RICHARD F. BOULWARE, II, United States District Judge.
This case centers on a biological-control program initiated by the United States Department of Agriculture (USDA) through two of its agencies: Agricultural Research Services (ARS) and Animal and Plant Health Inspection Services (APHIS). Plaintiffs Center for Biological Diversity, Maricopa Audubon Society, and Dr. Robin Silver (the "Center") allege that the USDA violated the Endangered Species Act (ESA) by failing to ensure that the program's termination would not jeopardize a bird called the southwestern willow flycatcher ("flycatcher") and by failing to take appropriate action to mitigate the adverse effects resulting from the program's termination. The Center also alleges that the USDA and the United States Department of the Interior (USDI) violated the National Environmental Policy Act (NEPA) by failing to pursue formal consultation before terminating the program, by failing to implement mitigation measures outlined in a NEPA document after terminating the program, and by failing to supplement the USDA's original NEPA documents.
The parties filed motions for summary judgment, ECF No. 28 and ECF No. 30. For the reasons discussed below, the Court denies the Center's motion and
Plaintiffs contend that the Defendants violated the ESA and NEPA when, in 2010, the USDA, through APHIS, terminated a certain beetle release program without taking further action.
Under the Endangered Species Act (ESA), federal agencies are required, to: 1) "utilize their authorities ... by carrying out programs for the conservation of endangered species" in consultation with the Secretary of the Interior. 16 U.S.C. § 1536(a)(1); and 2) in "consultation" with the Fish and Wildlife Services (FWS), to "insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species" or to "result in the destruction or adverse modification of habitat of such species" that has been designated as "critical." 16 U.S.C. § 1536(a)(2).
The ESA and its regulations impose certain procedural duties on various federal agencies and the FWS. If an agency determines in a biological assessment ("BA") that its action may affect a listed species or critical habitat, the action agency must engage in formal consultation with the FWS, unless the agency finds, and the FWS concurs, that the action is "not likely to adversely affect" in any fashion the species or its critical habitat. 50 C.F.R. § 402.14(a), (b).
When formal consultation is required, the process culminates in preparation of a biological opinion ("BiOp") by the Service, which must be based on the "best scientific and commercial data available," 16 U.S.C. § 1536(a)(2), setting forth "how the agency action affects the species or its critical habitat."
Regarding NEPA, this act imposes only procedural requirements rather than particular substantive results.
In 1986, the USDA began researching biological-control methods for the saltcedar — a tree nonnative to the United States that threatens the population and diversity of indigenous plants. AR A6666 and A3414. Through its research, the USDA identified the Diorhabda elongate (the "beetle") as one such method. AR A6666. Diorhabda elongate is a leaf-eating beetle that acts as a host-specific insect.
However, the program was delayed in March 1995 after the U.S. Fish and Wildlife Service (FWS) listed the flycatcher as an endangered species and designated areas throughout the southwestern United States as critical habitat. AR F988-97. The flycatcher often nests in saltcedar trees because human activities and invasive plants have reduced the flycatcher's native habitat.
Because the FWS listed the flycatcher as an endangered species and the USDA's beetle program targeted a plant in which the flycatcher nests, the USDA was required to consult with the FWS before releasing any beetles. Thus, the USDA drafted a biological assessment in 1997 and submitted it to the FWS. AR A6666, A466, A451. The USDA also submitted a project proposal to the FWS based on the draft BA. AR A1276. The project proposal included the following conditions and revisions:
In December 1998, the FWS issued a Letter of Concurrence with USDA's BA,
USDA then notified the public of its draft environmental assessment (EA) as required by NEPA. AR A1406-07. The draft EA discussed ARS's request for a permit for the beetle program and APHIS's Finding of No Significant Impact on the flycatcher or its habitat by the program.
The USDA issued a final EA and FONSI for the program in July 1999. AR A1525-54. In the EA, the USDA agreed to adopt measures to mitigate the risk of beetles spreading rapidly, invading nesting areas of flycatchers, and killing saltcedar trees faster than native plants could regenerate. AR A1534.
Three months later, the Saltcedar Consortium developed a Memorandum of Understanding ("MOU").
The MOU attached a list of the program sites and the contact agency for each site.
