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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0260%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2006
- **Citation:** 546 U.S. 1090

## Text

2

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

3

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

4

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).

5

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

6

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).

7

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

8

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

9

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

10

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.

11

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

12
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

13

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).

15

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”).

16

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

17

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

18

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:

19

[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)).

20

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.

21

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....)

22

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).

23

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

24

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.

10

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”).

25

§ 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

26

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....)

27

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).

28

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

la

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,
y

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:

2a

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,
We

Environmental Protection Agency,
Christine Todd Whitman,

Defendants,
California Plant Health Association; Croplife America,
Defendant-Intervenors,
and
Washington State Potato Commission,

Defendant-Intervenor-Appellant.

3a

Washington Toxics Coalition;
Northwest Coalition for Alternatives to Pesticides;
Pacific Coast Federation of Fishermen’s Associations, Inc.;
Institute for Fisheries Resources,

Plaintiffs-Appellees,
Ve

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,
Ve

Environmental Protection Agency;
Christine Todd Whitman,

Defendants-Appellants,

and

4a

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.

Sa

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.

6a

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

7a

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.

8a

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

9a

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

l4a

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
register pesticides, alter pesticide registrations, and cancel
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.

20a
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,
v.

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

5

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

é
£

Steelhead

~

rg

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

er

g
£

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

2
& S)
<> SS ~
& > &
~
£/ 35 $
.s) <<
§&/s by
S/F / =

ecr

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

£
&

= —

S
ay

Southern California

South-Central California Coast

Steelhead
Steelhead
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 ~—
©
ej
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

gb

| 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)

7
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

4
i

Chinook Salmon

~
al
ay

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

es

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:

ad

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 —
/ )
Pe
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
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)

be
4
t

Populated

C
C
ae
Te
Te

Place
Type —
ity
DP
ity
ity

My
ily

a
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

Lompoc

Manteca

Modesto —
Modesto
Modesto
| Modesto
Modesto
Modesto _
Modesto
Modesto
Modesto
| Modesto

Modesto.
Modesto

Modesto

Modesto
Napa

>

}

| By strom

—t
) Del Rio

-+

7
|
|
[Ss

|
|
a

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 ———*

SS

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

ad

_ 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
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

oo

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
>>|

—

'

—

r

i

>> |> | >| >| >|> | >> >> |>|> >>)

[San Jose
San Jose
San Jose
San Jose
San Jose
San Jose
| 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
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

Sy

Populated Total

Census Designated Populated Place Name
Urban Area Name - repenien
a ri aessiiiiae ___| Type | In 2000 _
| San Rafael-Novato © Mill Valley ; City 13,600
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
\

C,
C,
C,
Cc,
C,
C

Ci
C,
Ci
C.
Cc,

SiSiS>isi>i>i>\>\>

>|>

Census Designated
Urban Arca Name

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0260%3A1. Public record. Not legal advice.