Petition for Writ of Certiorari — CropLife America v. Washington Toxics Coalition

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STATUTORY PROVISIONS INVOLVED

The relevant provisions of the Administrative Procedure

Act, the Federal Insecticide, Fungicide, and Rodenticide Act,

and the Endangered Species Act and implementing

regulations are set forth at App. F, infra, 15la-167a.

STATEMENT OF THE CASE

This case concerns the scope of judicial review and

relief for EPA’s alleged procedural violations of the

Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531, ef

seq., in the process of registering 54 pesticide active

ingredients over the course of decades under the Federal

Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), 7

U.S.C. §§ 136, et seg. Heretofore, the courts of appeals had

consistently held that agency compliance with the ESA must

be judged pursuant to the (deferential) standards and

methods prescribed by the Administrative Procedure Act

(“APA”), 5 U.S.C. §§ 551, et seg. The Ninth Circuit has

now ruled to the contrary, concluding that because the

citizen suit provision of the ESA “independently authorizes a

private nght of action, the APA does not govern plaintiffs’

claims.” App. 16a. The result is that the Ninth Circuit

(affirming the district court) has held that it can judge the

EPA’s compliance with the ESA de novo, without affording

deference to the agency’s expertise or interpretation of the

various statutes the agency must reconcile in performing its

statutory duties.

On the merits, the district court held, and the Ninth

Circuit affirmed, that EPA committed “substantial

procedural violation{s]” of ESA § 7(aX(2), 16 U.S.C.

§ 1536(a)(2), by failing to consult with the National Marine

Fisheries Service (“NMFS”) concerning the alleged effects

of 54 pesticide active ingredients on certain salmon in the

Pacific Northwest that NMFS had listed as endangered or

threatened species under the ESA. App. 89a; see id. at 6a-

7a. In so holding under a standard of de novo review, the

distnct court and the Ninth Circuit paid little heed to

regulations providing that consultation is not required unless

and until EPA concludes tha* a given pesticide registration

“may affect listed species or critical habitat.” 50 C.F.R.

§ 402.14(a). These “violations” then served as the basis for

injunctive relief, including suspension of EPA-authorized

pesticide uses pending completion of “may affect”

determinations and any needed ESA consultations, without

regard to the specific substantive and procedural standards

for the suspension of pesticide registrations in light of the

ESA as provided by FIFRA itself. See 7 U.S.C. §§ 136(/),

136d(c).

A. Statutory and Regulatory Background.

APA. The APA governs judicial review of any federal

agency action. By its terms, the APA is preemptive of any

other statute governing the review of agency action unless

there is an express statutory statement to the contrary. The

APA explicitly provides that a “[s|}ubsequent statute may not

be held to supersede” the provisions of the APA “except to

the extent that it does so expressly.” 5 U.S.C. § 559.

Among other things, APA provisions for review of agency

action reflect deference to agency expertise and

responsibility. The APA authorizes “the reviewing court” to

“hold unlawful and set aside agency action. found to

be...arbitrary, capncious, an abuse of discretion, or otherwise

not in accordance with law....” 5 U.S.C. § 706.

ESA. The ESA, 16 U.S.C. §§ 1531-44, provides

protections to species listed under § 1533 as endangered or

threatened. NMFS and the U.S. Fish and Wildlife Service

(collectively, “Services”) have adopted interpretative rules

on their ESA “consultation” function at 50 C.F.R. Part 402.

Under ESA § 7(a)(2):

Each Federal agency shall, in consultation with and

with the assistance of the Secretary, insure that any

action authorized, funded, or carried out by such

agency...is not likely to jeopardize the continued

existence of any...[listed] species or result in the

destruction or adverse modification of [designated

critical] habitat of such species.

16-U.S.C. § 1536(a)(2). The federal agency proposing the

action (here, EPA) is commonly called the “action agency.”

As developed further below, to avoid tying up scarce

resources in evaluating the ESA effects of the thousands of

actions/inactions/continuing actions that federal agencies

take each day, the Part 402 rules create a tnage system. The

rules provide three levels of possible § 7(a)(2) review and

give the action agency considerable discretion in determining

whether and when to consult with the Service. See 51 Fed.

Reg. 19926, 19950 (June 3, 1986); pages 23-24 infra.

ESA §7(d) provides the legislative judgment on

appropriate constraints during ESA consultation. It states

that, once consultation is initiated,

the Federal agency and the permit or license

applicant shall not make any irreversible or

irretrievable commitment of resources with respect

to the agency action which has the effect of

foreclosing the formulation or implementation of

any reasonable and prudent alternative measures

which would not violate subsection (a)(2) of this

section.

16 U.S.C. § 1536(d).

The final relevant ESA provision is § 11(g), under

which the plaintiffs filed this suit. It affords access to federal

courts “to enjoin any person, including the United States and

any other governmental instrumentality or agency... alleged

to be in violation of the” ESA or an ESA regulation. 16

U.S.C. § 1540(g)1)(A). It specifies “jurisdiction...to

enforce” a specific ESA provision, without identifying a

standard and scope of review. /d. § 1540(g)(1).

FIFRA. FIFRA is a “comprehensive regulatory statute”

aimed at controlling the use, sale, and labeling of pesticides.

Bates v. Dow Agrosciences LLC, 125 S.Ct. 1788, 1794

(2005). Under FIFRA, a pesticide active ingredient must be

registered with EPA through a rigorous process, including

extensive data submission, before it may be distributed. 7

U.S.C. § 136a(a). Registration of the ingredient requires

EPA to determine that “when used in accordance with

widespread and commonly recognized practice [the

ingredient] will not generally cause unreasonable adverse

effects on the environment.” /d. § 136a(c)(5)(D). This

standard takes into account effects on wildlife (including

species listed as endangered or threatened under the ESA).

FIFRA also provides for certain ESA-specific relief.

FIFRA § 6 allows EPA to compel interim “suspension” of a

“registration of the pesticide immediately” or a “change in

classification” where “necessary to prevent an imminent

hazard during” the longer “time required for cancellation”

proceedings. /d. § 136d(c\(1)-(2). FIFRA. defines an

“imminent hazard” to mean that “continued use of the

pesticide during the time required for a cancellation

proceeding...will involve unreasonable hazard to the survival

of a species declared endangered or threatened...pursuant to

the” ESA. /d. § 136(/). FIFRA contains further procedural

and substantive requirements for canceling or suspending a

_ pesticide registration. /d. § 136d(a)-(d).

Congress also addressed the relationship between

FIFRA and the ESA in §1010(b) of the 1988 ESA

Amendments. There, Congress directed that ESA

compliance for EPA’s FIFRA program be designed “to

minimize the impacts to persons engaged in agricultural food

and fiber commodity production and other affected pesticide

users and applicators.” Pub. L. No. 100-478, § 1010(b), 102

Stat. 2313-14 (1988), 7 U.S.C. § 136a note. '

B. Proceedings Below.

Plaintiffs brought this action under the citizen suit

provision of the ESA, 16 U.S.C. § 1540(g). They sought

declaratory and injunctive relief against EPA for allegedly

violating the ESA by failing to consult with NMFS under

' The quoted text of § 1010 and its history express a clear

legislative intent to protect existing food and fiber production uses of

pesticides. The Conference Report elaborated:

Agriculture is a major part of the U.S. economy and provides

nutritional sustenance for our population and exports abroad...

The Conferees, therefore, anticipate that...[the federal agencies

shall] implement the Endangered Species Act in a way that

protects endangered and threatened species while mimmiuzing,

where possible, impacts on production of agricultural foods and

fiber commodities.

H.R. Conf. Rep. No. 100-928, at 24-25, reprinted in 1988

U.S.C.C.A.N. 2738, 2741-42. See also 134 Cong. Rec. $12559 (Sept.

15, 1988) (Sen. Burdick’s summary that the conference report

“recognizes that protection of endangered species is important, but

also that agriculture is a major part of our economy and provides

sustenance for our population”); see also id. at $9761 (July 25, 1988)

(remarks of Sen. Mitchell); id. at S9756 (July 25, 1988) (remarks of

Sen. Byrd).

ESA § 7(a)(2) on the alleged effects of FIFRA pesticide

registrations on certain salmon listed as threatened or

endangered species under the ESA. CropLife America and

36 other groups representing pesticide manufacturers,

formulators, distributors, sellers, and applicators intervened

as defendants. EPA and intervenors raised jurisdictional and

statutory defenses to the allegation that the absence of

consultations violated the ESA. On July 2, 2002, the district

court granted summary judgment, concluding that EPA

violated ESA § 7(a)(2) by failing to engage in consultation

with respect to 54 pesticide active ingredients. The district

court ruled, inter alia, that because this was an ESA citizen

suit, “the APA, including its peculiar doctrines, does not

govern plaintiffs’ claims.” App. 129a. The court ordered

EPA to make “effects determinations” under 50 C.F.R.

§ 402.14(a) and consult, where appropriate, under a time

schedule. App. 145a-146a. That time schedule remedy

cured the ESA process violation.

In orders issued July 16, 2003, August 8, 2003, and

January 22, 2004, the district court granted plaintiffs’ request

for further injunctive relief. App. 20a-87a, 88a-117a, 118a-

123a. Finding EPA in “substantial procedural violation” of

the ESA for its failure to consult with NMFS, the court

enjoined, with few exceptions, EPA’s authorization of all

uses of hundreds of pesticide products containing any of the

54 active ingredients in buffer zones (20 yards for ground

applications and 100 yards for aerial applications) adjacent

to all “Salmon Supporting Waters” in Washington, Oregon,

and California. App. 24a-3la, 89a. In addition, for

pesticides containing seven active ingredients used in urban

areas, the court ordered EPA to develop a mandatory point-

of-sale notification of a “Salmon Hazard” and required the |

intervenors to distribute the notification “in quantity...to

sales outlets where lawn and garden products are sold in the

Urban Areas subject to this Order.” App. 32a-33a.

EPA and the intervenors appealed. A Ninth Circuit

panel “affirm[ed] the district court’s orders in their entirety.”

App. 7a. The court of appeals identified three sets of issues:

(1) the applicability of the ESA § 7(a)(2) consultation

provision to pesticide registrations under FIFRA; (2) the

applicability of the judicial review provisions of the APA;

and (3) the scope of injunctive relief. App. 1 1a-19a.

On the first point, EPA had framed the issue as

“{w]hether the district court’s failure to accommodate

FIFRA’s unique requirements in enjoining EPA’s

authorization of use of certain pesticides constituted

reversible error given that these requirements...circumscribe

EPA’s discretion and thus define EPA’s legal duties under

the ESA.” EPA Brf. at 1. The panel recharacterized EPA’s

argument and found that recharacterized argument

unpersuasive. App. lla. The panel found that FIFRA does

not limit “an injunction to enforce the ESA.” App. 14a.

Despite noting that the ESA and FIFRA have

“complementary” purposes, App. 13a, the panel afforded

primacy to the ESA. It held that the “scheme of the two

Statutes suggests the exact opposite” of a regime in which

FIFRA “trumps” the ESA. App. 15a. Thus, it affirmed the

district court’s conclusion that EPA’s absence of

consultation constituted a violation of ESA § 7(a)(2).

Concerning the applicability of the APA, Petitioners had

argued that, even in an ESA citizen suit, APA standards,

including review under the “arbitrary and capricious”

standard, necessarily apply to suits against federal agencies.

CropLife Brf. at 14-23. In response, the Ninth Circuit panel

focused on the source of plaintiffs’ subject-matter

jurisdiction. The panel held that “suits to compel agencies to

comply with the substantive provisions of the ESA arise

under the ESA citizen suit provision, and not the APA.”

App. 16a. The panel held that because the ESA’s citizen suit

provision “independently authorizes a private right of action,

the APA does not govern the plaintiffs’ claims.” /d.

Lastly, concerning the scope of injunctive relief, the

panel explained that the purpose of the consultation process

“is to prevent later substantive violations of the ESA.” App.

16a. The panel reasoned that the remedy for a “substantial

procedural violation of the ESA...must...be an injunction of

the project pending completion of the section 7(a)(2)

requirements.” /d. Invoking what it perceived as the

“institutionalized caution mandate” of the ESA, the panel

relieved the plaintiffs of any burden to prove an effect on

salmon to obtain a substantive injunction against pesticide

uses to produce food and fiber. The panel instead placed the

burden on EPA to prove a negative — that its actions were

nonjeopardizing. App. 18a. The panel also opined that,

because Congress had already decided under the ESA that

the balance of hardships “always tips sharply in favor of the

endangered or threatened species,” the district court was not

required to balance interests (including, apparently, the

public interests protected by FIFRA) when it issued the

injunction suspending pesticide registrations in the buffer

zones and imposing affirmative point-of-sale notice

requirements on EPA and intervenors for pesticides used in

urban areas. /d.

REASONS FOR GRANTING THE PETITION

In holding that APA standards do not apply in judging

agency compliance with the ESA - including the purely

procedural prescriptions that comprise the “violation” found

here — the Ninth Circuit has created a patent and disturbing

conflict in the Circuits on this important issue. Given the

number of environmental cases that find their way into the

Ninth Circuit, the conflict in the Circuits is of enormous

practical importance. The Ninth Circuit’s ruling was here

applied to 54 pesticides registered over nearly five decades”

— eviscerating the agency’s program of FIFRA regulatory

approval of such pesticides. The practical, jurisprudential

difficulty is equally stark: The Ninth Circuit’s ruling means

that an agency action that is — indeed is actually held to be —

lawful and compliant with the ESA (as determined by a court

properly reviewing agency action under the APA) can

somehow, at the same time, be unlawful and in violation of

the ESA. This conflict among the Circuits, and this

erroneous ruling, should be resolved and corrected by this

Court.

In addition — under whatever the appropriate standard of

review — the finding of ESA “violations” here, and the

ensuing injunction suspending pesticide registrations on

account of EPA’s asserted procedural violations of the ESA,

has undermined basic, congressional policy. That policy of

fostering food and fiber production through the reasonable

use of pesticides is expressly affirmed .. both the ESA and

FIFRA. In connection with continued uses of registered

pesticides, ESA implementation must take due account of the

importance of pesticides in fostering food and fiber

production. The courts’ errors in construing and applying

those two statutes should be corrected by this Court to

effectuate Congress’s goals of protecting wildlife while

minimizing impacts on agriculture.

> For example, atrazine first appeared in products ;egistered

under FIFRA in 1958. See Interim Registration Eligibility Decision

for Atrazine, at 9 (2003), available al

http://www.epa.gov/oppsrrd1/REDs/atrazine_ired.pdf.

I. The Ninth Circuit Erred in Refusing to Apply APA

Standards.

A. The Ninth Circuit’s refusal to apply APA

standards conflicts with uniform decisions

of the courts of appeals.

The Ninth Circuit’s holding that the APA does not apply

to claims brought “under the ESA citizen suit provision”

creates a manifest conflict in the -ourts of appeals on a

fundamental issue of nationwide importance: the proper

standard and scope of judicial review in a suit against a

federal agency alleged to be “in violation” of an

environmental statute with a citizen suit provision. 16

U.S.C. § 1540(g).

Two decades ago, the D.C. Circuit, citing rudimentary

principles of APA primacy established by this Court,

articulated what has been, until this case, the uniform view

of the courts of appeals that de novo judicial review is

unavailable in such _ cases. See Cabinet Mts.

Wilderness/Scotchman's Peak Grizzly Bears v. Peterson, 685

F.2d 678 (D.C. Cir. 1982). In that ESA citizen suit, wildlife

interest groups asserted that the U.S. Forest Service had

violated the jeopardy standard of ESA § 7(a)(2) by failing to

prepare an environmental impact statement before approving

a plan for exploratory mineral dnilling on Forest Service

lands. The plaintiffs insisted that the decision to approve the

drilling was subject to de novo judicial review because

Congress had included a provision for citizen suits in the

ESA and because de novo review would further Congress’s

intent to protect endangered species. The court found these

arguments “unpersuasive’’:

The citizen suit provision of the [ESA]...merely

provides a right of action to challenge the agency

action alleged to be in violation of the Act or to

compel agency compliance with the requirements of

the Act. It does not direct trial courts to conduct de

novo review in adjudicating such actions and we

decline to read such a requirement into the Act

Since the ESA does not specify a standard of

review, judicial review is governed by section 706

of the Administrative Procedure Act

Id. at 685.

The D.C. Circuit’s holding comported with the views of

the three Circuits — the Fifth, Sixth, and Eighth — which, at

that relatively early stage in the ESA’s litigation history, had

addressed the standard of review for federal agency action

challenged pursuant to the ESA. /d. at 686 (citing Hill v.

Tenn. Valley Auth., 549 F.2d 1064, 1074 n.21 (6th Cir.),

aff'd on other grounds, 437 U.S. 153 (1978); Sierra Club v.

Froehlke, 534 F.2d 1289, 1304-05 (8th Cir. 1976); Nat'l

Wildlife Fed'n v. Coleman, 529 F.2d 359, 372 (Sth Cir.

1976)). And, these and other Circuits (including the Tenth

and Eleventh) which have addressed the applicability of the

APA to ESA citizen suits since that time have uniformly

held that APA standards apply. See, eg., Nat'l Ass'n of

Home Builders v. Norton, 415 F.3d 8, 13 (D.C. Cir. 2005)

(applying APA standard of “finality” of agency action);

Sierra Club y. Glickman, 67 F.3d 90, 95 (5th Cir. 1995) (“the

appropriate standard of review of federal administrative

agency action under both §7 and §9 of the ESA is the

arbitrary and capricious standard prescribed by the [APA]"’);

Voyageurs Nat'l Park Ass'n v. Norton, 381 F.3d 759, 763

(8th Cir. 2004) (APA review standards apply to citizen suit

alleging failure to consult under ESA §7); Gordon y.

Norton, 322 F.3d 1213, 1219 (10th Cir. 2003) (“APA

governs judicial review of agency action challenged through

the ESA citizen-suit provision’), Sierra Club v. U.S. Army

Corps of Eng’'rs, 295 F.3d 1209, 1216 (11th Cir. 2002)

(citizen suit challenge to adequacy of agency ESA §7

consultation reviewed under APA’s arbitrary and capncious

standard).” The First and Federal Circuits have likewise

decided cases that strongly support the conclusion that APA

standards must be applied in suits alleging violations of the

ESA. See Water Keeper Alliance v. U.S. Dep't of Def., 271

F.3d 21, 31 (1st Cir. 2001) (collecting cases); Earth Island

Inst. v. Albright, 147 F.3d 1352, 1357 (Fed. Cir. 1998)

(finding no ESA jurisdiction over a suit contesting the

Department of State’s procedural compliance with the ESA,

because such cases arise under the APA).

