Petition for Writ of Certiorari — Wyoming v. Kleppe

Supreme Court brief1976

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A. Jurisdiction of the United States District Court for

the Bhistrict of Wyatning .. 2... 2.5 nce ecnnss 3

B. Environmental Protection Agency Action ..... 3

C. The District Court’s Decision ............... 4

D. The Court of Appeals Decision .............. 5

Reasons for Granting the Writ.................-0. ll

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CITATIONS

Cases:

Environmental Protection Agency vs. Environmental

Defense Fund, 489 F. 2d 1247, (D. C. Cir.,

Sa CO Oe oe ee Ee ETE ee On een re 7,9

Portland Cement Association vs. William D. Ruckle-

shaus, Administrator, Environmental Protec-

tion Agency, 486 F. 2d 375, (D. C. Cir., 1973) .. 7

United States of America vs. Students Challenging

Regulatory Procedures (S.C.R.A.P.), 42 U.S.

WE REE Na ae eens nea Nhe neue shu cuekcee es 7

Statutes:

National Environmental Policy Act of 1969, 83 Stat.

SS OR eee 2,4

Section. 000 (42 U.S.C. 4332) ... 2... ccc ccescs 2

Section 102 (2) (C) (42 U.S.C. 4332 (2) (C)) ... 2

ATUL LAPSE LSE LORI YT ESE

A AALS IMAGED ME IEE AI, ABD EARS AO REIS BO BLS I IEG IS ON

Federal Environmental Pesticide Control Act of 1972,

86 Stat. 975, 7 U.S.C. 136 et seg .............- 4

Federal Insecticide, Fungicide and Rodenticide Act,

61 Stat. 163, 7 U.S.C. 135 et seq .............. 4

Administrative Orders:

Environmental Protection Agency Pesticides Regula-

tion Notice No. 72-2 37 Fed. Reg., 5718

Mae iad oa ht cir te Wich Gla hike eaicia'e 3

Other Materials:

Federal Environmental Law, (Erica L. Dolgin and

Thomas G. P. Guilbert, ed.) Environmental Law

i ee a kee awe ae 8

Anderson, Fredrick R., NEPA in the Courts, En-

vironmental Law Institute, 1973 .............. 8

IN THE SUPREME COURT OF

TAE UNITED STATES

October Term, 1975

STATE OF WYOMING, ET AL., PETITIONERS

THOMAS KLEPPE, Secretary of the Interior, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

TENTH CIRCUIT

The State of Wyoming, and others, petition for writ of

certiorari to review the judgment of the United States Court

of Appeals for the Tenth Circuit.

OPINIONS BELOW

The opinion of the Court of Appeals (App. A, infra,

pp. 13-27 ) is reported in 525 F. 2d 66. The judgment of the

Court of Appeals pursuant to said opinion (App. B, infra,

pp. 29-30 ) is not reported.

The initial order of the Environmental Protection Agen-

cy, designated as Pesticides Regulation Notice 72-2 (P.R. 72-

2), which was the basis for the institution of the action by

petitioners in the United States District Court for the Dis-

trict of Wyoming appears in App. C, infra, pp. 31-40.

‘The judgment of the United States District Court for the

District of Wyoming granting petitioners a preliminary in-

junction against the Environmenta! Protection Agency

appears in App. D, Infra, pp. 41-43.

The order of the Tenth Circuit Court of Appeals denying

rehearing and a nunc pro tunc order pertaining thereto

appear in App. E, Jnfra, pp.45-46.

_—-_ epee at oe ae 8 oe eo

JURISDICTION

The opinion of the Court of Areals was issued October

28, 1975, (App. A, /nfra, pp. 13-27 ). The order of the Court

of Appeals denying rehearing (App. E, Infra, pp. 45-46 ) was

entered November 24, 1975. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254 (1).

QUESTIONS PRESENTED

The first question presented is whether, under the

National Environmental Policy Act, the Environmental

Protection Agency is exempt from the statutory requirement

of filing an enviromental impact statement prior to taking, as

a federal agency, a major federal action.

The second question presented is whether actions other

than the issuance of an environmental impact statement by a

federal agency may satisfy the statutory requirement of an

environmental impact statement under the National En-

vironmental Policy Act.

STATUTE INVOLVED

Section 102 of the National Environmental Policy Act

of 1969, 83 Stat. 853, 42 U.S.C. 4332, provides in relevant

part:

“*(2) all agencies of the Federal Government” shall—

se eee he &

proposals for legislation and other major Federal ac-

tions significantly affecting the quality of the human

environment, a detailed statement by the responsible

official on—

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot

be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of

man’s environment and the maintenance and

enhancement of long-term productivity, and

CA ATELY Ye RR PRT RY —

ws Leh aah eNReCADY TRACE ea

(v) any irreversible and irretrievable commitments

of resources which would be involved in the propos-

ed action should it be implemented.”

i at

STATEMENT

A. JURISDICTION OF THE UNITED STATES DIS. g

TRICT COURT FOR THE DISTRICT OF WYOMING

The complaint and amended complaint in the United

States District Court for the District of Wyoming of

petitioners alleged that the United States District Court for

the District of Wyoming had jurisdiction over the subject

matter of this case and of the parties pursuant to 28 U.S.C.

1361 (Mandamus), 28 U.S.C. § 2201-02 (Declaratory

Judgments), 5 U.S.C. § 701, et seq. (Administrative

Procedure Act), 7 U.S.C. § 135, et seq. (Federal Insecticide,

Fungicide and Rodenticide Act of 1972 (FIFRA), 7 U.S.C. §

136, et seq. (Federal Environmental Pesticide Control Act of

1972 (FEPCA)), 42 U.S.C. §§ 4321, et seq. (National En-

vironmental Policy Act (NEPA)), 16 U.S.C. §§ 668AA

through 668JJ (Endangered Species Act), 28 U.S.C. § 1651

(All Writs Act). Said complaint also alleges that the matter in

controversy exceeds $10,000.00 exclusive of interest and

costs.

The District Court found that it had jurisdiction upon

motions to dismiss filed by the Government. Subsequently,

jurisdiction of the United States District Court has not been

put in issue.

B. ENVIRONMENTAL PROTECTION

AGENCY ACTION

By the issuance on March 9, 1972, of its P.R. 72-2 notice

(App. C, Infra, pp.31 _), the Environmental Protection

Agency (EPA) banned the interstate shipment of three tox-

icants being used in federal, state and local cooperative

programs to control predators, mainly the coyote. This ac-

tion was taken under the provisions of the Federal Insec-

PSN ELS MMS LPIA TNL REED TIES IOS

RLEESD THROUGH

ticide, Fungicide and Rodenticide Act (FIFRA), which was

later amended.

It is undisputed in this case that the issuance of such

order by the EPA was a major federal action. It is undisputed

in this case that prior to the issuance of such order the EPA

did not, under § 102 of the National Environmental Policy

Act of 1969 (NEPA), the relevant parts of which are quoted

above, prepare an environmental impact statement (EIS).

The record does disclose that the Department of the In-

terior, one of the defendants below, had prepared a draft EIS

covering its predator control program using chemical tox-

icants. Prior to its being filed, however, two actions were in-

stituted in the United States District Court for the District of

Columbia against the Secretary of the Interior, and others,

seeking injunctions against the use of these toxicants. The

Government defendants in those cases entered into a secret

stipulation, filed “under seal,” agreeing with the plaintiffs to

terminate the then existing predator control program using

toxicants by February 15, 1972. In return, the plaintiffs were

not to pursue their motions for injunctiens. The Cain Report

was referred to in this stipulation, even though not then com-

pleted or published, as the basis for such action. Asa result of

the stipulation, the draft EIS, which unequivocally sup-

ported the then existing control program, was never filed.

Work on the draft EIS was at that point discontinued by the

Department of the Interior.

C. THE DISTRICT COURT’S DECISION

The District Court’s decision, entered June 23, 1975,

(App. C, Infra, pp. 31-40 ), granted to the State of Wyoming

and the other plaintiffs below a preliminary injunction

against the EPA and mandated that agency to revoke its order

P.R. 72-2 (App. C, Infra, pp. 31-40) and also enjoined the

EPA from any attempted enforcement thereof. The District

Court found that petitioners had been denied due process

because they had never been afforded an opportunity to be

heard by the EPA prior to the issuance of the ban. That deci-

sion was besed upon the hearing which was held before the

ELL TIN LT LIEN)

Cee —

United States District Court for the District of Wyoming, at

which all parties were represented, and evidence was in-

troduced only by plaintiffs, who are the petitioners herein.

The Government introduced no evidence at this hearing. The

evidence submitted on behalf of petitioners herein showed

irreparable damage to the livestock industry in the State of

Wyoming, particularly the sheep industry, had resulted

directly from the EPA ban order. Losses of sheep and lambs

to predators, particularly the coyote, were shown to have in-

creased dramatically in direct relation to the decrease in the

use of the banned toxicants. This evidence also demonstrated

that the other methods of predator control attempted by

federai, state and local cooperative programs accounted for

only a small portion of predator control] and that the use of

toxicants was the only practical and economic method which

should be used.

