra Club (collectively “plaintiffs” or the
“Conservation Groups”), along with their members and supporters, also have an interest in the
protection and restoration of the Refuge. The Conservation Groups are nonprofit organizations
who participated in the NEPA process, submitted comments on the experimental treatment at issue
in this case (the “Project”), and participated in facial challenges to 2020 NEPA regulations
promulgated by the CEQ. [DE 1] f{ 14-27, 30; [DE 21] {ff 18, 21, 27.
II. Factual background
The Refuge is located on the Albemarle-Pamlico Peninsula in eastern North Carolina and
contains Lake Mattamuskeet (the “Lake”), the largest natural lake in North Carolina which spans
approximately 40,000 acres. Located at roughly the mid-point of the Atlantic Flyway!, the Lake is
a critical resource to migratory birds and provides food and habitat to over 250 species and

' The Service “and its partners manage migratory birds based largely on routes the birds follow as
they migrate between nesting and wintering areas. Based on those routes, four administrative
Flyways (Atlantic, Mississippi, Central and Pacific) were established in North America to facilitate
management of migratory birds and their habitats.” https://www.fws.gov/partner/migratory-bird-
program-administrative-fly ways (last visited July 22, 2025).

hundreds of thousands of individual birds who regularly visit or reside there. FWS_000021;
FWS_000027.” The Lake is a shallow basin with an average depth of two feet. Id.
One of the most difficult challenges facing conservation efforts at the Lake involves
submerged aquatic vegetation (“SAV”), a vital food resource for migratory birds who visit the
Lake. FWS_000021. The Lake’s vegetation was previously dominated by SAV, such as wild
celery and redhead grass, which provided a “critical component of the aquatic ecosystem[.]” Jd.
The SAV not only serves as a primary food source for wintering waterfowl, but also helps to
stabilize the substrate and provide habitat for fish and other species. Jd. The presence, or absence,
of SAV is an indicator of the overall health of the Lake. FWS_003756; FWS_003766.
Since at least 1981, invasive carp, runoff, and nutrient pollution have caused significant
decreases in SAV in the Lake, which in turn allows for increases in the presence of blue-green
algae, also known as cyanobacteria. FWS_000021. Cyanobacteria blooms are themselves
problematic because they prevent sunlight from reaching SAV, thereby hindering SAV growth.
Id. At least in part due to diminished food resources resulting from the loss of SAV, there has been
a sharp reduction in migratory bird populations at the Lake, from over 30,000 mid-winter tundra
swans in 2008 to fewer than 10,000 in 2016. FWS_00027.
In 2018, the North Carolina Wildlife Resources Commission, North Carolina Coastal
Federation, Hyde County, and the Service released the Lake Mattamuskeet Watershed Restoration
Plan (the “Watershed Plan”), which was the result of a combined effort by these groups to improve
the water quality of the Lake. FWS_000021-22. The Watershed Plan identified two priority actions
to improve the Lake’s water quality, decrease cyanobacteria, and increase SAV: reducing both

2 Citations to FWS_000 and NEPA_000 are to the Bates numbered pages of the Administrative
Record lodged with the Court. [DE 29]. Docket entry page number citations are to the CM/ECF-
stamped page numbers.

carp biomass and external nutrient loading from runoff. FWS_009059. Work has begun on a $1
million contract aimed at removing carp from the Lake. FWS_009093; FWS_009351;
FWS_000028. The Conservation Groups maintain that the Watershed Plan is focused on long-
term solutions, which do not include short-term algaecide use. [DE 28] at 11 (citing FWS_003598-
601).
Despite some disagreement over the origins of the Project,’ the parties agree that, in
approximately September 2022, the University of North Carolina Collaboratory (the
“Collaboratory”) contacted the Mattamuskeet Refuge Manager and Refuge Biologist about using
BlueGreen Water Technologies’ algaecide product, LakeGuard Oxy, at the Lake to treat
cyanobacteria. FWS_000022. LakeGuard Oxy is a sodium percarbonate-based algaecide which
the Environmental Protection Agency labels as “toxic to birds”. FWS_000018; FWS_000105-
FWS_000111. The EPA has also indicated that LakeGuard Oxy’s active ingredient should carry a
label stating that it should be kept out of ponds, lakes, and streams and that it is toxic to aquatic
invertebrates, fish, and birds. FWS_003544. Implementation of LakeGuard Oxy at the Lake would
involve four treated bays, totaling around 400 acres, and four untreated control bays, isolated
through turbidity curtains. FWS_000023-24.