The Ninth Circuit is now to the contrary with a ruling

certain to have immediate and far-reaching implications for

the lower courts and federal agencies, given the number of

agency “actions” that might possibly give mse to a

“violation” if reviewed without deference. The significant

impacts of the ruling below are illustrated by the facts that

ESA § 7(a\(2) encompasses a// ESA-listed species, not just

’ Indeed, until this case, even the Ninth Circuit applied APA

standards. £.g., Vill. of False Pass v. Clark, 733 F.2d 605, 609 (9th

Cir. 1984) (“[b)ecause ESA contains no internal standard of review,

section 706 of the Administrative Procedure Act, 5 U.S.C. § 706,

governs review of the Secretary's actions”) (citing D.C. Circuit's

ruling in Cabinet Mts.). Accord Ground Zero Cir. for Non-Violent

Action v. U.S. Dep't of the Navy, 383 F.3d 1082, 1092 (9th Cir

2004); Westlands Water Dist. v. U.S. Dep't of the Interior, 376 F.3d

853, 865 (9th Cir. 2004); Turtle Island Restoration Network v. Nat'l

Marine Fisheries Svc., 340 F.3d 969, 973 (9th Cir. 2003); Envtl. Prot

Info. Ctr. v. Simpson Timber Co., 255 F.3d 1073, 1078 (9th Cir

2001). Pyramid Lake Paiute Tribe v. U S. Dep't of the Navy, 898 F.2d

1410, 1414 (9th Cir 1990), Sierra Club v. Marsh, 816 F.2d 1376,

1384, 1386-87 (9th Cir. 1987).

salmon in the Pacific Northwest,” and that it applies to “any

action” of “{ejach Federal” agency, not just to EPA’s

registration of pesticides under FIFRA. Beyond that, many

other federal statutes have citizen suit provisions that could,

under the Ninth Circuit’s reasoning, be deemed to supersede

APA standards in suits against federal agencies. °

The Ninth Circuit’s decision to depart from the uniform

body of law warrants this Court’s review.

B. The Ninth Circuit’s refusal to apply APA

standards conflicts with the APA.

Not surprisingly, given the lopsided weight of authority

just discussed, the Ninth Circuit’s holding that the APA does

not apply conflicts with the APA itself. The APA waives

sovereign immunity and authorizes judicial review of

“{a]gency action made reviewable by statute and final

agency action for which there is no other adequate remedy in

court.” 5 U.S.C. § 704. Review takes place under the

“arbitrary and capricious” standard. 5 U.S.C. § 706(2)(A).

Under that standard, agency conduct is presumed lawful and

the “court ts not empowered to substitute its judgment for

* The U.S. Fish and Wildlife Service reports that there are 1083

animal species and 784 plant species listed as endangered or

threatened under the ESA, dispersed throughout the world. See

http://ecos.fws.gov/tess_public/TESSBoxscore (visited Sept. 15,

2005).

> See, e.g., 15 U.S.C. § 2619 (Toxic Substances Control Act);

30 U.S.C. § 1270 (Surface Mining Control and Reclamation Act); 33

U.S.C. § 1365 (Clean Water Act), 42 U.S.C. § 4911 (Noise Control

Act). id. § 6972 (Solid Waste Disposal Act); id. § 7604 (Clean Air

Act), id §9659 (Comprehensive Environmental Response,

Compensation, and Liability Act); id. § 11046 (Emergency Planning

and Community Right-to-Know Act).

that of the agency.” Citizens to Pres. Overton Park v. Volpe,

401 U.S. 402, 415-16 (1971).

The Ninth Circuit’s de novo approach overrode this and

other related aspects of the APA, such as the requirement of

5 U.S.C. § 706 that review be based on the administrative

record.” The district court (affirmed by the Ninth Circuit)

declined to limit review to the administrative record, or even

to consider that record. See App. 129a. Yet, for each

pesticide registration, EPA had amassed a_ substantial

administrative record that was not before the courts below ~

including data establishing that, “when used in accordance

with widespread and commonly recognized practice [the

ingredient] will not generally cause unreasonable adverse

effects on the environment.” 7 U.S.C. § 136a(c)(5)(D). See

also id. § 136a(c)(1)-(2) (descnbing data requirements).

The failure to apply the APA affected the remedy as

well. Assuming EPA had missed an ESA/APA deadline for

some § 7-related procedure, “(t]he APA provides relief for a

failure to act in §706(1): ‘The reviewing’ court

shall...compel agency action unlawfully withheld or

unreasonably delayed.”” Norton v. S. Utah Wilderness

Alliance, 542 U.S. 55, 124 §.Ct. 2373, 2378 (2004)

(“SUWA”). The district court’s 2002 order had already

compelled the delayed actions by setting a time schedule for

making “effects determinations” under 50 C.F.R.

§ 402.14(a). App. 145a-146a. In the challenged relief, the

district court did more. The district court’s 2004 injunction

° See Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743-44

(1985) (the “task of the reviewing ¢ourt is to apply the appropnate

standard of review...to the agency decision based on the record the

agency presents to the reviewing court,” not on a “new record made

initially in the reviewing court”).

effectively supplanted the FIFRA standards and process for

suspending a pesticide registration. See Part II.B infra.

Although the Ninth Circuit ruled that the APA did not

apply because this case was brought as a citizen suit, the

APA itself addresses the issue whether its review provisions

may be bypassed under color of a cause of action brought

under some other statute. The APA’s mandate precludes the

Ninth Circuit’s theory. The APA explicitly provides that a

“{s)ubsequent statute may not be held to supersede” the

provisions of the APA “except to the extent that it does so

expressly.” 5 U.S.C. § 559. Exceptions from the APA “are

not lightly to be presumed in view of the statement in [§ 559]

that modifications must be express.” Marcello v. Bonds, 349

U.S. 302, 310 (1955).

The ESA citizen suit provision does not contain an

express exception to APA review standards. It merely

provides a mght to challenge agency action that is alleged to

be in violation of that Act or to compel agency compliance

with the Act’s requirements. See 16 U.S.C. § 1540(g).

Since the ESA does not specify a standard of review, it does

not “expressly supersede,” and therefore the agency action

continues to be governed by, the arbitrary and capricious

standard of the APA, 5 U.S.C. § 706, as the courts of appeals

have (until this case) correctly concluded. See, e.g., Cabinet

Mts., 685 F.2d at 685. The Ninth Circuit’s contrary holding

~ that “the APA does not govern the plaintiffs’ claims”

conflicts with the plain language of the APA.

The Ninth Circuit's holding undercuts a major purpose

of the APA — to maintain “a uniform approach to judicial

review of administrative action.” Dickinson v. Zurko, 527

U.S. 150, 154 (1999) (citing 5 U.S.C. § 559 and Universal

Camera Corp. v. NLRB, 340 U.S. 474, 489 (1951)). And in

doing so, it propounds illogic: Under the Ninth Circuit's

novel view, the same agency action that would be sustained

in an APA review action as proper, lawful, and consistent

with the agency’s duty under the ESA (because the agency is

found to be acting within the bounds of its discretion) could

at the same time be deemed unlawful and in violation of the

ESA under the Ninth Circuit’s approach. This would be true

(under the Ninth Circuit’s holding here) even if the issue

simply concerned a matter easily reviewable under the APA,

namely the propriety of the process the agency used in

reaching its decision. The Ninth Circuit panel missed the

point of the APA. The APA is not merely a mechanism for

reviewing agency action. Instead, it encapsulates the

principle that federal agencies, not courts, are affirmatively

empowered to decide certain questions within defined

bounds — and courts may not supplant agency judgments in

those areas. An agency action that is lawful and in

compliance with the ESA under the APA’s standards cannot,

at the same time, be unlawful and “in violation” of the ESA.

Cc. The Ninth Circuit’s refusal to apply APA

standards conflicts with this Court’s

decisions delineating the scope of judicial

review.

The Ninth Circuit’s refusal to apply the APA conflicts

with this Court’s APA jurisprudence. Addressing a situation

analogous to the one at bar, this Court has instructed that:

[I]n cases where Congress has simply provided for

review, without setting forth the standards to be

used or the procedures to be _ followed,

...consideration is to be confined to the

administrative record and...no de novo proceeding

may be held

United States v. Carlo Bianchi & Co., 373 U.S. 709, 713

(1963). Under the guiding APA precept, a court’s role is to

ascertain whether an agency’s conduct is reasonable, not

whether it 1s, in the court’s own view, right. See id. at 715

(courts assess “the reasonableness of what the agency did on

the basis of the evidence before it, for a decision may be

supported by substantial evidence even though it could be

refuted by other evidence that was not presented to the

decision-making body”).

Further, as this Court has explained, de novo review is

strictly limited under the APA, 5 U.S.C. § 706(2)(F), to two

circumstances:

First, such de novo review is authorized when the

action is adjudicatory in nature and the agency

factfinding procedures are inadequate. And, there

may be independent judicial factfinding when issues

that were not before the agency are raised in a

proceeding to enforce nonadjudicatory agency

action.

Overton Park, 402 U.S. at 415. The Ninth Circuit ignored

these limitations here. EPA’s conduct was “entitled to a

presumption of regularity,” id., and should not have been

subject to de novo judicial second-guessing. Jd. at 419.

The Ninth Circuit’s view that APA standards do not

apply because EPA is sued as an alleged “violator” of the

ESA, based on its failure “to consult,” also runs afoul of this

Court’s analysis in Bennett v. Spear, 520 U.S. 154 (1997).

There, the Court held that the “violation” on which an ESA

citizen suit can be predicated “does not include the [Interior]

Secretary’s failure to perform his duties as administrator of

the ESA.” /d. at 173. The Court elaborated:

[T]he ESA uses the term “violation” elsewhere in

contexts in which it is most unlikely to refer to

failure by the Secretary or other federal officers and

employees to perform their duties in administering

the ESA.... We know of no precedent for applying

such a provision against those who administer (as

opposed to those who are regulated by) a

substantive law.

Id. at 173-74 (emphasis added).

Indeed, the distinction between a substantive and a

procedural violation was lost on the courts below, which

focused on EPA as a regulated entity, not an administering

agency. Since this case concerns only EPA’s alleged failure

to initiate “procedural” consultation at whatever time the

plaintiffs demand, plaintiffs did not allege that EPA is a

substantive violator of the ESA. At the very least, APA

principles should govern judicial review of agency conduct

where the alleged violation (unreasonable delay in making

determinations on whether a particular pesticide “may

affect” ESA-listed salmon or unreasonable delay in initiating

ESA consultation with NMFS) is a procedural one. See

Earth Island Inst., 147 F.3d at 1357 (citing Bennett, and

‘ The distnet court simply reasoned that the APA was irrelevant

because EPA “must comply with, but not administer, the ESA” and is

within the scope of a 16 U.S.C. § 1540(g)(1)(A) citizen suit. App.

130a. This reasoning does not withstand analysis. In reality, EPA

and other action agencies at least co-administer ESA § 7(a)(2).

Action agencies have the “initial responsibility for determining

statutory necessity” for “consultation” under the statutory language -

and that is why the Solicitor General previously represented to this

Court that the Services’ § 7 rules (50 C.F.R. Part 402) are not

“binding” on agencies like EPA. Lujan v. Defenders of Wildlife, 504

U.S. 555, 568-71 (1992) (discussing 16 U.S.C. § 1536(a)(2)).

concluding that proper standard for ESA suit against action

agency for failure to follow proper procedures was the

APA).

Il. The Courts’ Findings of ESA Violations and

Imposition of Further Injunctive Relief Misconstrue

the ESA and FIFRA and Subvert Congress’s Goal of

Minimizing ESA Impacts on Food and Fiber

Production.

Applying APA standards, there is little question but that

this case would have come out differently.® However, even

if the agency’s actions here are judged de novo, without the

benefit of deference to agency expertise and discretion, the

Ninth Circuit was wrong. The Ninth Circuit misconstrued

ESA §7 to find “violations” in EPA’s “failure to initiate

consultation.” Then, compounding that error, it upheld an

injunction suspending long-approved uses of 54 pesticide

* Besides limiting review to the administrative record, see supra

note 6, the APA would have required the courts to: defer to EPA’s

experts and technical judgments on pesticide effects, see Marsh v. Or.

Natural Res. Council, 490 U.S. 360, 376-78 (1989) and Baltimore

Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 103

(1983), accord EPA's conduct a piesumption of regularity and piace

the burden on plaintiffs to prove otherwise, see Overton Park, 401

U.S. at 415; and respect the federal government's reasonable

interpretations of the ESA and FIFRA, see United States v. Mead, 533

U.S. 218, 227-29 (2001) and Chevron U.S.A. Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837, 842-45 (1984). In addition, the

“principal purpose” of the APA limitations — “to protect agencies

from undue judicial interference with their lawful discretion, and to

avoid judicial entanglement in abstract policy disagreements which

courts lack both the expertise and information to resolve,” SUWA,

124 S.Ct. at 2381 — would have counseled against an intncate

prescnptive injunction, see App. 24a-33a, 36a-87a, that sigmificantly

interfered with EPA’s program for regulating 54 pesticides im the

Pacific Northwest.

ingredients even though neither the substantive nor the

procedural standards for such suspensions under FIFRA had

been met.

Whether confined to the Ninth Circuit, the site of much

of this country’s agricultural production and environmental

litigation, or given broader reach by reason of the statutes’

nationwide applicability, these holdings thwart Congress’s

goal of protecting agriculture against unwarranted ESA

constraints. In an ESA amendment that neither court below

took into account, Congress envisioned that ESA compliance

for EPA’s FIFRA program would “allow persons to continue

production of food and fiber commodities” and would

“minimize the impacts to persons engaged in agricultural

food and fiber commodity production and other affected

pesticide users and applicators.” Pub. L. No. 100-478,

§ 1010(b), 102 Stat. 2313 (1988), 7 U.S.C. § 136a note. The

judicial suspension of authorized pesticide uses in this case

drastically reorders these priorities by using what was at

most a procedural default in the way EPA meets its ESA

§ 7(a)(2) obligations as the basis for a substantive injunction

whose greatest impact falls not on EPA but on the

production of agricultural commodities that Congress sought

to protect.

For these reasons, and because of the recent proliferation

of litigation presenting these issues,’ this Court’s review and

* Lack of present consultation on alleged effects of pesticide

registrations on salmon and other ESA-listed wildlife has been, or is,

the basis for at least four other lawsuits against EPA, including two in

the Ninth Circuit. See Californians for Alternatives to Toxics v. EPA,

No. C-00-3150-CW (N.D. Cal.) (settled); Cir. for Biological

Diversity v. Leavitt, No. C-02-1580-JSW (N.D. Cal. Sept. 19, 2005);

Ctr. for Biological Diversity v. Johnson, No. 1:04-cv-00126-CKK

(continued....)

correction of the lower courts’ errors, as described below, is

warranted.

A. The finding of an ESA violation for failing

to consult conflicts with the plain language

of the ESA and “its implementing

regulations.

The district court held, and the Ninth Circuit affirmed,

that “EPA’s failure to initiate section 7(a)(2) consultation

constitutes-a substantial procedural violation of the ESA.”

App. 89a. The holding that consultation was required

cannot be reconciled with the language of the ESA and the

implementing regulations.

ESA § 7({a)(2) provides, in relevant part:

Each Federal agency shall, in consultation with and

with the assistance of the Secretary, insure that any

action authorized, funded, or carried out by such

agency...is not likely to jeopardize the continued

existence of any...[listed] species or result in the

destruction or adverse modification of [designated

critical] habitat of such species.

16 U.S.C. § 1536(a)(2). This provision creates no absolute

duty to consult. Instead, it requires each federal agency to

“insure” that any action it takes “is not likely to” cause

jeopardy. “Consultation” with the Services, like the

“assistance” the Services may provide to the action agency,

is not a universal statutory duty before taking any and all

federal actions. Rather, it is a potential vehicle for carrying

(continued)...

(D.D.C.) (settled); Natural Res. Def. Council v. EPA, No. 1:03-cv-

02444-RDB (D Md.) (pending).

out the duty to “insure” that agency actions avoid

jeopardizing ESA-listed species.

Consultation is a means to, or possible step in

connection with, a substantive determination required by the

ESA. It is not an independent requirement or statutory

command, but rather a matter of agency judgment. The

Ninth Circuit’s view that consultation is an affirmative

command is at odds with this Court’s recognition that, “with

respect to consultation the initiative, and hence arguably the

initial responsibility for determining statutory necessity, lies

with the agencies.” Lujan v. Defenders of Wildlife, 504 U.S.

555, 568-69 (1992). Under the Services’ joint regulations,

an agency has considerable discretion in deciding whether,

and if so when, to consult. To avoid imposing the “time

delays and _ information responsibilities of formal

consultation” on the thousands of innocuous

actions/inactions/continuing actions that federal agencies

take each day, the Services’ rules implementing ESA

§ 7(a)(2) create a triage system that provides three levels of

possible § 7(a)(2) review. 51 Fed. Reg. 19949-50 (June 3,

1986). See 50 C.F.R. §§ 402.13-.14.

First, no consultation process is required unless and unti!

the action agency determines that its “action may affect

listed species or cntical habitat.” 50 C.F.R. § 402.14(a).

Second, if and when the action agency determines its

action “may affect” a listed species, the agency may invoke

the “optional process” of “informal consultation” with the

Service. Jd. § 402.13. Informal consultation serves twin

purposes: it allows the Service and action agency to conclude

that formal ESA consultation is not warranted because the

action is “not likely to adversely affect listed species or

critical habitat”; and it allows those agencies to resolve what

information is required by § 402.14(c) and (d) to initiate

formal consultation. /d.

Third, the more mgorous “formal consultation” is

reserved for proposed actions that pose closer issues of

compliance with ESA § 7(a)(2)’s substantive constraints

(e.g., that each federal action be “not likely” to jeopardize

the entire species’ existence). Formal consultation is

required only for actions the action agency determines are

“likely to adversely affect any listed species or critical

habitat,” and is initiated only after the agency prepares the

information required by § 402.14(c) and (d) at a depth

acceptable to the Service. Only formal consultation results

in the Service’s issuance of a written “biological opinion” as

to whether the proposed action complies with § 7(a)(2)’s

substantive constraints and a statement authorizing some

“incidental take.” 50 C.F.R. § 402.14(h), (i); see 16 U.S.C.

§ 1536(b)(3), (4). ESA § 7(b)(1) (16 U.S.C. § 1536(b)(1))

and 50 C.F.R. § 402.14(e) and (g)(5) set time limits on the

completion of formal consultation.'°

The courts below, by concluding that in and of itself

“EPA’s failure to initiate section 7(a)(2) consultation

constitutes a substantial procedural violation of the ESA,”

fundamentally misread the statute and rules to prescribe

something that they do not. Under uncontested rules,

“consultation” must be “initiate[d]” only if and after EPA

concludes that a given pesticide registration “may affect”

one or more of the ESA-listed salmon. 50 C-F.R.

Action agencies have discretion on the timing of consultation.

See 51 Fed. Reg. 19948 (“informal consultation 1s an optional process

that is under the control of the Federal agency as to its initiation and

duration”); id. at 19949 (the “Service does not intend to mandate the

timing of this [formal consultation] review, which is solely at the

discretion of the Federal agency”).

§ 402.14(a)-(d). In negating EPA’s interpretation in

connection with its administration of FIFRA in light of the

ESA, the Ninth Circuit’s approach highlights the intrusive

nature of reviewing agency action de novo. But even if

judged de novo, the Ninth Circuit’s view of “consultation” as

a separately enforceable and universal obligation, hence here

a “violation” of the ESA, is simply wrong.

B. The injunctive suspension of pesticide uses

is unlawful under FIFRA standards.

FIFRA sets the substantive standard by which EPA can

suspend a pesticide registration. It authorizes EPA to

compel interim “suspension” of a “registration of the

pesticide immediately” where “necessary to prevent an

imminent hazard during” the longer “time required for

cancellation” proceedings. 7 U.S.C. § 136d(c)(1), (2). The

“imminent hazard” definition is ESA-specific. It refers to an

“unreasonable hazard to the survival of species declared

endangered or threatened’ under the ESA. 7 U.S.C.