In the District Court it was also noted that the Depart-

ment of the Interior is under a federal statutory duty to con-

trol predators and to carry on programs not only of actual

control, but also of research in connection therewith (7

U.S.C. 426). Two individual ranchers testified as to their own

losses and the increase in them as a result of the ban and the

Commissioner of Agriculture of the State of Wyoming

testified concerning the losses over the State and the adverse

economic affect upon the sheep and cattle industries. The

Cain Committee Report was introduced into evidence and

was also considered by the District Court.

At the conclusion of the hearing, the United States Dis-

trict Court for the District of Wyoming entered its

preliminary injunction (App. D, Jnfra, pp. 41 __).

D. THE COURT OF APPEALS DECISION

Under federal statutory authority, the Government

appealed the District Court decision to the Court of Appeals

for the Tenth Circuit. The Court of Appeals did not question

the sufficiency of the evidence before the District Court to

sustain injunctive relief, nor did it question the jurisdiction

of the District Court over the parties or the subject matter of

EOE AEE GUNS ert. |

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the action. As will appear from the Court of Appeals decision

(AppA, Infra, pp. 13-27), the specific issues considered by

the Court of Appeals were two: first, whether the Ad-

ministrator of the EPA was required to prepare a formal EIS

prior to taking action suspending and canceling the chemical

toxicants registration under FIFRA; and, second, whether

there had been a substantial compliance with the re-

quirements of NEPA by the Administrator as a result of his

having taken into account the so-called Cain Report.

Although the Government raised the issue of a failure

on the part of petitioners to file a direct appeal of the EPA

order with the Court of Appeals, its decision in no way was

based upon this ground, and the Court of Appeals entertained

jurisdiction to decide the two issues set forth above. It is a

fact that on the basis of the EPA order P.R. 72-2, the Ad-

ministrator of the EPA had refused requests of the State of

Wyoming for the registration, reregistration, experimental

and emergency use of the chemical toxicants. The EPA, sub-

sequent to the hearing before the District Court and one day

after the argument before the Court of Appeals in this case,

after a review of the use of one of the three toxicants, namely

sodium cyanide, and based upon hearings which are the only

hearings ever held in this regard, reversed its prior position

and issued a limited registration for use of sodium cyanide by

the State of Wyoming and by the Department of the Interior.

This demonstrates clearly the error of the EPA in summarily

banning use of sodium cyanide among othe toxicants without

hearings and without any input from the public or from those

affected.

The record in this case will further disclose the fact to be

that the three toxicants involved had been used for some fifty

years in the State of Wyoming with the only registrant being

the Federal Wildlife Service. As noted by Judge Seth in his

dissent in the Court of Appeals decision, ‘This does not

appear to be anything close to imminent danger for an

‘emergency’ contemplated by any relevant Acts.”

The majority opinion in the Court of Appeals on the first

issue was based entirely upon the assertion that “The sub-

_———EE TEC a EIA TIN OE . -

stance of NEPA is such as to itself exempt EPA from the re-

quirement of filing an impact statement.’ No provision of the

NEPA statute was cited by the Court of Appeals as providing

an exemption for the EPA from the requirement of filing an

EIS. Also, the Court of Appeals did not cite a decision of any

other court so holding. Research in this case reveals to

petitioners that, until the Tenth Circuit of Appeals decision

in this case, no other court had by decision exempted the

EPA from NEPA requirements except in the so-called Clean

Air Act” cases, epitomized by Portland Cement Association v.

Ruckelshaus, 486 F. 2d 375, (D.C. Cir. 1973), where a com-

plete procedure is established which must be followed by the

EPA, which makes the filing of a formal EIS unnecessary.

The Court of Appeals also cited Environmental Defense

Fund v. EPA, 489 F. 2d 1247, (D.C. Cir. 1973), which is a ;

“functional equivalent” case and has to do with the second

issue presented in this petition. The Court of Appeals also ,

cited United States v. Students Chal. Reg. Agcy. Pro. (SCRAP), i

412 U.S. 669 (1973), in support of its conclusion that the f

EPA is exempt, which case involved only the question of ‘

whether or not the requirements of NEPA could be used to

question rates promulgated by the Interstate Commerce §

Commission.

The Court of Appeals decision was contrary to the state-

ment of John A. Green, Regional Administrator, U.S. En- :

vironmental Protection Agency Region VIII, contained in a

letter to the Denver Post of September 26, 1975, (App. F, Jn-

fra, pp. 47-48 ), which states in part as follows:

ee ee

“EPA is not responsible for administering the

National Environmental Policy Act. EPA is subject to

the requirements of that act the same as every other federal f

agency. (emphasis added)

That Congress could have exempted the EPA from the f

requirements of NEPA is evidenced by EPA’s successful e

seeking of a Congressional exemption from NEPA from its

regulatory actions under the Federal Water Pollution Con-

}

RIL_EED THR OLIGH

trol Amendments of 1972 (§ 511(c) (1)), which provides as

follows:

“(c) (1) Except for the provision of Federal financial

assistance for the purpose of assisting the construction

of publicly owned treatment works as authorized by sec-

tion 201 of this Act (33 USCS § 1281), and the issuance

of a permit under section 402 of this Act (33 USCS §

1342) for the discharge of any pollutant by anew source

as defined in section 306 of this Act (33 USCS § 1316),

no action of the Administrator taken pursuant to this

Act (33 USCS §§ 1251-1376) shall be deemed a major

Federal action significantly affecting the quality of the

human environment within the meaning of the

National Environmental Policy Act of 1969 (83 Stat.

852) (42 USCS §§ 4321-4347) ;”

These Water Pollution Control Amendments (33 U.S.C.

1375) were passed by Congress almost concurrently with the

amendments to FIFRA. (7 U.S.C. 136, et seq.).

Ordinarily, an investigation of the legislative history of

a federal statute would be helpful in determining the intent of

Congress. In the case of NEPA, this is not productive. (See

“Environmental Law,” Environmental Law Institute, pp.

256-267, 1974, and “NEPA In the Courts,” pp. 106-123,

1973).

Furthermore, the Council on Environmental Quality, in

its 197] Guidelines (36 Fed. Reg. 7724), initially provided in

§ 5(d) as follows:

“Because of the Act's legislative history, en-

vironmental protective regulatory activities concurred

in or taken by the Environmental Protection Agency

are not deemed acts which require the preparation of

environmental statements under section 102 (2) (C) of

the Act.”

However, in 1973 the Council on Environmental Quality

Guidelines (38 Fed. Reg. 20550) was a complete about-face in

that § 1500.4 (a) now provides as follows:

“Section 102 (2) (C) of the Act applies to all agen-

cies of the Federal Government.”

The Conclusion is that Congress could have provided an

exemption for the EPA from the requirements of NEPA and,

in fact, did do so in the specific instance of the Federal Water

Pollution Control Amendments of 1972. The narrow wording

of § 511 (c) (1) suggests that Congress determined to provide

an exemption only on a program-by-program approach to the

question of EPA’s compliance with NEPA.

The courts thus far have added only one other exemp-

tion and that is in the “Clean Air Act” cases, some of which

are cited above. The Regicnal Administrator of the EPA

(App. F, Infra, pp. 47-48 ), stated an official position of the

EPA itself, indicating required complance. The Council on

Environmental Quality, in 1973, in its Guidelines, supra, has

construed NEPA as requiring EPA compliance, or, stated

another way, has eliminated its initial construction of the

legislative history as not requiring compliance by EPA.

The decision of the Tenth Circuit Court of Appeals in

this case represents the first holding by any court that the

EPA is exempt in any case except “Clean Air Act’ cases and

the Federal Water Pollution Control cases. It is submitted,

therefore, that Congress intended that “‘all agencies of the

Federal Government shall” comply with NEPA, including

the EPA, except in those particular programs where either a

specific exemption is provided or a hearing procedure is

promulgated which will assure input into the agency so that

an informed decision may be made by it.

The second point in issue in this case is whether or not

the courts are going to accept the “functional equivalent”

theory of Environmental Defense Fund v. EPA, 489 F. 2d 1247

(D.C. Cir. 1973), which was repeated in the instant case in

the majority opinion. The basis for such theory is that some

procedure occurred within the federal agency which was

equivalent to, and served the same purpose as, a formal EIS.

POOR COPY

FLEED THF OUGH

In EDF v. EPA, supra, there were some seven months of

public hearings held by the agency before it acted to suspend

the registration of DDT. The court could see no useful pur-

pose to be served by the filing of a formal EIS since an ade-

quate input had occurred and an informed agency decision

was apparent. The difficulty with applying the “functional

equivalent’ theory to the instant case is that a select, private,

hand-picked committee was convened to write a report on the

use of toxicants for predator control by the Council on En-

vironmental Quality and the Department of the Interior. The

majority opinion gives full credence to this report as being

the functional equivalent of a formal EIS. However, as noted

in the dissent by Judge Seth in this case, the report itself”. .

contains a clear caveat that the data was not from carefully

defined research directed to pertinent questions.” The report

itself states “it is impossible to know when one might go astry

in drawing inferences from this type of information.” Judge

Seth points out that the report did not, itself, purport to be an

objective analysis of the problem, but only of selected

literature identified with proponents of a position on the sub-

ject. Judge Seth stated that “the Committee did not purport

to do more than it did. It was perfectly frank, academic and

straightforward in its decision that the urban position and

wildlife dominance view should prevail.”