3 According to the Conservation Groups, BlueGreen Water Technologies registered several
representatives as lobbyists with the North Carolina Secretary of State in May of 2021. See
FWS_000291. The Conservation Groups assert that a few months later, the North Carolina General
Assembly directed the University of North Carolina Collaboratory to “conduct a study to ‘evaluate
the effectiveness and efficacy’ of an algaecide treatment” in North Carolina waters. [DE 28] at 9
(citing 129 Session Law 2021-180, Senate Bill 105, at part II, Section 8.18). The Conservation
Groups further contend that the language of the bill, which specified criteria for the algaecide
product they would select, “made it a foregone conclusion BlueGreen’s Lake Guard Oxy” would
be selected. [DE 28] at 10 (citing 129 Session Law 2021-180, Senate Bill 105, at part II, Section
8.18). On the other hand, the Service contends merely that the University of North Carolina
Institute of Marine Sciences (“UNC-IMS”) and BlueGreen “approached the Service as they were
evaluating water bodies in North Carolina for a pilot study for a cyanobacteria treatment.” [DE 36]
at 13-14 (citing FWS_000022).

In September of 2023, the Service issued a Draft Environmental Assessment (“EA”) and
offered the opportunity for the public to submit comments. FWS_000045. The Conservation
Groups commented that the Draft EA included an unreasonable range of alternatives, failed to
incorporate relevant scientific information, and constituted predetermined decision-making.
FWS_000288-89. The Conservation Groups further urged the Service to prepare a full
environmental impact statement (“EIS”). FWS_000312-15. On March 28, 2024, the Service issued
a Final EA and Finding of No Significant Impact (“FONSI”). FWS_000016-99.
The Final EA incorporated some mitigating measures to address concerns raised with the
Draft EA, including by specifying a treatment window of nineteen months, from April | through
October 31 of the following year. FWS_000023-24; FWS_000084. While wintering waterfowl are
absent during that window, wading bird species such as herons and egrets commonly inhabit the
Refuge, while species like Canada geese and wood ducks breed and raise their young. [DE 21]
132. Moreover, as part of the Final EA, the Service established that five staff members will be
charged with monitoring activities and project guidance, with one of their responsibilities being to
haze, or disturb to the point of leaving, any wildlife that moves into the area where undissolved
product is present. FWS_000030-31; FWS_000038. The Conservation Groups argue that the
Project poses a risk to the health of the birds that frequent the Refuge during this time. See
generally [DE 1]. On the other hand, the Service contends that the treatment period is when
waterfowl presence is at its lowest and that those birds which do inhabit the Lake typically use
open water areas away from the shore, due to the loss of SAV and the presence of phragmites, an
invasive plant. [DE 36] at 15.

