Oregon Environmental Council v. Kunzman

• Decision Date: 12 May 1987
• Docket Number: Nos. 85-4266,85-4308 and 86-3779,s. 85-4266
• Citation: 817 F.2d 484
• Parties: , 17 Envtl. L. Rep. 20,756 OREGON ENVIRONMENTAL COUNCIL, Citizens for the Safe Control of the Gypsy Moth, Elaine Olsen and Glen Olsen, Plaintiffs-Appellants, and Friends of the Earth; National Coalition Against the Misuse of Pesticides, Plaintiffs/Intervenors-Appellants, v. Leonard KUNZMAN, Director, State of Oregon, Department of Agriculture, State of Oregon, Department of Agriculture, United States Department of Agriculture, John R. Block, Secretary, United States Department of Agriculture, et al., Defendants-Appellees, and Oregonians for Food and Shelter, Inc., Defendant/Intervenor-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 484

817 F.2d 484

25 ERC 2066, 17 Envtl. L. Rep. 20,756

OREGON ENVIRONMENTAL COUNCIL, Citizens for the Safe Control of the Gypsy Moth, Elaine Olsen and Glen Olsen Plaintiffs-Appellants and Friends of the Earth; National Coalition Against the Misuse of Pesticides, Plaintiffs/Intervenors-Appellants, v. Leonard KUNZMAN, Director, State of Oregon, Department of Agriculture, State of Oregon, Department of Agriculture United States Department of Agriculture, John R. Block Secretary, United States Department of Agriculture, et al., Defendants-Appellees, and Oregonians for Food and Shelter, Inc., Defendant/Intervenor-Appellee.

Nos. 85-4266, 85-4308 and 86-3779.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 4, 1986.

Decided May 12, 1987.

Michael Axline and John E. Bonine, Eugene, Or., and Larry Sokol, Portland, Or., for plaintiffs-appellants.

Ralph A. Bradley, Eugene, Or., for plaintiffs/intervenors-appellants.

Dorothy R. Burakreis, Peter R. Steenland, Jr., and Albert M. Ferlo, Jr., F. Henry Habicht, II, Dirk D. Snel, Washington, D.C., for defendants-appellees.

John DiLorenzo, Jr., and Brendan Stocklin-Enright, Portland, Or., for defendant/intervenor-appellee.

Appeal from the United States District Court for the District of Oregon.

Before WRIGHT, GOODWIN and NELSON, Circuit Judges.

NELSON, Circuit Judge:

In these consolidated appeals, we review (1) a ruling that an environmental impact statement ("EIS") for an insecticide spraying program to combat infestations of gypsy moths satisfies the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. Sec. 4332(C) (1982), and its implementing regulations, 40 C.F.R. Secs. 1500-1508 (1986), and (2) the denial of attorneys' fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. Sec. 2412(d)(1)(A) (Supp.III 1985), for certain parts of this litigation. We affirm on the adequacy of the EIS. On the attorneys' fees issues, we affirm in part and vacate and remand in part.

I. PROCEDURAL BACKGROUND

This litigation commenced in 1982, when Oregon Environmental Council, Citizens for the Safe Control of the Gypsy Moth, and two Oregon residents (collectively "OEC") brought suit to enjoin various state and federal officials, including the U.S. Secretary of Agriculture ("the Secretary"), from performing or authorizing aerial spraying of carbaryl, a chemical insecticide, in a federally assisted state program to eradicate gypsy moths in a populated, residential area of South Salem, Oregon. OEC challenged the adequacy of a Programmatic Environmental Impact Statement ("the 1982 PEIS") that had been developed for spraying in forested areas of the northeastern United States and a three-page environmental assessment ("EA") describing the South Salem spraying program. The litigation progressed in four phases.

Phase I ended in 1983, when the Ninth Circuit held that the 1982 PEIS and EA did not satisfy NEPA's requirements for the South Salem spraying program. Oregon Environmental Council v. Kunzman, 714 F.2d 901, 904-05 (9th Cir.1983) [hereinafter OEC I ]. We determined that the differences between spraying in forested regions under the 1982 PEIS and spraying in cleared, suburban and urban areas were "too significant for compliance with NEPA." Id. at 905. We noted that the 1982 PEIS did not discuss the effects of direct contact with carbaryl, of contact by children or sensitive individuals, and of new techniques for combatting gypsy moths. See id. at 904-05. On remand, the district court enjoined the defendants from spraying carbaryl in Oregon until the preparation of a legally adequate EIS. It retained jurisdiction to review the adequacy of such an EIS and awarded OEC attorneys' fees under the EAJA for its work in Phase I Phase II began in March 1984 with the issuance of a new EIS ("the 1984 EIS"), which OEC challenged on numerous grounds. Two national environmental organizations, Friends of the Earth and the National Coalition Against the Misuse of Pesticides (collectively "FOE"), filed a complaint in intervention. Trial was scheduled for September 25, 1984, and a pretrial conference was set for August 31, 1984. On August 20, 1984, the federal defendants withdrew the contested 1984 EIS in order to supplement it. Because no final agency action then existed, the court dismissed OEC's challenge to the 1984 EIS, but granted its request for injunctive relief based on the Secretary's representation that no action would be taken until the EIS was supplemented. The court again retained jurisdiction to review the sufficiency of a final EIS.

