Defenders of Wildlife v. Administrator, E.P.A., s. 88-5242
| Decision Date | 16 August 1989 |
| Docket Number | Nos. 88-5242,88-5243,s. 88-5242 |
| Citation | 882 F.2d 1294 |
| Parties | , 19 Envtl. L. Rep. 21,440 DEFENDERS OF WILDLIFE; the Sierra Club; and Friends of Animals and Their Environment, Appellees, v. ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY; and Secretary, Department of the Interior, Appellants, and American Farm Bureau Federation, a nonprofit corporation, Intervenor-Defendant Below. DEFENDERS OF WILDLIFE; the Sierra Club; and Friends of Animals and Their Environment, Appellees, v. ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY; and Secretary, Department of the Interior, and American Farm Bureau Federation, a nonprofit corporation, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Geoffrey Jarpe, St. Paul, Minn., for American Farm Bureau.
Kathleen Dewey, Washington, D.C., for the Government.
Brian O'Neill, Minneapolis, Minn., for appellees.
Before HEANEY, * FAGG, and WOLLMAN, Circuit Judges.
Several environmental interest groups sued the Administrator of the Environmental Protection Agency (EPA) and the Secretary of Interior (Secretary) to prohibit the above-ground use of pesticides containing strychnine. American Farm Bureau Federation (Farm Bureau), representing farmers and ranchers who use these pesticides, intervened as a defendant. The district court entered partial summary judgment against the defendants, see Defenders of Wildlife v. Administrator, EPA, 688 F.Supp. 1334, 1355 (D.Minn.1988), and the defendants now appeal. After carefully considering the complex issues raised in this case, we affirm in part and reverse in part.
Congress enacted the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) to regulate the use of pesticides in this country. See 7 U.S.C. Secs. 136-136y (1982 & Supp. IV 1986). Under FIFRA, pesticides must be registered with the EPA before they may be sold or distributed. Id. Secs. 136a(a), 136j(a)(1)(A) (1982). The EPA may approve an application for registration only after determining that when used in compliance with "commonly recognized practice," the pesticide will "perform its intended function without unreasonable adverse effects on the environment." Id. Sec. 136a(c)(5)(C)-(D) (1982). If, at any time, the EPA believes a registered pesticide fails to meet this standard, the EPA may initiate an administrative process to cancel the registration. The EPA does so by publishing a Notice of Intent to Cancel. See id. Sec. 136d(b)(1) (1982). Registrants and users of the pesticides may request an administrative hearing and later obtain judicial review of the EPA's final decision on cancellation. See id. Secs. 136d(b), 136n (1982 & Supp. IV 1986).
With that statutory background, we turn to the present case. Strychnine is an active ingredient in several pesticides registered with the EPA. This poison is highly toxic and kills both target and nontarget species of wildlife. In midwestern and western states, farmers and ranchers use strychnine to control rodents that may harm their land or crops. These users often place strychnine in grain bait, and the bait attracts the target species. Nontarget species die when they eat either the bait or the poisoned rodent. Thus, environmental groups have become concerned about the threat strychnine poses to protected species of wildlife.
In the 1970s, the EPA began to reconsider the above-ground use of strychnine and issued a Rebuttable Presumption Against Registration (RPAR), 40 C.F.R. Sec. 162.11 (1976). See 41 Fed.Reg. 52,810 (1976); see also 40 C.F.R. pt. 154 (1987) (). While the EPA gathered more information and developed its analysis, the EPA issued several "Position Documents." The documents detailed the risks and benefits of strychnine and stated proposed EPA action. The EPA also consulted the Fish and Wildlife Service (FWS), an agency representing the Secretary, about the impact of strychnine on protected species. See Endangered Species Act (ESA), 16 U.S.C. Sec. 1536(a)(2) (1982) ().
