Defenders of Wildlife v. Administrator, EPA, Civ. No. 4-86-687.

• Decision Date: 11 April 1988
• Docket Number: Civ. No. 4-86-687.
• Citation: 688 F. Supp. 1334
• Parties: DEFENDERS OF WILDLIFE, the Sierra Club, and Friends of Animals and their Environment, Plaintiffs, v. ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY; and Secretary, Department of the Interior, Defendants, and American Farm Bureau Federation, a non-profit corporation, Intervenor-Defendant.
• Court: U.S. District Court — District of Minnesota

688 F. Supp. 1334

DEFENDERS OF WILDLIFE, the Sierra Club, and Friends of Animals and their Environment, Plaintiffs, v. ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY; and Secretary, Department of the Interior, Defendants, and American Farm Bureau Federation, a non-profit corporation, Intervenor-Defendant.

Civ. No. 4-86-687.

United States District Court, D. Minnesota, Fourth Division.

April 11, 1988.

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Brian B. O'Neill, Faegre & Benson, Minneapolis, Minn., for plaintiffs.

Charles R. Shockey, U.S. Dept. of Justice, Washington, D.C., for defendants Adm'r of E.P.A., and Secretary, Dept. of the Interior.

Richard L. Krause, American Farm Bureau Federation, Park Ridge, Ill., for intervenor-defendant, American Farm Bureau Federation.

MEMORANDUM OPINION AND ORDER

DIANA E. MURPHY, District Judge.

Plaintiffs Defenders of Wildlife, the Sierra Club, and Friends of Animals and Their Environment, bring this action challenging the registration of strychnine pesticide and rodenticide (strychnine) for certain above-ground uses. Defendants are the Administrator of the Environmental Protection Agency (EPA), who has responsibility for registering products containing strychnine, and the Secretary of the Interior, who is required to consult with the EPA and recommend safeguards when strychnine use might jeopardize any endangered or threatened species. Intervenor-defendant American Farm Bureau Federation represents farmers and ranchers who use strychnine to control rodents.¹

This action is brought under several federal statutes: the Endangered Species Act (ESA), 16 U.S.C. §§ 1531-1543 (1982); the Migratory Bird Treaty Act (MBTA), 16 U.S.C. § 703 et seq. (1974); the Bald and Golden Eagle Protection Act (BGEPA), 16 U.S.C. § 668 et seq. (1986); the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332 (1975); and the Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq. (1966). The complaint alleges that defendants have, by their continuing approval of strychnine for certain above-ground uses, illegally "taken"² threatened and endangered species in violation of several Acts. It further alleges that defendants failed to assist the recovery of species, failed to prepare an environmental impact statement regarding the effects of continued registration of strychnine, and have acted arbitrarily and capriciously throughout the strychnine registration process, in violation of the APA. Jurisdiction is alleged under 28 U.S.C. § 1331 and 16 U.S.C. § 1540(g)(1).

Plaintiffs want injunctive and declaratory relief and attorney's fees. Plaintiffs seek to rescind a March, 1987 "Notice of Intent" by the EPA which permits continued use of strychnine; an injunction requiring the EPA to adopt instead a more restrictive 1983 "Notice of Intent to Cancel" strychnine; and a court order requiring defendants to engage in further study on the effect of continued above-ground strychnine use on threatened and endangered species.

Before the court are cross motions for dismissal and for summary judgment by plaintiffs, defendants, and intervenor-defendant.³ Plaintiffs seek summary judgment on all claims except count 6—the NEPA challenge, for which they seek dismissal without prejudice. Defendants move for dismissal for failure to state a claim and for lack of standing, and they seek summary judgment on all counts.⁴ All parties agree that there are no disputed material facts and that the entire matter should be resolved on these motions. They disagree somewhat on the proper record. Defendants urge that the APA claims should be based solely on the administrative record which was before the EPA at the time of the pre-1987 administrative actions. Plaintiffs argue that more than the administrative record is involved since their challenge is broader than an appeal of administrative action.

I.

Strychnine, or strychnine sulfate (strychnine) is the active ingredient in numerous pesticides and rodenticides. Until recently many of these were registered by the EPA for numerous above-ground uses to control rodents, lagomorphs (rabbits, hares, and pikas), and birds. EPA Strychnine Position Paper 4, at 1 (September 30, 1983), EPA Ex. No. 265⁵ (hereafter P.D. 4). Strychnine is most commonly used as a grain bait, and is primarily used against ground squirrels and prairie dogs. P.D. 4, at 1. Up to one-half million pounds annually of strychnine bait is used, primarily in western states for rodent control in rangeland, pasture and cropland. P.D. 4, at 1.