§ 136(/) (emphasis added). This provision was amended by

§ 12(b) of the 1973 ESA itself. See Pub. L. No. 93-205,

§ 13(f), 87 Stat. 903 (1973). Besides creating this

substantive threshold for ESA-based suspensions of pesticide

registrations, FIFRA contains procedural protections for

registrants. Before suspending a pesticide registration, EPA

must give notice, including “findings pertaining to the

question of ‘imminent hazard,’” and must provide an

opportunity for a hearing. 7 U.S.C. § 136d(c).

The district court’s order granting further injunctive

relief is a de facto partial suspension of the registrations of

the 54 pesticides.'' Yet, the district court, and the Ninth

Circuit in affirming the district court, did not adhere to the

FIFRA standards. Whereas FIFRA predicates interim

suspension upon a finding that the use of the pesticide “wil/

involve unreasonable hazard to the survival of a species,” 7

U.S.C. § 136(/) (emphasis added), the district court found

only that EPA’s pesticide registrations presented a

“significant, potential harm” to salmon. App. 120a

(emphasis added). And, since the court imposed the

Suspensions summarily, the pesticide registrants enjoyed

none of the due process protections FIFRA guarantees before

the licenses for their products can be suspended.

The Ninth Circuit’s approach to an appropnate ESA

injunction effectively bypasses the specific requirements of

FIFRA. Since “Congress provided precisely the remedies it

considered appropriate” in the comprehensive FIFRA with

respect to ESA-listed species, and because the 2004

injunction is inconsistent with FIFRA’s provisions governing

pesticide suspension, the injunction cannot stand. Middlesex

County Sewerage Auth. v. Nat'l Sea Clammers Ass'n, 453

U.S. 1, 15 (1981). It is FIFRA’s ESA-based suspension

provision, not the doctrine of “institutionalized caution” the

Ninth Circuit invoked, App. 18a, that embodies the

legislative balance germane to this case, between species

protection and food and fiber production.'* Here, without

" The Operative language of the order states that, except in

certain narrow circumstances, “EPA's authonzation of any use” of 54

pesticides in the buffer zones “is hereby ENJOINED, VACATED,

AND SET ASIDE” pending compliance with ESA § 7(a)(2), App.

24a; see id. at 33a-34a (describing terminating events).

? The doctrine of “institutionalized caution” derives ultimately

from dicta in Tenn. Valley Auth. v. Hill, 437 U.S. 153, 194 (1978)

(“TVA v. Hill’), the snail darter case. That case did nor involve the

(continued....)

even finding a substantive violation of the ESA, but only a

procedural failure, the Ninth Circuit has upended Congress’s

fundamental policv choice about the balance between species

protection and the human population’s need for nutritional

sustenance. This Court’s review is warranted to reflect and

restore that critical balance.

(continued)...

unique balance Congress struck in FIFRA between wildlife protection

and food and fiber production, but rather a mandate the Court found

in the ESA when considered against public works legislation that,

unlike FIFRA, did not address ESA constraints or establish a

countervailing interests. Moreover, 7VA v. Hill involved the extreme

circumstance in which all parties conceded that the agency action

(operation of the Tellico dam) would cause the “eradication” of an

endangered species and its sole critical habitat. See id. at 173-74

(emphasis in original). Here, in contrast, there is no concession on

effects on salmon; and all the district court found was “potential”

harm to some fish, not actual species eradication. App. 120a.

Further, there is no substantive violation of ESA § 7(a)(2) here, but at

most only a procedural default in the timing of making certain

determinations under the ESA. As in an earlier case reversing the

same court of appeals on an injunction, here too the “Ninth Circuit

erroneously relied on JVA v. Hill,” which involved a

“distinguishable” situation. Amoco Prod. Co. v. Vill. of Gambell, 480

U.S. 531, $43 n.9 (1987).

CONCLUSION

The petition for a writ of certiorari: should be granted

Of Counsel

Douglas T. Nelson

CROPLIFE AMERICA

1156 15th Street, NW

Suite 400

Washington, DC 20005

September 2005

Respectfully submitted,

Steven P. Quarles

Counsel of Record

Clifton S. Elgarten

J. Michael Klise

Thomas R. Lundquist

CROWELL & MorRING LLP

1001 Pennsylvania Ave., NW

Washington, DC 20004-2595

(202) 624-2500

APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Nos. 04-35138, 04-35212, 04-35237, 04-35244.

WASHINGTON TOXICS COALITION;

Northwest Coalition for Alternatives to Pesticides;

Pacific Coast Federation of Fishermen's Associations, Inc.;

Institute for Fisheries Resources,

Plaintiffs- Appellees,

ENVIRONMENTAL PROTECTION AGENCY:

Christine Todd Whitman.

Defendants,

and

California Plant Health Association;

Oregon Agricultural Chemicals & Fertilizers Association;

Far West Agnbusiness Association.

Agncultural Cooperative Council of Oregon,

Fruit Growers League of Southern Oregon;

Hood River Grower-Shipper Association.

Hop Growers of Washington;

idaho Mint Growers Association;

Malheur County Onion Growers Association;

Nationa! Potato Council, Orchard View Farms;

Oregon Alfalfa Seed Growers Association;

Oregon Cranberry Farmers’ Alliance;

Oregon Hop Growers Association,

Oregon Horticultural Society, Oregon Seed Council;

USA Dry Pea & Lenti] Council:

Wasco County Fruit & Produce League;

Washington Association of Wheat Growers;

Washington Mint Growers Association;

Washington State Horticultural Association;

Western Washington Agricultural Association;

Oregon Dairy Farmers; American Forest Resource Council;

Oregon Forest Industnes Council;

Washington Fnends of Farms and Forests;

Oregonians for Food and Shelter, Western Washington

Golf Course Superintendents Association;

National Agnicultural Aviation Association;

California Agncultural Aircraft Association;

Croplife America,

Defendant-Intervenors- Appellants.

Washington Toxics Coalition;

Northwest Coalition for Alternatives to Pesticides;

Pacific Coast Federation of Fishermen’s Associations, Inc.;

Institute For Fisheries Resources,

Plaintiffs- Appellees,

Environmental Protection Agency,

Christine Todd Whitman,

Defendants,

California Plant Health Association; Croplife America,

Defendant-Intervenors,

and

Washington State Potato Commission,

Defendant-Intervenor-Appellant.

Washington Toxics Coalition;

Northwest Coalition for Alternatives to Pesticides;

Pacific Coast Federation of Fishermen’s Associations, Inc.;

Institute for Fisheries Resources,

Plaintiffs-Appellees,

Environmental Protection Agency;

Christine Todd Whitman,

Defendants,

Croplife America, et al,

Defendant-Intervenor,

and

Washington State Farm Bureau,

Defendant-Intervenor-Appellant.

Washington Toxics Coalition;

Northwest Coalition for Alternatives to Pesticides;

Pacific Coast Federation of Fishermen’s Associations, Inc.;

Institute for Fisheries Resources,

Plaintiffs-Appellees,

Environmental Protection Agency;

Christine Todd Whitman,

Defendants-Appellants,

and

California Plant Health Association;

Oregon Agricultural Chemicals & Fertilizers Association;

Far West Agribusiness Association;

Agricultural Cooperative Council of Oregon;

Fruit Growers League of Southern Oregon;

Hood River Grower-Shipper Association;

Hop Growers Of Washington;

Idaho Mint Growers Association;

Malheur County Onion Growers Association;

National Potato Council; Orchard View Farms;

Oregon Alfalfa Seed Growers Association,

Oregon Cranberry Farmers’ Alliance;

Oregon Farm Bureau Federation;

Oregon Hop Growers Association;

Oregon Horticultural Society; Oregon Seed Council,

USA Dry Pea & Lentil Council;

Wasco County Fruit & Produce League;

Washington Association of Wheat Growers;

Washington Mint Growers Association;

Washington State Horticultural Association;

Western Washington Agricultural Association;

Oregon Cattlemen’s Association; Oregon Dairy Farmers:

American Forest Resource Council;

Oregon Forest Industries Council;

Washington Frnends of Farms and Forests;

Oregonians for Food and Shelter, Western Washington

Golf Course Superintendents Association;

National Agricultural Aviation Association;

California Agncultural Aircraft Association;

Washington State Potato Commission;

Washington State Farm Bureau; Syngenta Corp Protection;

Croplife America,

Defendant-Intervenors.

Argued and Submitted Sept. 14, 2004.

Filed June 29, 2005.

This litigation is about the Environmental Protection

Agency’s registration of 54 pesticide active ingredients that the

plaintuff environmental coalitions fear may harm endangered or

threatened sa!mon and steelhead in the waters of the Pacific

Northwest. The plaintiffs, Washington Toxics Coalition et al.,

(“WTC”), contend that EPA violated the Endangered Species

Act, 16 U.S.C. § 1536(a)(2), by failing to consult with the

National Marine Fisheries Service before approving the

pesticides.

EPA admittedly did not do any such consultation, and it

agrees that the Endangered Species Act requires consultation

with the National Marine Fisheries Service for action affecting

these endangered or threatened fish. EPA contends, however,

that because in registering the pesticides, it complied with the

requirements of the Federal Insecticide, Fungicide, and

Rodenticide Act (“FIFRA”), 7 U.S.C. §§ 136, et seq., it was not

bound by the consultation requirements of the Endangered

Species Act (“ESA”). EPA therefore appeals the district court’s

orders requiring EPA to engage in consultation and suspending

EPA’s authorization of the pesticides pending the consultation.

Plaintiffs Washington Toxics Coalition and Northwest

Coalition for Alternatives to Pesticides are non-profit

organizations that promote alternatives to toxic pesticides and

seek to protect the environment from the harmful effects of

pesticides. Piaintiff Pacific Coast Federation of Fishermen’s

Associations, Inc., is an organization of commercial fishermen

that works to ensure the long-term survival of commercial

fishing as a way of life. Plaintiff Institute for Fisheries

Resources is a non-profit public interest marine resources

protection and conservation organization.

A number of parties intervened in the action on the side of

defendant EPA. The defendant-intervenors are CropLife

America (“CLA”), Washington State Farm Bureau, and 35

other groups representing pesticide manufacturers, formuiators,

distributors, sellers, and applicators. The intervenors contend

that the case is governed by the principles of judicial review

and injunctive standards of the Administrative Procedure Act

(“APA”), 5 U.S.C. §§ 700, et seqg., rather than by the ESA.

According to the intervenors, the district court lacked

jurisdiction to examine the cffect of pesticides apart from

reviewing the administrative record pursuant to a cause of

action established by the APA. Intervenors so contend despite

the provision of the ESA creating individual causes of action to

challenge its violations. See 16 U.S.C. § 1540(g)(1). The

intervenors also contend that the injunctive relief granted by the

district court was excessive. They challenge various aspects of

the district court’s injunctive orders requiring pesticide-free

buffer zones around endangered salmon and steelhead habitat.

The district court granted the plaintiffs’ requests for

injunctive relief ina series of well-crafted orders, after allowing

all parties, including the intervenors, to introduce evidence on

the effects of the use of the challenged pesticides. Although the

complaint originally disputed registration of hundreds of

pesticides, the district court held EPA violated the ESA

consultation requirement with respect to only 54 pesticide

active ingredients. The district court ordered EPA to initiate

and complete consultation regarding the effects of those

pesticide registrations on threatened and endangered salmon

and steelhead according to a schedule set out in the opinion.

Because it viewed the procedural violation of the ESA to have

been a substantial violation authorizing extraordinary relief, the

district court also enjoined EPA’s authorization of any use of

the pesticides within proscribed distances of salmon-supporting

waters in California, Oregon, and Washington, pending EPA’s

fulfillment of its consultation obligations.

We affirm the district court's orders in their entirety.

FACTUAL AND PROCEDURAL BACKGROUND

The National Marine Fisheries Service (“NMFS”) since

1989 has classified approximately 25 species of salmon and

steelheads, collectively known as salmonids, as “endangered”

or “threatened” throughout the Pacific Northwest. The NMFS

has determined that pesticides may kill or injure salmonids, and

may affect future salmonid behavior and reproductive success.

See, e.g., 65 Fed.Reg. 42,422, 42,473 (2000). The district court

found that scientific or competent declaratory evidence in the

record demonstrated a causal link between the 54 pesticide

active ingredients at issue in this case and direct or indirect

adverse effects on salmonid populations. This is not disputed

on appeal.

What is disputed is the applicability of ESA section

7(a)(2):

Each agency shall, in consultation with and with the

assistance of the Secretary, insure that any action

authorized, funded, or carried out by such agency. . .

is not likely to jeopardize the continued existence of

any endangered species or threatened species or result

in the destruction or adverse modification of habitat of

such species. ...

16 U.S.C. § 1536(a)(2). Plaintiff WTC claims that EPA

violated this section when EPA failed to consult with the

applicable agency, the NMFS, about the registration of

pesticide active ingredients potentially harmful to endangered

or threatened salmonids. EPA maintains that it is not bound by

the provision.

WTC filed this suit in 2001 under an ESA provision

known as the ESA citizen suit provision and frequently used to

compel agency action. It allows individuals to bring suit “to

enjoin any person, including the United States and any other

governmental instrumentality or agency . . . who is alleged to

be in violation of any provision of this chapter or regulation

issued under authority thereof.” 16 U.S.C. § 1540(g)(1). See

Bennett v. Spear, 520 U.S. 154, 173, 117 S.Ct. 1154, 137

L.Ed.2d 281 (1997); Envil. Prot. Info. Ctr. v. Simpson Timber

Co., 255 F.3d 1073, 1079 (9th Cir.2001). WTC’s complaint

alleges that “EPA is violating § 7(a)(2) of the ESA, 16 U.S.C.

§ 1536(a)(2), and its implementing regulations, 50 C.F.R. Part

402, by failing to consult with NMFS regarding the effects of

pesticide use under EPA pesticide registrations that ‘may

affect’ endangered and threatened salmon and steelhead and/or

their critical habitat.”

EPA regulates pesticides under FIFRA, 7 U.S.C. §§ 136,

et seg. We have observed that FIFRA sets forth a

comprehensive regulatory scheme for controlling the use, sale,

and labeling of pesticides. Nathan Kimmel, Inc. v. DowElanco,

275 F.3d 1199, 1204 (9th Cir.2002). It bars any person in any

state from distributing a pesticide EPA has not registered or

exempted pursuant to FIFRA. 7 U.S.C. § 136a(a). FIFRA

establishes the procedures through which EPA registers

pesticides, labels pesticides, and cancels the registration of

pesticides. See 7 U.S.C. § 136a-d. EPA took the position that

only FIFRA, and not the ESA, governs the rescission of

pesticide registrations.

Both sides moved for summary judgment. The parties

submitted voluminous filings on the effect of the various

pesticides on endangered or threatened salmonids. The district

court ruled that WTC had standing only to challenge the 54

pesticides for which it offered competent declaratory evidence

demonstrating acameal link between EPA registratior and harm

to salmonid. That ruling is not at issue before us.

The district court also ruled that EPA was required to

comply with the ESA, as well as with FIFRA. The district court

rejected EPA’s contention that WTC couid challenge only EPA

compliance with the pesticide registration provisions of FIFRA.

The district court thus concluded that the ESA applies to

agency actions taken pursuant to FIFRA, and that where

endangered species may be affected, WTC could maintain a

challenge to EPA’s failure to consult under the ESA.

The district court held that as a matter of law, EPA

violated section 7(a)(2) with respect to the disputed 54

pesticide active ingredients. Section 7(a)(2) consultation

requirements apply to “each federal agency” and to “any action

authorized, funded, or carried out by that agency.” 16 U.S.C. §

1536(a)(2). The district court held that this comprehensive

language includes EPA, and that EPA, having provided no

evidence of formal or informal consultation as required by

section 7(aX(2), violated the ESA. The district court ordered

EPA to initiate and complete section 7(a)(2) consultation

according to a prescribed schedule.

The district court also rejected the intervenors’ arguments

that the case could arise only under the APA. The intervenors

argued that the proceeding contravened APA standards because

the district court conducted its review outside an administrative

record, without identifying any final agency actions or inactions

under review, and without applying the APA’s deferential

standard of judicial review. The district court held that because

the ESA independently authorized a nght of action, the APA

was inapplicable. See 16 U.S.C. § 1540(g)(1).

in subsequent orders, the district court granted WTC’s

motion for further, interim relief, holding such injunctive relief

necessary to fulfill what we have termed the “institutionalized

10a

caution mandate[ }” of the ESA. See Sierra Club v. Marsh, 816

F.2d 1376, 1389 (9th Cir.1987). The district court relied on

established law authorizing agency actions to continue during

the section 7(a)(2) consultation process only if the actions are

non-jeopardizing to the protected species and will not result in

a substantive violation of the ESA. See id; Thomas v.

Peterson, 753 F.2d 754, 764-65 (9th Cir.1985). The district

court held that EPA did not meet its burden of showing that the

54 registrations were non-jeopardizing.

After a hearing and consideration of voluminous evidence

bearing on the appropriate scope of injunctive relief, the district

court entered an order that enjoined “EPA’s authorization of

any use of any pesticide identified in this order within 20 yards,

or authorization of any aerial application within 100 yards, of

any Salmon Supporting Waters in California, Oregon, and

Washington.” The order exempted pesticide uses EPA has

determined to have “no effect” on the endangered species, and

exempted particular uses “not likely to adversely affect” the

endangered species. The district court also granted further

injunctive relief for certain pesticides in urban areas, and

required EPA and the intervening defendants to provide a

specified point-of-sale notification to urban distributors of

those pesticides.

The injunction provided that it would terminate

automatically on (1) completion by EPA of its ESA section

7(a)(2) consultation requirements, (2) issuance by NMFS of a

biological opinion, (3) a finding by EPA for ESA section

7(a)(2) purposes that the pesticide is “not likely to adversely

affect” the endangered or threatened species, or (4) a finding by

EPA for ESA section 7(a)(2) purposes that the pesticide will

have “no effect” on the endangered or threatened species. EPA

and the intervenors on appeal challenge the applicability of the

ESA requirements and the breadth of the injunctive relief

ordered by the district court.

lla

DISCUSSION

I. Applicability of ESA Requirements

EPA argues on appeal, as it maintained in the district court,

that it is bound to follow only the provisions of FIFRA, which

include a limited provision dealing with endangered species.

Under FIFRA, any interested person can petition EPA to cancel

a registered pesticide. See 40 C.F.R. § 154.10. FIFRA allows

EPA to suspend a registration immediately for an “imminent

hazard,” including an “unreasonable hazard to the survival of

a species declared endangered or threatened” under the ESA. 7

U.S.C. § 136d(c)(1)- (2); § 136(/).

EPA argues that ESA section 7(a)(2) does not confer

independent responsibilities on EPA to comply with ESA

provisions. That section provides:

Each federal agency shall, in consultation with and

with the assistance of the Secretary, insure that any

action authorized, funded, or carried out by such

agency . . . is not likely to jeopardize the continued

existence of any endangered species or threatened

species or result in the destruction or adverse

modification of habitat of such species. . . .

16 U.S.C. § 1536(a)(2”

This circuit has not yet decided whether EPA's regulation

of a pesticide under FIFRA bars a suit under the ESA asserting

that the continued use of the pesticide violates the ESA. The

Eighth Circuit has, however, and it has decided there is no bar.

in Defenders of Wildlife v. EPA, 882 F.2d 1294 (8th Cir.1989),

environmental organizations brought suit against EPA under

the ESA, challenging the continued registration of above-

ground pesticides containing strychnine. The EPA, as in this

case, argued that the plaintiffs were limited to seeking a

cancellation of strychnine registrations under FIFRA. /d. at

l2a

1298. The Eighth Circuit reyected EPA’s position, holding that

FIFRA does not exempt EPA from compliance with the ESA

requirements when EPA registers pesticides. Jd. at 1299.