The majority, on the other hand, accepts the Cain

Report in laudatory terms, thus pointing up the inadvisabili-

ty of an ad hoc case-by-case approach to the question of

whether the EPA should file an environmental impact state-

ment or should, in some other fashion, proceed to obtain the

basis for agency action. It is submitted that the purpose of

NEPA is subverted by such an approach. If a select, hand-

picked committee can determine agency policy without input

from the public and from those to be affected thereby, then

every agency of the United States Government can follow

suit and avoid NEPA requirements for an impact statement.

If EPA is to be exempt, it should be by legislative determina-

tion and enactments, which have not yet occurred except in

the limited and narrow provisions of the Water Pollution

Control Act.

Judge Seth, in his dissenting opinion, points out that the

State of Wyoming was not a registrant, nor was the State a

party to the cancelation procedures, and thus should not be

charged with the Federal Government's failure to request a

hearing contesting the original order.

In promulgating the order P.R. 72-2, complained of by

petitioners, the EPA was not acting under NEPA, but under

FIFRA, and as such was acting as a separate regulatory agen-

cy of the United States. It was not acting to enforce the

provisions of NEPA, but the provisions of FIFRA under

which it has enforcement duties. If the precedent established

by the Tenth Circuit Court of Appeals decision is allowed to

stand, it is difficult to justify the court's having required all

other agencies of the Federal Government in such cir-

cumstances to comply with NEPA.

On petition for rehearing with the suggestion for a

rehearing in banc, the Tenth Circuit Court of Appeals, by a

vote of 4 to 3, denied a rehearing in banc, with Chief Judge

Lewis and Circuit Judges Seth and Barrett voting for rehear-

ing (App. E, Infra, pp. 45-46 ).

REASONS FOR GRANTING THE WRIT

The Tenth Circuit Court of Appeals decision has ex-

empted from the requirements of the National Environmen-

tal Poiiey Act a federal agency which is, itself, a creature of

this statute. Congress has not done so, although Congress has

clearly recognized that in certain narrow instances the EPA

should be excused because it is acting as an enforcer of the

Act under the Water Pollution Control Act and the Clean Air

Act, and detailed procedures are established in those Acts

which the EPA must follow and which assure that affected

parties will be heard prior to agency action. No such

procedure is established under FIFRA where the EPA is ac-

ting to enforce its own provisions. Also, the Tenth Circuit

Court of Appeals decision, in relying upon the Cain Report as

a “functional equivalent” of an EIS, has opened a door

through which a myriad of federal cases may follow in an

4 {TIRE OO OIL

FLEED THF OUGH

A trie ey PR eM,

CURRLLOMLO TE Re AEE

attempt by the courts to determine on a case-by-case basis

whether what was done by the EPA, or for that matter any

federal agency, will be sufficient in lieu of a formal EIS as

specifically required by NEPA.

Under Rule 19 of the Rules of the Supreme Court of the

United States, petitioners submit that the Tenth Circuit

Court of Appeals has decided an important question of

federal law which has not been, but should be, settled by the

Supreme Court of the United States.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

George S. Andrews

Special Counsel for the

State of Wyoming

Glenn Parker

Attorney for Intervenor

Wyoming Stock Growers Associa-

tion

Houston G. Williams

Attorney for Other Petitioners.

— a

ARE LESLIE ENE EY PRI I

APPENDIX A

United States Court of Appeals for the Tenth Circuit

STATE OF WYOMING, ET AL.

STANLEY K. HATHAWAY, Secretary of the United

States Department of the Interior, ET AL.

(No. 75-1491)

United States Court of Appeals, Tenth Circuit

(Argued Sept. 15, 1975; Decided Oct. 28, 1975)

Before HILL, SETH and DOYLE, Circuit Judges.

DOYLE, Circuit Judge.

This appeal seeks reversal of the judgment of the district

court granting preliminary injunctive relief against the Ad-

ministrator of the Environmental Protection Agency. The

order enjoined the Administrator from taking any further ac-

tion to enforce a certain numbered order, P.R. Notice 72-2

dated March 9, 1972, which suspended and cancelled the

registration of three chemical toxicants, strychnine, sodium

fluoroacetate (1080) and sodium cyanide, as economic

poisons for use in predator control under the Federal Insec-

ticide, Fungicide and Rodenticide Act, 7 U.S.C. § 135 et seg.

The predator which was the object of the poisoning program

was the coyote.

The trial court found that the Administrator had failed

to file a detailed Environmental Impact Statement prior to

the issuance by him of the Pesticides Regulation Notice. The

court said that the order constituted a major federal action

significantly affecting the quality of the human environment

in that it cancelled and suspended registration for certain

poison products which we have mentioned. The court went

on to say that since the order constituted major federal ac-

PODR COPY

RFLEED THF OUGH

Nt AE PCRS SIV tb G8 PELL A AI LS NE cake SPR le A BORON eS

tion, etc., the EPA was required under 42 U.S.C. § 4332 to

file the detailed impact statement. The court further found

that the Administrator had failed to take into account all

possible approaches and alternatives and further found that

the Administrator had not pursued a program which con-

stituted a functional equivalent of furnishing a formal En-

vironmental Policy Act report and that consultations with

the plaintiffs had not been had. Finally, the court concluded

that as a consequence of the failure to file an environmental

impact statement, the P.R. Notice 72-2 suspending and

cancelling registration to the poisons was invalid and would

remain invalid until such time as a valid impact statement

had been filed by the Environmental Protection Agency.

This appeal does not call upon us to review the merits of

the Environmental Protection Agency order. Thus we do not

weigh the value of the poison program against the injury or

damage that it produces. We are concerned rather with the

legality of the proceedings and, particularly, whether the

trial court was justified in entertaining an injunction suit

notwithstanding that no effort had been made to pursue the

remedies provided by law, including review of the order of

the Administrator by this court.

The specific issues which we here consider are:

1. Whether the Administrator of the Environmental

Protection Agency is required to prepare a formal en-

vironmental impact statement prior to taking action suspen-

ding and cancelling a chemical toxicants registration under

the Federal Insecticide, Fungicide and Rodenticide Act,

supra.

2. Whether there has been a substantial compliance

with the requirements of NEPA by the Administrator as a

result of his having taken into account the so-called Cain

Report, which was based on an objective and scientific study

of the consequences of using the mentioned three poisons for

predator control purposes and which measured the value to

be derived from the use of the program as opposed to the in-

- “ Bogen bene “ Re ee

? : = srwise “é ee sl CR. 8 A avin as F

jury to non-target animals.

A determination of the mentioned issues furnishes the

answer to whether the trial court acted correctly in enter-

taining an injunction suit and in granting temporary relief.

PO SRAM REL EOIN AN: Sie LN GR aE

The evidence presented to the Administrator of the En-

vironmental Protection Agency established to his satisfac-

tion that a hazard existed which demanded immediate

suspension of the registration of the pesticides and which

also demanded suspension and cancellation of the registra-

tion. The plaintiffs-appellees did not seek administrative

review of this order of suspension in accordance with the re-

quirements of 7 U.S.C. § 735 (b) (c) within 30 days following

the issuance of the order of the Administrator.!

The action of the Administrator of the Environmental

Protection Agency Pesticides office was issued on March 9,

1972. In it Mr. Ruckelshaus, the then Administrator, stated

that the previous spring the agency had made a public com-

mitment to review the status of registrations for strychnine,

cyanide and sodium fluoroacetate (1080) for use in prairie

and rangeland areas for the purpose of predator and rodent

control. The Administrator added: “This commitment

grew out of grave concern surfaced by the reported deaths of

some 20 eagles killed by the misuse of thablium sulfate.” The

Ruckelshaus opinion noted that the Secretary of the Interior

was moved to also conduct a review of the government’s

federal predator control program.

The main thrust of the suspension and cancellation opi-

nion was the existence of indiscriminate baiting which oc-

'We recognize that this remedy is designed for parties

who are directly affected by the suspension order, to-wit, the

manufacturers or sellers. By the same token consumers, in

this case sheep growers, are so remotely involved as not to be

entitled to notice and hearing. They do nevetheless have a

right to seek a review of the Environmental Protection Agen-

cy order in the United States Court of Appeals, this court.

They failed to pursue this remedy.

St ea |

POOR COPY

RLEED THF OUGH

WARE PEN SOR SELLE SAA NII

curs over wide ranging area of the prairie and the failure in

carrying out this indiscriminate use to take any precautions

for the protection of other animals, including endangered

species. The mere toxicity was held not to be a basis for

holding that the substance constituted a hazard, but “their

degree of toxicity and pattern of use may well do so.’”?

