Farming at refuge was illegal, judge rules
Prime Hook managers broke federal laws on environmental reviews

The 10,000-acre Prime Hook National Wildlife Refuge stretches over vast expanses of tidal salt marsh and thick woodlands, providing a resting habitat for migratory birds.

But among those 10,000 acres, 500 acres were planted with corn and soybeans -- some of it with genetically modified seed.

On Tuesday, U.S. District Court Chief Judge Gregory M. Sleet ruled that refuge officials and the U.S. Fish and Wildlife Service broke federal laws when they allowed farming, and later planting of genetically modified crops, without appropriate environmental reviews to determine the impact on wildlife and wildlife habitat.

The ruling comes as a victory for Delaware Audubon, the Center for Food Safety and Public Employees for Environmental Responsibility, the three groups that challenged the agricultural practices at Prime Hook.

The suit was brought against the Interior Department and the U.S. Fish and Wildlife Service.

The ruling could have far-reaching implications for other refuges where farming is allowed, said Kenneth T. Kristl, associate professor of law and director of the Widener University Environmental & Natural Resources Law Clinic, which filed the suit.

"I think this is not an isolated incident," Kristl said. "The federal government needs to follow the law. ... No one is above the law, including the federal government."

Farming ceased at Prime Hook after cooperative farming leases expired in December 2006 -- eight months after the lawsuit was filed.

Anthony Leger, regional chief for refuges with the U.S. Fish and Wildlife Service, said federal officials are working on a comprehensive management plan for Prime Hook that should guide future uses at the refuge. It is expected to be available for public review by the end of this calender year, he said.

Leger said that while farming was allowed at Prime Hook, federal officials realize "it's not really managing for naturalness."

Once the management plan is complete, refuge officials may decide, instead, to manage for grasslands or other habitat types that would have been more typical in the area, he said. The management plan will look at a variety of options.

When the land was used for agriculture, the farmer typically left a portion of the corn or soybeans in the field for wildlife use and planted cover crops in the winter. The rest was harvested for profit.

Before the introduction of farming, "those geese had natural habitats that probably served them quite well," Leger said. "We don't farm for farming's sake. We farm for wildlife's sake."

But with wetland and other habitat losses, there is often a push to find substitutes, he said.

Leger said that while the ruling applies specifically to Prime Hook, refuge officials will likely look at farming practices at nearby Bombay Hook National Wildlife Refuge as well to make sure they comply.

Impact on Wildlife

Nicholas DiPasquale, conservation chairman of Delaware Audubon, said farming operations at Prime Hook were an issue because refuge officials didn't do the required reviews to determine the ecological impact.

DiPasquale said that in aerial photographs of the refuge, the farm fields stand out and show a pattern of natural habitat fragmentation that is especially troubling.

"For us, it was the impact on wildlife," he said of the decision to challenge federal officials in court.

When Delaware Audubon asked refuge officials about farming operations, "basically, we were getting lip service," DiPasquale said.

Questions about the farming operations surfaced in 2005.

In 2003, the refuge manager, Jonathan Schafler, had pulled three farm plots, totalling about 100 acres, out of agricultural production to allow state environmental officials to do a two-year study of wildlife uses in areas that are transitioning from agriculture to grasslands.

Once the study was complete, Schafler -- over the objections of birding and conservation groups -- said he had no choice but to return the land to agricultural production. He was supported in his decision by several area residents, hunters and farmers among them.

The details of the state report were kept secret even as bird groups explained that the 100-acre plot was an excellent habitat for migratory songbirds.

Schafler had the scrub and grasses plowed under.

The conservation community -- which viewed the decision as habitat destruction -- was outraged.

The conservation groups started going through records and discovered that federal officials allowed use of genetically modified seed in violation of their own policies. In addition, they learned that refuge officials allowed farming even though they had not done research to determine -- as required by law -- its impact on wildlife.

DiPasquale said he believes refuge officials felt obligated to local landowners, many of whom were still angry about the creation of the refuge in 1963. Although they were compensated for the land, many area landowners still consider it a taking by federal officials because they say they were forced off land that had been in their families for generations.

Meanwhile, the farmers who participated benefited from the cooperative farming agreements, DiPasquale said.

"These are public lands," he said.