Therefore, the Eighth Circuit concluded that the ESA citizen

suit provision permitted the plaintiffs to sue EPA to enjoin the

alleged violation of the ESA. /d. at 1300. We agree with the

Eighth Circuit that even though EPA registers pesticides under

FIFRA, it must also comply with the ESA when threatened or

endangered species are affected. See id. at 1299-1300.

This conclusion is consistent with our own prior holdings

that compliance with FIFRA requirements does not overcome

an agency's obligation to comply with environmental statutes

with different purposes. For example, we have held that the

registration and labeling of a substance under FIFRA does not

exempt a party from its obligations under the Clean Water Act

(“CWA”), 33 U.S.C. § 1342, to obtain a permit to discharge

that substance. Headwaters, Inc. v. Talent Irrigation Dist., 243

F.3d 526, 532 (9th Cir. 2001). We reasoned that the statutes

have different and complementary purposes. /d. at 531-32.

FIFRA’s objective is to protect human health and prevent

environmental harm from pesticides through a cost-benefit

analysis of the pesticides. Jd. The CWA's objective is to restore

and maintain the integrity of the Nation’s waters based on a

determination that the discharge of the pollutant satisfies the

limitations that EPA has imposed to protect water quality. /d.

For the same reasons, we also have held that the

registration and labeling of a substance under FIFRA does not

exempt an agency from its obligations under the National

Environmental Policy Act (“NEPA”), 42 U.S.C. § 4332.

Oregon Envtl. Council v. Kunzman, 714 F.2d 901, 905 (9th

Cir.1983); see also Save Our Ecosystems v. Clark, 747 F.2d

1240, 1248 (9th Cir.1984). We concluded that a pesticide

registration under FIFRA does not require the same

l3a

examination of environmental concerns that an agency is

required to make under NEPA. See id. at 1248.

The statutes at issue in this case similarly have different

but complementary purposes. FIFRA utilizes a cost-benefit

analysis to ensure that there is no unreasonable nsk created for

people or the environment from a pesticide, taking into account

the economic, social, and environmental costs and benefits of

a pesticide’s use. Headwaters, Inc., 243 F.3d at 532. In

contrast, the ESA affords endangered species the “highest of

priorities” in assessing msks and benefits. Tennessee Valley

Auth. v. Hill, 437 U.S. 153, 174, 98 S.Ct. 2279, 57 L.Ed.2d 117

(1978). The reasoning of our case law therefore leads us to

conclude that an agency cannot escape its obligation to comply

with the ESA merely because it is bound to comply with

another statute that has consistent, complementary objectives.

EPA also makes a corollary argument with respect to the

remedy. It contends that it does not have any discretion to

cancel a pesticide’s use except through the regulatory

framework in FIFRA, and that the district court therefore erred

by granting injunctive relief under the ESA. EPA contends, in

effect, that once a pesticide has been approved for use under

FIFRA, EPA lacks discretion to meet any other legal

obligations. For this remarkable conclusion EPA relies on cases

in which the agency action had been completed and there was

no ongoing regulatory authority. For example, in

Environmental Protection Information Center v. Simpson

Timber Co., 255 F.3d 1073, 1083 (9th Cir.2001), we held that

the United States Fish and Wildlife Service did not have

discretion to comply with the ESA regarding a permit that it

had already granted and did not retain discretionary control to

alter. Similarly, in Sierra Club v. Babbitt, 65 F.3d 1502, 1508-

09 (9th Cir.1995), we held that the Bureau of Land

Management did not have discretion to comply with the ESA

regarding a nght-of-way it had already granted by contract to a

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private entity before passage of the ESA. We have expressly

observed that in both of those cases, the agency activity had

been completed and was not ongoing. See, e.g., Turtle Island

Restoration Network v. Nat'l Marine Fisheries Serv., 340 F.3d

969, 977 (9th Cir.2003).

The principle enunciated in those cases does not apply

here. This is because here EPA retains ongoing discretion to

pesticide registrations. See 7 U.S.C. § 136a-d. Because EPA

has continuing authority over pesticide regulation, it has a

continuing obligation to follow the requirements of the ESA.

We have respected such continuing obligations in well-

reasoned authority that binds us here. In Turtle Jsland, supra,

environmental organizations brought suit against the NMFS,

alleging that the issuance of fishing permits pursuant to the

High Seas Fishing Compliance Act, 16 U.S.C. §§ 5501-5509,

required consultation under the ESA. We recognized that the

ESA consultation requirement applies only if the agency has

the discretionary control “to inure to the benefit of a protected

species.” 340 F.3d at 974. We held that the Compliance Act

permit decisions were ongoing agency actions because they

entailed an “ongoing and lasting effect” and because the NMFS

could condition permits to benefit listed species. /d. at 977; see

also Pac. Rivers Council v. Thomas, 30 F.3d 1050, 1053 (9th

Cir. 1994).

In this case, EPA has similar discretion “to inure to the

benefit” of listed species. Pesticide registrations under FIFRA

are ongoing and have a long-lasting effect even after adoption.

EPA retains discretion to alter the registration of pesticides for

reasons that include environmental concerns. See 7 U.S.C. §§

136d(c)(1)-(2), 136(/ ). Therefore, EPA’s regulatory discretion

is not limited by FIFRA in any way that would bar an

injunction to enforce the ESA.

15a

Finally, EPA argues that administrative exhaustion or

primary jurisdiction under FIFRA appiies in this case, and that

the district court should first have required the plaintiffs to

exhaust FIFRA remedies before entering an injunction. FIFRA,

of course, contains a limited administrative remedy. Section

136d(c) of FIFRA allows the Administrator to suspend a

pesticide creating an “unreasonable hazard to the survival of a

species declared endangered or threatened by the Secretary

pursuant to the Endangered Species Act” without following the

normal procedural requirements of FIFRA. 7 U.S.C. §§

136d(c)(1)-(3), 136(/). Under FIFRA any interested person can

petition EPA for cancellation of a pesticide. See 40 C.F.R. §

154.10. Neither FIFRA nor the ESA, however, suggest any

legislative intent to require exhaustion of the FIFRA remedy

before seeking relief under the ESA. See Thunder Basin Coal

Co. v. Reich, 510 U.S. 200, 207, 114 S.Ct. 771, 127 L.Ed.2d 29

(1994) (exhaustion is required only where Congress’ intent to

allocate review to an administrative body is “fairly discernible

in the statutory scheme”’).

As the district court concluded, the mere fact that FIFRA

recognizes EPA authority to suspend registered pesticides to

protect listed species does not mean that FIFRA remedies

trump those Congress expressly made available under ESA, or

that FIFRA provides an exclusive or primary remedy. The

scheme of the two statutes suggests the exact opposite. Indeed,

this court has allowed plaintiffs to challenge whether agency

pesticide permit decisions comply with other environmental

statutes, even though the plaintiffs did noi first pursue

administrative remedies under FIFRA. See Headwaters, 243

F.3d at 530-32 (challenging EPA compliance with Clean Water

Act); Merrell v. Thomas, 807 F.2d 776 (9th Cir.1986)

(challenging EPA compliance with National Environmental

Policy Act). EPA and the intervening defendants cite no

relevant authority supporting their position. The doctrines of

16a

exhaustion of remedies and primary jurisdiction are

inapplicable in this case.

Il. Applicability of APA

Intervenor CLA argues that the district court erred by not

applying the APA and its limited provision for judicial review

of final agency action. The APA provides judicial review for

“final agency action for which there is no other adequate

remedy in a court.” 5 U.S.C. § 704. The district court correctly

held, however, that the ESA citizen suit provision creates an

express, adequate remedy. That provision states: “[ A]ny person

may commence a civil suit on his own behalf. . . to enjoin any

person, including the United States and any other governmental

instrumentality or agency . . . who is alleged to be in violation

of any provision of this chapter or regulation issued under the

authority thereof.” 16 U.S.C. § 1540(g)(1). Because this

substantive statute independently authorizes a private right of

action, the APA does not govern the plaintiffs’ claims.

Plaintiffs’ suits to compel agencies to comply with the

substantive provisions of the ESA arise under the ESA citizen

suit provision, and not the APA. See, e.g., Pac. Rivers Council,

30 F.3d at 1056; Peterson, 753 F.2d at 763-64.

Ill. Challenges to Scope of Injunctive Relief

The intervenors scatter a number of challenges to the scope

of relief that amount to the contention that, although the district

court could order the agency tc comply with the ESA, it had to

permit the continuing use of the pesticides during consultation.

The purpose of the consultation process, however, is to prevent

later substantive violations of the ESA. Sierra Club v. Marsh,

816 F.2d at 1389. The remedy for a substantial procedural

violation of the ESA--a violation that is not technical or de

minimis--must therefore be an injunction of the project pending

compliance with the ESA. /d.; Peterson, 753 F.2d at 764. It is

well-settled that a court can enjoin agency action pending

17a

completion of section 7(a)(2) requirements. See Sierra Club v.

Marsh, 816 F.2d at 1389, Peterson, 753 F.2d at 765.

ESA section 7(d) also belies the intervenors’ contention

that further injunctive relief could not be granted during

consultation. Section (7)(d) states:

After initiation of consultation required under

subsection (a)(2), the Federal agency and the permit or

license applicant shall not make any irreversible or

irretrievable commitment of resources with respect to

the agency action which has the effect of foreclosing

the formulation or implementation of any reasonable

and prudent alternative measures which would not

violate subsection (a)(2) of this section.

16 U.S.C. § 1536(d). Section 7(d) was enacted to ensure that

the status quo would be maintained during the consultation

process, to prevent agencies from sinking resources into a

project in order to ensure its completion regardless of its

impacts on endangered species. See, e.g., Pac. Rivers Council

v. Thomas, 936 F.Supp. 738, 745 (D.Idaho 1996). There is no

irreversible or irretrievable commitment of resources at issue

in the present case. Rather, it is the very maintenance of the

“status quo” that is alleged to be harming the endangered

species.

The intervenors also argue that the district court erred by

assigning EPA the burden of showing that its actions were non

jeopardizing to endangered or threatened species, and instead

should have made the plaintiffs demonstrate “imminent

irreparable harm” or “substantial and immediate irreparable

injury.” The intervenors alternatively argue that the district

court did not properly balance the interest in protecting

endangered species against the costs of the injunction when

crafting the scope of the injunction.

18a

We have held that the appropriate remedy for violations of

the ESA consultation requirements is an injunction pending

compliance with the ESA. See Peterson, 753 F.2d at 764. We

have also allowed non-jeopardizing agency actions to continue

during the consultation process. See, e.g., Sierra Club v. Marsh,

816 F.2d at 1376. We have not expressly stated who bears th *

burden of showing that the action is non-jeopardizing, but the

burden should be on the agency, the entity that has violated its

statutory duty.

Placing the burden on the acting agency to prove the action

is non-jeopardizing is consistent with the purpose of the ESA

and what we have termed its “institutionalized caution

mandate{ |.” Sierra Club v. Marsh, 816 F.2d at 1389. We said

as much in Thomas v. Peterson, where the defendant, the U.S.

Forest Service, urged the district court to conclude that absent

proof by the plaintiffs to the contrary, a proposed project was

not likely to affect an endangered or threatened species. 753

F.2d at 765. We held that this was an inappropriate finding for

the district court to make. /d. “It is not the responsibility of the

plaintiffs to prove, nor the function of the courts to judge, the

effect of a proposed action on an endangered species when

proper procedures have not been followed.” /d. The district

court correctly assigned EPA the burden of proving that its

actions were non-jeopardizing.

The distnct court was not required to balance interests in

protecting endangered species against the cosis of the

injunction when crafting its scope. Congress has decided that

under the ESA, the balance of hardships always tips sharply in

favor of the endangered or threatened species. See Marbled

Murrelet v. Babbitt, 83 F.3d 1068, 1073 (9th Cir. 1996).

Finally, the EPA challenges protective measures for urban

pesticide sales. The district court concluded that for the use of

certain pesticides in urban areas, buffers alone are an

19a

insufficient remedy to ensure that jeopardy to endangered

salmonids will be avoided. Rather than completely banning

those pesticides in urban areas, the district court required EPA

to develop and distribute point-of-sale notifications detailing

pesticide harm to salmonids. EPA nevertheless argues this

portion of the injunction impermissibly impinges on its

authonity.

The injunctive relief granted was well within the district

court’s discretion to require compliance with the ESA and to

tailor a remedy pursuant to Federal Rule of Civil Procedure 65.

See United States v. Olander, 584 F.2d 876, 880-81 (9th

Cir.1978), vacated on other grounds, 443 U.S. 914, 99 S.Ct.

3104, 61 L.Ed.2d 878 (1979).

CONCLUSION

For the foregoing reasons, we affirm the district court’s

orders enjoining EPA pending its compliance with the ESA

section 7(a)(2) consultation requirements.

AFFIRMED.

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APPENDIX B

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

Case No. C01-0132C

WASHINGTON TOXICS COALITION,

NORTHWEST COALITION FOR ALTERNATIVES TO PESTICIDES,

PACIFIC COAST FEDERATION OF FISHERMEN’S ASSOCIATIONS,

and INSTITUTE FOR FISHERIES RESOURCES,

Plaintiffs,

ENVIRONMENTAL PROTECTION AGENCY,

and MIKE LEAVITT, ADMINISTRATOR,

Defendants,

Vv.

AMERICAN CROP PROTECTION ASSOCIATION, et al.,

Intervenor-Defendants.

January 22, 2004

ORDER

This matter is before the Court on Plaintiffs’ motion for

further injunctive relief. Having considered the briefs and

arguments of the parties, and the entire record in this matter,

and based on the Court’s orders dated July 16, 2003 and August

8, 2003, and the oral argument held on August 14, 2003, the

Court finds that further injunctive relief is appropriate to

prevent potential adverse effects of certain pesticide active

2la

ingredients on threatened and endangered salmonids, and

therefore GRANTS Plaintiffs interim injunctive relief as

follows:

I. PERTINENT PESTICIDE ACTIVE INGREDIENTS

AND SPECIES OF SALMONIDS

This Court’s order of July 2, 2002 imposes a schedule

upon the Environmental Protection Agency (“EPA”) to make

effects determinations and to consult, as appropriate, with the

National Marine Fisheries Service (“NMFS”) in connection

with the effects of pesticides containing any of 54 active

ingredients on salmon and steelhead listed as threatened or

endangered under the Endangered Species Act (“ESA”), 16

U.S.C. §§ 1531-1544.' The 54 active ingredients (“Pesticides”)

subject to the July 2, 2002 order are:

The July 2, 2002 Order, July 16, and August 8, 2003 Orders, and this

Order apply to the following 26 Evoluntionarily Significant Units of salmon

and steelhead listed as threatened or endangered unde4r the ESA (the

“Salmon ESUs”): the Puget Sound, Upper Columbia River spring-run,

Lower Columbia River, and Upper Willamette River chinook (64 Fed. Reg.

14,308 (March 24, 1999)); California Central Valley spring-run chinook and

California coastal chinook (64 Fed. Reg. 50,394 (Sept. 16, 1999)); Hood

Canal summer-run chum and Columbia River chum (64 Fed. Reg. 14,508

(March 25, 1999)); Ozette Lake sockeye (64 Fed. Reg. 14,528 (March 25,

1999)); Oregon coast coho (63 Fed. Reg. 42,587 (Aug. 10, 1998)); Upper

Columbia River, Snake River Basin, Southern California, South Central

California coast and Central California coast steelhead (62 Fed. Reg. 43,937

(August 18, 1997)); Lower Columbia River and California Central Valley

steelhead (63 Fed. Reg. 13,347 (March 19, 1998)); Upper Willamette and

Middle Columbia River steelhead (64 Fed. Reg. 14,517 (March 25, 1999));

Northern California steelhead (65 Fed. Reg. 36,074 (June 7, 2000));

Sacramento River winter-run chinook (59 Fed. Reg. 440 (Jan. 4, 1994)):

Snake River fall-run chinook (57 Fed. Reg. 14,653 (April 22, 1992); Snake

River spring/summer-run chinook (57 Fed. Reg. 14.653 (April 22, 1992));

Central California coast coho (64 Fed. Reg. 24.049 (May 5, 1999)),

Southern Oregon/Northern California coast coho (62 Fed. Reg. 24,588 (May

6, 1997)); and Snake River sockeye (56 Fed. Reg. 58,619 (Nov. 20, 1991)).

22a

1 -3-dichloropropene linuron

2,4-D malathion

acephate methamidophos

alachlor methidathion

atrazine methomy!

azinphos-methy] methyl parathion

bensulide metolachlor

bentazon metnbuzin

bromoxynil molinate

captan naled

carbary! norflurazon

carbofuran oryzalin

chlorothaloni! oxyfluorfen

chlorphyrifos paraquat dichloride

coumaphos pebulate

diazinon pendimethalin

dicamba phorate

dichloben:! phosmet

diflubenzuron prometryn

dimethoate propargite

disulfoton simazine

diuron tebuthiuron

ethoprop terbacil

fenamiphos thiobencarb

fenbutatin-oxide thiodicarb

iprodione tnclopyr (BEE and TEA)

lindane trifluralin

(gamma-BHC and HCH)

Il. SALMON SUPPORTING WATERS

This Order granting injunctive relief shall apply to

“Salmon Supporting Waters” within the range of the Salmon

23a

ESUsas identified by NMFS in its critical habitat designations’

in Washington, Oregon, and California. For purposes of this

Order, “Salmon Supporting Waters” are defined as the area

below the ordinary high water mark of all streams, lakes,

estuaries, and other water bodies where salmon are ordinarily

found at some time of the year. For Washington and Oregon,

the Streamnet database identifies Salmon Supporting Waters as

* Critical habitat designations for the Puget Sound, Lower Columbia

River, Upper Willamette River, Upper Columbia River spring-run,

Califorma Central Valley spring-run, and California coastal chinook salmon,

Hood Canal summer-run and Columbia River chum salmon; Ozette Lake

sockeye salmon; Oregon coast coho salmon; and Southern California, South-

Central California coast, Central California coast, California Central Valley,

Upper Columbia River, Snake River Basin, Lower Columbia River, Upper

Willamette River, and Middle Columbia River steelhead are at 65 Fed. Reg.

7764 (Jan. 13, 2000). The revised critical habitat designation for the Snake

river spring/summer chinook salmon is at 64 Fed. Reg. 57,399 (Oct. 25,

1999) (original designation at 57 Fed. Reg. 14,653 (April 22, 1992)).

Critical habitat designations for the Central California coast and Southern

Uregon/Northern California coasts coho salmon are at 64 Fed. Reg. 24,049

(May 5, 1999). Critical habitat designations for the Snake River sockeye

salmon and Snake River fall chinook salmon are at 58 Fed. Reg. 68,543

(Dec. 28, 1993). The critical habitat designation for the Sacramento River

winter-run chinook salmon is at 58 Fed. Reg. 33.212 (June 16, 1993).

Although some of these critical habitat designations have been vacated and

will be redesignated, see 68 Fed. Reg. 55,900 & 55,926 (Sept. 29, 2003), the

designations accurately define the geographic range of the species. NMFS

has not designated critica! habitat for the extended range of the Southern

Califorma steelhead ESU southward to the United States-Mexican border,

but the ESU’s range, for purposes of the definition of “Salmon Supporting

Waters,” includes the San Mateo Creek and Topanga Creek watersheds,

which is the basis for extending the ESU range 67 Fed. Reg. 21,586.

