882 F.2d 1294 (8th Cir. 1989), 88-5242, Defenders of Wildlife v. Administrator, E.P.A.

Docket Nº:88-5242, 88-5243.
Citation:882 F.2d 1294
Party Name: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 An
Case Date:August 16, 1989
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 1294

882 F.2d 1294 (8th Cir. 1989)

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.

Nos. 88-5242, 88-5243.

United States Court of Appeals, Eighth Circuit

August 16, 1989

Submitted Oct. 17, 1988.

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[Copyrighted Material Omitted]

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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.

FAGG, Circuit Judge.

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.

I. Background

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

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also 40 C.F.R. pt. 154 (1987) (The RPAR process is now called the Special Review process.). 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) (agency, in consultation with Secretary, must insure its action is not likely to jeopardize protected species).

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) (if EPA refuses to take action as restrictive as requested by environmentalists, the agency need not provide an administrative hearing to environmentalists; judicial review of EPA's refusal to act is available), 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)

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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...

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