State of Wyo. v. Hathaway, No. 75-1491
| Decision Date | 28 October 1975 |
| Docket Number | No. 75-1491 |
| Citation | 525 F.2d 66 |
| Parties | , 6 Envtl. L. Rep. 20,169 STATE OF WYOMING et al., Plaintiffs-Appellees, v. Stanley K. HATHAWAY, Individually and as Secretary of the United States Department of Interior, et al., Defendants-Appellants, and Wyoming Stock Growers Association, Intervenor-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
George S. Andrews, Cheyenne, Wyo., for appellee, State of Wyoming.
Houston G. Williams, of Wehrli & Williams, Casper, Wyo. (Frank D. Neville, of
Wehrli & Williams, Casper, Wyo., on the brief), for appellees except State of Wyoming.
John J. Zimmerman, Atty., Dept. of Justice (Wallace H. Johnson, Asst. Atty. Gen., and Edmund B. Clark, Raymond N. Zagone and Gerald S. Fish, Attys., Dept. of Justice, on the brief), for appellants.
Glenn Parker, Cheyenne, Wyo., for intervenor-appellee.
Before HILL, SETH and DOYLE, Circuit Judges.
This appeal seeks reversal of the judgment of the district court granting preliminary injunctive relief against the Administrator of the Environmental Protection Agency. The order enjoined the Administrator from taking any further action to enforce a certain numbered order, P.R. Notice 72-2 dated March 9, 1972, which suspended and cancelled the registration of three chemical toxicants, strychnine, sodium fluoroacetate (1080) and sodium cyanide, as economic poisons for use in predator control under the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. § 135 et seq. The predator which was the object of the poisoning program was the coyote.
The trial court found that the Administrator had failed to file a detailed Environmental Impact Statement prior to the issuance by him of the Pesticides Regulation (P.R.) Notice 72-2. The court said that the order constituted a major federal action significantly affecting the quality of the human environment in that it cancelled and suspended registration for certain poison products which we have mentioned. The court went on to say that since the order constituted major federal action, etc., the EPA was required under 42 U.S.C. § 4332 to file the detailed impact statement. The court further found that the Administrator had failed to take into account all possible approaches and alternatives and further found that the Administrator had not pursued a program which constituted a functional equivalent of furnishing a formal National Environmental Policy Act (NEPA) report and that consultations with the plaintiffs had not been had. Finally, the court concluded that as a consequence of the failure to file an environmental impact statement, the P.R. Notice 72-2 suspending and cancelling registration to the poisons was invalid and would remain invalid until such time as a valid impact statement had been filed by the Environmental Protection Agency.
This appeal does not call upon us to review the merits of the Environmental Protection Agency order. Thus we do not weigh the value of the poison program against the injury or damage that it produces. We are concerned rather with the legality of the proceedings and, particularly, whether the trial court was justified in entertaining an injunction suit notwithstanding that no effort had been made to pursue the remedies provided by law, including a review of the order of the Administrator by this court.
The specific issues which we here consider are:
1. Whether the Administrator of the Environmental Protection Agency is required to prepare a formal environmental impact statement prior to taking action suspending and cancelling a chemical toxicants registration under the Federal Insecticide, Fungicide and Rodenticide Act, supra.
2. Whether there has been a substantial compliance with the requirements of NEPA by the Administrator as a result of his having taken into account the so-called Cain Report, which was based on an objective and scientific study of the consequences of using the mentioned three poisons for predator control purposes and which measured the value to be derived from the use of the program as opposed to the injury to non-target animals.
A determination of the mentioned issues furnishes the answer to whether the trial court acted correctly in entertaining an injunction suit and in granting temporary relief.