The agency’s statement of decision further noted that

apart from its review and the Cain findings, a detailed peti-

tion had been submitted by several conservation groups urg-

ing the cancellation of the poisons in question. That petition

2* * * The unattended and unsupervised use of poisons

over large areas of land, by definition, poses a hazard to non-

target species. The fact that label instructions contain direc-

tions for placing the baits at times and in areas least likely to

be populated by non-target species and for policing them, af-

ford slight, if any comfort. This Agency has on prior oc-

casions taken into account a “commonly recognized prac-

tice’ or use (see /n Re Hari Kari Lindane, |.F. & R. (Docket

#6), and has noted that the likelihood of directions being

followed may affect their adequacy (see /n Re King Paint, 2

ERC 1819 (1970)); Jn Re Stearns, 2 ERC 1364 (1970).

The hazards from the pattern of use for these chemicals

is not remote or off in the distant future. The prairies and

ranges are populated by numerous animals, some of which

are becoming rare. At jeopardy are potentially endangered

species. Each death to that population is an irremediable loss

and renders such species closer to extinction.

No apparent circumstances exist to counterbalance this

distinct hazard and suggest that the possibility of

irremediable loss is outweighed by the harm that must occur

from their non-availability during a period of suspension.

The situation might well be different were the removal of

these poisons from the market likely to affect human health

or the supply of a staple foodstuff; or were there no apparent

alternatives available, the balance might be differently

struck. This, however, is not true.

invoked the provision of the Federal Insecticide, Fungicide

and Rodenticide Act (FIFRA), which requires that an

economic poison contain “directions for use which are

necessary and if complied with, adequate to prevent injury to

living man and other vertebrate animals. ...”’, 7 U.S.C. § 135

(z) (2) (d), and it authorizes the Administrator to initiate

cancellation proceedings by ordering suspension when he

finds that such action is necessary to prevent hazard to the

public. Based upon the review of the registrations of

strychnine, cyanide and sodium fluoroacetate (1080), and in

light of the available evidence, Ruckelshaus concluded that

the registrations for predator uses should be suspended and

cancelled.

The Administrator relied to a very great extent on the

Cain Report, a carefully researched and well written docu-

ment prepared by a study committee. This report was issued

by the Advisory Committee on Predator Control at the Un-

iversity of Michigan on October 30, 1971. The study had

been authorized in April 1971. The Department of the In-

terior together with the Council on Environmental Quality

sponsored this study by a panel of which Stanley A. Cain was

chairman. The panel reviewed and analyzed predator control

and associated animal control policies of the United States. It

evaluated their direct and indirect effects, including en-

vironmental impact on the livestock industry and considered

alternatives to the present practices. The report of the com-

mittee formed a basis for the order which is now under at-

tack. Its thrust was that the predator control program

employed the subject poisons; that these poisons were non-

specific, and thereby posed hazards to threatened species.

The report also noted that the poison program, although

governmental, primarily served the private industry of sheep

growing. It recommended the use of truly specific poisons

plus the use of repellents, reproductive inhibitors, live trap-

ping and transplant procedures. Also supported was an exten-

sion system, whereby producers would be encouraged to

solve their own problems by accepting methods directed

ft 2 a Ay EN o oe Orr ea WER ee oe ¥ Se a te $) BOL RA Gold te TS REY

PREV FOS TREN Ag IRR LIARS RE Ee Lat PN MEAT, Gtx REA

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toward specific animals. Still another recommendation of the

study committee was the adoption of a federally based in-

surance program which would protect from all losses. The

main emphasis of the report was the threat to endangered

species from the widespread use of these poisons. Affected

species singled out included the Bald and Golden Eagles, the

California Condor, the Black-Footed Ferret, the mountain

lion, the Grizzly Bear, Rocky Mountain Wolf and the Red

Wolf.

The evidence at the trial consisted of testimony of one of

the plaintiffs, a sheep rancher from Carbon County, W yom-

ing, a sheep and cattle rancher and the Acting Commissioner

of Agriculture for Wyoming. These witnesses testified to

lamb, sheep and cattle losses in W yoming together with the

levels of use of the three toxicants in question over the years

1965-74. Also introduced by the plaintiffs-appelees was the

Cain Report together with the 1974 Predator Survey publish-

ed by the Department of the Interior showing sheep loss

figures for various years. Other evidence included deposition

and exhibits which dealt with sheep loss figures.

If the Environmental Protection Agency was subject to

the NEPA requirement that there be a study and the prepara-

tion of an impact statement prior to the issuance of the P.R.

Notice 72-2, in other words is not immune from such

preparation by reason of the fact that its function requires

consideration of environmental factors, then the trial court

would have had jurisdiction to halt the proceedings until

such an impact statement had been issued unless it could be

said that the Cain Report constituted the functional

equivalent of an environmental impact statement.

It is our conclusion that in the present circumstances at

least the Environmental Protection Agency was not com-

pelled to follow out the procedures prescribed by NEPA in-

cluding the preparation of an environmental impact state-

ment; that it was error for the trial court to issue an injunc-

tion; that the appropriate remedy is review of the agency ac-

LDR 1 TEM ICL GMT LORE PEO YP FE

peg hte mY AAEM A ON

tion in this court.

In reaching this conclusion we repeat that we do not

consider the merits of this controversy. We merely hold that

a formal environmental impact statement was not required

and that the trial court lacked authority to issue the

preliminary injunction.

ADEQUACY OF THE HEARINGS

The trial court based its decision on the failure of the

Environmental Protection Agency to prepare an en-

vironmental impact statement as such prior to its order of

suspension and cancellation. In the opinion which accom-

panied the issuance of the temporary injunction, the court

brought out that the Environmental Protection Agency had

not provided any functional equivalent of a formal En-

vironmental Policy Act report and that the EPA order had

been issued without input from or consultation with plain-

tiffs or their representatives; that in the absence of an ade-

quate impact statement an injunction was proper.’

The Federal Insecticide, Fungicide and Rodenticide Act

(FIFRA), 7 U.S.C. § 135 et seq., does provide for a hearing

if the party interested wishes to request one. See 7 U.S.C. §

3The decisions of our court together with the decisions

of other Circuits have held that district court jurisdiction ex-

ists to enjoin the agencies other than EPA pending the

preparation of a sufficient environmental impact statement.

E.g., The Scenic Rivers Association of Oklahoma v. Lynn,

Nos. 74-1520 and 74-1750 (10th Cir., filed July 30, 1975);

Davis v. Morton, 469 F. 2d 593 (10th Cir. 1972); National

Helium Corporation v. Morton, 455 F. 2d 650 (10th Cir.

1971); Harlem Valley Transportation Association v. Staf-

ford, 500 F. 2d 328 (2d Cir. 1975); Swain v. Brinegar, 517 F.

2d 766 (7th Cir. 1975); Conservation Council of North

Carolina v. Froehlke, 473 F. 2d 664 (4th Cir. 1973); Silva v.

Romney, 473 F. 2d 287 (lst Cir. 1973).

RDA. caecnsener nays CS LIISA MILE ELM TORI IE PIII 8

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135 (b) (c). The section cited allows the Administrator to sus-

pend or cancel the registration of an economic poison

whenever it does not appear that the article or its labeling

complies with the provisions of § 135 et seq. of this Act.

When there is a determination that an economic poison is to

be cancelled, the applicant or registrant is notified of this

fact, for he is the primary party in interest rather than the

consumers, who are here parties to the lawsuit. The applicant

is given 30 days after service of notice of the refusal to file a

petition requesting that the matter be referred to the ad-

visory committee or file objections and request a public hear-

ing in accordance with the Act. A cancellation of registration

is effective 30 days after service of the foregoing notice un-

less ther is a demand for referral to an advisory committee or

the filing of objections and request for a public hearing

There was no compliance by the registrant here, or

anyone else for that matter, with the procedural provisions of

this statute. Instead two years were allowed to pass and then

various users of these poisons sought to avoid these ad-

ministrative procedures by filing an action in district court

for injunctive relief.

In addition to the review procedure there are provisions

for having an advisory committee appointed including a

representative of the National Academy of Sciences.

There is in addition a provision for judicial review by the

court of appeals. 7 U.S.C. § 135 (b) provides that any person

who is adversely affected by the order may obtain judicial

review by filing with the United States Court of Appeals for

the circuit wherein the person adversely affected resides or

in the United States Court of Appeals for the District of

Columbia Circuit. This review may be had within 60 days

after the entry of the order. It goes on to provide that upon

the filing of such petition, the court shall have exclusive

jurisdiction to set aside the order complained of in whole or

in part. The court of appeals is empowered to adduce ad-

ditional evidence either before it or before the Ad-

ministrator.

ME LES I LEE 4

It cannot therefore be said that the interested parties

were deprived of hearings at the administrative level or

before this court. The fact is that they chose not to utilize

these remedies provided by law and chose instead to seek in-

junctive relief, a remedy which was not available.