Phase III commenced in March 1985 with the issuance of the final EIS, as supplemented ("the 1985 EIS"), which OEC and FOE again challenged. This EIS recommended "integrated pest management" to control gypsy moths, a program that permitted the use of chemical and/or biological insecticides. After trial, the district court found that the main text of the 1985 EIS was legally adequate, but that the worst case analysis in Appendix F violated 40 C.F.R. Sec. 1502.8, which requires that an EIS be written in "plain language." The court enjoined the use of carbaryl and three other chemical insecticides (trichlorfon, acephate, and diflubenzuron) in Oregon effective immediately and on a nationwide basis effective January 1, 1986. Oregon Environmental Council v. Kunzman, 614 F.Supp. 657, 665-66 (D.Or.1985) [hereinafter OEC II ].

OEC and FOE sought attorneys' fees under the EAJA for their work in Phases II and III. On October 4, 1985, the district court denied fees for both phases, holding that in Phase II the plaintiffs were not "prevailing parties" under the EAJA and that in Phase III, although the plaintiffs were prevailing parties, the government's position was "substantially justified." OEC and FOE both appealed (Nos. 85-4266, 85-4308).

Phase IV began in early 1986 with the issuance of an addendum to the 1985 EIS ("the 1986 Addendum"), which included a "plain language version" of the worst case analysis. In April 1986, the district court found that the worst case analysis met the readability and other requirements, and lifted the injunction. Oregon Environmental Council v. Kunzman, 636 F.Supp. 632, 640-41 (D.Or.1986) [hereinafter OEC III ]. OEC and FOE appealed (No. 85-3779).

II. THE 1985 EIS AND THE 1986 ADDENDUM

A few words are in order on the documents that are the focal point of the latest round of this strenuously and well litigated controversy. The 1985 EIS includes an 8-page summary, a 78-page main text, lists of preparers and 145 references, an index, and a glossary defining 90 terms. Eight appendices include EPA reports on N-nitrosocarbaryl and carbaryl; data on the history of gypsy moth eradication; comments on the draft documents and responses; a 134-page worst case analysis (Appendix F); a 43-page "plain language version" of Appendix F (Appendix H); and further information on Appendices F and H (Appendix I).

The EIS's statement of purpose and need for action describes the history of the gypsy moth in the United States and the attempts to control it. The gypsy moth, Lymantria dispar L., native to Europe, Asia, and Africa, was accidentally released in Massachusetts in 1869. From 1889, when an outbreak of gypsy moth larvae first threatened severe tree defoliation, until the late 1950s, state and federal agencies used a variety of compounds, including dichloro-diphenyl-trichloroethane (DDT), to control infestations in New England. With the phasing out of DDT in the 1960s and 1970s, new compounds were developed--carbaryl, trichlorfon, acephate, and diflubenzuron. Almost two million pounds of carbaryl were used in gypsy moth programs in the northeastern United States between 1962 and 1977.

Despite these efforts, the gypsy moth spread to the mid-Atlantic states by the 1970s and has appeared as far south as South Carolina, in certain mid-western states, and in California and Oregon. The EIS reports that gypsy moths defoliated 11,955,486 acres between 1924 and 1969, 11,640,705 acres between 1970 and 1979, and 29,425,328 acres between 1980 and 1984. It estimates that, as of 1980, economic losses to home owners, forest industries, and recreation areas have totaled $272 million.

The EIS evaluates four alternatives for the gypsy moth problem: (1) no action, (2) the four chemical insecticides, (3) the biological insecticide Bacillus thuringiensis, to which appellants do not object, and (4) the selected alternative, integrated pest management, which permits the use of both chemical and biological insecticides. The EIS identifies mitigating measures and the affected environment--tree species susceptible to gypsy moths, nontarget organisms that the insecticides would affect, ¹ and geographical areas. The analysis of the environmental consequences concludes that realistic dose levels (and certain worst case dose exposures) for the four chemical insecticides are below the acceptable daily intake level and estimates that certain worst case risks of human cancer and heritable mutations range from the order of 1 in 100,000,000 to the order of 1 in 1,000,000. The highest worst case cancer risk (for acephate) is on the order of 1 in 100,000.

The 1985 EIS and 1986 Addendum have the outward indicia of comprehensiveness. See 40 C.F.R. Sec. 1502.10 (1986) (setting forth EIS format). At trial several witnesses testified to the thoroughness of the documents; one stated that he had "never seen a greater effort made to identify all possible avenues of exposure and all reasonably possible exposure contingencies." If the EIS is inadequate, it is not for lack of substantial effort on the part of its preparers. Yet OEC and FOE assign numerous errors in this lengthy document. We address their principal arguments.

III. JURISDICTION IN THE DISTRICT COURT

As a preliminary matter the Secretary argues that, because the State of Oregon has indicated an intention to forgo the use of chemical insecticides, OEC lacks standing. We disag...