The evidence presented to the Administrator of the Environmental Protection Agency established to his satisfaction that a hazard existed which demanded immediate suspension of the registration of the pesticides and which also demanded suspension and cancellation of the registration. The plaintiffs-appellees did not seek administrative review of this order of suspension in accordance with the requirements of 7 U.S.C. § 135b(c) within 30 days following the issuance of the order of the Administrator. 1
The action of the Administrator of the Environmental Protection Agency was issued on March 9, 1972. 37 Fed.Reg. 5718 (March 18, 1972). In it Mr. Ruckelshaus, the then Administrator, stated that the previous spring the agency had made a public commitment to review the status of registrations for strychnine, cyanide and sodium fluoroacetate (1080) for use in prairie and rangeland areas for the purpose of predator and rodent control. The Administrator added: "This commitment grew out of grave concern surfaced by the reported deaths of some 20 eagles killed by the misuse of thablium sulfate." The Ruckelshaus opinion noted that the Secretary of the Interior was moved to also conduct a review of the government's federal predator control program.
The main thrust of the suspension and cancellation opinion was the existence of indiscriminate baiting which occurs over wide ranging areas of the prairie and the failure in carrying out this indiscriminate use to take any precautions for the protection of other animals, including endangered species. The mere toxicity was held not to be a basis for holding that the substance constituted a hazard, but "their degree of toxicity and pattern of use may well do so." 2
The agency's statement of decision further noted that apart from its review and the Cain findings, a detailed petition had been submitted by several conservation groups urging the cancellation of the poisons in question. That petition invoked the provision of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), which requires that an economic poison contain directions for use which are "necessary and if complied with, adequate to prevent injury to living man and other vertebrate animals. . . .", 7 U.S.C. § 135(z)(2)(d), and it authorizes the Administrator to initiate cancellation proceedings by ordering suspension when he finds that such action is necessary to prevent hazard to the public.
Based upon the review of the registrations of strychnine, cyanide and sodium fluoroacetate (1080), and in light of the available evidence, Ruckelshaus concluded that the registrations for predator uses should be suspended and cancelled.
The Administrator relied to a very great extent on the Cain Report, a carefully researched and well written document prepared by a study committee. This report was issued by the Advisory Committee on Predator Control at the University of Michigan on October 30, 1971. The study had been authorized in April 1971. The Department of the Interior together with the Council on Environmental Quality sponsored this study by a panel of which Stanley A. Cain was chairman. The panel reviewed and analyzed predator control and associated animal control policies of the United States. It evaluated their direct and indirect effects, including environmental impact on the livestock industry and considered alternatives to the present practices. The report of the committee formed a basis for the order which is now under attack. Its thrust was that the predator control program employed the subject poisons; that these poisons were non-specific, and thereby posed hazards to threatened species.
The report also noted that the poison program, although governmental, primarily served the private industry of sheep growing. It recommended the use of truly specific poisons plus the use of repellents, reproductive inhibitors, live trapping and transplant procedures. Also supported was an extension system, whereby producers would be encouraged to solve their own problems by accepting methods directed toward specific animals. Still another recommendation of the study committee was the adoption of a federally based insurance program which would protect from all losses. The main emphasis of the report was the threat to endangered species from the widespread use of these poisons. Affected species singled out included the Bald and Golden Eagles, the California Condor, the Black-Footed Ferret, the mountain lion, the Grizzly Bear, Rocky Mountain Wolf and the Red Wolf.
The evidence at the trial consisted of testimony of one of the plaintiffs, a sheep rancher from Carbon County, Wyoming, a sheep and cattle rancher and the Acting Commissioner of Agriculture for Wyoming. These witnesses testified to lamb, sheep and cattle losses in Wyoming together with the levels of use of the three toxicants in question over the years 1965-74. Also introduced by the plaintiffs-appellees was the Cain Report together with the 1974 Predator Survey published by the Department of the Interior showing sheep loss figures for various years. Other evidence included depositions and exhibits which dealt with sheep loss figures.
If the Environmental Protection Agency was subject to the NEPA requirement that there be a study and the preparation of an impact statement prior to the issuance of the P.R. Notice 72-2, in other words is not immune from such preparation by reason of the fact that its function requires consideration of environmental factors, then the trial court would have had jurisdiction to halt the proceedings until such an impact statement had been issued unless it could be said...
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