Ill. NEPA Rulemaking
The NEPA implementing regulations issued by the CEQ have gone through multiple
rounds of changes in recent years. CEQ finalized the proposed rule challenged here (the “2020
Rule”) on July 15, 2020, providing a Regulatory Impact Analysis and announcing it would go into
effect two months after publication, on September 14, 2020. NEPA_00000001. In 2022, CEQ
issued two phases of rulemaking changes to address alleged flaws in the 2020 Rule: the Phase 1
rulemaking was completed on April 20, 2022, and the Phase 2 rulemaking was completed on May
1, 2024. 87 Fed. Reg. 23,453 (Apr. 20, 2022); 89 Fed Reg. 35,442 (May 1, 2024). The
Conservation Groups contend that the NEPA analysis conducted by the Service in preparation for
the Project was conducted pursuant to the 2620 Rule, modified slightly by the changes in 2022.
[DE 21] 7 145.
After the filing of the complaint in this case, other litigation resulted in an order which had
the effect of reinstating the 2020 Rule across the country. [DE 39]; Jowa v. Council on Env’t
Quality, 765 F. Supp. 3d 859 (D.N.D. Feb. 3, 2025). On February 25, 2025, the CEQ published an
interim final rule removing the 2020 Rule from the Federal Register. [DE 40]; 90 Fed. Reg. 10,610
(Feb. 25, 2025). Defendants argue that this has mooted plaintiffs’ facial challenge to the 2020
Rule. Jd. However, plaintiffs argue that the uncertainty surrounding what NEPA procedures the
Service would implement on remand means the 2020 Rule remains relevant to the disposition of
this case. [DE 41] at 2-3.
IV. Procedural History
On May 20, 2024, the Conservation Groups brought the instant lawsuit against the Service,
the Service Director, the Southeast Regional Service Direc:tor, the CEQ, and the Chair of the CEQ.
[DE 1]. The Conservation Groups allege violations of the Refuge Act, NEPA, and the

Administrative Procedures Act (APA), 5 U.S.C. §§ 702, et seg. [DE 1].* The Conservation Groups
initially moved for a temporary restraining order and preliminary injunction to stop the Project,
but these motions were withdrawn upon an agreement that the Service would halt the Project
pending a final judgment in this case. [DE 20]. Now pending before the Court are the parties’
cross-motions for summary judgment. [DE 27]; [DE 35].
DISCUSSION
In this case, plaintiffs bring three categories of claims. First, the Conservation Groups
allege that the Service violated the Refuge Act by failing to conduct a compatibility determination
before authorizing the Project, see 16 U.S.C. §§ 668dd(d)(1)(A), and otherwise acted arbitrarily
and capriciously in violation of the APA. In Claims Two through Four, the Conservation Groups
allege that the Service violated NEPA by failing to properly consider a reasonable range of
alternatives to the Project and predetermining the outcome of the NEPA analysis; by conducting
an inadequate analysis of the effects of the Project; and by failing to prepare an Environmental
Impact Statement. In Claims Five through Eight, the Conservation Groups raise a facial challenge
to the 2020 Rule, claiming that the 2020 Rule is arbitrary and capricious because it failed to
consider an important aspect of the problem and further that the 2020 rulemaking was contrary to
evidence before the agency, failed to consider reliance interests, and was inconsistent with the
governing statute. See [DE 1] ff 221-277.

4 The Gollssrvalioh Crauns Spend a portion of their motion for summary judgment arguing that
they have Article III standing to pursue their claims. [DE 28] at 17-20. Defendants have not
challenged the Conservation Groups’ standing. For those reasons outlined by the Conservation
Groups, the Court determines that the Conservation Groups had standing to pursue their claims at
the commencement of this action. See Davis v. Fed. Election Comm’n, 554 U.S. 724, 732 (2008).
However, as discussed more fully below, the Conservations Groups’ challenge to the 2020 Rule
is now moot.

