## Facts

- Prime Hook National Wildlife Refuge in Sussex County, Delaware is part of the National Wildlife Refuge System and was established to provide habitat for migratory birds and other species.
- From 1995 to 2007, the U.S. Fish and Wildlife Service (FWS) entered into 37 cooperative farming agreements allowing private farmers to plant and harvest commodity crops (including corn and soybeans) on refuge lands in exchange for performing refuge management tasks.
- Before authorizing these agreements, FWS did not prepare written compatibility determinations assessing whether cooperative farming and commodity crop harvesting were compatible with the refuge’s establishing purposes, as required by the National Wildlife Refuge System Administration Act (NWRSAA) and implementing regulations.
- FWS adopted a 2001 GMO Policy barring use of genetically modified organisms (GMOs) in refuge management unless FWS determines GMO use is essential to refuge purposes and the FWS Director approves the use.
- The cooperative farming agreements permitted genetically modified crops at the refuge, without any documented “essential” finding or Director approval.
- Environmental organizations sued under the APA, NWRSAA, and NEPA, seeking declaratory and injunctive relief to stop cooperative farming absent compatibility determinations and to stop GM crop use absent NEPA review.
- After suit was filed, the agreements expired and FWS represented it would not enter new cooperative farming agreements or allow GM crops at Prime Hook until completing compatibility and NEPA review; defendants argued the case became moot.

## Issues

1. Whether the claims were moot because FWS voluntarily ceased the challenged cooperative farming and GM crop practices and stated it would not resume them pending further review.
2. Whether authorizing cooperative farming without a written compatibility determination violated NWRSAA and its regulations and was unlawful under the APA.
3. Whether permitting GM crops contrary to FWS’s GMO Policy, without an “essential” finding and Director approval, was arbitrary and capricious under the APA.
4. Whether allowing GM crop cultivation without prior NEPA analysis violated NEPA and the APA.

## Decision

- The court held the case was not moot under the voluntary-cessation doctrine because FWS retained discretion to resume the challenged conduct and it was not absolutely clear the conduct could not reasonably recur.
- The court granted plaintiffs’ summary judgment motion.
- The court held FWS violated NWRSAA and its regulations by allowing cooperative farming without completing the required written compatibility determination, making the agency action unlawful under the APA.
- The court held FWS acted arbitrarily and capriciously under the APA by allowing GM crops without complying with its GMO Policy’s “essential” determination and Director-approval requirements.
- The court held FWS violated NEPA by authorizing GM crop cultivation without undertaking required environmental review.
- The court entered injunctive relief barring cooperative farming until FWS completed a proper compatibility determination and barring GM crop cultivation until FWS complied with NEPA and its GMO Policy.

## Legal Principles

- A defendant’s voluntary cessation of challenged conduct does not moot a case unless it is absolutely clear the conduct cannot reasonably be expected to recur.
- NWRSAA requires refuge uses to be found compatible with refuge purposes, and agency regulations can require a written compatibility determination as a precondition to authorization.
- Under the APA, agency action is unlawful if taken without procedures required by law, and is arbitrary and capricious when an agency disregards its own governing policies without a reasoned explanation.
- NEPA requires agencies to evaluate environmental consequences before undertaking actions that may significantly affect the environment; failure to perform required NEPA review is actionable under the APA.
- Injunctions may be used to prevent renewed agency noncompliance with mandatory procedural requirements where recurrence is reasonably likely.

## Conclusion

The court held that FWS’s litigation-driven halt to cooperative farming and GM crop use did not moot the dispute, and it enjoined those activities at Prime Hook until FWS completed NWRSAA compatibility determinations and complied with NEPA and its own GMO Policy governing genetically modified crops.


Delaware Audubon Soc’y, Inc. v. Sec’y of U.S. Dep’t of Interior, 612 F. Supp. 2d 442 (D. Del. 2009)