The USDA began issuing permits for the release of beetles into secure cages in July 1999. AR A1555-78. A year later, the USDA issued permits that authorized releasing the beetles from field cages to open fields. AR A1702-03. The USDA then released the beetles at the permitted sites. A2366-67.
According to monitoring reports, the beetles could not survive south of 37N latitude. AR A2368, A3732-47. The FWS concurred with most of the USDA's requests for additional sites in Texas, New Mexico, and elsewhere in 2003 and 2004 to determine if the beetles could survive and reproduce below 37N latitude. AR A2101-02, A2179-181, A2356-57, A2359, A2363-65, A2362, A2368, A2376-380.
In November 2003, USDA proposed a draft EA to initiate a second program to control the invasive saltcedar tree. A2966-67, A2975. The draft EA asserted that flycatchers were not known to nest in the proposed locations
The FWS responded to the draft EA and recommended the USDA meet with land managers in each state before any beetle releases occurred to develop management plans. AR A3070. The FWS suggested that the plans address any necessary control methods, funds needed for control, and funding mechanisms.
In March 2004, the USDA submitted a monitoring plan in response to the FWS's request. AR A3113-28. In the plan, the USDA outlined the conditions of the second release program and agreed to develop and implement a restoration and mitigation plan by meeting with land managers if monitoring showed the steps were warranted. AR A3114, A3120. The plan assigned data management responsibilities, including post-release monitoring, to USDA personnel or local collaborators. AR A3120.
In March 2005, the USDA transmitted a final BA to the FWS for the 2005 program. AR A3407-97. It proposed to establish beetle release sites north of 37N latitude, an area where the flycatcher was not known to nest. AR A3487, A6895, A7289. The USDA concluded the 2005 program was not likely to adversely affect the flycatcher or its habitat. AR A3488. In doing so, the USDA relied on the assumptions found in the 2003 draft EA — namely, that the "[t]he northern limit of the flycatcher's range is about 37N latitude." AR A3487. The USDA used the current science at the time, which failed to differentiate between two beetle strains. AR A3422, A3921. Namely, a strain of beetle originating from Crete, rather than Asia, were tested and revealed to be more adaptable to environmental conditions below 37N latitude. AR A3422. The USDA also excluded Utah from its list of proposed release sites due to an earlier event that resulted in beetle release in Saint George, after a USDA employee gave a presentation on the benefits of using the beetles for saltcedar control. AR A3423, AR A3922. It is disputed whether the employee provided information on how to circumvent federal guidelines and encouraged the locale to distribute beetles or if the employee provided standard information on federal guidelines when explaining why he could not help fund or assist with obtaining the beetles. ECF No. 28 at 16; ECF No. 31 at 16-17.
In June 2005, the USDA submitted a final EA concerning general release of the beetles and issued a FONSI. AR A3914-72, A3912-13. The USDA recognized the importance of the saltcedar to the flycatcher but still found the proposed beetle release program would not result in a significant impact. AR A3946. The USDA relied on the assumptions that the beetles could not survive lower than 37N latitude and that the beetles would spread slowly.
In July 2005, the FWS concurred with the USDA's BA and determined that formal consultation was unnecessary. AR A3994-98, A3436, A3488. The FWS based its concurrence on the assumptions from the 2003 draft EA.
The FWS clarified that the USDA would develop revegetation and mitigation plans at the USDA insectary sites, but that landowners and managers were solely responsible for addressing unanticipated impacts. AR A3995. The FWS also stated that it assumed the USDA's agency, APHIS, had no discretion or control over potential post-release indirect effects otherwise.
The USDA approved the release of the beetles at selected field insectary sites in thirteen states and the initial releases
In September 2008, the USDA learned that beetles had reached the flycatcher's critical habitat. AR A5624, A5061. It was determined the beetles originated from a site in Delta, Utah associated with a 1999 permit. AR A5061. Specifically, in September 2008, it was determined that Utah state and local government officials had removed beetles from the Delta site and released the beetles near Saint George, Utah to control saltcedar populations. AR A5627, A5061-62, A5365, A5065, A9588-89, A5522-23. The beetles spread as far south as Arizona because of the releases. AR A5061. The record does not indicate that any other site or any other USDA activities contributed to the beetles spreading south.