%

The Conservation Groups seek a declaratory judgment that the Service has violated the
Refuge Act, NEPA, and the APA as set forth in the complaint, that CEQ’s 2020 Rule was arbitrary
and capricious and failed to comply with the law, and that CEQ exceeded its statutory authority
when it promulgated the 2020 Rule. The Conservation Groups seek an order directing the Service
to conduct a compatibility determination for the Project under the Refuge Act, vacating and setting
aside the March 2024 Final EA and FONSI, and directing the Service to conduct a legally
compliant NEPA analysis for the Project which does not rely on the 2020 Rule. Finally, the
Conservation Groups ask the Court to enjoin the Service from permitting the Project until after the
aforementioned remedial steps have been taken and to award the Conservation Groups the costs
of this action, including attorney fees. Jd. at 56-57.
The parties agreed to proceed in this case by way of cross-motions for summary judgment.
[DE 20]. Typically, a motion for summary judgment tests whether there are genuine issues of
material fact for trial and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a). But where, as here, a court is considering motions for summary judgment in a case involving
the APA, “[s]ummary judgment . . . serves as the mechanism for deciding, as a matter of law,
whether the agency action is supported by the administrative record and otherwise consistent with
the APA standard of review.” Sierra Club v. Mainella, 459 F. Supp. 2d 76, 90 (D.D.C. 2006).
Thus, when reviewing agency action under APA, a court does not consider whether there are
disputed issues of material fact, but rather must “determine whether or not as a matter of law the
evidence in the administrative record permitted the agency to make the decision it did.” Occidental
Eng’g Co. v. LN.S., 753 F.2d 766, 769 (9th Cir. 1985).
Under the APA, agency action shall be set aside by a reviewing court if its “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).

“Courts must conduct a ‘searching and careful’ inquiry into the agency decision, although this
review is ultimately a ‘narrow’ one.” J.H. Miles & Co., Inc. v. Brown, 910 F. Supp. 1138, 1146
(E.D. Va. 1995) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416
(1971)). Review of agency action under the APA is highly deferential, Ohio Valley Envtl. Coal.
v. Aracoma Coal Co., 556 F.3d 177, 192 (4th Cir. 2009), but a court must nonetheless refrain from
acting as a rubberstamp. N. Carolina Wildlife Fed’n v. N. Carolina Dep’t of Transp., 677 F.3d
596, 601 (4th Cir. 2012). Agency action is reviewed under the APA based upon the “whole record,”
which means everything that was directly or indirectly considered by the decision-makers.
Thompson v. United States Dep’t of Labor, 885 F.2d 551, 555 (9th Cir. 1989); S.C. Coastal
Conservation League v. Ross, 431 F. Supp. 3d 719, 722 (D.S.C. 2020).
Agency action must be deemed arbitrary and capricious where the agency has “relied on
factors which Congress has not intended it to consider, entirely failed to consider an important
aspect of the problem, offered an explanation for its decision that runs counter to the evidence
before the agency, or is so implausible that it could not be ascribed to a difference in view or the
product of agency expertise.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 43 (1983).
A. Refuge Act claim
The Refuge Act, 16 U.S.C. § 668dd(a)(1), governs the management of the National
Wildlife Refuge System (Refuge System) in supporting the primary goal of the Refuge System —
administering “a national network of lands and waters for the conservation, management, and
where appropriate, restoration of the fish, wildlife, and plant resources and their habitats within
the United States for the benefit of present and future generations of Americans.” Id. § 668dd(a)(2).
To that end, the Service must administer the Refuge System in a manner which ensures that this

mission is carried out. Jd. § 668dd(a)(4)(D). “Refuges are first and foremost national treasures for
the conservation of wildlife.” FWS_000156.
To ensure that the goal of the Refuge System is being carried out, the Service is not
permitted to initiate or allow a new use of any refuge unless it has determined that the new use is
“compatible with the major purposes” of that refuge. Id § 668dd(d)(1)(A), (d)(3)(A)(i). A
compatible use is defined as a “wildlife-dependent recreational use or any other use of a refuge
that, in the sound professional judgment of the [Service], will not materially interfere with or
detract from the fulfillment of the mission of the System or the purposes of the refuge.” Jd. at §
668ee(1). A written compatibility determination is required where the Service is determining
whether a use qualifies as compatible, unless the use qualifies as a “refuge management activity.”
50 C.F.R. §§ 25.12(a), 26.41. A refuge management activity is a use which is conducted by the
Service or a Service-authorized agent and is one which fulfills one or more of the purposes of
either the specific refuge or the mission of the Refuge System. 50 C.F.R. § 25.12(a). Examples of
refuge management activities include prescribed burns, invasive species control, law enforcement,
and water level management. FWS_000155.
Plaintiffs challenge the Service’s decision not to conduct a compatibility determination for
the Project. In the Final EA, the Service classified the Project as a “refuge management action,”
which meant it would not need to conduct a compatibility determination. FWS_00086. However,
in the Draft EA, the Service did not classify the Project as a refuge management action, and the
Court has been presented with no adequate explanation for the change. See FWS_008748. In the
absence of any real explanation for the change, the decision to reclassify the Project from a new
use to a refuge management activity was arbitrary.