21.596-97 (May 1, 2002). NMFS has not designated critical habitat for

Northern Califorma steelhead. but the ESU's range. for purposes of the

definition of “Salmon Supporting Waters.” includes the critical habitat

designation for the Califormia coastal chinook salmon, see 65 Fed. Reg.

7764, with the southernmost boundary being the Gualala River (inclusive)

in Mendocino County for Northern California steelhead, rather than the

Russian River in Sonoma County for the Califorma coastal chinook.

24a

defined in this Order.’ For Califomia, the U.S. Geological

Survey National Hydrography database identifies Salmon

Supporting Waters as defined in this Order.* Estuaries used by

listed salmon and steelhead are included in Salmon Supporting

Waters even if they are not identified in the Streamnet or U.S.

Geological Survey National Hydrography databases.

Ml. INJUNCTIVE RELIEF

A. Buffers

1. The Court finds that pesticide-application buffer zones

are acommon, simple, and effective strategy to avoid jeopardy

to threatened and endangered salmonids. (August 8, 2003

Order at 16, Dkt. No. 159.) The Court further finds that 20-yard

buffer zones for ground use and 100-yard buffers for aerial

applications will substantially contribute to the prevention of

jeopardy. (/d. at 18.) Accordingiy, except as provided below

and in Sections IIIB. through I.D., EPA’s authorization of

any use of any Pesticide identified in Section I of this Order

within 20 yards, and EPA’s authorization of any aerial

application within 100 yards, of any Salmon Supporting Waters

in California, Oregon, and Washington, is hereby ENJOINED,

VACATED, and SET ASIDE. This injunction shall not be

lifted until this Order is terminated, in whole or in part, as

provided in Section VI or by other order of the Court.

2. Plaintiffs did not seek, and this Court does not grant,

any further injunctive relief for Pesticide uses for which EPA

The Streamnet database is a cooperative venture of state and tribal fish

and wildlife agencies in the Pacific Northwest and is administered by the

Pacific States Marine Fisheries Commission. It is accessible at

http: www.streamnet.org.

, The U.S. Geological Survey database is accessible at

http://nhd.usgs.gov. The Streamnet database does not include California

streams

25a

has in place a “no effect” determination for a particular Salmon

ESU-’

3. This injunction does not apply to any Pesticide uses in

a particular Salmon ESU where EPA has determined, for

purposes of ESA § 7 compliance, that the Pesticide Use is “not

likely to adversely affect” the particular Salmon ESU, provided

that the National Marine Fisheries Service has not rejected or

affirmatively failed to concur in the “not likely to adversely

affect” determination.“

B. Buffer Variations

Based on EPA's effects determinations, the stipulations of

plaintiffs, or the evidence in the record, the Court determines

that the following specific injunctive relief is appropriate for

the particular uses specified below instead of the injunctive

relief provided for in Section ITI.A.1. EPA's authorization of

the Pesticide uses specified below in ENJOINED, VACATED,

* As of the date of this Order, the following Pesticides have received “no

effect” determunations for all Salmon ESUs and are therefore excluded from

this injunctive relief:

Alachlor, atrazine, bentazon, dicamba, dichlobenil, iprodione, norflurazon,

paraquat dichlonde, pebulate, sumazine, terbacil, thhodicarb, tnclopyr TEA.

Although EPA has made a “no effect” determination for the amine

formulation of triclopyr, known as ticlopyr TEA, it has not yet made ainy

effects determination for the ester formulation of triclopyr. known as

triclopyr BEE. To the extent that EPA has in place additional “no effect”

determinations for particular Pesticides in particular Salmon ESUs, the

injunctive relief set out im this Section 1s inapplicable to those Pesticides in

those Salmon ESUs. The chart attached as Exhibit | depicts the Pesticides

that have “no effect” determinations in place for particular Salmon ESUs as

of the date of this Order

° The Pesticide uses of Salmon ESUs for which EPA has made “not

likely to adversely affect” determinations as of the date of this Order are

identified in the chart attached as Exhibit 2 to this Order.

26a

and SET ASIDE. This injunction shall not be lifted until this

Order is terminated, in whole or in part, as provided in Section

VI or by other order of the Court.

1. EPA’s authorization of use of | ,3-dichloropropene

(telone) products within one yard of Salmon Supporting Waters

is ENJOINED, VACATED, and SET ASIDE, when 1,3-

dichloropropene products are injected 18” or more beneath the

soil and where the soil is mechanically sealed through

cultivation following treatment; for other uses, EPA’s

authorization of any use of | ,3-dichloropropene (telone) within

20 yards of any Salmon Supporting Waters in California,

Oregon, and Washington is ENJOINED, VACATED, and SET

ASIDE;

2. EPA’s authorization of aerial and ground applications

of granular formulations of the Pesticides within 20 yards of

Salmon Supporting Waters in California, Oregon, and

Washington is ENJOINED, VACATED, and SET ASIDE,

except that EPA’s authorization of ground use of granular

formulations of ethoprop within 20 yards, and aerial

applications of granular formulations of ethoprop within 100

yards, of Salmon Supporting Waters in California, Oregon, and

Washington is ENJOINED, VACATED and SET ASIDE,

because of EPA’s concern regarding ethoprop’s level of risk

and the inability to mitigate that risk effectively;

3. Based on the recommendations in EPA’s effects

determinations, and the toxicity of phorate to fish, EPA’s

authorization of phorate use within 40 yards of Salmon

Supporting Waters in California, Oregon, and Washington is

ENJOINED, VACATED, and SET ASIDE;

4. Based on the recommendations in EPA’s effects

determinations, EPA’s authorization of propargite use within

50 feet, and EPA’s authonzation of aerial applications of

propargite within 75 feet, of Salmon Supporting Waters in

27a

California, Oregon and Washington is ENJOINED,

VACATED, and SET ASIDE in all ESUs; except: (a) for mint,

seed alfalfa, potatoes, and hops in the Middle Columbia

steelhead ESU, in the Palouse watershed of the Snake River fall

Chinook ESU, in the Willamette Valley portion of the Upper

Willamette steelhead and Upper Willamette Chinook ESUs,

and the Oregon portion of the Klamath River watershed in the

Southern Oregon/Northern California coast coho ESU, where

EPA’s authorization of aerial applications of propargite within

100 yards of Salmon Supporting Waters is ENJOINED,

VACATED, and SET ASIDE; and (b) for the Upper Columbia

Chinook and Upper Columbia steelhead ESUs, where EPA’s

authorization of any use of application of propargite within 100

yards of Salmon Supporting Waters is ENJOINED,

VACATED, and SET ASIDE;

5. EPA’s authorization of coumaphos for livestock use

within 20 yards of Salmon Supporting Waters in California,

Oregon, and Washington is ENJOINED, VACATED, and SET

ASIDE, but only for a 24-hour period following application to

livestock;

6. EPA’s authorization of carbofuran use within 20

yards, and EPA’s authorization of any carbofuran aerial

application within 100 yards, of any Salmon Supporting Waters

in California, Oregon, and Washington, is hereby ENJOINED,

VACATED, and SET ASIDE, except that EPA’s authorization

of carbofuran within one yard of Salmon Supporting Waters in

California, Oregon, and Washington is ENJOINED,

VACATED, and SET ASIDE, when such products are used on

pine seedlings by dipping the seedling roots in a one-percent

slurry containing the active ingredients;

7. EPA’sauthorization of localized spot treatments of the

Pesticides using hand-held, ready-to-use devices within one

yard of Salmon Supporting Waters in California, Oregon, and

28a

Washington is ENJOINED, VACATED, and SET ASIDE,

provided that the area treated is limited to ten percent of the

treated right-of-way, roadside, pasture, iawn, or forestry site;

8. EPA’s authorization of Pesticide uses in insect bait

stations within one yard of Salmon Supporting Waters in

California, Oregon, and Washington is ENJOINED,

VACATED, and SET ASIDE;

9. EPA’s authorization of Pesticide use for spot

treatments of wasp and hornet nests within one yard of Salmon

Supporting Waters in California, Oregon, and Washington is

ENJOINED, VACATED, and SET ASIDE, provided that the

area treated is limited to ten percent of the treated nght-of-way,

roadside, pasture, lawn, or forestry site;

10. EPA’s authorization of individual tree removal using

cut stump application of the Pesticides within one yard of

Salmon Supporting Waters in California, Oregon, and

Washington is ENJOINED, VACATED, and SET ASIDE; and

11. EPA’s authorization of basal bark application of the

Pesticides to individual plants within one yard of Salmon

Supporting Waters in California, Oregon and Washington is

ENJOINED, VACATED, and SET ASIDE.

C. Specific Pesticide Product or Use Exclusions

Based on EPA’s effects determinations, the stipulations of

Plaintiffs, and the evidence in the record, and notwithstanding

Sections TII.A. and III.B., the Court determines that EPA’s

authorization of the following Pesticide uses specified below is

not vacated:

1. Based on EPA’s effects determinations and the

declining use resulting from the 1999 California phase-out,

EPA’s authorization of metolachlor use in the California

29a

portion of the Southern Oregon/Northern California coast coho

ESU;

2. Based on EPA's effects determinations, EPA's

authorization of bensulide use for agricultural crops where the

maximum label application rate is less than 6 pounds of active

ingredient per acre and the label requires banded applications

and incorporation into soil;

3. Based on EPA’s effects determinations, EPA's

authorization of bensulide use on golf course trees and greens,

provided ber:sulide is not used on golf course fairways;

4. EPA’s authonzation of aerial applications of

bensulide;

5. Based on EPA's effects determination, EPA’s

authorization of phorate use on potatoes,

6. EPA's authorization of aerial applications of phorate;

7. EPA's authonzation of aerial applications of 1,3-

dichloropropene (telone),

8. c&PA’s authorization of pest control strips and cattle

car tags containing coumaphos,

9. EPA's authorization of cattle ear tags containing

chlorpynifos;

10. EPA's authorization of indoor uses of any of the

Pesticides,

11. EPA's authorization of tree injection applications of

the Pesticides,

12. EPA's authorization of homeowner applications of the

Pesticides to household potted plants,

13. EPA's authorization of Pesticide use in flea and tick

collars for dogs and cats; and

30a

14. EPA’s authorization of the Pesticides in

manufacturing end-use products.

D. Particular Pesticide Programs Excluded

Based on EPA’s effects determinations, the stipulation of

plaintiffs, or the evidence in the record, and notwithstanding

Sections [II.A. and IIL.B., the Court determines that EPA's

authorization of the following Pesticide uses specified below is

not vacated:

1. Public Health Vector Control Programs

Use of the Pesticides for public health vector control as

administered by public entities.

2. Noxious Weed Programs

Use of the Pesticides for control of state-designated

noxious weeds as administered by public entities, when such

control program implements the following safeguards that

NMFS routinely requires for such programs:

a. Aerial application cannot occur within 100 yards

of Salmon Supporting Waters;

b. Broadcast spraying cannot occur within 20 yards

of Salmon Supporting Waters or when wind speeds are

greater than five miles per hour;

c. Chemical spraying cannot occur within 15 feet of

Salmon Supporting Waters or when wind speeds are

greater than five miles per hour.

d. Only those Pesticides registered by EPA under

the Federal Insecticide, Fungicide, and Rodenticide Act

(“FIFRA”), 7 USC. §§ 136-136(y), for aquatic

application can be used within 15 feet of Salmon

Supporting Waters;

3la

e. Pesticides cannot be used when precipitation is

occurring or is forecast to occur within 24 hours;

f. All spraying operations must be overseen by a

certified applicator; and

g. For 2,4-D and tnclopyr; only the amine

formulations of 2,4-D and triclopyr can be used.

3. NMFS-Authorized Programs

Use of a Pesticide in a specific agency action (other than

EPA’s authorization of a Pesticide use under FIFRA) as

authorized by: (a) a no-jeopardy biological opinion issued by

NMFS that addresses the Pesticide’s use and effects on a

Salmon ESU, and an incidental take statement issued by NMFS

under ESA Section 7(a)(2) that authorizes the take of salmon

or steelhead listed under the ESA; (b) a written concurrence by

NMFS ina “not likely to adversely affect” determination issued

under ESA Section 7(a}(2) that addresses the Pesticide’s use

and effects on a Salmon ESU; (c) an incidental take permit

issued by NMFS under ESA Section 10(a) that authorizes the

take of salmon or steelhead listed under the ESA for

application or use of the Pesticide; or (d) a limit on the take

prohibition of ESA Section 9 with respect to a specific use of

a Pesticide promulgated by NMFS pursuant to ESA Section

4(d) and incorporated into the salmon 4(d) rule codified at 50

C.F.R. § 223.203.

[V. INJUNCTIVE RELIEF SPECIFIC TO URBAN

PESTICIDES

Plaintiffs also seek further injunctive relief with respect to

seven active ingredients in urban areas through which Salmon

32a

Supporting Waters pass.’ The Court finds that for the use of

certain pesticides in Urban Areas, buffers alone are an

insufficient remedy to ensure that jeopardy to Salmon ESUs

and harm to listed salmonids will be avoided. Therefore, in

addition to the buffers imposed in Section III, the Court also

GRANTS Plaintiffs further injunctive relief for uses of

products containing 2,4-D, carbaryl, diazinon, diuron,

malathion, triclopyr BEE, and trifluralin (the “Urban

Pesticides”) in Urban Areas. The Court orders EPA to generate

a point of sale notification for the public as described in Section

IV.A below, and to facilitate the availability of the notification

to the purchaser at the point of sale as described in Section

IV .B below,

A. Mandatory Point of Sale Warning

EPA must develop a point of sale notification for the

Urban Pesticides that incorporates the following written and

graphic information:

1. The heading “Salmon Hazard” in a large and visible

font followed by the statement that: “This product contains

pesticides that may harm salmon or steelhead. Use of this

product in urban areas can pollute salmon streams.” Both the

heading and the statement shall be highly visible to purchasers;

and

’ “Urban Areas” are defined for purposes of this Order as all urbanized

areas in Washington, Oregon, and California with populations of at least

50,000 people, as defined by the 2000 United States Census, within a

Salmon ESU. (See Urban Area list attached hereto as Exhibit 3.) These

areas are defined more precisely in Exhibits 1A, 2A. and 3A to the August

8, 2003 Declaration of Gerald E. Heilman, Jz. which 1s attached to

Plaintiffs’ Notice of Filing Concise Definitions and Maps of Urban

Watersheds within the Geographic Scope of the Litigation (Aug. 11, 2003).

33a

2. A prominent graphic.

B. Availability and Distribution of Point of Sale

Notifications

Within 60 days of the effective date of this Order, EPA

must notify retailers that they are to make the mandatory point

of sale notification set out in Section [V.A whenever products

containing the Urban Pesticides are sold in the Urban Areas

subject to this Order.

Within 60 days of the effective date of this Order,

Intervenor-Defendants will distribute the point of sale

notification developed by EPA in quantity, for point of sale

distribution, to sale outlets where lawn and garden products are

sold in the Urban Areas subject to this Order.

Within 60 days of the effective date of this Order, EPA

will produce and provide copies of the point of sale notification

to state pesticide agencies, state fish agencies, and land grant

university extension coordinators in the Urban Areas subject to

this Order and will request that they provide this information to

Certified Applicators certified in any category that would

permit the applicator to apply pesticides in parks, golf courses,

and housing areas in the Urban Areas.

V. EFFECTIVE DATE

This Order shall be effective within two weeks of the date

this Order is entered.

VI. TERMINATING EVENTS

The injunctive relief and vacatur of EPA's authorizations

will terminate automatically for a particular Pesticide and

Salmon ESU upon the occurrence of one of the following:

1. Completion by EPA of its ESA Section 7(a)(2)

consultation obligation; or

34a

2. The issuance by NMFS of a biological opinion; or

2.[sic] A finding by EPA made for ESA Section 7

compliance purposes that the Pesticide is “not likely to

adversely affect” the particular Salmon ESU, provided that the

National Marine Fisheries Service has not rejected or

affirmatively failed to concur in that “not likely to adversely

affect” determination; or

3. A finding by EPA made for ESA Section 7

compliance purposes that the Pesticide will have “no effect” on

the particular Salmon ESU.

Vil. © MODIFICATIONS TO INJUNCTIVE RELIEF

Because of EPA’s and NMFS’ ongoing actions to comply

with ESA Section 7(a)(2), the parties may seek to have this

Court modify this injunctive relief. The Court will consider

such future requests as it deems appropriate.

Vil. IMPLEMENTATION

EPA is further DIRECTED to inform registrants, states,

certified applicators, and licensed pesticide dealers: (1) of this

Court’s Orders dated July 2, 2002; July 16, 2003; and August

8, 2003; and (2) of this injunction. EPA shall instruct

registrants to make aware of this injunction pesticide

distributors, wholesalers, retailers, brokers, dealers, and others

in privity with them. EPA shall also instruct states to inform

registrants, certified applicators, and licensed pesticide dealers

of this injunction.

Intervenor-Defendants are DIRECTED to ensure that their

members are made aware: (1) of this Court’s Orders dated July

2, 2002; July 16, 2003; and August 8, 2003; and (2) of its

injunction.

35a

EPA and Intervenor-Defendants shall each file a status

report with the Court within 60 days of the date of this Order

describing the steps they have taken to comply with this Order.

SO ORDERED this 22nd day of January, 2004.

