Salmon River Concerned Citizens v. Robertson, Civ. S-91-217 DFL.

• Decision Date: 15 June 1992
• Docket Number: Civ. S-91-217 DFL.
• Citation: 798 F. Supp. 1434
• Parties: SALMON RIVER CONCERNED CITIZENS, California Coalition for Alternatives to Pesticides, Safe Alternatives for Our Forest Environment, Northcoast Environmental Center, Plaintiffs, v. Dale ROBERTSON, Chief Forester United States Forest Service, United States Department of Agriculture, Defendant.
• Court: U.S. District Court — Eastern District of California

798 F. Supp. 1434

SALMON RIVER CONCERNED CITIZENS, California Coalition for Alternatives to Pesticides, Safe Alternatives for Our Forest Environment, Northcoast Environmental Center, Plaintiffs, v. Dale ROBERTSON, Chief Forester United States Forest Service, United States Department of Agriculture, Defendant.

Civ. S-91-217 DFL.

United States District Court, E.D. California.

June 15, 1992.

Duane C. Miller, Miller and Rolfe, Sacramento, Cal., for California Coalition, Northcoast Environmental, Safe Alternatives and Salmon River.

John Gisla, Asst. U.S. Atty., Sacramento, Cal., for Dept. of Agr. and Dale Robertson.

David H. Dun, Dun and Martinek, Eureka, Cal., Gary G. Stevens, Bogle and Gates, Washington, D.C., for California Forestry Assoc.

ORDER

LEVI, District Judge.

Plaintiffs challenge the sufficiency of the Environmental Impact Statement (EIS) supporting the Regional Forester's decision to authorize the use of herbicides on national forest lands in California and portions of Oregon and Nevada.

FACTUAL AND PROCEDURAL BACKGROUND

One of the Forest Service's objectives under the National Forest Management Act of 1976 is to produce a continuous supply of timber. The Forest Service seeks to meet this objective through reforestation.¹ One impediment to reforestation is the competition the tree seeds and seedlings must endure from other plants for vital resources including soil moisture, nutrients, sunlight and space. The Forest Service, therefore, intervenes to assist tree seedlings through a vegetation management plan. Vegetation management is the manipulation of competing plants on a given site to further reforestation efforts and meet timber yield goals. The Region V Final EIS², which is in dispute in this case, evaluates the use of herbicides as part of a vegetation management plan to assist tree seedlings.

The history of the Final EIS for Region V stretches back many years. An EIS for vegetation management was prepared in 1973. The process of updating this EIS was begun in 1981 and led to the release of a Draft EIS in 1983. Public briefings and hearings were held and various comments received. In 1984, while the draft EIS was under review, the Forest Service determined that further study was required before herbicides could be authorized for use. This decision was made in light of several court decisions that required an agency to undertake a worst case analysis concerning the safety of herbicides.³ On March and April, of 1984, the Chief of the Forest Service and the Regional Forester for Region V placed a moratorium on the use of herbicides in Region V pending completion of a supplemental EIS. A supplement to the draft EIS that specifically addressed the use of herbicides was published in 1986. Responding to court rulings and public comments, the supplement provided a worst case analysis and updated previously considered risks to human health, soils, water quality and wildlife from herbicide use. The supplement was prepared by the Forest Service with assistance from professional consultants, and the draft of the supplement was circulated to interested individuals for comment. The Final EIS, published in December 1988, incorporates and responds to public comments to both the 1983 draft and the 1986 supplement. See EIS, vol. 1, pg. ii, vol. 2, pg. I-2.

The Record of Decision (ROD) by the Regional Forester, adopting the recommendation of the Final EIS, was issued on February 27, 1989. Following the internal administrative appeal process, on January 7, 1991, the Secretary of Agriculture issued a final decision affirming the ROD and lifting the moratorium on herbicide use in Region 5.

The Final EIS presents and evaluates eight alternative vegetation management programs, each employing several methods of controlling vegetation, including mechanical, thermal, manual, chemical and biological controls. Each alternative emphasizes a specific objective, such as cost-effectiveness, maximizing timber production, maximizing employment opportunities, preservation of nontimber resources, or minimizing or prohibiting the use of herbicides. Most of the alternatives allow all methods of vegetation control, but emphasize those methods which would achieve the targeted objective. The only alternatives which limit the methods of vegetation management are alternative 3 (which prohibits the application of herbicides) and alternative 4 (which prohibits only the aerial application of herbicides).