10

The Court agrees with the Conservation Groups that the Project is not properly classified
as arefuge management activity. Even assuming, without deciding, that the Project is a Service or
Service-authorized agent activity, the Project nonetheless fails to fulfill one of the purposes of the
Refuge and Refuge System generally. Whether the application of LakeGuard Oxy would support
any other conservation purpose of the Refuge, for example by improving water quality, it cannot
seriously be argued that such an action does not also have the potential to directly impair an
equally, if not more, important purpose of the Refuge — providing sanctuary to birds. In other
words, a new refuge management activity which would fulfill one purpose of the Refuge while
impairing another requires the Service to engage in a compatibility determination. Plaintiffs are
entitled to summary judgment on this claim.
B. NEPA claims
With the passage of NEPA, Congress established procedures that federal agencies are
required to complete when acting in a way that significantly affects the environment. 42 U.S.C. §§
4321, 4331. NEPA’s purpose is to ensure that agencies will carefully consider environmental
impacts and that the public has access to the relevant information so they may participate in the
decisionmaking. Hodges v. Abraham, 300 F.3d 432, 438 (4th Cir. 2002) (citations omitted).
“NEPA is a procedural statute; it does not force an agency to reach substantive,
environment-friendly outcomes. Rather, NEPA simply requires that the agency take a ‘hard look’
at environmental impacts before taking major actions.” Nat'l Audubon Soc’y v. Dep’t of Navy, 422
F.3d 174, 184 (4th Cir. 2005). “Courts should afford substantial deference and should not
micromanage [] agency choices so long as they fall within a broad zone of reasonableness.” Seven
Cnty. Infrastructure Coal. v. Eagle Cnty., Colorado, 145 S. Ct. 1497, 1513 (2025).

11

The Court considers first the Conservation Groups’ challenge to the Service’s issuance of
an EA and FONSI, rather than preparation of an EIS. “An agency’s decision to rely on an EA
instead of preparing an EIS is entitled to deference. Thus, review on the merits is limited to the
question of whether the agency reasonably concluded that the proposed action would not
significantly impact the quality of the human environment.” S.C. Coastal Conservation League v.
United States Army Corps of Eng’rs, Charleston Dist., 127 F Ath 457, 471 (4th Cir. 2025) (cleaned
up) (quoting Mt. Lookout-Mt. Nebo Property Protection Ass'n v. FERC, 143 F.3d 165, 172 (4th
Cir. 1998)).
The Service’s conclusion that the Project would not significantly impact the environment
was not reasonable. LakeGuard Oxy is known to be toxic to birds, and the Lake is part of an
“inviolate sanctuary for migratory birds” and “a refuge and breeding ground for birds and wild
animals.” FWS_003177. True, the Service has included mitigation measures in order to reduce the
likelihood of negatively impacting wildlife in its EA. FWS_ 000093. These include seasonal
application limitations, the use of turbidity curtains, and monitoring by Service staff which will
include hazing birds which are present in areas where there is undissolved product. Id.
But describing the Project as a pilot project and limiting the application of LakeGuard Oxy
to only a portion of the Lake does not make the impact of such a substance less significant. As
noted above, it is undisputed that LakeGuard Oxy is labeled as toxic to birds, and perhaps its
application in another environment not uniquely designated as a sanctuary for birds would be cause
for less concern. Nonetheless, the Court must “remain mindful that ‘when it is a close call whether
there will be a significant environmental impact from a proposed action, an EIS should be
prepared.” Friends of Back Bay v. U.S. Army Corps of Eng’rs, 681 F.3d 581, 590 (4th Cir. 2012)
(citation omitted). The EA and FONSI fail to make clear how five Service staff members can