Five months later, the USDA attended a research conference and obtained information about the beetles that was not previously considered. AR A5624-28. Namely, at a 2009 research conference in Reno, Nevada, scientific data indicated that a beetle had adapted and successfully reproduced in areas as far south as the 32N latitude.
A formal request followed three months later, in which USDA requested reinitiation of consultation and assistance in preparing a revised BA. AR A5628-29. The FWS and the USDA discussed the proper subject and scope of the consultation and determined that the reinitiated consultation regarded the 2005 program. AR A5577-83; F693-95.
The USDA completed a BA proposing termination of the program. AR A5986-6121. The BA outlined three paths of action that the USDA then pursued:
Additionally, the USDA agreed to participate in an interagency group to address the needs of the flycatcher.
While eradication efforts were addressed in the BA, the USDA ultimately stated eradication was impractical due to high costs, low probability of success, and likelihood of an adverse effect on other species.
The FWS concurred with the USDA's finding of unlikelihood of an adverse effect. A6207. The concurrence concluded informal consultation under Section 7 of the ESA.
The Center filed its Complaint in this action on September 30, 2013. ECF. No. 1. The Complaint names five officials as defendants: USDA Secretary Tom Vilsack;
The Complaint alleges five causes of action: (1) the USDA violated Section 7(a)(2) of the ESA by terminating the program without insuring the termination would not cause jeopardy to the flycatcher; (2) the USDA violated Section 7(a)(1) of the ESA by failing to adopt a mitigation plan; (3) the USDA and the USDI violated ESA's formal consultation requirements; (4) the USDA violated NEPA by failing to implement mitigation measures; and (5) the USDA violated NEPA by failing to engage in supplemental NEPA review. ECF No. 1. The Center prayed for declaratory and injunctive relief and also a requested attorney fees and costs.
The Center moved for summary judgment on all claims in December 2014. ECF No. 28. Two months later, the USDA and the USDI also moved for summary judgment. ECF No. 30. The Court held oral arguments regarding the parties' motions for summary judgment on February 1, 2016. ECF No. 52.
On March 31, 2016, the Court issued a minute order, granting in part and denying in part both motions for summary judgment, stating a written order would issue. ECF No. 54. This Order sets forth the Court's reasoning for its ruling. In the intervening period, the Court has held hearings to determine the scope of any injunctive or other relief.
The Federal Rules of Civil Procedure allow for summary judgment when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a);
The Administrative Procedure Act (APA) governs the Court's review of ESA and NEPA claims.
Under the APA's narrow review standard, the Court must not "substitute its judgment for that of the agency."
Moreover, courts give deference to an agency's interpretation of a statute that it administers.
Lastly, in order to be subject to judicial review under the APA, an agency action must be either reviewable by statute or considered a "final agency action for which there is no other adequate remedy in a court." 5 U.S.C. § 704.
The Court first considers Claims 1 and 3, which the Center brought under Section 7(a)(2) of the ESA. The Court then evaluates Claim 2, brought under Section 7(a)(1) of the ESA. Last, the Court considers Claims 4 and 5, which the Center brought under NEPA and related regulations.
After reviewing the competing motions and the supporting exhibits, the Court concludes that neither the USDA nor the USDI violated Section 7(a)(2) of the ESA. The Court also finds that USDA did not violate NEPA or the related guidelines. However, the Court finds the USDA failed to take affirmative action to conserve the flycatcher as required by Section 7(a)(1) of the ESA.
The Center alleged two claims, Claims 1 and 3, under Section 7(a)(2) of the ESA, which contains a "substantive" mandate to avoid jeopardizing listed species and their habitats, and a "procedural" obligation to consult meaningfully with the FWS to ensure the substantive mandate is fulfilled.
Under Claim 1, Plaintiff argues that the USDA failed to ensure that the flycatcher would not be jeopardized when the USDA terminated the beetle program without taking any remedial steps. Under Claim 3, the Center contends the USDA violated the ESA Section 7(a)(2) when it reinitiated ESA consultation solely for its 2010 decision to terminate the 2005 program and associated permits rather than consulting on the full scope of the programs.
The Court considers each in turn.
Under Claim 1, Plaintiff alleges a substantive violation of Section 7(a)(2) and argues that the USDA failed to ensure that the flycatcher would not be jeopardized when the USDA terminated the beetle
The USDA responds that the Center improperly conflated the actions of two USDA agencies — APHIS and ARS. Consequently, the Center expanded the actions under review and amplified the affect the program had on the flycatcher and its habitat.