The FWS issued a biological opinion in 1979 that indicated several protected wildlife species were likely to be jeopardized by strychnine use. Id. Sec. 1536(b)(3)(A) (1982). As required by the ESA, the FWS also recommended "reasonable and prudent alternatives" to avoid jeopardy to the extent these alternatives existed. See id.; see also id. Sec. 1536(a)(2). The black-footed ferret was among the animals and birds listed. Because these ferrets often live near prairie dogs, the FWS indicated that strychnine use against prairie dogs should be prohibited if ferrets were present. The FWS later indicated that it could not verify to an acceptable level of probability the absence of ferrets in a prairie dog colony.
The EPA continued its study of strychnine and in 1983 issued a Notice of Intent to Cancel under FIFRA. See 48 Fed.Reg. 48,522 (1983). The notice indicated the EPA intended to cancel several strychnine registrations, including registrations for use against meadow mice and prairie dogs. The notice also indicated an intent to cancel the registration for use against ground squirrels unless the registrants implemented further restrictions. Wyoming and South Dakota requested an administrative hearing on cancellation of registrations for meadow mice, prairie dogs, and ground squirrels. See 7 U.S.C. Sec. 136d(b) (1982). These three registrations remained in force during the administrative process. See id. Sec. 136d(c) (1982 & Supp. IV 1986) (a challenged registration remains in effect during pending cancellation proceedings unless EPA suspends registration). The 1983 notice became final regarding other strychnine registrations.
Defenders of Wildlife, Sierra Club, Farm Bureau, FWS, and the United States Department of Agriculture intervened in the FIFRA proceeding. After some preliminary stages of the proceeding had occurred but before the hearing had commenced, the parties entered settlement discussions. These discussions lasted from 1984 to 1986. During this period, the EPA reinitiated formal consultation with the FWS regarding the strychnine threat to black-footed ferrets. In November 1984, the FWS issued a second biological opinion. The FWS concluded that jeopardy could be avoided through a precontrol survey for ferrets living near the target prairie dog colony.
All parties reached an oral agreement on settlement. The agreement generally permitted the continued above-ground use of strychnine as a pesticide, but restricted the use to a greater extent than under the old registrations. When the agreement was reduced to writing, Defenders of Wildlife and Sierra Club had misgivings and refused to sign the written agreement. These environmental groups notified the administrative law judge of their objections and requested that a hearing take place. All other parties signed the agreement.
Although the EPA indicated it would listen to the environmentalists' concerns, the EPA believed it had no obligation to hold an administrative hearing at the urging of these groups. See Environmental Defense Fund, Inc. v. Costle, 631 F.2d 922, 932-37 (D.C.Cir.1980) (), cert. denied, 449 U.S. 1112, 101 S.Ct. 923, 66 L.Ed.2d 841 (1981). Thus, an administrative hearing never occurred.
In August 1986, when it appeared the EPA intended to go forward with the settlement agreement, Defenders of Wildlife, Sierra Club, and Friends of Animals and Their Environment (collectively Defenders) filed suit in federal district court. Defenders asserted that the EPA and the Secretary had violated several federal wildlife statutes through their actions regarding strychnine: (1) the Endangered Species Act (ESA), 16 U.S.C. Secs. 1531-1543 (1982 & Supp. V 1987); (2) the Bald and Golden Eagle Protection Act (BGEPA), 16 U.S.C. Secs. 668-668d (1982); and (3) the Migratory Bird Treaty Act (MBTA), 16 U.S.C. Secs. 703-712 (1982 & Supp. V 1987).
The ESA establishes a private right of action. See 16 U.S.C. Sec. 1540(g)(1) (1982) (citizen suit provision). Defenders relied on this provision as a basis for jurisdiction on the ESA claim. Neither the BGEPA nor the MBTA provides a private right of action. Thus, Defenders relied on a combination of these two environmental statutes, the Administrative Procedure Act (APA), 5 U.S.C. Secs. 551-559, 701-706 (1982 & Supp. IV 1986), and the federal question statute, 28 U.S.C. Sec. 1331 (1982), to form an independent basis of jurisdiction. Finally, Defenders asserted the federal defendants had violated the APA by acting arbitrarily, capriciously, and not in accordance with the law, 5 U.S.C. Sec. 706(2)(A) (1982).