12

adequately monitor 400 acres of the Lake during the application process, and the Court cannot
consider any explanations put forth by the Service on this point that are not contained in the EA
itself. Motor Vehicle Mfrs. Ass’n, 463 U.S. at 50. The Conservation Groups have demonstrated
that the Service failed to act reasonably when it declined to prepare an EIS.
Moreover, the EA failed to adequately analyze the impacts of the Project and failed to
consider a range of reasonable alternatives. The EA cites to toxicity testing performed by
BlueGreen, the Bobwhite Quail Acute Toxicity Report, but it engages in virtually no analysis of
the study, other than to use the study in calculating the median acute lethal toxicity dose. See
FWS_000029. Though application of the algaecide would occur in summer months when
wintering waterfowl are absent, many species continue to reside and nest on and near the Lake in
summer months, such as wood ducks, great blue herons, and least bitterns. FWS_003366-73. The
EA fails to meaningfully assess the impacts of LakeGuard Oxy on the species which will be present
during its applications, or meaningfully assess the impacts of hazing on these species.
The no action alternative assessed in the EA was also flawed. “NEPA’s requirement that
alternatives be studied, developed, and described both guides the substance of environmental
decisionmaking and provides evidence that the mandated decisionmaking process has actually
taken place.” Bob Marshall All. v. Hodel, 852 F.2d 1223, 1228 (9th Cir. 1988). The EA’s
description of the no action alternative makes vague reference to the Watershed Plan,
FWS_000023, but the Service failed to engage with the potential beneficial outcomes of the
Watershed Plan in assessing whether the goals of the Project could be achieved or supported by
other means. As plaintiffs discuss, the Service identifies the carp removal project as something
which will help improve water quality and clarity, FWS_000028, which would then help support

13

the return of SAV, but this improvement is not assessed when comparing the Project to the no
action alternative. See FWS_000035-36.
Importantly, the Court has also taken into consideration the fact that the Service was
approached by BlueGreen and the Collaboratory with the Project — in other words, the Service did
not endeavor to create a pilot project to study the impact of an algaecide at the Lake. Under such
circumstances, the agency has “the duty under NEPA to exercise a degree of skepticism in dealing
with self-serving statements from a prime beneficiary of the project.” Simmons v. United States
Army Corps of Eng’rs, 120 F.3d 664, 669 (7th Cir. 1997) (quotation and citation omitted). Here,
the Service relied primarily on BlueGreen’s own statements and studies in determining that the
application of LakeGuard Oxy would not substantially impact the environment. See, e.g.,
FWS_000029-30. Even affording the Service the deference it is due, the failure to adequately
explore the environmental impacts of LakeGuard Oxy and assess adverse effects of similar
chemicals was arbitrary and capricious. See, e.g., FWS_009477-95; FWS_009515-29.
At bottom, the Conservation Groups have demonstrated that the Service’s EA and FONSI
omits unexplored and unanalyzed risks to the very inhabitants that the Refuge is designed to
protect, and thus that the Service violated NEPA when it failed to prepare an EIS for the Project.
The Conservation Groups have further demonstrated that the Service failed to adequately assess
or disclose the reasonably foreseeable effects of the Project and failed to objectively evaluate a
reasonable range of alternatives. There can be no doubt that the presence of cyanobacteria is
critically impacting the health of the Lake. But before engaging in a project, even one which is
small-scale, which threatens to harm the Lake’s most prized inhabitants, a hard and careful look
at the impacts of such action is required. Plaintiffs are entitled to judgment in their favor on their
NEPA claims.