As an initial matter, APHIS and ARS act as agencies of the USDA. 7 C.F.R. §§ 371.1, 500.1. The USDA created and delegated certain parts of its authority to these agencies.
Under Section 7(a)(2) of the ESA, federal agencies must ensure that any action authorized, funded, or carried out by the agency is not likely to jeopardize an endangered species or its critical habitat. 16 U.S.C. § 1536. An action jeopardizes an endangered species or its habitat if it "reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of [an endangered species]." 50 C.F.R. § 402.02;
The Supreme Court did not limit the reach of Section 7(a)(2) to federal actions relating to federal projects in the planning stage.
"An agency must consult under Section 7 only when it makes an `affirmative' act or authorization."
Additionally, Section 2(c) and Section 3(2) of the ESA direct agencies to "use ... all methods and procedures which are necessary" to preserve endangered species. 16 U.S.C. §§ 1531(c), 1532(3). A project jeopardizes the continued existence of a species when it is based on a legally flawed biological opinion (BiOp).
In this matter, the Center challenges the USDA's 2010 decision to terminate the program and associated permits. ECF No. 1 at 1-2. In Claim I, the Center argues that the ESA did not ensure against jeopardy as required by Section 7(a)(2) because it failed to take additional actions to mitigate possible harm to the flycatcher after terminating the program.
The Center relies on
Moreover, the facts underlying the USDA's decision to terminate the release program undermine Plaintiff's claim. The USDA based its decision to terminate the release program on newly discovered information that the beetle could survive below 37N latitude and reach flycatcher habitat. By 2008, the USDA learned that the beetles had reached the flycatcher's critical habitat. AR A5624. It also learned that the beetles could survive below 37N latitude.
Additionally, unlike the federal agency in
Moreover, the beetles found in flycatcher habitat originated from the Delta, Utah
To the extent that the Center argues the granting of the Delta permit failed to ensure against jeopardy, the Court disagrees. When the USDA issued the permit to the Delta site, the USDA believed the beetles would not adversely affect the flycatcher or the flycatcher's habitat. See AR A5626. The USDA's belief stemmed from exhaustive research beginning in 1986. See AR A5624-25. Once the USDA learned two strains of beetle existed — one of which could survive in the flycatcher's critical habitat — the USDA followed USDA protocols and terminated the program. AR A6040. Thus, the USDA acted in an effort to prevent any possible jeopardy originating from sites operated by a federal agency.
For the reasons stated, the Court therefore GRANTS Defendants summary judgment on Claim 1.
The Center asserts a second claim under Section 7(a)(2), which is that the USDA failed to comply with the section's procedural requirements. Specifically, Plaintiff contends the USDA violated Section 7(a)(2) when it reinitiated ESA consultation solely for its 2010 decision to terminate the 2005 program and associated permits, rather than consulting on the full scope of the programs. ECF No. 28 at 29-30. Consequently, the Center argues, the USDA improperly avoided formal consultation procedures.
The USDA argues that the Center cannot group together all of the USDA's agencies' actions to broaden the consultation scope. ECF No. 30. It also argues that it properly limited the reinitiated consultation to the 2005 program and 2010 decision because the USDA did not retain any discretionary involvement or control over the 1999 permits.
"Procedurally, before initiating any action in an area that contains threatened or endangered species, federal agencies must consult with the FWS ... to determine the likely effects of any proposed action on species and their critical habitat. The ESA and its implementing regulations establish a framework for such inter-agency consultation. The agency proposing the action ... must independently determine whether the action `may affect' a listed species or its habitat under the ESA. If the answer is yes, `formal consultation' with the appropriate consulting agency is generally mandatory. An action agency may bypass formal consultation if it determines, and the consulting agency agrees, that the proposed action `is not likely to adversely affect any listed species or critical habitat.' When that occurs, `the consultation process is terminated, and no further action is necessary.' If, however, after this `informal consultation,' the consulting agency disagrees that the proposed action is not likely to have adverse effects, then formal consultation is required. In formal consultation, the consulting agency must prepare a biological opinion that advises the action agency as to whether the proposed action, alone or `taken together with cumulative effects, is likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat.'"