Some months after filing suit, Defenders submitted the information they had compiled on poisonings of protected species (the Kill Book) to the EPA. The EPA began to review the Kill Book, but nevertheless published the settlement agreement as its final decision in March 1987. See 52 Fed.Reg. 6762 (1987). In September 1987, over one year after the filing of this suit, the EPA reinitiated consultation with the FWS. The EPA did so based on the Kill Book. The FWS issued two additional biological opinions just after the district court ruled in this case.
All parties filed summary judgment motions, and the district court held a hearing on those motions. The court rejected several of the defendants' assertions, including that FIFRA provided the exclusive remedy for Defenders and that Defenders had failed to exhaust their remedies under FIFRA. Defenders of Wildlife v. Administrator, EPA, 688 F.Supp. 1334, 1342-43 (D.Minn.1988). For purposes of its review, the court also found the EPA took final agency...
To continue reading
Request your trial
-
American Rivers v. U.S. Army Corps of Engineers
...almost absolute presumption in favor of the endangered species") (emphasis added), aff'd in part, rev'd in part on other grounds, 882 F.2d 1294 (8th Cir.1989); Strahan v. Coxe, 127 F.3d 155, 160 (1st Cir.1997) (applying a two-part preliminary injunction standard to ESA cases because "the ba......
-
Strahan v. Linnon, Civ. A. No. 94-11128-DPW.
...F.2d 1106 (9th Cir.1988) (holding permitting of sheep in habitat of endangered bird was a "taking"); Defenders of Wildlife v. Administrator, EPA, 882 F.2d 1294, 1300-01 (8th Cir.1989) (holding EPA violated the ESA by registering pesticides containing strychnine, which killed endangered anim......
-
Iowa Utilities Bd. v. F.C.C.
...such special statutory review procedures Page 804 are intended to be the exclusive means of review. See Defenders of Wildlife v. Administrator, EPA, 882 F.2d 1294, 1299 (8th Cir.1989); City of Rochester v. Bond, 603 F.2d 927, 931 (D.C.Cir.1979). We afford subsection 252(e)(6) our traditiona......
-
Ctr. for Biological Diversity v. Envtl. Prot. Agency
...FIFRA itself to avoid "unreasonable adverse effects on the environment." 7 U.S.C. § 136a(c)(5)(C), (D) ; see Defs. of Wildlife v. EPA , 882 F.2d 1294, 1299 (8th Cir. 1989). Congress enacted the ESA to conserve species and their ecosystems, 16 U.S.C. § 1531(b), and to "halt and reverse the t......
-
Environmental crimes.
...pesticide residues in foods even if the chemicals posed only de minimis risk of cancer). (563.) See Defenders of the Wildlife v. EPA, 882 F.2d 1294, 1299 (8th Cir. 1989) (stating that a pesticide registration that does not follow the mandates of the ESA would likely adversely effect the (56......
-
Environmental crimes.
...pesticide residues in foods even if the chemicals posed only de minimis risk of cancer). (572.) See Defenders of the Wildlife v. EPA, 882 F.2d 1294, 1299 (8th Cir. 1989) (stating that a pesticide registration that does not follow the mandates of the ESA would likely adversely affect the (57......
-
Federal Agency Conservation Obligations and Consultation Under §7 of the ESA
...268 267. Defenders of Wildlife v. Administrator, 688 F. Supp. 1334, 18 ELR 20960 (D. Minn. 1988), af’d in part, rev’d in part , 882 F.2d 1294, 19 ELR 21440 (8th Cir. 1989). 268. Sierra Club v. Yeutter, 926 F.2d 429, 21 ELR 20755 (5th Cir. 1991). ...
-
Environmental crimes.
...pesticide residues in foods even if the chemicals posed only a de minimis risk of cancer). (582.) See Defenders of Wildlife v. EPA, 882 F.2d 1294, 1299 (8th Cir. 1989) (stating that a pesticide registration that does not follow the mandates of the ESA would likely adversely affect the (583.......