/s/ John C. Coughenour

CHIEF UNITED STATES

DISTRICT JUDGE

EXHIBIT 1

Pesticides With No Effect Determinations (Shaded) for A Subset of Evolutionary Significant Units

Steelhead Southern California

Steelhead South-Central Califorma Coast Z

Steethead Central California Coast

Steelhead Central “alley, California

Steelhead Northern California

Steelhead Upper Columbia River

Steelhead Snake River Basin

Steelhead Upper Willamette River

Steelhead Lower Columbia River i -

Steelhead

Middle Columma River

Chinook Salmon

Sacramento River winter

Chinook Salmon

Snake River fall

Chinook Salmon

Snake River spring/summer

Chinook Salmon

Central Valley spring

Chinook Salmon

California Coastal

Chinook Salmon

Puget Sound

Chinook Salmon

Lower Columbia

Chinook Salmon

Upper Willamette

Chinook Salmon

Upper Columbia

Coho Salmon

Central Califorma

Coho Salmon

Southern Oregon/

Northern California Coast

Coho Salmon

Oregon ( ‘oast

Chum Salmon

Hood Canal summer

Chum Salmon

Columbva River

Sockeve Salmon

Ovette Lake

Soc Ke ve S simon

Snake River

Pot

EXHIBIT 2

Pesticides With No Effect Determinations (Shaded) for A Subset of Evolutionary Significant Units

Steelhead Southern California

Steelhead South-Central California Coast

Steelhead 4 Central California Coast

Steethead | Central Valley, California

Steclhead Northern California

Stecthead Upper Columbia River

Steelhead Snake River Basin

Steelhead Upper Willamette River

Steelhead

Lower Columbia River

Steelhead

Middle Columbia River

Chinook Salmon

Sacramento River winter

Chinook Salmon

Snake River fall

Chinook Salmon

Snake River spring/summer

Chinook Salmon

Central Valley spring

Chinook Salmon

California Coastal

Chinook Salmon

Puget Sound

} Chinook Salmon

Lower Columbia

Chinook Salmon

Upper Willamette

Chinook Salmon

Upper Columbia

Coho Salmon

Central California

Coho Salmon

Southern Oregon/

Northern California Coast

Coho Salmon

Oregon Coast

Chum Salmon

Hood Canal summer

Chum Salmon

Columbia River

Sockeye Salmon

Ozette Lake

Sockeye Salmon

Snake River

& S)

<> SS ~

& > &

£/ 35 $

.s) <<

§&/s by

S/F / =

ecr

Pesticides With No Effect Determinations (Shaded) for A Subset of Evolutionary Significant Units

= —

Southern California

South-Central California Coast

Steelhead

Central California Coast

Steelhead Central Valley, California

Steelhead Northern California

Steelhead Upper Columbia River

Steelhead Snake River Basin

| Steethead Upper Willamette River

Steelhead

Lower Columbia River

ett

Steelhead

Middle Columbia River

Chinook Salmon

Sacramento River winter

Chinook Salmon

Snake River fall

Chinook Salmon

Snake River spring/summer

Chinook Salmon

Central Valley spring

Chinook Salmon

California Coastal

Chinook Salmon

Puget Sound

Chinook Salmon

Lower Columbia

Chinook Salmon

Upper Willamette

Chinook Salmon

Upper Columbia

ebb

Coho Salmon

—————

Central California

Coho Salmon

Southern Oregon/

Northern California Coast

Coho Salmon

Oregon Coast

Chum Salmon

Hood Canal summes

Chum Salmon

Columma River

Sockeye Salmon

Ozctte Lake

Sockeve Salmon

Snake River

esr

Pesticides With Not Likely to Adversely Affect Determinations

for a Subset of Evolutionary Significant Units (shaded)

Steclhcad Southern California

eLp

Steelhead South-Central California Coast

| Stecthead Central California Coast

Steelhead Central Valley, California

Steelhead Northern California

Steclhead Upper Columbia River

Steelhead Snake River Basin

Steeihead Upper Willamette Rivet

ao ;

o ~—

Steelhead Lower Columbia River

Steelhead Middle Columbia River

Chinook Salmon

Sacramento River winter

| Chinook Salmon

Snake River fall

| Chinook Salmon

Snake River spring/summer

} Chinook Salmon

Central Valley spring

Chinook Salmon

California Coastal

Chinook Salmon

Puget Sound

Chinook Salmon

Lower Columbia

Chinook Salmon

Upper Willamette

| Chinook Salmon Upper Columbia

| Coho Salmon Central California

| Coho Salmon Southern Oregon/

Northern California Coast

| Coho Salmon Oregon Coast

I Chum Salmon Hood Canal summer

| Chum Salmon Columbia River

WH Sockeye Salmon | Ozette Lake

I Sockeye Salmon | Snake River

Pesticides With Not Likely to Adversely Affect Determinations

for a Subset of Evolutionary Significant Units (shaded)

Steelhead Southern California s

Steelhead South-Central California Coast

Steelhead Central California Coast

Steclhead Central Valley, California

4 Steelhead Northern Catifornia

Steelhead Upper Columbia River

| Steethead Snake River Basin

[On a —_—— ~~——

Steclhead Upper Willamette River

| Steelhead Lower Columbia River

Steclhead ; Middle Columbia River

| Chinook Salmon | Sacramento River winter

Chinook Salmon | Snake River fall

} Chinook Salmon | Snake River spring/summer

} Chinook Salmon | Central Valley spring

}

1 Chinook Salmon | California Coastal

| Chinook Salmon | Puget Sound

Chinook Salmon

Lower Columbia

Chinook Salmon

Upper Willamette

Chinook Salmon

Upper Columbia

Coho Salmon

Central California

Coho Salmon

Southern Oregon/

Northern California Coast

Coho Salmon

Oregon Coast

Chum Salmon

Hood Cana! summer

Chum Salmon

Columbia River

Ozette Lake

Snake River

Sockeye Salmon

1 Sockeye Salmon

57a

EXHIBIT 3

Pesticides With Not Likely to Adversely Affect Determinations

for a Subset of Evolutionary Significant Units (shaded)

Stee lhe:

Southern Califorma

ers

Steelhead South-Central Califorma Coast

Steelhead Central California Coast

Steelhead Central Valley, California

Steelhead Northern Califorma

Steelhead Upper Columbia River

Steelhead Snake River Basin

Steelhead Upper Willamette River

f —

/ )

Ch Ns &

¢ s/s /e/ s/ &/

L ™ Ss ¥ vy £ v S

Y ~~ ~ S 4 g >

& Sj S/i/ §/ 8/8 ;

4 v = ) a g ag S

— ——

Steelhead Lower Columbia River

Steelhead Middle Columbia River

Chinook Salmon

Sacramento River winter

Chinook Salmon

Snake River fall

Chinook Salmon

Snake River spring/summer

Chinook Salmon

Central Valley spring

Chinook Salmon

California Coastal

Chinook Salmon

Puget Sound

Chinook Salmon

Lower Columbia

Chinook Salmon

Upper Willamette

Chinook Salmon

Upper Columbia

Coho Salmon

Central California

Coho Salmon

Southern Oregon/

Northern California Coast

Coho Salmon

Oregon Coast

Chum Salmon

Hood Canal summer

Chum Salmon

Columbia River

Sockeye Salmon

Ozette Lake

Sockeye Salmon

Snake River

eg¢

US Census Designated Populated Places That Are Within US Census Designated Urban Areas.

The Information For Both Data Sets Are From The 2000 Census. Urban Areas Include Only Those

Aeras That Fall Within A Threatened Or Endangered Salmon Or Steelhead ESU.

Populated Places With A Population OF Zero Were Excluded.

A Populated Place Type Of CDP Indicates

A Census Bureau Delineated Non-Incorporated Statistical Area.

‘

| Atascadero

Census Designated

Urban Area Name

Antioch as

Antioch ;

Antioch

| Antioc h

r Atascadero ro

(Paso Robles)

Atascadero —LI Paso de Robles

L@ aso Robles)

E] Paso de Robles

LE} Paso de Robles

4 —

Templeton

Populated Place Name

Antioch

Bay P oint —

Srentwood

Jakley_

Pittsburg =

Atascadero

j a -

| El Paso de Robles (Paso

Robles)

Populated

Place

Type —

ity

ily

Total

Population

_In 2000

90 0532 |

mE 534. |

23, 302

7 $6,769

26,411

State Census Designated Populated Place Name repusntes Tote

Name Urban Area Name — repeten

a are j ___ Type In 2000 |

(Paso Robles) _ ae p Sal ea aca

CA Camarillo _| Camarillo City $7,077 _

CA __| Chico — PAS yi Chico a City — $9,954 _

CA Concord _ ___| Alamo as CDP | 15,626 |

CA Concord Blacxhawk-Camino CDP 10,048

= | ee - Tassajara : oA

CA | Concord sie | Clayton City | 10,762

TCA Concord > Clyde _ | CDP 694

CA Concord a Concord _| City | 121,780

CA Concord > Danville Town 41,715

| CA ___| Concord _ Diablo cat CDP _ 988

| CA _ | Concord _ nt Dublin __—«st City 29,973

A ite Lafayette = City | 23,908

CA Concord Martinez oa City 35,866 _

CA Concord cbr erats | Moraga Town 16,290

| CA __| Concord 2 : Mountain View CDP 2,468

| CA __| Concord TSIM PEE City 17,599

CA __| Concord Pacheco CDO 3,562

e6S

‘/.1aee: — a . —

| State Census Designated Populated Place Name Poputated Total

Name Urban Area Name oe repesation

= ; |__ Type In 2000

__ CA ___| Concord es: Pleasant Hill | City _ 32,837

a G Concord _ Pleasanton _ a | City 63,654

___CA __| Concord San Ramon __ City 44,722

___CA___| Concord 7 | Vine Hill CDP 3,260

|___CA Concord |Waldon CDP 5,133

. _ CA | Concord | — 7 | Walnut Creek City 64,296 _|

CA Fairfield = ; Fairfield == City | 96,178

=a Fairfield . Suisun City = City | 26,118

| CA | Gilroy-Morgan Hill | Gilroy City 4) 464

CA] Gilroy-Morgan Hill Morgan Hill City 33,556

| CA _| Gilroy-Morgan Hill San Martin _ | CoP | 4230

| CA Livermore ae Livermore st City 73,345

CA | Lodi Gk City 19,472 __

CA | Lodi ; Lodi City || 56,999 |

CA | Lodi. North Woodbridge CDP 1,320

_ 7a ee South Woodbridge —s—_ || CDP 2,825

) CA i ee _ | Lompoc | City 41,103 |

_CA | Lompoc = _| Mission Hills CDP 3,142

}

—

>>> >>> > > 1 >| >> / >i >/>|>

Census Designated

Urban Area Name

Lompoc

Manteca

Modesto —

Modesto

| Modesto

Modesto

Modesto _

Modesto

| Modesto

Modesto.

Modesto

Napa

}

| By strom

—t

) Del Rio

[Ss

Populated Place Name

VandenbergAFB |

Vandenberg Village |

Manteca

| Bret Harte

Ceres

Empire 7

Hughson

Keyes | F

Modesto

Ripon

Riverbank

Riverdale Park

Salida

Shack kelford

West “Mode sto

_Napa

-—

| Populated

Place

Total

Population

_In 2000

6. 1 5]

5 5,802

49, 258

5.161

4, $18

34, 609

l, 168

3,903

3 3,980

4, $75

188.856

10,146

15,826

l, 094

_ 12, 560

5 17 0

6, 096

72.585

ee ———*

a es ee sss

R19

State Census Designated Populated Place Name iis gy cae

& evened Eee Urban Area Name ype in 2000

os ni. Seas Channel Islands Beach J Game

CA | Oxnard El Rio CDP ce. mi

CA | Oxnard | MeinersOaks === S| CDP —sCédL=S=«C3;,750—=*S|

| CA | Oxnard — : ___| Mira Monte CDP 7,177

CA Oxnard te Li ___| Oak View af CDP 4,199

BS: =e eis eacatiicaastek 7,862

= Se BR City 170,358 |

wa Sa: reise | Port Hueneme City 21,845 _

CA “| Oxnard San Buenaventure City 100,916

oe | fe __| (Ventura) . rie: Aes ie

| CA _| Petaluma_ Petaluma _| City 54,548 7

CA Redding Anderson CCCs} City 9,022

oo Sel =) Ee = Citys |_~—«80,, 865

oo | Redding = fe Shasta Lake City 9 008

CA Sacramento : _ _._jArden-Arcade ——/-_ = —§—Ss | CDP | 96025 _ |

___CA__| Sacramento neti Carmichael _ _| CDP |_— 49,742

fe yee: Sacramento ____| Citrus Heights eae Ae 85,071

a .¥ _ | Sacramento Elk Grove CDP - 59,984 |

&¢9

State Census Designated Populated Place Name Populated Totat

Name Urban Area Name wane reputation

apis! & ro +2 Type In 2000

CA Sacramento Fair Oaks CDP | __ 28,008

CA Sacramento ae _| Florin ee CDP 27,053

CA Sacramento | Foothill Farms CDP | __—('17,426

| CA Sacramento Gold River CDP 8,023 |

| €h Sacramento __| Granite Bay | CDP 19,388

CA | Sacramento __ es La Riviera CDP 10,273 |

CA Sacramento Laguna a CDP | 34,309 |

CA __| Sacramento _ Laguna West-Lakeside =| CDP 8,414

|___CA Sacramento- Loomis Town 6,260

| CA __| Sacramento el North Highlands CDP 44,187

CA Sacramento a Orangevale CU CDP 26,705

CA Sacramento Parkway-South CDP 36,468

= Sacramento y Ges

CA Sacramento _ Rancho Cordova __| CDP _| _ 55,060

| CA Sacramento a Rio Linda _ CDP | 10,466

CA Sacramento ss al City ie 36,330

|_CA Sacramento = Rosemont | CDP 22,904

CA Sacramento Roseville City 79,921

_ 7 a

State Census Designated Populated Place Name — eaten

— wieabininitnadten Type | In 2000

CA Sacramento Sacramento City 407,018 —

an Sacramento Vineyard CDP 10,109

CA Salinas Boronda CDP 1325 _

CA Salinas Castroville CDP 6,724

CA Salinas | Prunedale Cae 16,432

CA Salinas _ a ree Salinas City 151,060

CA San Francisco- :0-Oakland _ eS: Alameda is City — 72,259

__CA__| San Francisco- Oakland _ Albany City | 16,444 ©

| CA___| SanFrancisco-Oaklan; «| Ashland = S—C*d CDP 20,793

CA San Francisco- Oakland _ ____| Atherton Town _ 7,194

CA San Francisco- “Oakland _ oe _Bayview-l -Montalvin CDP 5,004

a % San Francisco-( -Oakland ae Belmont [ae 25,123

CA San Francisco-Oakland Seo) ee ~~ GG

CA San Francisco-Oakland Brisbane City 3,597

a CA _| San Francisco-Oakland Broadmoor CDP 4,026

Te | San Francisco-Oakland Burlingame City _ 28,158 |

cA ) San n lrancisco- -Oakland Castro Valley CDP 57,292

CA | San F rancisco-Oakland Cherryland CDP 13,837 at

epg

State Census Designated Populated Place Name Foputated Total

Name Urban Area Name wane Foputetion

Type In 2000

CA San Francisco-Oakland Colma Town 1,191

CA San Francisco-Oakland Daly City City 103,621

CA__| San Francisco-Oakland East Palo Alto City 29,506

| CA San Francisco-Oakland East Richmond Heights CDP 3,357

_ CA San Francisco-Oakland | El Carrito City 23,171

CA San Francisco-Oakland El! Sobrante CDP 12,260

| CA San Francisco-Oakland Emerald Lake Hills CDP 3,899

_CA San Francisco-Oakland | Emeryville City 6,882

CA San Francisco-Oakland Fairview CDP 9,470

CA San Francisco-Oakland Foster City City 28,803

CA San Francisco-Oakland Fremont ae City 203,413

CA San Francisco-Oakland Hayward City 140,030

| CA San Francisco-Oakland Hercules City 19,488

| _CA San Francisco-Oakland Highlands-Baywood Park | CDP 4,210

CA San Francisco-Oakland Hillsborough Town 10,825

|__CA San Francisco-Oakland Ss Kensington a CDP | 4,936

| CA ___| San Francisco-Oakland ‘ Menlo Park , City 30,685

cA San Francisco-Oakland Millbrae ~ City _ 20,718,

—

e¢9

State Census Designated Populated Place Name 1 og Peauition

Name Urbaa Area Name Type In 2000

CA San Francisco-Oakland Newark City 42,471

CA San Francisco-Oakland North Fair Oaks CDP 15 440 |

CA__| San Francisco-Oakland Oakland City 399,484

CA San Francisco-Oakland Pacifica City 38, 390

CA___| San Francisco-Oakland _| Piedmont 4 City _ 10, 952 |

CA San Francisco-Oakland __ ' Pinole it City 19,039

CA San Francisco-Oakt: and ce mi Portola Valley _ _ | Town 4,462

CA San Francisco- 0-Oakland — ; Redwood City 7 “ity 75,402

CA__| San Francisco- 0-Oakland 7 Richmond | City 99,216

CA San F Francisco-Oakland- : mal Rodeo eee it 8,717 |

CA ___| SanF Francisco-Oakland- ___| Rollingwood ____ | COP ; 2,900

CA San F ‘rancisco-Oakland ai __| San Bruno _ City _| 40,165

CA San Francisco-Oakland ‘San Carlos" es. 27,718

CA San Francisco-Oakiand ‘San Francisco _ City 776,733

CA San Francisco-Oakland | San Leandro City 79,452

CA San Francisco-Oakland San Lorenzo CDP 21,898

CA San Francisco-Oakland San Mateo City 92,482

CA ___|{ San Francisco-Oakland | San Pablo City | 30,215

e99

——EE

Census Designated

Urban Area Name

San Francisco-Oakland |

San Francisco- ‘Oakland

_ San n Francisco-( Oakland —

| San nF rancisco-Oakland _

| San F rancisco-Oakland

San Jose ee

| San Jose

San Jose

| San Jose

San Jose

+—_—__—

San Jose

—

| San Jose

Si yn Jose

| . San Jose

Populated Place Name

South San Francisco

Stanford

_| Tara Hills

_| Union City

= , EE

_| West Menio Park

| Alum Rock _

Buena Vista —_

| Burbank

Cambrian ‘Park —

& ampbell _

Cupertino

East Foothills

F Fruitdale

i! I exington Hills

Los Altos _

Los Altos Hills

Los Gatos

mE oyola

+——

Populated Total

Population

In 2000

60,552

66, 869

__3,629 _

13,479

38, 138

ay i/ 693

~~ 7,902

28,592

[3,478 _

AAA

>>|

—

>> |> | >| >| >|> | >> >> |>|> >>)

[San Jose

San Jose

| San Jose

San Jose

Census Designated

l'rban Area Name

San Luis Obispo

San Rafacl-Novato

| San Rafael-Novato

San Rafael-Novato

San Rafael-Novato _

San Rafael-Novato

San Rafacl-Novato

| Milpitas ae

a | Monte Sereno

| | Mountain View

| Palo Alto

San Jose ;

Santa Clara

Saratoga

Seven lrees

Sunnyvale

7 Tsu Sunol- Midtown

| San L. [Luis Obispo _

Belvedere

Black Point Green Point ;

Fairfax

Kentfield

l arksput

Th orte Madera.

Lucas V alley- Marinwood

Populated Place Name

Populated

Place

;

—s

Total

Population

In 2000

7 62,698

3,483

_ 70,708

_ 58,598

894 943

102. 61

29.843

1.666

131.760

" 748

12,014

6.357

eR9

Populated Total

Census Designated Populated Place Name

Urban Area Name - repenien

a ri aessiiiiae ___| Type | In 2000 _

San Rafael-Novato = —i| Novato” | City 47,630

| San Rafael- ‘Novato CC ROSS Town 2,329

_| San Rafael-Novato _| San Ansclmo ___ | Town _}_—12,378

_| San Rataecl-Novato San k Rafael ___—w| City & 56,063

| San Rafael-Novato . Santa Venetia _—s—s| Co? 4,298

| San /Rafael-Novato _ MED Sausalito e ai: 7,330 a.

| San Rafael-Novato | Strawberry ___| CDP 5,302 s

San Rafael-Novato Tamalpais- CDP 10,691

ae of B | HomesteadValley |

San Rafael- Novato ane Tiburon —————C—Cids| COW 8,666

| San Rafael-Novato | Woodacre CDP | 1,393

Senta Barvera 00 | Carpinteria 0 City 14,194

ae) 0 35,204

Santa Barbara | | Isla Vista CDP 18,344

| Santa Barbara poe Se Mission Canyon _ _ | CDP 2,610

anta Barbara _ | Santa Barbara __

: {Ser Barbara . Montecito , | CDP __ 10,000

Cc,

SiSiS>isi>i>i>\>\>

>|>

Census Designated

Urban Arca Name

Santa Barbara _

Santa Barbara

Santa Clarita

Santa Cruz

’ Santa C ru?

Santa C ruz

| Santa Cruz

~ alala oltel lel

>> >>> >

Santa Cruz

| Santa Rosa

Santa ( uz

Santa Cruz

Santa Cruz =

| Santa Maria

; Santa Maria

Santa Maria

Populated Place Name Poputates fom

Place Population |

Bam _ Type In 2000

Summerland __| COP _ 1,545

| Toro Canyon CDP 1,697

[Santa Clarita [City [151,088

Aptos CDP ns 9.396

| Ben Lomond | CDP 2,364

LC Capitola as City _|_—‘10,033

[Felton —-|cpp—s | ost |,

| Li LiveOak ima CDP —ss| 16,628 s

| Opal Cliffs _ | CDP} 6458

| Rio del Mar _ repP —— 9198

L Santa C mz City S48

Scotts Valley a. = 1,385

[Soquel CDP 5,081

Twin Lakes — CDP 5,533

| Nipomo se - e i= ‘12, 626 | :

[Orcutt SCS CP | 28,830

Santa Maria .