WHETHER THE EPA WAS REQUIRED TO FILE

AN ENVIRONMENTAL IMPACT STATEMENT

We have considered previously both sides of the issue

whether an environmental impact statement is essential

procedure. Thus, in National Helium Corporation v. Morton,

supra, David v. Morton, supra, and The Scenic Rivers

Association of Oklahoma v. Lynn, supra, we adopted the posi-

tion that where an environmental impact statement is re-

quired by law, and where it has not been filed prior to the tak-

ing of agency action, there is a jurisdictional void which

justifies the use of injunction to preclude further

proceedings until a sufficient environmental impact state-

ment is prepared and filed. On the other hand, we have

recognized that the filing requirement is not invariable.

In Anaconda v. Ruckelshaus, 482 F. 2d 1301 (10th Cir.

1973), we considered this very issue, i.e., whether the EPA

was subject to this NEPA requirement. We held in essence

that inasmuch as the sole mission of EPA is that of improving

the quality of the environment it would only serve to impede

its efforts to compel it to stop what it is doing so as to file an

impact statement. We observed that the contention of the

plaintiff in that injunction action was lacking in merit, sub-

stance and jurisdiction. We added that the legislative history

which is set forth in Portland Cement Association v.

Ruckelshaus, 486 F. 2d 375 “clearly establishes that such a

statement was not contemplated by Congress.”

A number of decisions from other courts of appeals hold

to this view. EF. g., Environmental Defense Fund v. EPA

(DDT Suspension II), 489 F. 2d 1247 (D. C. Cir. 1973);

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Portland Cement Ass’n v. Ruckelshaus, 486 F. 2d 375 (D.C.

Cir. 1973); Buckeye Power, Inc. v. EPA, 481 F. 2d 162 (6th

Cir. 1973); Dusquesne Co.v. EPA, 481 F. 2d 1 (3d Cir. 1973);

Appalachian Power Co. v. EPA, 477 F. 2d 495 (4th Cir.

1973); Getty Oil Co. (Eastern Operation) v. Ruckelshaus,

467 F. 2d 349 (3d Cir. 1972), cert. denied, 409 U.S. 1125

(1973). Moreover, the Supreme Court in United States v.

Students Chal. Reg. Agcy. Pro. (SCRAP), 412 U.S. 669

(1973), recognized that 42 U.S.C. § 4332 does not apply to all

agencies of the Federal Government. Cf.Portland Cement

Ass'n v. Ruckelshaus, supra. (In fact, no decision that we are

aware of holds to the contrary.)

At the time that NEPA was passed the EPA had not been

organized.‘ Furthermore, the substance of NEPA is such as

to itself exempt EPA from the requirement of filing an impact

statement. Its object is to develop in the other departments of

the government a consciousness of environmental conse-

quences. The impact statement is merely an implement devis-

ed by Congress to require government agencies to think

about and weigh environmental factors before acting.® Con-

sidered in this light, an organization like EPA whose

‘The EPA was created by Reorganization Plan No. 3,

submitted to Congress on July 9, 1970 and became effective

December 2, 1970. 35 Fed. Reg. 15623 (1970). See 42 U.S.C.

§ 4321 note.

‘See, e.g., Zabel v. Tabb, 449 F. 2d 119, 211 (5th Cir.

1970): “This Act essentially states that every federal agen-

cy shall consider ecological factors when dealing with ac-

tivities which may have an impact on man’s environment.”

The Act also enables agencies which claimed they had

no statutory authority to consider environmental factors to

include such considerations. See, e.g., Calvert Cliffs’ Coor-

dinating Committee v. Atomic Energy Comm’n 449 F. 2d

1109, 1112 (D.C. Cir. 1971): “Now, however, [the AEC’s]

hands are no longer tied. It is not only permitted, but com-

pelled, to take environmental values into account.”

regulatory activities are necessarily concerned with en-

vironmental consequences need not stop in the middle of its

proceedings in order to issue a separate and distinct impact

statement just to be issuing it. To so require would decrease

environmental protection activity rather than increase it. If

EPA fails to give ample environmental consideration to its

orders, its failure in this regard can be corrected when the

order is judicially reviewed,® but collateral review such as

was sought here was never contemplated and is not to be

allowed. To allow the use of district court injunction would

constitute usurpation of the function granted to this court as

well as a repudiation of our prior decisions. The question

whether the EPA is forever and under all circumstances ex-

empt from filing an environmental impact statement is not

here being decided. Under the circumstances presented, it

was clearly unnecessary for such a statement to be filed.

WAS THE ADMINISTRATOR’S ACTION

EQUIVALENT TO AN ENVIRONMENTAL IMPACT

STATEMENT?

The trial court thought that it was not an equivalent.

We have to disagree. A study of 42 U.S.C. § 4332 shows that

Congress was seeking to require the government agencies to

think about, and consider, environmental considerations in

making decisions. It was not intended to force the agency to

merely follow out a regimen. There are enough of tuese

without imposing another.

Sub-section (C) specifically provides that all agencies of

°See, e.g., Environmental Defense Fund v. EPA (Aldrin-

Dieldrin II), 520 F. 2d 1292 (D.C. Cir. 1975); Environmental

Defense Fund v. EPA (DDT Suspension II), 489 F. 2d 1247

(D.C. Cir. 1973); Environmental Defense Fund v. EPA

(Aldrin-Dieldrin I), 465 F. 2d 528 (D.C. Cir. 1972); En-

vironmental Defense Fund v. EPA, 439 F. 2d 584 (D.C. Cir.

1971).

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the Federal Government shall

on proposals for legislation and other major Federal ac-

tions significantly affecting the quality of the human

environment, a detailed statement by the responsible

official

(i) the environmental impact of the proposed

action,

(ii) any adverse environmental effects which

cannot be avoided should the proposal be im-

plemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term

uses of man’s environment and the maintenance and

enhancement of long-term productivity, and

(v) any irreversible and irretrievable com-

mitments of resources which would be involved in

the proposed action should it be implemented.

The Administrator's order, findings and conclusions sub-

stantially complied with the NEPA requirement.

The opinion, parts of which are quoted above, show that

the problem was long considered to be a serious one. The Ad-

ministrator had a good deal of information before him. In-

cluded was the Cain Report which itself was very similar in

objectivies and in content to an environmental impact state-

ment.

As we said in National Helium Corporation v. Morton,

supra, NEPA does not call for any particular framework or

procedure and so long as it is relevant and thorough it need

not be extensive.’

"In the Helium case we said:

In oral arguments the appellees have expressed a

desire for extensive administrative proceedings. We do

not see any such requirement. This is an _ in-

STARE, PR EOE PSE ORR

SOLIS GEL EES LE EEE

RE ERE POOT Ss —

The study and factual development which the Ad-

ministrator pursued satisfied the standards of the Act of Con-

gress. It was in our view a substantial equivalent to the

statutory impact statement.

The district court's judgment issuing a temporary in-

junction is reversed and the cause is remanded for further

proceedings. Inasmuch as the amended complaint contains

claims other than those which were here considered by the

court, which claims have not been tried, we do not order the

dismissal of the untried claims or the cause of action.

No. 75-1491 - STATE OF WYOMING et al v.

STANLEY K. HATHAWAY ete. et al

SETH, Circuit Judge, dissenting:

I must respectfully dissent from the majority opinion.

In looking at the statutory provisions in effect at the

time the administrative action took place, it appears that only

a “registrant” could then ask for a post-order hearing. Also

the record indicates that the only registrant in Wyoming was

an agency of the federal government, the Bureau of Sport

Fisheries and Wildlife. Thus a failure to ask for a hearing can-

not be charged to the State of Wyoming.

The Act then provided, as it does now, that one adverse-

ly affected by an order could seek judicial ‘‘review”’ of the

7 Continued

tradepartmental matter in which the Secretary fulfills

his obligation by following the mandate of the NEPA.

Neither the APA nor the NEPA compels him to appoint

an examiner and conduct hearings. Indeed, the Depart-

ment has NEPA procedures in its manual. He ought to

at least follow these. There is no indication that Con-

gress in enacting the NEPA intended to impose exten-

' sive procedural impediments to Department action.

455 F. 2d at 656-57

FLEE OLE LOE ILL L IE IER IE

EEE IEP SEI LS ETL SE ELELE LS - -

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RALEED THF OUGH

order by filing a petition in the United States Court of

Appeals seeking to have the order set aside. It is difficult to

determine what the court could have reviewed a that time for

the State of Wyoming since there was no hearing and no

record. This appears to have been a completely illusory

remedy and a failure to seek it cannot be charged against

Wyoming.

Thus under these circumstances there was no real ad-

ministrative remedy available. The record is clear that the

State sought relief from appropriate federal agencies when it

became apparent that some administrative action was needed

for the government to carry out its statutory duties to control

predators. No administrative relief came about from these ef-

forts.

I must also disagree with the majority in its position that

no impact statement was required of the EPA, and anyway an

equivalent was in existence.

As to the requirement that an impact statement be filed,

the National Environmental Policy Act (42 U.S.C. § 4332)

states that ‘‘all agencies’ shall prepare such a statement.