The EIS evaluates the effect of each of the eight alternatives on a number of areas including, soil and water quality, air quality, vegetation, timber yields, forest productivity, wildlife, fisheries, endangered animals and plants, human health and safety, cultural resources, and scenic quality. The socioeconomic effects of the various alternatives are evaluated including the economic efficiency and cost of the alternative approaches.

The human health and safety evaluation of the various alternatives considers risks to forest workers and to the public. The EIS includes a lengthy worst case and risk analysis to evaluate the potential health effects from herbicides. This analysis of human health risks has all the outward "indicia of comprehensiveness." Oregon Environmental Council v. Kunzman, 817 F.2d 484, 491 (9th Cir.1987). The worst case analysis substitutes for gaps in the existing data concerning, "(1) Health effects of the herbicides seen in humans; (2) Animal studies for certain toxicity end-points (for example, cancer studies); (3) Exposure studies on humans." EIS at 4-65. To compensate for the gaps in the data, the EIS undertakes a risk analysis that examines the following kinds of potential exposure to herbicides: from normal ground spraying to workers and the public, from normal aerial spraying risks to workers and the public, general and specific risks from abnormal operations, and accident risks. For each of these categories a realistic case, conservative case and worst case exposure is assumed, and the risks calculated accordingly. The estimates are based upon exposure caused by spray drift, by contact with dried herbicide on vegetation, by ingestion of food or water contaminated in aerial or ground applications, and by inhalation by persons who burn contaminated firewood. Id. at 4-80. The EIS attempts to cumulate the doses a person might receive through different routes, for instance adding the spray drift exposure to the contaminated food and water dose. The maximum exposed individual (MEI) dose combines the risk from spray drift, inhalation of vapor from burning contaminated firewood, and the contaminated food and water dose. Finally, the lifetime exposure risk for a 70-year lifetime is calculated for analysis of cancer risk. In this analysis, the EIS assumes that in the realistic case a member of the public might be exposed to spray drift three times in a 70-year lifetime, six times in the conservative case, and nine times in the worst case. Another estimate of lifetime cancer risks for hikers or backpackers in the sprayed areas assumed 70 to 700 exposures in a 70 year lifetime.

Based upon its evaluation of the different alternative vegetation management techniques, the Final EIS selects a recommended alternative that emphasizes local management and permits local forest managers to use herbicides where essential to achieve resource management objectives. In the ROD the Regional Forester adopted the alternative recommended in the EIS. In reaching this decision the Regional Forester relied on five considerations:

(1) should treatment method selection authorities, historically delegated to the National Forests, be wholly or partially withdrawn to the Regional level?; (2) effects of herbicides on health risk to the general public and workers; (3) effects on nontimber resources; (4) effects on timber yield and their influence on employment and local economies; (5) feasibility of implementation.

ROD at 2.

The EIS is a programmatic statement that provides general guidance to the national forests in Region V on appropriate vegetation control during reforestation projects. The EIS does not initiate or compel any treatment projects. By emphasizing the discretion of local forest managers, the EIS leaves the decision whether to use herbicides to the local manager. The EIS intends that site-specific analysis, including environmental analyses, will be part of any actual project planning.

Plaintiffs challenge the ROD arguing that the EIS fails to adequately disclose and analyze the human health risks from inert ingredients and cumulative effects, and the risks to chemically sensitive individuals. These arguments were previously advanced by plaintiffs in their administrative appeal of the ROD. The Secretary denied the appeal in a lengthy decision dated January 7, 1991.

ANALYSIS

The National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq. requires the preparation of an EIS for all "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). NEPA sets forth "action-forcing" procedures designed to fully inform agency decision-makers of the environmental impact of their decisions. Trustees for Alaska v. Hodel, 806 F.2d 1378, 1382 (9th Cir.1986). The reason for the EIS requirement is that "decisions that are based on understanding of the environmental consequences" will "protect, restore and enhance the environment." 40 C.F.R. § 1500.1(c). An EIS must compile "full and fair" information on the significant environmental impacts and alternatives of the proposed action. 40 C.F.R. § 1502.1. The purpose of the draft EIS is to "inform decision-makers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment." 40 C.F.R. § 1502.1.⁴ Thus the EIS is intended to "provide decision makers with enough information to aid in the substantive decision whether to proceed with the project in light of...