_| Cotati zs

-- — a

State Census Designated Populated Place Namé —" caidas

Name Urban Area Name Type In 2000 |

xe | Santa Rosa Graton cate |CDP_ | BT 5

| CA Santa Rosa _ Healdsburg | City 10,722

& CA Santa Rosa | Larkfield-Wikiup CDP 7,479

_._cA Santa Rosa _ ___| Rohnert Park City 42,236 |

CA Santa Rosa _| Roseland CDP 6,369

| CA Santa Rosa __| Santa Rosa City 147,595 |

CA Santa Rosa Sebastopol City 7,774 |

| CA __| Santa Rosa Windsor Town 2 22,744 |

cA | Seaside- -Monterey-Marina Carmel Valley Village | CDP___ 4.700

CA Seaside- -Monterey-Marina Carmel-by-the-Sea | City _ __ 4,081

| CA Seaside-Monterey-Marina Del Monte Forest CDP 4531

CA Seaside-Monterey-Marina Del Ray Oaks City 1,650 |

CA __| Seaside-Monterey-Marina Marina City 25,191

| CA Seaside-Monterey-Marina Pacific Grove City 18.522 |

| __CA__| Seaside-Monterey-Marina __| Sand City City | 261

CA ‘Seaside- -Monterey-Marina _| Seaside | City 31,69 695

CA Simi Valley } | Simi Valley __ | City “TH3st

TCA __| Stockton rae | August CDP | 7,808

eld

State Census Designated Populated Place Name — waona

Name Urban Area Name Type in oy

CA Stockton Country Club CDP 9,462

CA Stockton French Camp CDP 4.109

CA Stockton Garden Acres CDP 9,747

CA Stockton Kennedy CDP 3,275

CA Stockton Lathrop City 10,445

CA Stockton Lincoln Village _ CDP _ 4,216

| _CA___| Stockton Morada CDP 3,726

CA Stockton Stockton City 243,771

CA Stockton Taft Mosswood CDP 1388 |

CA Thousand Oaks _ Agoura Hills City 20,537

CA Thousand Oaks Casa Conejo CDP 3,180

CA___| Thousand Oaks Moorpark City 31,415

| CA__| Thousand Oaks Oak Park CDP 2,320

CA Thousand Oaks Thousand Oaks a City 117,005

CA Thousand Oaks Westlake Village __ City 8,368

CA | Tracy Tracy City 56,929

CA__| Turlock Delhi CDP 8,022

CA Turlock Denair CDP 3,446

PCL

State Census Designated

Name Urban Area Name

CA furlock

CA ivacaville

CA Vacaville

CA Vallejo =

_CA iVelleio

LA | Vallejo

CA |Valiejo

CA Watsonville 7 mas

| CA __| Watsonville

| CA ___} Watsonville ia cees

CA ___| Watsonville

CA Watsonville 7

CA | Watsonville

CA__| Yuba City

CA | Yuba City

CA__| Yuba City

CA___| Yuba City =

Populated Place Name Foputates Total |

Place Population

| Type | tn 2000

Turlock si City _| 55,810

Elmira Ci CP —

Vacaville i City 88.625 _

—| American Canyon ___| City 9,774

a | City” 26,865

___ | Crockett CDP 3,194 —

Vallejo City 4 116,760 |

| SSN CDP 2,436

Corralitos CDP 2,431

__| Freedom ___| CDP 6,000

Interlaken ie —CllU _ 7328

LasLomas > ; : CDP 3,078

__| Pajaro eS __| Cor . 3,384

7 Watsonville _| City —}—_ 2,282

___| Linda oa __| CDP 13,474

__| Marysville _ City 12,268

__| Olivehurst CDP 11,061 |

South Yuba City CDP 12,651

eel

Yuba C ity

Y uba City”

lc ‘orvallis

1 ¢ ‘orvallis”

| Corvallis

| kugene

—

} Eugene

Longview

Hi Medford

it Medford

| Medford

Medford

Loe

| Medford

| Portland

Census Designated

Urban Area Name

;

Sutter

| Tierra Buena

ry uba C ity

Corvallis

Philomath _

Coburg

| Eugene

| Springfield

| Ramer

Ashland

Central Point

Jacksonville

Medtord _

Phoenix

Talent

White City

| Aloha

Adair V illage

Populated Place Name

Populated

Place

Type

CDP

cpp

| City

| Cc ity

+ aty >

City

City - 4

Total

Population

in 2000 _

137,693

52,864

1,687

19,522

12, 493 |

2,235

63,154 |

4. 4,060 i

5, 5,589

5. 466

| 4 ,/4l |

State Census Designated Populated Place Name — Total

Name Urban Area Name 1 . Population

: i Menmantely ype In 2000

OR Portland __| Beaverton City 76,129

OR Portland ___| Butteville CDP 293 |

| _OR Portland Cedar Hills CDP 8,949

| __OR Portland Cedar Mill CDP 12,597

OR Portland | Clackamas CDP 5,177

OR _| Portland . Cornelius City 9.652

OR Portland ___| Durham City 1,382

OR Portland — __| Fairview | City 7,581

OR | Portland | Forest Grove | City 17,708

OR___| Portland ___| Garden Home-Whitford | CDP 6,931

OR Portland a Gladstone City 11,438

|___OR ‘Portland Gresham City 90,205

OR Portland Happy Valley City | 4,519

| _OR Portand Hillsboro City 70,186

| __OR Portland Jennings Lodge CDP 7,038

OR Portland _ Johnson City City 634

OR Portland ___} King City City 1,949

| OR Portland ___| Lake Oswego City 35,278

State Census Designated Populated Place Name Populated Total

Name Urban Area Name inate Popuration

Type In 2000

OR Portland Maywood Park City 777

OR Portland Metzger CDP 3,354

| OR Portland Milwaukie City 20,490

OR Portland Oak Grove CDP 12,808

OR Portland Oak Hills CDP 9,050

OR Portland co Oatfield CDP 15,750

OR Portland Oregon City City 25,754

OR __| Portland Portland City 529,121

OR Portland Raleigh Hills CDP 5,865

OR Portland Rivergrove City 324

OR __ | Portland Rockcreek CDP 9,404

OR Portland Sherwood City 11,791

__OR__| Portland Sunnyside CDP 6,791

OR Portland | Tigard City 41,223

OR Portland - _ Troutdale City — Saree

OR Portland “a bbe Tualatin City 22,791

OR Portland i a West Haven-Sylvan CDP 7,147

OR Portland West Linn City 22,261

BOL

State Census Designated Populated Place Name — wales

Name Urban Area Name Type in 2000

OR Portland West Slope CDP 6,442

OR Portland Wilsonville City 13,991

OR Portland Wood Village City _ 2,860

OR Salem : Eola CDP 49

OR Salem ists Four Corners CDP 13,922

OR Salem Hayesville CDP 18,222

OR Salem Keizer City 32,203

OR Salem Labish Village CDP 376

OR Salem Salem City 136,924

OR Salem Turner City 1,199

| __ WA Bellingham Bellingham ___| City 67,171

WA Bellingham : Geneva CDP 2,257

| WA __| Bellingham Marietta-Alderwood CDP 3,594

WA Bellingham Sudden Valley CDP 4,165

WA Bremerton Bremerton City 37,259

WA Bremerton East Port Orchard CDP 5,116

_ WA __| Bremerton Erlands Point-Kitsap Lake | CDP 2,723

WA Bremerton | Manchester CDP 4,958

BLL

ne +————--—

State Census Designated Populated Place Name

Name Urban Area Name

« WA z | Bremerton : | Navy Yard City

WA | Bremerton te Parkwood

_WA___| Bremerton _ . Port Orchard ¥

_WA __| Bremerton F . Poulsbo

| WA Bremerton Boa. | Silverdale |

|__WA Bremerton ; Suquamish

| WA Bremerton ; Tracyton

WA __| Kennewick-Richland Burbank ae

WA__| Kennewick-Richland | Finley 7

WA | Kennewick- Richland ES, Highland |

WA Kennewick-Richland _ Kennewick ="

_WA Kennewick-Richland | Pasco :

WA ___| Kennewick-Richland Richland o

_WA___| Kennewick-Richland West Pasco |

| WA__| Longview Kelso _ 2

WA Longview Longview ;

WA Lomgview Longview Heights

WA ___| Longview | West Longviow

Place

lype

| cpp

CDP

+—

City

CDP

Populated

Total

Population

In 2000 —

2.638

7,213

) 693

6.813

15.816

+510

3,267

1.303

5,770

+38

$4,693

33066 |

708

“4 ats

11,895

34.680

3,512

2 882

| ;

eee ee

- = — ~—

State Census Designated Populated Place Name — fcnoe

Name uvean Aven Name Type In 2000

WA Longview West Side Highway CDP 4,565

WA Marysville i Arlington _ City 11,713 —

WA __| Marysvilie fe Granite Falls City 2,347

WA Marysville Jordan Road-Canyon CDP 2,326

nS Ee Creek ,

WA Marysville Lake Stevens _| City 6,381

WA Marysville Lochsloy __| CDP 2,135

WA Marysville : Machias CDP 1,015

_ WA Marysville oe Marysville City 25,315

| WA Marysville North Marysville ___| CDP 21,161

WA Marysville ao Northwest Snohomish CDP 2,061

WA Marysville ahs _| Priest Point CDP 779

WA _| Marysville | Smokey Point CDP 1,556

WA Marysville Snohomish ___| City 8,494

| WA __| Marysville Tulalip Bay CDP 1,561

WA Marysville West Lake Stevens CDP 18,071

WA Mount Vernon Big Lake x CDP | si S3

| WA Mount Vernon Burlington City | 6,757

P62

—— - _ . — =

Census Designated Populated Place Name Populated Total

Urban Area Name wunee Peputation

su . Type In 2000

_| Mount Vernon i= ae. Mount Vernon [City | 26,232

Mount Vernon ae ’ Sedro- -Woolley City | __ 8,658

Olympia-Lacey eae Lacey se City | __ 31,226

Olympia-Lacey _ __j Olympia _ | City 42,514

Olympia-Lacey pe langlewilde- Thompson CDP 5,670

) as Trae ; Place _ ae

Olympia-l Lacey Turnwater City 12698 | .

Seattle __ | Alderwood Manor _{ CDP 15,329 =

| Seattle | Algona _ City 2,460

Seattle _| Ames Lake CDP 1,435

A__| Seattle | Artondale | CP | 8,630

. _| Seattle si Abr oe: 40,314

Seattle soak e | Beaux Arts Vill lage Town 307

Seattle Bellevue City | 109,569

+—-- - OOO oo ‘ —

| Seattle i eneeaae Ne ' Black Diamond _ City 3,970

jf Seattle Bonney lake 7 City 9,687

Seattle Bothell City 30,150

----- — Ne = 4 =

| Seattle —_ | Brier City 6,383

Seattle

| Seattle

Seattle

| Seattle

Seattle

| Seattle —

Census Designated

Urban Area Name

‘ieee

Populated Place Name Total

Place Population

=o = —— | Type — In 2000

_| Bryn Mawr-Skyway _| CDP 13,977

aes City 4,145

| Burien __ | City” 31,881

Cascade-Fairwood ee: Je 34,580

|Catheart ‘SS 3,015

Clyde Hill, — | City” 2,890

Cottage Lake CDP 24,330

Covington = _| City 13,783

| Des Moines A 29,267

DuPont a a 2,452

Duvall City _ 4,616

| East Hill-Meridian __| CDP 29,308

East Renton Highlands CDP 13,264 |

[Eastgate CDP | SC 558

|EchoLake CDP | 849

Edgewood | City” 9,089

_j Edmonds oo City | 39,515

Ek Plain — eee i: A! |

els

88a

APPENDIX C

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

Case No. C01-0132€

WASHINGTON TOXICS COALITION. et al.

Plaintiffs.

ENVIRONMENTAL PROTECTION AGENCY.

and CHRISTINE TODD WHITMAN. ADMINISTRATOR.

Defendants.

AMERICAN CROP PROTECTION ASSOCIATION, et al..

Intervenor-Defendants

August 8, 2003

ORDER

[his matter comes before the Court on plaintiffs’ motion

for further injunctive relief (Dkt. No. 94). The court has

considered the papers submitted by all parties and scheduled

oral argument for August 14, 2003 at 9:00 a.m. This order more

fully details the reasoning and conclusions outlined by the

Court in its July 16. 2003 order (Dkt. No. 151). The Court

hereby finds and rules as follows

The Court hereby DENIES as moot plainnifs motion to strike (Dkt

“ 16). The potential economuc unpacts proffered by CropLife are not

rei ant to the issucs presentiy Ociore the — ourt. dee. € @& . sOuwlnwest Cir for

nifed States Fore r Ser ; r id 964 974 (9th

89a

THRESHOLD CHALLENGES TO PLAINTIFFS’

MOTION

A Section 7(a)(2) Provides an Independent Basis for Further

Injunctive Relief

Previously, the Court determined “as a matter of law, that

EPA has violated section 7(a)(2) of the ESA with respect to its

ongoing approva) of [54] pesticide active ingredients and

registration of pesticides containing those active ingredients.”

The Court ordered EPA “to initiate and complete section

7(aX(2) consultation with NMFS regarding the effects of

pesticide-registrations on threatened and endangered

salmonids” per a schedule proposed by EPA and endorsed by

plaintiffs. EPA’s failure to initiate section 7(a)(2) consultation

constitutes a substantial procedural violation of the ESA. See

Thomas v. Peterson, 753 F.2d 754, 764 (9th Cir. 1985)’

Generally, the remedy for a substantial procedural

violation of section 7(a)(2) must be injunctive relief pending

completion of the consultation process. See Southwest Ctr. for

Biological Diversity v. United States Forest Serv., 307 F.3d

964, 972 (9th Cir. 2020); Biodiversity Legal Found. v. Badgley,

284 F.3d 1046, 1057 (9th Cir. 2002); Thomas, 753 F.2d at 764.

Thus, given EPA’s substantial procedural violation of section

7(aX(2), plaintiffs are generally entitled to some form of

injunctive relief with respect to EPA’s ongoing approval and

registration of the 54 pesticide active ingredients pending

compliance with section 7(a)(2).

Cir. 2002). The Court has disregarded them accordingly

An agency's total failure to engage in section 7(a)(2) consultation does

not constitute, as CropLife suggests, a de minimis violation of the ESA when

it is undisputed that an endangered species may be present. Thomas v

Peterson, 753 F.2d 754. 764 (9th Cir. 1985).

State Census Designated Populated Place Name | rae | station

Name Urban Area Name he Type_ In 2000

WA __| Seattle Enumclaw City 11,116

WA __| Seattle Esperat.ce CDP 3,503

WA _| Seattle Federal Way City 83,259

WA Seattle Fife City 4,764

WA Scattle hirerest City 5,868

WA Seattle Fort Lewis CDP 19,089

WA Scattle Fox Island CDP 2,803

WA _ | Seattle Frederickson CDP 5,758

WA _| Seattle ; — Gig Harbor City 6,465

WA | Seattle Hunts Pomt Town | 443

WA |Scattle inn Hill CDP 22,661

WA | Seattle _ Issaquah City 11,212

WA _| Seattle Kenmore City 18,678

WA Seattle Kent City 79,524

WA _| Seattle "| Kingsgate CDP 12,222

WA __| Scattle Kiklend City, 45054

WA Seattle Lake Forest Park City” 13,142

State Census Designated Populated Place Name Popavates Total

Name Urban Area Name | wuaee | Pepuiation

| Type in 2000 |

WA Seuttle Lake Marcel-Stillwater CDP 1,381

WA Seattle _ : Lake Morton-Berrydale CDP 9,659 |

WA Seattle ___| Lakeland North CDP 15,085 |

WA Scattle Lakeland South __| CoP _ 11,436 |

WA _| Seattle : Lakewood City $8,211

WA __| Seattle Lea Hill | CbP 10,871

WA_| Seattle Lynnwood City 33,847 ee

WA__| Seattle Maltby _ CDP _ 8,267 So

WA __| Seattle Maple Valley City 14,209

WA Seattle ae Martha Lake oh CDP 12,633 |

WA Seattle - McChord AFB CDP. 4,096 |

WA Seattle bas Medina a City | 30

WA _ |, Seattle rsa e Mercer Island City 22,036

WA Seattle : Midland CDP _| 7,414

_WA__| Scattle 7 Mill Creek _ City — 11,525

WA | Seattle _ ~ | Milton City 5,795 |

WA Seattle a Mirrormont CDP 3,804

WA Seattle ae Monroe mA City =o: \. a

State Census Designated Populated Place Navne — Total

Name Urban Area Name Type . ray

|__WA Seattle Mountlake Terrace City 20,362

"WA __| Seattle Mukilteo City 18,019

WA Seattle Newcastle City 7,737

WA Seattle Normandy Park City 6,392

WA | Seattle North Creek CDP 25,742

WA _| Seattle Orting _ City 3,760

WA Seattle Pacific City — 5,527

WA _| Seattle Paine Field-Lake Stickney | CDP 24,383

WA | Seattle Parkland CDP 24,053

WA _| Seattle ~T Picnic Point-North CDP 22,953

l_ynnwood

WA _| Seattle Praine Ridge CDP 11,688

WA Seattle Puya!lup City 33,011

WA _| Seattle Redmond | City 45,256

WA _| Seattle ~| Renton City 50,052

WA | Seattle ~ | Riverton-Boulevard Park _ | CDP 11,188

WA _| Seattle | Ruston Town 738

WA Seattle Sammamish City 34,104

State Census Designated Populated Place Name | Populated | Total

Name Urban Area Name Place Population

q Type In 2000

WA __| Seattle SeaTac ~ | City 25,496

WA __ | Seattle Seattle City $83,374 _|

WA | Seattle Seattle Hill-Silver Firs CDP 35,311

WA Seattle Shoreline City 53,025

WA Seattle South Hill CDP 31,623

WA __| Seattle South Prairie Town (382

WA __| Scattle ; Spanaway CDP —s|_21, 588

_ WA Seattle Steilacoom Town 6,049

WA. os Seattle i Summit CDP 8.041

WA Scattle Sumner City _ 8,504

WA __| Scattle ‘Tacoma _ [City ss :193,556-

WA __| Seattle Tukwila City | —s17, 181

WA Seattle Union Hill-Novelty Hill CDP 11,265

| WA __| Seattle a University Place — | City 29,933

WA Seattle - Waller CDP 9,200 |

WA__| Seattle : a West Lake Sammamish | CDP $937 |

WA _| Seattle White Center CDP —s|_—s 20,975

WA Seattle Woodinville _ City 9,194

ess

State Census Designated Populated Place Name — Total

Name Urban Area Name T : a

WA _| Seattle Woods Creek cpp. | —«4,s02

WA Seattle Woodway City 936

WA Seattle Yarrow Point Town 1,008

WA Vancouver Barberton CDP 4,617

WA __| Vancouver Battle Ground City 9,296

WA Vancouver Camas Cid: City _ 12,534

WA Vancouver Felida CDP 5,683

| WA ___ | Vancouver Five Corners CDP 12,207

WA | Vancouver | Hazel Dell North CDP 9,261

| WA_ | Vancouver _ Hazel Dell South = CDP 6605

WA Vancouver Lake Shore CDP 6,670

WA Vancouver Meadow Glade CDP 2,225

| WA __ | Vancouver Mill Plain CDP 7400

WA Vancouver Minnehaha CDP 7,689

WA Vancouver Mount Vista CDP 5,770

WA Vancouver Orchards CDP 17,852

WA Vancouver Salmon Creck CDP 16,767

WA Vancouver Vancouver City 143,560

State Census Designated Populated Place Name | Popelated| Total

Name Urban Area Name Place Population

ESS eae = Type In 2000

TWA | Vancouver any t ____| Walnut Grove cpp. | 7,164

WA | Vancouver _ = Washougal _ fi City | «S95

WA Wenatchee ___| Bast Wenatchee City §.757

WA | Wenatchee SPS Last Wenatchee Bench CDP 13,658

| _WA__| Wenatchee Rock Island | City _ 863

WA |Wenatchee = | | SouthWenatchee ‘| CDP _ 19

WA | Wenatchee =| Sunnyslope “CoP 2,521 se

_ WA__| Wenatchee _| Wenatchee af | City. 27,856 s

| __WA__| Wenatchee —______.| West Wenstchee COP

_ WA Yakima eyes ___| Ahtanum at CDP _ : 418i |

WA_ [Yakima Eschbach <* Sh 400

WA _|Yakime ss SSSC*«dCGeed Ss SSSC* CP 2947

WA Yakima aes Moxce City 821

TWA | Yakima Selah City | 6310 |

_ WA Yakima wes Summitview CDP} 900

WA tee | Derrace Heights CDP _ 6447

WA_ | Yakima West Valley | CDP 10,433

| WA __| Yakima —__|- Yakima City 71,845 |

However, CropLife argues that injunctive relief is not

appropriate with respect to ongoing agency actions, such as

those at issue here. The Ninth Circuit squarely rejected this

argument in Pac. Rivers Council v. Thomas, 30 F.3d 1050 (9th

Cir. 1994). There, the district court denied plaintiffs’ motion to

icin ongoing timber, range, and road projects deapite the

Forest Service's failure to initiate section 7(a)(2) consultation

with respect to the projects and the Snake River Chinook

salmon. /d. at 1056. The projects were outlined in land resource

management plans (“LRMPs”), which the Ninth Circuit

concluded were ongoing agency actions requiring section

7(aX(2) consultation. /d. at 1055-56. The Ninth Circuit held:

Section 7(a)(2) mandates that the Forest Service enter

into consultation [with NMFS] on the LRMPs. Its

conclusion that these activities “may affect” the

protected salmon is sufficient reason to enjoin these

projects. Only after the Forest Service complies with

§ 7(a)(2) can any activity that may affect the protected

salmon go forward. Accordingly, we reverse the

district court's denial of an injunction barring all

ongoing and announced activities that may affect the

Snake River Chinook from going forward. The Forest

Service cannot go forward with these activities

without first complying with the consultation

requirements of the ESA.