There is no provision for any exceptions and no indication

that any wefe contemplated. Thus the courts should not

create an exception for any reason, and not on the basis of a

presumed expertise. It would not seem necessary to belabor

the point in view of the mandate of the statute. This instance

is a good demonstration as to why such a statement should be

required of “‘all.’’ Practice has developed the opportunity to

give all groups a chance to air their positions during the

preparation of such statements. This appears to be one of the

reasons why the statements were required. “All” agencies

must consider all the directions in which the impact of their

major federal action may be felt.

Was the Cain Committee Report the “equivalent” of an

impact statement? The Report was a compilation of a variety

of published opinions, “‘studies,”’ and statistical data com-

piled from a variety of sources. It did not really purport to be

anything more than a synthesis of the literature initially

prepared for, or by various organized groups. It contains a

clear caveat that the data was not from carefully designed

research directed to pertinent questions. The Report then

said of this: “It is impossible to know when one might go

astray in drawing inferences from this type of information.”

The government now tries to read into the Report much more

than the writers intended. It did not purport to be an objec-

tive analysis of this problem, but only of selected literature

identified with proponents of a position on the subject. The

Committee refused to consider data sought to be submitted

by Wyoming. This kind of a report cannot be considered as a

“functional equivalent” of an impact statement, and it is not

fair to the Committee to try to do so. The Committee did not

purport to do more than it did. It was perfectly frank and

academically straightforward in its decision that the urban

position and wildlife dominance view should prevail. This

would seem to be apparent from its statement that the sheep

industry was a dying one, and it was of aesthetic importance

for the urban population to see coyotes. This position is well

expressed, and is a perfectly acceptable one.

Thus no one can quarrel with the Cain Report when it is

taken for what it is, and what it is supposed to be, but it can-

not be used for something it is not—a functional equivalent

of an impact statement.

One final observation. The only basis for the EPA action

was misbranding of the poisons after some fifty years of use

with the only registrant in Wyoming being the Wildlife Ser-

vice. This does not appear to be anything close to imminent

danger for an “emergency” contemplated by any relevant

Acts. After such a period of use of the poisons under the

guidance of the Wildlife Service, and by it, in the discharge of

its statutory duties, anyone contending for a contrary posi-

tion certainly should have to bear the burden of proof to sup-

port a change.

I would affirm the trial court.

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APPENDIX B

UNITED STATES COURT OF APPEALS

‘ FOR THE TENTH CIRCUIT

SEPTEMBER TERM—OCTOBER 28, 1975

Before the Honorable Delmas C. Hill, The Honorable Oliver

Seth and The Honorable William E. Doyle, Circuit Judges

STATE OF WYOMING, ET AL.

Plaintiffs-Appellees

Vs.

STANLEY K. HATHAWAY, ET AL.

Defendants-Appellants

vs.

WYOMING STOCK GROWERS ASSOCIATION

Intervenor-Appellee

75-1491 (D.C. No. C-74-34

This cause came on to be heard on the record on appeal

from the United States District Court for the District of

Wyoming, and was argued by counsel.

Upon consideration whereof, it is ordered that the judg-

ment of that court is reversed in so far as it issued a tem-

porary injunction. The cause is remanded to the United

States District Court for further proceedings in accordance

with the opinion of this Court. Seth, Circuit Judge, dissents.

HOWARD K. PHILLIPS, Clerk

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ene caren DEES RANTS

31]

APPENDIX C

ENVIRONMENTAL PROTECTION AGENCY

PESTICIDES OFFICE

WASHINGTON, D.C. 20250

March 9, 1972

PR Notice 72-2

Pesticides Regula-

tion Division

NOTICE TO MANUFACTURERS, FORMULATORS, DIS.

TRIBUTORS

AND REGISTRANTS OF ECONOMIC POISONS

Attention: Person Responsible for Federal Registration

of Economic Poisons

Suspension of Registration for Certain

Products Containing Sodium Fluoroacetate

(1080), Strychnine and Sodium Cyanide

Last spring, this Agency made a public commitment to

review the status of registrations for strychnine, cyanide,

and sodium fluoroacetate (1080), for use in prairie and

rangeland areas for the purpose of predator and rodent con-

trol. This commitment grew out of grave concern surfaced by

the reported deaths of some 20 eagles killed by the misuse of

thallium sulfate.!

This same concern caused the Secretary of the Interior

\This concern predates last summer. In 1963 the

Secretary of Interior appointed an Advisory Board on

Wildlife and Game Management chaired by Dr. Leopold of

the University of California.

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ENTE FAN APRS PII, FLAPS LOLI Maerset eos n ey

to initiate a thorough review of the government's federal

predator control program. An advisory committee was ap-

pointed under the chairmanship of Dr. Stanley Cain, Direc-

tor, Institute for Environmental Quality and Professor of

Botany and Conservation at the University of Michigan. The

report of that advisory committee was released earlier this

month.

Aside from this Agency's review and the Cain findings, a

detailed petition has been submitted to this Agency by

several distinguished conservation groups urging that the

registrations of these compounds be cancelled and suspended

immediately. That petition invoked the Federal Insecticide,

Fungicide and Rodenticide Act, 7 U.S.C. § 135, Section 2z (2)

tions for use which are necessary and if complied with, ade-

quate to prevent injury to living man and other vertebrate

animals, . .,”’ and Section 4c which allows the Administrator

to initiate cancellation proceedings by ordering immediate

suspension ‘‘when he finds that such action is necessary to

prevent an imminent hazard to the public.’”

Based on this Agency’s review of the registrations of

sodium cyanide, strychnine, and 1080 in light of available

evidence, I am persuaded that their registrations for predator

uses should be suspended and cancelled.

II.

The Cain group has dealt at length with the effects of the

use of strychnine, cyanide, and 1080 for predator control.

The report points out the extreme toxicity of these com-

pounds, their non-selectivity, and their potential impact on

*Sponsors of the petition were: The Natural

Resources Defense Council, Defenders of Wildlife, Friends

of the Earth, The Humane Society of the United States,

National Audubon Society, Inc., New York Zoological Socie-

ty, the Sierra Club, and the National Parks and Conservation

Association.

. — eee ‘ BELLA IRINA DA LAOS 92 RB SENN OP ARCA AIR

ALERTNESS vewae ,

RELL BE OTRAS:

the environment which “‘is increased by secondary hazard,

accumulation in the animal, and combined characteristics of

chemical stability and solubility in water.’ This report recon-

firms the findings of the Leopold Report (see !, supra) that

the predator control program took a heavy environmental

‘ toll.

Cyanide, strychnine, and 1080 are among the most toxic

chemicals known to man. They act quickly, spreading

through an entire animal crippling the central nervous

system. These poisons are toxic not only to their targets but

other animals and wildlife. All of these poisons have a similar

pattern of use as unattended baits and are spread over vast

areas of open prairie.

In the case of strychnine use against badgers, coyotes,

and foxes, a tablet containing the poison is placed inside a

one-inch ball or cube of bait material such as meat, lard or

tallow. These baits are left along animal trails or near non-

game carcasses. While instructions caution the user to cover

the baits over with chips or brush to avoid ingestion by non-

target animals, the Ciin Report has suggested the inadequacy

of such directions.’

The pattern for cyanide use differs little in pertinent

respects. An explosive gun, a “‘coyote-getter, charged with

cyanide is baited and driven into the ground. The gun is left

unattended along the trail or range and is triggered when an

animal pulls at the bait. In the case of 1080, carcasses of dead

animals are laced with the substance and strewn to attract the

predator.

a Sa

3According to the Cain Committee, if toxicants were

consistently applied under field conditions with meticulous

ease, it is possible undesirable side-effects might be avoided.

Draft at 131. However, the Committee concludes, “It appears

that the necessary high standards are not likely to be at-

tained.” (Draft at 115) The Committee found no reliably

precise data is available showing the degree of predator con-

trol achieved or the possible loss that might ensue without

any program.

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EAL ASIDE PEL 7 RINSE DERE LAY UPI EB 8 A

Indiscriminate baiting over wide unpoliced areas poses

two obvious and recognized threats to non-target animals

that share the ranges as a natural habitat. The unsupervised

bait is itself a potential killer of non-target range species. The

threat, however, is compounded by the extremely high tox-

icity of these poisons, which can transform the predator car-

cass into a potential lethal killer of prairie animal life.

While the effects of prairie baiting are, for the most

part, not documented, the Cain group has suggested the pre-

sent evidence may well understate the true damage. It is ap-

propriate to take administrative notice of the fact that

isolated accidents involving wildlife are not apt to be

reported. Isolated, even if routine and numerous, instances

of secondary animal poisoning would not have the visibility

of a wildlife “kill,” nor is there apt to be an observer present

as in the case of human mishap. The administrative process

need not be blind to these realities. This Agency’s Pesticides

Registration Division has, moreover, reports of cases of alleg-

ed secondary and accidental poisoning, and recently range-

use of 1080 has been suspected of killing birds, including

some of our rare species.

Measured against these obvious threats to wildlife are

only ill-defined and speculative benefits. The Cain Com-

mittee has noted the absence of any meaningul information

on the efficacy of poison baiting, especially in relation to the

economic loss caused by predators to the sheep industry. At

least one state, Nevada, has estimated that the cost of

predator control was ten times the value of livestock and

poultry lost to predators.