EPA regulations require that baits be placed in a manner in which the targeted species alone is likely to ingest the poison. Strychnine is non-selective, however; it kills anything which ingests a lethal dose. Mortality can occur to both "target" and "non-target" species—non-target being any species which the strychnine is not intended to kill, but which nonetheless ingests it. Primary poisoning occurs when a lethal dose of strychnine is directly ingested by consuming the grain bait. Mortality can also occur through "secondary poisoning" when a carnivore ingests a lethal dose by consuming an animal or bird which has ingested strychnine or a carcass with un-metabolized strychnine. See EPA Strychnine Position Paper P.D. 2/3, at 25 (September 1980); EPA Ex. No. 78, (P.D. 2/3).

Strychnine is registered by the EPA under the procedures established by the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. § 136 et seq. (1979). Both registration and cancellation of a controlled pesticide involves a process formerly known as a Rebuttable Presumption Against Registration (RPAR) and now called Special Review.⁶ The burden is on proponents of a challenged use of a controlled pesticide to prove that it does not have any unreasonably adverse effect on the environment. 7 U.S.C. § 136a(c). The EPA may cancel or modify a registration when evidence arises that the pesticide may be causing unreasonable adverse effects. The RPAR is concluded by a "Notice of Determination" where the agency explains whether the presumption of risk is rebutted, and explains any changes in the registration.

The challenge against above-ground strychnine use at issue here formally began in 1976 when the EPA began the review of potentially adverse effects of strychnine. The review resulted in EPA Position Document 1, (October 27, 1976); EPA Ex. No. 23, (P.D. 1). Later that year the EPA published a Rebuttable Presumption Against Registration, 41 Fed.Reg. 52810 (December 1, 1976), EPA Ex. No. 28, which required registrants to come forward with evidence rebutting the presumption that continued registration exceeded a permissible level of risk. The registrants were required to address whether all continued outdoor above-ground use of strychnine would cause acute toxicity to non-target species and fatality to endangered species. The EPA received numerous response from federal and state agencies, agricultural groups, and individuals.

As part of the RPAR process, the United States Fish and Wildlife Service (FWS), a division administered by defendant Secretary of the Department of the Interior, began a "jeopardy investigation" pursuant to ESA Section 7, 16 U.S.C. § 1536(c) (a "Section 7" investigation). The FWS is charged with determining at the earliest possible time if agency action may affect endangered or threatened species. The FWS reports its findings by issuing a biological opinion. In 1979, the FWS issued a biological opinion to the EPA, summarizing the findings of the Section 7 investigation. EPA Ex. No. 65. The opinion noted 18 endangered species which were "likely to be jeopardized if the above-ground usage of strychnine as presently registered should occur in the areas where these species are found." EPA Ex. No. 65, at 16-29.⁷ No likely jeopardy was found to bald eagles and to peregrine falcons, in part because there was no evidence of mortality to these species attributable to ingestion of strychnine. The biological opinion recommended that above-ground use of strychnine should be prohibited in geographical areas where it might jeopardize the continued existence of the noted species or adversely modify their critical habitat. EPA Ex. No. 65, at 33.

Continuing with the RPAR process, the EPA, in 1980, produced P.D. 2/3. It was based on the EPA's own expertise, on the FWS biological opinion, and on information received during the public comments period. P.D. 2/3 was a preliminary examination of evidence supporting and rebutting the original presumptions which permitted strychnine to be registered. See 45 Fed. Reg. 73602 (November, 1980) EPA Ex. No. 86.⁸ It contained over 100 pages of data and analysis, and suggested cancellation or modifications in the registration of strychnine for dozens of species commonly controlled by above-ground placement of laced baits. See P.D. 2/3, at 100-02. The EPA found likely jeopardy to 16 of the endangered species cited in the biological opinion if strychnine were used in their environment. It also noted special concern for the peregrine falcon and Aleutian Canada goose.⁹ P.D. 2/3, at 31. In 1982 Congress amended the ESA to require the FWS to include in the biological opinion a statement permitting an "incidental taking" if an agency action is likely to harm members of an endangered species without jeopardizing the entire species. This amendment did not affect the 1979 biological opinion.

The EPA's next step in the RPAR process was P.D. 4, issued on September 30, 1983. P.D. 4 adopted in great part the findings and analysis of P.D. 2/3. It reasoned that the likely jeopardy to endangered species outweighed economic benefits to most continued strychnine uses. The document noted that effective alternatives to strychnine were available which posed less threat to non-target species and which were only marginally more expensive. P.D. 4, at 19-26. The EPA noted with particular detail strychnine's impact on six endangered species.¹⁰ It also noted special...