Kelley v. Butz, M-74-87.

• Decision Date: 29 May 1975
• Docket Number: No. M-74-87.,M-74-87.
• Citation: 404 F. Supp. 925
• Parties: Frank J. KELLEY, Attorney General for the State of Michigan, on behalf of the People of the State of Michigan, Plaintiff, v. Earl BUTZ, Secretary, Dept. of Agriculture, U. S. of America, Washington, D. C., et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

404 F. Supp. 925

Frank J. KELLEY, Attorney General for the State of Michigan, on behalf of the People of the State of Michigan, Plaintiff, v. Earl BUTZ, Secretary, Dept. of Agriculture, U. S. of America, Washington, D. C., et al., Defendants.

No. M-74-87.

United States District Court, W. D. Michigan, N. D.

May 29, 1975.

COPYRIGHT MATERIAL OMITTED

Frank J. Kelley, Atty. Gen., Stewart H. Freeman, Charles Alpert, Robert N. Rosenberg, S. David Kutinsky, Asst. Attys. Gen., Environmental Protection & Natural Resources Div., Lansing, Mich., for plaintiff.

Frank Spies, U. S. Atty., Grand Rapids, Mich., for defendants.

OPINION

MILES, District Judge.

Plaintiff seeks injunctive relief in order to prevent the United States Forest Service of the Department of Agriculture from spraying by helicopter approximately 84 acres of the Ottawa National Forest in Ontonagon County, Michigan with a mixture of the chemical defoliants 2,4D and 245-T.¹ Upon plaintiff's petition, and in order to preserve the status quo pending a more complete hearing, this Court issued a Temporary Restraining Order on August 8, 1974. Hearing was then held on plaintiff's motion for a preliminary injunction on August 23 and 24, 1974. In the hearing, plaintiff contended that, as presently constituted, the project violates the National Environmental Policy Act of 1969² (N.E.P.A.) and the Federal Insecticide, Fungicide and Rodenticide Act (F.I.F.R.A.).³ Plaintiff argued that since this is a project for which an environmental impact statement must be filed under NEPA, failure by defendants to do so violates the Act. Plaintiff further argued that the procedures intended to be used by defendants in spraying violate FIFRA because they are inconsistent with instructions contained on the labels of the above identified herbicides. Defendants moved for dismissal and/or summary judgment, arguing with respect to FIFRA that plaintiff has no standing to raise this issue, and with respect to NEPA, that this is not a project which requires an environmental impact statement under the Act, and that even if it were, an impact statement entitled "The Use of Herbicides in the Eastern Region" covers the project and fulfills the NEPA requirements. These motions were taken under advisement and the parties proceeded to present a large volume of very enlightening evidence and testimony.

I. N.E.P.A.

1. Overview

Section 102 of NEPA provides the focal point for the issues raised by the parties with respect to this statute.⁴ The requirements of this section, which the Courts have interpreted, purport to set a strict standard of compliance that is not inherently flexible. The principle has been outlined in a number of major decisions. See generally, Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323 (4th Cir. 1972), cert. denied, 409 U.S. 1000, 93 S.Ct. 312, 34 L.Ed.2d 261; Natural Resources Defense Council, Inc. v. Morton, 148 U.S. App.D.C. 5, 458 F.2d 827 (1972); Greene County Planning Board v. Federal Power Commission, 455 F.2d 412 (2d Cir. 1972), cert. denied, 409 U.S. 849, 93 S.Ct. 56, 34 L.Ed.2d 90; Calvert Cliffs' Coordinating Committee v. Atomic Energy Commission, 146 U.S. App.D.C. 33, 449 F.2d 1109 (1971).

The Sixth Circuit views NEPA in this light:

"The congressional mandate is clear. Federal officials are to appraise continuously all of their activities not only in terms of strict economic or technological considerations but also with reference to broad environmental concerns. They are to coordinate hitherto separate operations so that undesirable environmental effects may be perceived and minimized. Subject only to the limitation of practicability, they are to strive constantly to improve federal programs to preserve and enhance the environment. In other words, federal officials are required to assume the responsibility that the Congress recognized, in section 101(c) of the NEPA, as the obligation of all citizens: to incorporate the consideration of environmental factors into the decision-making process . . ." Environmental Defense Fund v. Tennessee Valley Authority, 468 F.2d 1164, 1174 (6 Cir. 1972).