This absence of any meaningful data of benefits derived

from the use of these highly dangerous poisons which pose a

marked potential threat to the environment readers these

registrations suspect. It is now settled that the burden of

proof rests on the poison. The report, moreover, specifically

cites the greater selectivity of ground shooting, denning, and

trapping, and the Department of the Interior is embarking on

a study to determine other methods of control. Here, there it

is known that alternative methods of control exist, the

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registrations must be seriously questioned.

II].

In deciding whether or not these considerations justify

suspension, it must be recognized that the concept of suspen-

sion is one that must evolve, and existing verbal tests are not

readily translated into a decisive cue for action. The Federal

Insecticide, Fungicide and Rodenticide Act, and the judicial

and administrative constructions of it to date set forth only

word formulas that establish a general attitude on suspension

questions. Each situation must be scrutinized not only for

what is involved, but also for what is not involved.

Turning to the verbal tests by which we must measure

the use of these poisons, FIFRA provides that the Ad-

ministrator of EPA “may, when he finds that such action is

necessary to prevent an imminent hazard to the public, by

order, suspend the registration of an economic poison im-

mediately.” ‘Public’ is not to be viewed restrictively, and in-

cludes fish and wildlife, as has recently and forcefully been

noted in an opinion of a federal court. See EDF vy.

Ruckelshaus, 439 F. 2d 584, at 597. Nor does “imminent”

mean that we are on the “brink” and that the harm will occur

tomorrow or has been documented.‘ It is sufficient that

reasonable men can conclude that action taken today will

with reasonable certainty lead to a loss in the future and that

loss will be irremediable and uncorrectable by subsequent ac-

tion, and that the apparent benefits from using a chemical,

pending the complete statutory review process, are outweigh-

ed by the possible harm of use during the period.* Or, as the

4An ‘imminent hazard’ may be declared at any point ina

chair of events which may untimately result in harm to the

public. It is not necessary that the final anticipated injury ac-

tually have occurred prior to the determination that an ‘im-

minent hazard’ exists.’ Reasons Underlying the Registration

Decisions Concerning Products Containint DDT, 2,4,5-T,

Aldrin and Dieldrin, at 6.

‘The cancellation proceeding involving the possibility

csorammrseccere AST: Dp CINE ME ORTH ss a) ANY FRR ELLA STP MES AEE AE SLE IN IRON Ne

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matter was put in the Agency's DDT policy statement of

March 18, 1971, the type, extent, probability and duration of

such injury will be measured in light of the positive benefits

accruing from use of the economic poison, for example, in

human or animal disease control or food production.

Bearing these principles in mind, | am persuaded that a

definite hazard exists. While the mere toxicity of poisons

does not, under FIFRA, render them a hazard, their degree of

toxicity and pattern of use may well do so. The unattended

and unsupervised use of poisons over large areas of land, by

definition, poses a hazard to non-target species. The fact that

label instructions contain directions for placing the baits at

times and in areas least likely to be populated by non-target

species and for policing them, affords slight, if any comfort.

This Agency has on prior occasions taken into account a

“commonly recognized practice” of use (see /n Re Hari Kari

Lindane, 1.F. & R. (Docket #6), and has noted that the

likelihood of directions being followed may affect their ade-

quacy (see /n Re King Paint, 2 ERC 1819 (1970)); In Re

Stearns, 2 ERC 1364 (1970).

The hazards from the pattern of use for these chemicals

is not remote or off in the distant future. The prairies and

ranges are populated by numerous animals, some of which

are becoming rare. At jeopardy are potentially endangered

species. Each death to that population is an irremediable loss

and renders such species closer to extinction.

No apparent circumstances exist to counterbalance this

distinct hazard and suggest that the possibility of

irremediable loss is outweighed by the harm that might occur

from their nonavailability during a period of suspension. The

situation might well be different were the removal of these

poisons from the market likely to affect human health or the

supply of a staple foodstuff; or were there no apparent alter-

5 Continued

of both a scientific advisory committee and public hearing

consumes at least one year. In actual fact, these proceedings

have generally taken considerably more than a year.

ve pp nce E EEO NAA LOE LECLERC EL SP IMEI O TE LNA ETE =

natives available, the balance might be differently struck.

This, however, is not true.

I am hereby affixing findings of fact and an order

suspending and cancelling these chemicals for use in

predator control.

William D. Ruckelshaus

Administrator

FINDINGS OF FACT

Cyanide

1. Two products in the form of shells containing

sodium cyanide are currently registered for explosive devices

designed to kill coyotes that may prey on sheep. The device is

simply a cyanide charge placed in a baited cylinder and driven

into the ground. When the animal pulls at the bait the charge

explodes into its mouth. Only one of the shell products is

registered for use by the general public. The Division of

Wildlife Services of the Department of the Interior has

probably been the largest user of such devices.

2. Sodium cyanide is a water-soluble white-solid

which reacts with acids to form hydrogen cyanide gas. This

chemical is among the most toxic and rapidly acting of all

known poisons.

3. Persons overcome by gas either die very rapidly

from respiratory failure or recover completely within a

relatively short time.

4. Ingestion or inhalation of a very low dose (as little

as 300 micrograms per litre of air) may rapidly result in

death.

5. There is no true effective antidote.

6. Recent data show four incidents involving cyanide

compounds in fiscal year 1970 in three of which human

beings were injured by the discharge of cyanide guns placed

in fields. Only quick thinking on the part of all three victims

in seeking immediate medical aid prevented any loss of life.

7. There is evidence that dogs have been subjected to

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poisoning by cyanide (used as outlined above) which is high-

ly toxic to all wildlife and domestic animals.

Strychnine

8. Currently at least - six products containing

strychnine in tablet and technical powder form are registered

for use in baits against coyotes and wolves.

9. The technical powder form is for reformulation and

repackaging, and is for use only by professional pest control

operators, and government agencies.

10. The tablets are available on the open market.

ll. Strychnine is an extremely bitter-tasting white

crystal.

12. It is a complex, naturally occurring, organic com-

pound which would probably bind to soil readily and decom-

pose over a period of time, although information on the per-

sistence of strychnine and its effect on the environment is

somewhat limited.

13. Strychnine is highly toxic to humans and animals,

with 39 mg. considered as a threat to the life of an adult man.

Death has, however, been reported with as little as 5 to 10

mg., and animal life may be acutely poisoned by ingestion of

small amounts.

14. Strychnine acts by interfering with normal neural

processes causing exaggerated muscle contraction and

violent convulsion. Death in a rather gruesome form due to

respiratory failure soon follows unless the seizures are con-

trolled.

15. There is no true effective antidote.

1080 (Sodium Fluoroacetate)

16. Four products containing 1080 are currently

registered for use as mammalian predacides.

17. Use is restricted to areas west of the 100th meri-

dian, and then only by Division of Wildlife Services per-

sonnel, or under their direct supervision.

18. 1080 is a white powder, soluble in water, very

stable, and thus very persistent in ground water.

19. 1080 is highly toxic to all species. The dangerous

dose tor man is 0.5 - 2 mg/kg. The chemical acts rapidly upon

the central nervous and cardiovascular systems with cardian

effects. Effect is usually too quick to permit treatment, and

antidotes are relatively valueless.

20. According to one authority, prior to 1963 there

were 13 proven fatal cases, five suspected deaths, and six

non-fatal cases of 1080 poisoning in man, although it is not

clear to what extent predator control materials were im-

plicated.

21. There is evidence that a certain number of non-

target animals are being adversely affected by 1080 products,

particularly, in the case of carrion eating birds and mammals,

by secondary poisoning. It is not clear, however, how various

animal populations are being affected, although 1080 is

thought to have contributed to the death of at least one

California condor, an endangered species.

Benefits

22. There is no reliable data as to the amount of

predator control achieved by the use of these poisons.

23. There is no reliable data as to the loss of sheep that

might occur without a predator control program using these

poisons, or of the real effect of such losses on the general

economic health of the sheep industry. Certain data that are

presently available indicate predator losses may in fact be of

such a low magnitude as to be a minor part of total losses. The

Cain Report suggests that among other reasons for the

decline of the sheep industry may be competition from syn-

thetic fibers and from lot-fed livestock.

24. For the maintenance of predator control

programs, especially in the sheep industry, effective non-

chemical alternatives exist, including denning, shooting and

trapping, methods that have long been available and effec-

tive, though more costly than poisons.

25. The Federal Government has committed itself to a

research program for methods of controlling predators other

than poisons.

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CONCLUSION

The predator use of the foregoing chemicals presents an

imminent hazard such as to warrant their suspension pur-

suant to § 4 (c) of the Federal Insecticide, Fungicide and

Rodenticide Act.

ORDER

In accordance with the attached opinion and findings, it

is hereby ordered that the registration for all products con-

taining sodium Fluoroacetate (1080), sodium cyanide or

strychnine for use against mammalian predators be cancelled

and suspended immediately.

Registrations for those products bearing directions as

listed above are hereby suspended and the products may not

be legally shipped in interstate commerce until labeled to

block out instructions for predator use.