After reinitiating consultation, the FWS and the USDA determined the subject and scope of the consultation. AR A5577-83. Based upon the discussions, the USDA completed a BA and concluded that the 2005 program's termination and permits would not likely have an adverse effect on the flycatcher or its environment. AR A5986-6121, A6040. The BA included historical consultation for actions beginning in 1997 through the 2005 program.
The Center argues the scope of the informal consultation should have led to formal consultation and included review of all of the impacts from all of the USDA's actions pursuant to 50 C.F.R § 402.16. However, 50 C.F.R § 402.16 did not require formal consultation as suggested by the Center. The regulation requires formal consultation be reinitiated when new information comes to light that affects the decision made in the original formal consultation. Formal consultation was not pursued during the original program. Accordingly, 50 C.F.R. § 402.16 does not apply and does not mandate formal consultation.
Rather, 50 C.F.R. § 402.12(f) governs the contents of the BA, which gives the federal agency discretion in determining the document's contents.
The Center relies on
For the reasons stated, the Court therefore GRANTS Defendants summary judgment on Claim 3.
The Center brings its second claim under Section 7(a)(1) of the ESA. The Center argues that the USDA violated Section 7(a)(1) by failing to adopt "any conservation program" designed to conserve the flycatcher. ECF No. 28. The USDA responds that it satisfied the ESA in two ways. ECF No. 30. First, it designed and adopted the beetle program, in part, to conserve habitats that endangered species like the flycatcher rely upon.
When enacting the ESA, Congress intended to halt and reverse the trend toward species extinction at all costs.
Accordingly, the ESA creates an affirmative duty: it requires federal agencies take proper steps to conserve endangered species.
Because the Center challenged the 2010 decision to terminate the program, the Court determines whether the USDA fulfilled its Section 7(a)(1) obligations by terminating the program and if the USDA fulfilled its obligations after terminating the program. The Court finds that the USDA did not fulfill its obligations under Section 7(a)(1).
The FWS listed the flycatcher as an endangered species in 1995. AR A6034. Accordingly, the ESA requires that the USDA (and in this case the focus is on APHIS) use its authority to carry out flycatcher conservation programs in consultation with assistance from the FWS. From 1999 to 2010, the USDA authorized the beetle release program and then operated the insectaries, hoping to encourage native plant life and in turn benefit species including the flycatcher. AR A5990-92. After learning the programs could adversely affect the flycatcher or its critical habitat, the USDA sought consultation from FWS. AR A5064, A5628-29.
The USDA and the FWS agencies consulted on whether to terminate the program and its related permits. AR A5986-6121. This consultation included USDA's BA, which detailed actions the USDA pursued in terminating the program and resulted in a finding of an unlikelihood of adverse effect on the flycatcher.
The USDA first argues that its actions satisfied its obligations under Section 7(a)(1) because the program served, in part, to conserve habitat that endangered species rely upon for survival — including the flycatcher. ECF No. 30.
The USDA correctly characterizes its obligations as a general but affirmative duty to conserve endangered species. ECF No. 30 at 8. It also correctly claims its decisions are entitled deference.
The USDA's second argument also fails to demonstrate that USDA fulfilled its Section 7(a)(1) obligations. USDA argues it satisfied its obligations by following its long-standing policy to terminate existing permits and discontinue issuing permits that were found to adversely affect endangered animals. ECF No. 30 at 38-39. The USDA's argument is unavailing. While terminating the permitting program would stop the future damage that would be done to the flycatcher's habitat by the release of additional beetles, terminating the issuance of permits, as noted, does nothing to satisfy the USDA's duties under Section 7(a)(1) to take steps or establish programing to preserve the flycatcher. In short, the USDA has not adequately demonstrated how its termination policy satisfies its affirmative duty to adopt a "conservation" policy as required under Section 7(a)(1). Simply referencing USDA's own "long-standing" policy regarding terminating the use of biocontrol agents is insufficient. As of the time of the submissions in this case, the USDA has not identified a separate USDA conservation program(s) subsequent to the termination of the beetle release program which serves to conserve the habitat of the flycatcher.
Because no further action is alleged or found in the record, USDA has not satisfied its ongoing obligations under 7(a)(1) by simply terminating the beetle program found to adversely affect the flycatcher. The Court therefore grants summary judgment in the Center's favor on this claim.