14

C. 2020 Rule challenge
Plaintiffs have raised a facial challenge to the 2020 Rule, arguing that the CEQ’s
rulemaking violated the APA. On February 25, 2025, the CEQ published an interim final rule
removing the CEQ regulations which implement NEPA, including the 2020 NEPA regulations at
which plaintiffs challenge. [DE 40]. That rule went into effect on April 11, 2025. The Service
contends that plaintiffs’ challenge to the 2020 Rule is now moot.
Article III of the United States Constitution permits a federal court to hear only “cases or
controversies.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 577 (1992) (citation omitted). “A case
becomes moot—and therefore no longer a ‘Case’ or ‘Controversy’ for purposes of Article III—
‘when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in
the outcome.” Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (citation omitted). Even where
a plaintiffhas standing at the commencement of an action, “subsequent events can moot the claim.”
Pashby v. Delia, 709 F.3d 307, 316 (4th Cir. 2013).
As is specifically relevant here, “when an agency has rescinded and replaced a challenged
regulation, litigation over the legality of the original regulation becomes moot.” Akiachak Native
Cmty. v. United States DOT, 827 F.3d 100, 113 (D.C. Cir. 2016). In response to the Service’s notice
of the interim rule, the Conservation Groups do not seem to argue that their claim has not been
rendered moot. [DE 41]. Rather, they contend that the 2020 Rule remains relevant to the
disposition of this case, and note the lack of clarity as to what procedures the Service might apply
if it is required to consider its actions again.
The Court is limited, however, to deciding only those issues brought before it. In their
complaint, the Conservation Groups allege that the 2020 Rule was promulgated by CEQ in
violation of the APA and they seek a declaratory judgment that CEQ’s 2020 Rule was arbitrary

15

and capricious and that in promulgating the 2020 Rule CEQ exceeded its statutory authority. Any
opinion the Court would give at this point regarding the now-rescinded 2020 Rule would be
advisory and thus impermissible. Lighthouse Fellowship Church v. Northam, 20 F.4th 157, 162
(4th Cir. 2021). Plaintiffs’ challenge to the 2020 Rule is moot, and the Service is entitled to
dismissal of these claims.
In sum, the Conservation Groups have demonstrated that defendants unreasonably failed
to prepare an EJS for the Project and otherwise failed to take a hard look at the environmental
impacts of the Project. The EA and FONSI are therefore appropriately vacated. Should defendants
wish to continue with the Project, an EIS must be prepared. The Conservation Groups have also
demonstrated that defendants should have prepared a compatibility determination for the Project.
The Court will not, however, opine as to the appropriate NEPA rules and regulations on which
defendants must rely should they continue with the Project, as the Conservation Groups’ challenge
to the 2020 Rule is moot.
CONCLUSION
Accordingly, for the foregoing reasons, plaintiffs’ motion for summary judgment [DE 27]
is GRANTED IN PART and DENIED IN PART. Defendants’ motion for summary judgment [DE
35] is also GRANTED IN PART and DENIED IN PART.
Plaintiffs are entitled to judgment in their favor on Claims One through Four of their
complaint. Defendant is entitled to judgment in its favor on Claims Five through Eight of the
complaint, insofar as these claims are DISMISSED as MOOT.
Defendants have violated the Refuge Act, NEPA, and the APA as outlined in Claims One
through Four of the complaint. The March 2024 Final EA and FONSI are hereby VACATED. The
clerk is DIRECTED to enter judgment and close the case.

16

SO ORDERED, this day of July 2025.

Ve W.BOYLE /
UNITED STATES DISTRICT JUDGE

17

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11106538. Public record. Not legal advice.