William D. Ruckelshaus

Administrator

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF WYOMING

STATE OF WYOMING

Plaintiffs

vs.

ROGERS C. B. MORTON, ET AL.

Defendants

vs.

WYOMING STOCK GROWERS ASSOCIATION

Intervenor

No. C74-34

TEMPORARY INJUNCTION

The above-entitled matter coming on regularly before

the Court on the 12th day of June, 1975, upon the motion for

a preliminary injunction herein filed by plaintiffs, plaintiff

State of Wyoming appearing by and through its attorney,

George S. Andrews, the intervenor W yoming Stock Growers

Association appearing by and through its attorney, Glenn

Parker, the remaining plaintiffs appearing by and through

their attorney, Houston G. Williams, and the defendants

appearing by and through their attorneys, Tosh Suyematsu,

Assistant United States Attorney, and Gerald Fish, Justice

Department, and the Court having heard the evidence and

testimony adduced by and on behalf of plaintiffs and having

considered and reviewed the affidavits and other material on

file herein, and having heard the arguments of all counsel

and being fully advised in the premises, Finds that the motion

for preliminary injunction should be granted, and Further

Finds that the National Environmental Policy Act of 1969,

42 U.S.C. § 4321, et seq,m required the defendant En-

vironmental Protection Agency to file a detailed en-

ne ee ee ae

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vironmental impact statement prior to the issuance by the ad-

ministrator of said agency of Pesticides Regulation Notice

72-2 dated March 9, 1972, for the reason that said order con-

stituted a major federal action significantly affecting the

quality of human environment in that it canceled and

suspended registration for certain products containing

sodium fluoroacetate (1080), sodium cyanide or strychnine

against mammalian predators, and suspended registrations

for those products and ordered that said products may not

legally be shipped in interstate commerce for such purposes;

and the Court Further Finds that the National Environmen-

tal Policy Act requires that such statement conform to the

specific directives set forth in 42 U.S.C. § 4332; the Court

Further Finds that prior to the issuance of said Notice the

defendant Environmental Protection Agency did not file an

environmental impact statement as required by said En-

vironmental Policy Act, nor did said defendant take any ac-

tion as required and intended by said Act to insure that said

agency would have before it and would take into proper ac-

count all possible approaches and assure consideration of

alternatives prior to the taking of the administrative action

resulting in the promulgation of said order, such as holding

of hearings and the giving of an opportunity to those vitally

affected or to be affected by such agency action an opportuni-

ty to be heard before such action was taken; the Court

Further Finds that the defendant Environmental Protection

Agency, prior to the promulgation of said order, did not

provide any functional equivalent of a formal Environmental

Policy Act report, and, in fact, said order was issued without

input from or consultation with plaintiffs or their represen-

tatives who have suffered and will suffer irreparable damage

and loss as a result of said order.

The Court Further Finds that the evidence presented at

the hearing of this matter clearly discloses that the individual

and corporate plaintiffs and others within the State of

Wyoming, represented by the plaintiff State of Wyoming,

have suffered and will continue to suffer irreparable damage

Se IS are

and loss as a result of the issuance of said order, and the

Court Finds that said order is invalid for all of said reasons

and that a temporary injunction should be issued by the

Court granting to plaintiffs relief from the effects of said

order. NOW, THEREFORE, IT IS

ORDERED that the motion of plaintiffs herein filed for :

a preliminary injunction be, and the same is, hereby granted,

as the Pesticides Regulation Notice 72-2 is invalid for the f

reasons set forth hereinabove; it is

FURTHER ORDERED that said defendant agency be,

and the same is, hereby enjoined and restrained during the

pendency of this action from taking any action for the en-

forcement of said order or for the implementation of the

policies contained therein; it is

FURTHER ORDERED that said defendants take such

administrative action as may be necessary to cancel and sus-

pend the operation of said order until such time as saiu agen-

cy has complied with the said requirements of the National

Environmental Policy Act of 1969; it is

FURTHER ORDERED that this temporary injunction

shall remain in full force and effect until such time as the En- $

vironmental Protection Agency has fully complied with the i

aforesaid acts or until this cause is tried on the merits. :

Dated this 23rd day of June, 1975.

EWING T. KERR, Judge

LEMP ED NET EO HMR SIMSON SEEN

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APPENDIX E

UNITED STATES COURT OF APPEALS

| FOR THE TENTH CIRCUIT

STATE OF WYOMING, ET AL. f

Plaintiffs-Appellees i

" SE IT Ree,

vs.

STANLEY K. HATHAWAY, Secretary of the United

States Department of the Interior, ET AL.

(No. 75-1491)

SQUIRE ER OS aE Te YEE RNAP THER

United States Court of Appeals, Tenth Circuit

(Rehearing Denied Nov. 24, 1975)

POPES et

Before The Honorable David T. Lewis, Chief Judge, The

Honorable Delmas C. Hill, The Honorable Oliver Seth, The

Honorable William J. Holloway, Jr., The Honorable Robert

H. McWilliams, The Honorable James E. Barrett and The

Honorable William E. Doyle, Circuit Judges

This matter comes on for consideration of the various

out-standing motions on file in the captioned appeal.

Upon consideration whereof, it is the order of the Court

as follows:

1. The appellees’ petition for rehearing is denied, and

the suggestion for rehearing en banc is rejected. Circuit

Judges Oliver Seth and James E. Barrett voted to granted

rehearing en bane.

2. The appellees’ motion to allow intervention by

other interested parties, and the motions of Utah, South

Dakota, and New Mexico for leave to intervene are denied. 3

3. The motion for immediate issuance of the mandate

is denied.

HOWARD K. PHILLIPS, Clerk

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NOVEMBER TERM—DECEMBER 10, 1975

Before The Honorable David T. Lewis, Chief Judge, The

Honorable Delmas C. Hill, The Honorable Oliver Seth, The

Honorable William J. Holloway, Jr., The Honorable Robert

H. McWilliams, The Honorable James E. Barrett and The

Honorable William E. Doyle, Circuit Judges

The Court has for consideration the necessity of the cor-

rection of a scrivener’s error in the order issued and dis-

tributed by the Clerk of the Court on November 24, 1975.

Upon consideration whereof it is the order of the Court

that the order issued November 24, 1975 is corrected nunc

pro tunc and reissued reading as follows:

1. The appellees’ petition for rehearing is denied, and

the suggestion for rehearing en banc is rejected. Chief Judge

David T. Lewis and Circuit Judges Oliver Seth and James E.

Barrett voted to grant rehearing en banc.

2. The appellees’ motion to allow intervention by

other interested parties, and the motions of Utah, South

Dakota, and New Mexico for leave to intervene are denied.

3. The motion for immediate issuance of the mandate

is denied.

The Clerk shall distribute this corrected order to the

parties of record.

HOWARD K. PHILLIPS, Clerk

SF ABE TOONAMI Tes! BNF EO ah ELE TNL MM ATL abt LAAT LBD LEG BEE ARLES AALS ANOLE REG ODER

APPENDIX F

Excerpt from the Readers Opinion Column

Denver Post September 26, 1975 Issue

Letter Submitted by John A. Green

Regional Administrator

U.S. Environmental Protection Agency

Region VIII

Denver

ROLE OF EPA AND OTHER FEDERAL AGENCIES IN

DENVER WATER BOARD PROGRAMS

To the Denver Post:

You ran an editorial on Sept. 9 about the recent adverse

ruling by the water referees in connection with the water

supply expansion program by the Denver Water Board. The

editorial made the following statement:

“Either the referee has made an uncommonly narrow

ruling or he has misinterpreted delays caused by the Federal

Environmental Protection Agency (EPA) as being lack of in-

terest.”

This statement is erroneous and misleading concerning

the role of EPA in the Denver Water Board’s expansion

program.

EPA is not directly involved with the Denver Wate

Board’s expansion proposal. Consequently, EPA has no

authority to delay this effort.

The Denver Water Board’s proposed transmountain

water diversion project and the Foothills water treatment

project do involve several federal agencies and federal land or

federal funds may be involved.

These federal agencies are in the process of evaluating

the environmental impacts of these projects as required by

the National Environmental Policy Act (NEPA). This act re-

quires the federal agency to prepare an environmental impact

statement when there are significant environmental impacts

associated with a proposed project.

The environmental impact statement must be dis-

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tributed for review and comment by government agencies

and the general public. The environmental impact statement

is very important for the federal agencies involved to arrive

at decisions which have completely considered potential en-

vironmental impacts, evaluated all reasonable alternatives

and properly balanced environmental, social, economic and

technical factors.

EPA is not responsible for administering the National En-

vironmental Policy Act. EPA is subject to the requirements of

that act the same as every other federal agency.

In the case of the Denver Water Board's project, EPA

has provided some technical assistance to the federal agen-

cies which are preparing the environmental impact

statements, and EPA will review and comment on the en-

vironmental impact statements when they are completed.

Federal agencies directly involved will make the

decisions after considering the comments of EPA, other

agencies and the public.

JOHN A. GREEN

Regional Administrator,

U.S. Environmental

Protection Agency,

Region VIII

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.