The Center brings Claims 4 and 5 under NEPA. NEPA imposes only procedural requirements rather than particular substantive results.
NEPA also requires agencies complete an Environmental Impact Statement (EIS) for any major federal action that may significantly affect the quality of the human environment. 42 U.S.C. § 4332(2)(C). However, an agency may prepare an Environmental Assessment (EA) to determine if its proposed action might significantly affect the quality of the human environment before preparing an EIS. 40 C.F.R. § 1508.9. An EIS is not required if the agency issues a Finding of No Significant Impact (FONSI) in its EA.
The Center argues USDA violated NEPA implementing procedure 7 C.F.R. 372.9(f) by failing to implement mitigation and remedial conditions outlined in the
USDA responds that the mitigation commitments that it committed to pertained only to APHIS insectary sites. It also argues APHIS only had the authority to make mitigation commitments for its own sites. Finally, it asserts that because it submitted a Finding of No Significance rather than a mitigated Finding of No Significance, even if the Finding of No Significance outlined remedial measures, it was not bound to them.
Under 7 C.F.R. 372.9(f), APHIS is required to implement mitigation and other conditions established in environmental documentation and committed to as part of the decision-making process. 7 C.F.R. 372.9(f). Environmental statements are sufficient without requiring an agency to actually mitigate adverse environmental impacts or without assurances that third parties will mitigate against adverse impacts.
7 C.F.R. § 372.9(f), on its face, governs APHIS' actions — not the USDA entirely. APHIS made the following statements about mitigation and remedial efforts or responsibilities:
APHIS agreed to participate in the interagency group to address flycatcher needs. AR A6040. However, it explicitly dismissed eradication efforts.
In asserting its fourth claim, the Center attempts to point to all mitigation and remedial commitments made throughout the record. However, 7 C.F.R. § 372.9(f) applies only to the commitments made by APHIS specifically. APHIS made no commitments until the 2005 EA and BA. It committed to take remedial actions to the 2005 site locations, which are north of 37N latitude. This commitment does not extend to the sites below the 37N latitude — the sites which may require remedial actions. The Center has not shown APHIS failed to follow through with its commitments under the 2005 program. Accordingly, APHIS has not violated 7 C.F.R. § 372.9(f).
The Center argues that the USDA violated NEPA by terminating the program without supplementing previous NEPA documents. ECF No. 28. The Center contends that the USDA needed to supplement the NEPA documents after learning the 2005 EA assumptions were erroneous.
If an agency initially prepares an EIS, NEPA also requires that the agency supplement the EIS if "significant new circumstances or information relevant to environmental concerns and bearing on the proposed action of its impacts" arise.
However, "supplementation is necessary only if there remains major Federal action to occur, as that term is used in [42 U.S.C.] § 4332(2)(C)."
The term "action significantly affecting the quality of the human environment" closely tracks the language used in the regulation permitting the issuance of a FONSI, which is allowed "only if the [EA] supports the finding that the proposed action will not have a significant effect on the human environment." 40 C.F.R. § 6.206(a). Therefore, "[i]f there remains major Federal action to occur, and if the new information is sufficient to show that the remaining action will affect the quality of the human environment in a significant manner or to a significant extent not already considered, a supplemental EIS must be prepared."
The USDA completed an EA that resulted in a FONSI in July of 1999 for its initial program. AR A1525-54. The FWS concurred with this finding. AR A3422.
Accordingly, the Court finds that the USDA did not violate its supplementation obligations under NEPA. There are two reasons for this ruling.
First, NEPA only requires supplementation of an EIS, not an EA. The USDA never completed an EIS. It instead completed an EA in 1999 and a second EA in 2005, both of which resulted in a FONSI; therefore, an EIS was not required. Because an EIS was not required, no supplementation was required under NEPA. 50 C.F.R. § 1502.9(c)(1)(ii).
Second, even if the USDA needed to complete an EIS, the USDA did not need to supplement its NEPA documents because there was no ongoing major federal action. Each EA resulted in a FONSI. These findings represented the USDA's determination that its proposed actions would not have a significant effect on the human environment, meaning there was no ongoing major federal action. Because there was no ongoing major federal action, even if the USDA completed an EIS, NEPA would not require the USDA to supplement its documents.
For the reasons discussed above,