This circuit has also endorsed the interpretation advanced in the pivotal Calvert Cliffs', supra case:

"The statutory requirement of an impact statement `seeks to ensure that each agency decision maker has before him and takes into proper account all possible approaches to a particular project (including total abandonment of the project) which would alter the environmental impact and the cost-benefit balance. Only in this fashion is it likely that the most intelligent, optimally beneficial decision will ultimately be made. Moreover, by compelling a formal "detailed statement" and a description of alternatives NEPA provides evidence that the mandated decision making process has in fact taken place and, most importantly, allows those removed from the initial process to evaluate and balance the factors on their own.' Calvert Cliffs' Coordinating Committee, Inc. v. United States Atomic Energy Commission, 146 U.S.App.D.C. 33, 449 F.2d 1109, 1114 (D.C.Cir. 1971), 17 A.L.R. Fed. 1." Natural Resources Defense Council v. Tennessee Valley Authority, 502 F.2d 852, p. 853 (6 Cir. 1974).

2. Scope of Review

Before turning directly to a consideration of the arguments that have been advanced in this aspect of the case, however, we must first determine the scope of review open to us under these particular circumstances. Specifically before us here, with regard to a potential violation of NEPA, is the decision by a member of the Forest Service (Deputy Forest Supervisor) that an environmental impact statement was not needed for this spray project.

Section 701 of the Administrative Procedure Act, 5 U.S.C. § 701, provides for judicial review of the actions of "each authority of the Government of the United States" except where such review is prohibited by statute or "agency action is committed to agency discretion by law." This section has been expansively construed by the Supreme Court and the exceptions have been held only to apply to situations in which there is a "showing of `clear and convincing evidence' of a . . . legislative intent" restricting review, Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 1511, 18 L.Ed. 2d 681 (1967), or in which the statutes involved are so broadly drawn that in a given situation there is "no law to apply." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 28 L.Ed.2d 136 (1970). Neither of these exceptions apply to the instant case. A review of both the laws establishing the National Forest system⁵ and NEPA show that neither seeks to restrict judicial review in the ways mentioned above. At the same time, it is abundantly clear that there is "law to apply" here, thus rendering the "committed to agency discretion" expection inapposite. This Court, therefore, does have the power to undertake consideration of this agency action.

This result does not, however, end our threshold inquiry, for we must also examine the standards under which such review is to be conducted. Again Overton Park, supra, is helpful. There, the Court was asked to consider the propriety of a decision by the Department of Transportation to construct a highway through a public park.⁶ The Court held that Section 706 of the Administrative Procedure Act, 5 U.S.C. Section 706,⁷ provided the necessary guidance. In addition, the Court found that under this statute, the limits of review are circumscribed. The decision at issue normally enjoys a presumption of regularity, and the reviewing Court has no power to substitute its judgment for that of the agency. Citizens to Preserve Overton Park, Inc., supra, 401 U.S. at 415-416, 91 S.Ct. 814. Nonetheless, the Court is still to make a "thorough, probing, in-depth review." (Id. at 415, 91 S.Ct. 814).

Based on these authorities, this Court concludes (as did Judge Kinneary) that ". . . the legality, not the wisdom, of the . . . actions is at issue." Citizens Organized to Defend Environment v. Volpe, 353 F.Supp. 520, 526 (S.D.Ohio 1972). In this regard, under Section 706 of the Administrative Procedure Act, the reviewing court is provided with the authority to set aside agency actions under certain conditions. Two of those conditions are particularly appropriate here. They are: "(A) arbitrary, capricious, and abuse of discretion, or other not in accordance with law . . .; (d) without observance of procedure required by law." 5 U.S. C. Section 706(2)(A)(D).

Mindful of the limits of our power in this area and guided by the standards set forth above, this Court will approach the merits of this branch of the case.

3. Balancing Interests

Plaintiff argues that the proposed spraying action is a "major Federal action significantly affecting the quality of the human environment" for which, under NEPA an environmental impact statement must be made. Defendants' first response is that this project does not fit the statutory description. The factual underpinning for this contention comes from the decision of the Deputy Forest Supervisor for the Ottawa National Forest that this action did not require an impact statement. That decision is documented in an "Environmental Analysis" prepared during July and August of 1974, and which is reproduced in the Appendix.⁸

The project in question was recommended by the District Ranger of the United States Forest Service who testified that the purpose of the spraying "was to release the pine planted on the earth from being overtopped by various hardwoods and broad leaf species." (T.T. 111).⁹

At the outset, we must bear in mind that, as is frequently the case, the administrator must balance a number of different and potentially conflicting mandates. On the one hand, the Organic Act of 1887, 16 U.S.C. 471, which established the National Forest system, set forth "the furnishing of a continuous supply of timber for the use . . . of citizens of the United...