Id. at 1056-57 (footnote omitted).’

* ‘The Ninth Circuit noted that under such circumstances section 7(d).

was “of no moment.” Pac. Rivers Council v. Thomas, 30 F.3d 1050, 1056

(9th Cir. 1994). Here, all parties agree that section 7(d) does not govern

plaintiffs’ motion for further wnyunctive rehef, The Court shall not further

address it.

9la

B. No Administrative Exhaustion Requirement Bars

Plaintiffs’ Motion

EPA and CropLife argue that plaintiffs must first pursue,

before requesting interim injunctive relief from this Court,

administrative remedies available pursuant to FIFRA with

respect to the 54 pesticide active ingredients. That is, EPA and

CropLife contend that, although EPA wholly abrogated its

mandatory section 7(a)(2) consultation obligations, plaintiffs

must initiate a collateral administrative proceeding to request

suspension or cancellation of pesticide active ingredients if they

wish to protect threatened and endangered salmonids from

jeopardy during the consultation process. For numerous

reasons, this argument lacks merit.

As discussed above, the ESA provides an independent

statutory basis for injunctive relief with respect to ongoing

agency actions given a substantial procedural violation of

section 7(a)(2). EPA cites no authority to the contrary.’ In

addition, regardless of whether plaintiffs could pursue

suspension or cancellation proceedings via the APA and

FIFRA, this Court held over one year ago that plaintiffs’ claims

do not arise under the APA and FIFRA. Likewise, plaintiffs’

claims are not governed by FIFRA standards.° Therefore, the

. EPA argues that exhaustion of administrative remedies 1s appropriate

because it “has not had the opportunity to generate a scientific record

examuning the merits or lack thereof of plaintuffs’ request.” However, it is

the section 7(a)(2) consultation process that serves to generate this scientific

record. Thus, the absence of any record is a result of EPA's own failure to

initiate timely consultation with NMFS. EPA‘s own failure to comply with

its legal obligations cannot logically serve as the basis for denying plaintiffs”

request for interum injunctive relief.

* FIFRA standards would govern any admunustrative proceeding initiated

by plaintiffs pursuant to the APA. However. this action represents plaintiffs’

belief that EPA has faiied to satisfy ESA standards, not FIFRA standards.

Nevertheless, EPA argues that the “imuruneni hazard” standard of 7 U.S.C.

92a

body of case law cited by EPA is inapposite. EPA cites

absolutely no case arising under the ESA in which a court

required plaintiffs to initiate a collateral administrative

proceeding to seek injunctive relief after concluding that the

agency had substantially abrogated its mandatory section

7(a)(2) obligations.

In Defenders of Wildlife v. Adm’r, Envtl. Protection

Agency, the Eighth Circuit affirmed the district court’s

conclusion that plaintiffs need not, under the ESA, first exhaust

administrative remedies pursuant to FIFRA. 882 F.2d 1294,

1298-1301 (8th Cir. 1989).° Defendants argued that plaintiffs

effectively sought cancellation of three ongoing strychnine

registrations and must proceed under FIFRA. /d. Plaintiffs

responded that any cancellation would be the “indirect effect”

of compelling EPA to fulfill its mandatory ESA obligations

with respect to pesticide registrations. /d. at 1299. The Eighth

Circuit affirmed the district court’s order enjoining the

strychnine registrations, as then defined, pending EPA’s

compliance with the ESA. /d. at 1301. The court reasoned:

“FIFRA does not exempt the EPA from complying with ESA

requirements when the EPA registers pesticides. . . .[T]he

citizen suit provision permits [plaintiffs] to sue the EPA in an

§ 136(1) — “unreasonable hazard to the survival of a species declared

endangered or threatened” — subsumes the no-jeopardy standard of 50

C.F.R. § 402.02 — “engage in an action that reasonably would be expected,

directly or indirectly, to reduce appreciably the likelihood of both the

survival and recovery of a listed species in the wild by reducing the

reproduction, numbers, or distribution of that species.” The Court disagrees.

The plain language of the ESA standard offers more protection to threatened

and endangered species that [sic] the FIFRA standard. Further. the mere fact

that FIFRA authorizes EPA to suspend registered pesticides during

cancellation proceedings in order to protect listed species does not demand

that FIFRA remedies trump those independently available under the ESA.

¥ The court also rejected the suggestion that FIFRA provided the

exclusive remedy for plaintiffs.

93a

effort to enjoin any asserted violations of the ESA.” /d. at

1299-1300.

The Ninth Circuit reached a similar conclusion in

Headwaters, Inc. v. Talen Irrigation Dist., 243 F.3d 526 (9th

Cir. 2001).’ There, the Court held that FIFRA subsumes neither

NEPA nor Clean Water Act standards. /d. at 532 (proper

FIFRA registration and labeling does not prevent independent

application »f Clean Water Act standards to authorized uses).

The Court also noted that FIFRA employs a cost-benefit

analysis Of €¢onomic, social, and environmental factors. /d. In

sharp contrast, the ESA and its substantive standards preclude

any such COst-benefit analysis. In sum, the ESA contains no

administrative exhaustion requirement.

C. Court-Ordered Consultation is Not the Sole Remedy

Appropriate for Section 7(a)(2) Violations

Without citation, CropLife argues that this Court's prior

order, directing EPA to initiate section 7(a)(2) consultation

with respect tg 54 pesticide active ingredients, fully remedies

any and all violations of the ESA. CropLife suggests that

because the Court found no substantive violation of the ESA,

no substantive relief is necessary to protect threatened and

endangered salmonids. However, the Court did find a

substantial procedural violation of the ESA. Given this

conclusion, interim injunctive relief is necessary to fulfill the

substantive, institutionalized caution mandate of the ESA. In an

analogous Nep a case, the Ninth Circuit reasoned as follows:*

See also ‘ferrell v. Thomas, 807 F.2d 776, 782 n.3 (9th Cir. 1998).

This reas ning is even more forceful in the ESA context because.

unlike NEPA, .

t0 afford the che ESA embodies a specific substantive congressional policy

Southwest Ctr. highest peeeeny to threatened and endangered species.

. 307 F.3d at 971

94a

[T]he point of the environmental review is to

determine what measures are needed to protect the

environment from harm due to cattle grazing. If

grazing is to continue (as the Ranchers insist it

should) while the environmental studies necessary to

determine the long term protective measures are

underway, some ‘best estimate’ of interim

environmental protections is required to remedy the

violation. . . .[S]imply ordering completion of the

required environmental studies would not provide an

adequate remedy because environmental harm from

grazing would continue during the six years required

(under the district court’s expedited timetable) to

complete the environmental studies.

Idaho Watersheds Project v. Hahn, 307 F.3d 815, 833 (9th Cir.

2002). For similar reasons, CropLife’s argument that the

FIFRA regulatory status quo trumps ESA standards with

respect to ongoing agency actions is without merit.

Il. STANDARDS AND BURDENS FOR INJUNCTIVE

RELIEF.

A. Traditional Standards for Injunctive Relief Do Not Govern

EPA and CropLife argue that plaintiffs bear the burden to

demonstrate “imminent irreparable harm” or “substantial and

immediate irreparable injury” with respect to each of the 54

pesticide active ingredients and each ESU of threatened and

endangered salmonids.” This argument, however, does not

comport with twenty-five years of precedent. In the face of a

substantial procedural violation of section 7(a)(2), traditional

* CropLife also suggests that plaintiffs cannot satisfy FIFRA’s

“imminent hazard” standard. However, as discussed above, plaintiffs’

request for further wnjunctive relief is governed by ESA standards, not

FIFRA standards.

95a

standards for injunctive relief do not govern. See, e.g.,

Tennessee Valley Auth v. Hill, 437 U.S. 153, 174(1978); Sierra

Club v. Marsh, 816 F.2d 1376, 1382-83 (9th Cir. 1997). The

language, history, and structure of the ESA demonstrate

Congress’ determination that the balance of hardships and

public interest tips heavily in favor of protected species.

Southwest Ctr., 307 F.3d at 971. irreparable injury is presumed

to flow from a substantial procedural violation. Thomas, 753

F.2d at 764. These rules fulfill the institutionalized caution

mandate of the ESA. Tennessee Valley Auth., 437 U.S. at 194.

Although the majority of cases on which EPA and

CropLife rely are irrelevant in the ESA context, two cases

demand attention. In Nat'l Wildlife Fed. v. Burlington N.R.R.,

Inc., plaintiff alleged that Burlington Northern violated the

ESA “no-take” provision when its trains spilled corn along

Montana tracks and subsequently struck seven endangered

grizzly bears. 23 F.3d 1508, 1509-10 (9th Cir. 1994). The Ninth

Circuit denied plaintiff's request for an injunction because

plaintiff could not demonstrate a reasonable likelihood of

future grain spills and subsequent “takes.” /d at 1511.

However, Burlington Northern had no obligation, as a private

entity, to engage in section 7(a)(2) consultation or to ensure that

its actions did not jeopardize the continued existence of

endangered grizzly bears. Such cases — defining burdens under

the ESA “no-take” provision — simply do not apply to

violations of section 7 procedural requirenents. Thomas, 753

F.2d at 765.

Similarly, reliance on Water Keeper Alliance v. United

States Dept. of Defense is misplaced. 271 F.3d 21 (9th Cir.

2001). There, plaintiffs alleged that the acting agency had an

obligation to prepare a biological assessment because its

actions constituted a “major construction activity” per statute.

96a

Id. at 24-32."° In denying plaintiffs’ request for a preliminary

injunction, the Ninth Circuit reasoned: “We cannot say that

Water Keeper has shown a probability [of success on the

merits] at this stage that the Navy violated the ESA because it

concluded that the interim activities . . . did not constitute a

major construction activity necessitating a biological

assessment.” /d. at 33. H »wever, the court specifically noted

that the case did not fall within those that “restrict the equity

power of the court as to findings of irreparable injury” because

plaintiffs could not persuasively demonstrate a procedural

violation of section 7(a)(2). Jd. at 34. In sharp contrast, this

Court previously ruled on the merits of plaintiffs’ section

7(a)(2) claims: EPA’s failure to consult with NMFS regarding

54 pesticide active ingredients is a substantial procedural

violation of the ESA.

B. The Narrow Exception

Moreover, EPA and CropLife misconstrue the “narrow

exception” outlined by Southwest Ctr. for Biological Diversity

v. United States Forest Serv., 307 F.3d 964. In Southwest Ctr.,

plaintiffs sued the Forest Service — the agency administering

the relevant grazing and public lands laws — alleging impacts of

livestock-grazing on the critical habitat of the threatened loach

minnow. /d. at 968-70. In response to plaintiffs’ lawsuit, the

Forest Service reinitiated section 7(a)(2) consultation with

respect to the particular grazing ailotments at issue. /d. at 970.

Although plaintiffs prevailed on the merits of their section 7

claims, the district court denied plaintiffs’ motion to enjoin all

livestock-grazing in areas for which consultation was not yet

complete. /d. at 970.

consultation.

97a

On appeal, the Ninth Circuit reviewed the relevant

standards for injunctive relief, discussed above. It reasoned:

“While courts must generally impose an injunction given a

procedural violation of the ESA, this case fits a narrow

exception.” /d. at 973. The Court noted that the case did nor

present a “substantial procedural violation” of the ESA. /d."'

The Ninth Circuit held that agency actions may continue during

the section 7(a)(2) consultation process so long as the actions

are non-jeopardizing to the protected species and will not result

in a substantive violation of the ESA. /d.'’ The Ninth Circuit's

reasoning merits extended quotation:

[B]oth the present case and Marsh are distinguishable

from Thomas on one important point — in Thomas the

procedural violation included nothing from which the

agency, nor the court, could make any determination

of how the action impacted the species or whether the

action put the endangered species in jeopardy. In the

case at hand, as in Marsh, there was evidence in the

'' In contrast, EPA's total failure to initiate section 7(a)(2) consultation

in the FIFRA context with respect to any threatened or endangered salmomd

constitutes a substannal procedural violation.

'* Pursuant to section 7(a)(2), an agency must insure that its actions are

“not likely to jeopardize the continued existence of any endangered species

or threatened species or result in the destruction or adverse modificanon of

habitat of such species.” 16 U.S.C. § 1536(a)(2) (2003). “Jeopardize the

continued existence of” means to engage in an action that reasonably would

be expected, directly or indirectly, to reduce appreciably the likelihood of

both the survival and recovery of a listed species in the wild by reducing the

reproduction, numbers, or distribution of that species. 50 C.F.R. § 402.02

(2002). “Adverse modification” means a direct or indirect alteration that

appreciably diminishes the value of cnncal habitat for both the survival and

recovery of a listed species. Such alteranons include. but are not limited to.

alterations adversely modifying any of those physical or biological features

that were the basis for determining the habitat critical. 50 C.F.R. § 402.02

(2002).

98a

record for the court to review the impact of the

species during the consultation period. The district

court noted that the Forest Service was taking

mitigating measures to ensure that the cattle grazing

would have little, if any, impact on the loach minnow

while formal consultation was taking place. Cattle

were excluded from riparian areas, and these areas

were being monitored. The consliation was ongoing

and was nearing completion. The district court also

found that the record supported a finding that the

conditions were actually improving given the

protective measures that had already been undertaken.

These measures do fulfill the purpose of the act as

required under Badgley, which is to provide

protection to endangered and threatened species.

id. In sum, the Ninth Circuit found that “[t}he record supports

the district court’s conclusion that the loach minnow is not

likely to be harmed during the consultation period.” /d.

Although the Ninth Circuit did not explicitly address the

issue, Southwest Ctr. indicates that the acting agency bears the

burden to demonstrate that its onge:ng actions are non-

jeopardizing. First, the court held that “non-jeopardizing action

may take place,” not that any action may take place absent a

showing of jeopardy. This word choice recognizes the

longstanding rule that the benefit of the doubt must go to

protected species; the agency, not the species, must bear the

risk via institutionalized caution. See Sierra Club, 816 F.2d at

1386-89." Second, as the quotation above demonstrates, the

Ninth Circuit premised its conclusion on the evidence of no-

jeopardy affirmatively produced by the Forest Service,

To hold otherwise would allow an agency to use its failure to iitiate

section 7(a}(2) consultation as a sword of scientific ignorance to avoid

injunctive rehef.

99a

including the voluntary imposition of mitigation measures,

ongoing monitoring, and evidence of habitat improvement.

That is, the ~ourt did not premise its conclusion on the absence

of or deficiencies in any evidence submitted by plaintiffs.

Third, the only party capable of demonstrating that the

agency’s actions are non-jeopardizing is the agency itself.'*

Certainly, Southwest Ctr. does not stand for the proposition that

no injunctive relief is warranted absent plaintiff's ability to

demonstrate that the ongoing agency action is not non-

jeopardizing. Finally, EPA’s and CropLife’s interpretation of

this “narrow exception” — that, given a substantial procedural

violation, plaintiffs nevertheless bear the burden to demonstrate

irreparable harm with respect to each pesticide active ingredient

and each ESU of threatened and endangered salmon at issue —

defined by a case not involving a substantial procedural

violation, would necessarily overrule repeatedly affirmed Ninth

Circuit precedent. See, e.g., Thomas, 753 F.2d at 765."

C. Other Relevant Standards

Finally, both plaintiffs and EPA reference Judge Zilly’s

opinion in Greenpeace v. Nat'l Marine Fisheries Serv., 106

‘* — The Court recognizes that it may be appropriate, as in this case, for

intervenor-defendants to assist in demonstrating that an agency's actions are

non-jeopardizing.

'S “The Forest Service would require the district court, absent proof by

the plaintiffs to the contrary. to make a finding that the Jersey Jack road is

not likely to affect the Rocky Mountain Gray Wolf, and that therefore any

failure to comply with ESA procedures is harmless. This is not a finding

appropriate to the district court at the present time. Congress has assigned

to the agencies and to the Fish & Wildlife Service the responsibility for

evaluation of the impact of agency actions on endangered species, and has

prescribed procedures for such evaluation. Only by following the procedures

can proper evaluations be made. It is not responsibility of the plaintiffs to

prove, nor the function of the courts to judge, the effect of a proposed action

on an endangered species when proper procedures have not been followed.”

100a

F.Supp. 2d 1066 (W.D. Wash. 2000). The Ninth Circuit cited

Greenpeace with approval in Southwest Crr., 307 F.3d at 972.

As an initial matter, it is important to highlight some important

distinctions between Greenpeace and the instant action. In

Greenpeace, NMFS had, in fact, consulted pursuant to section

7(a)(2) regarding the impacts of groundfish fisheries on the

Steller sea lion. /d. at 1069. Thus, Judge Zilly had the benefit

of reviewing an administrative record and biological opinions

analyzing th

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