ELR Citation: ELR 20901
No(s). 82-3232 (9th Cir. Aug 30, 1983)

The court rules that a site-specific environmental impact statement (EIS) is required for the United States Forest Service's (USFS') decision to aerial spray gypsy moths with the pesticide carbaryl in Oregon but the spraying did not violate the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The court rules that the case is not moot even though the 1982 spraying season is complete because aerial spraying remains an option for future pest control in Oregon. The court also rules that appellants have a cause of action under the Administrative Procedure Act to enforce FIFRA, but finds it unnecessary to decide if there is a cause of action under 42 U.S.C. §1983. The court next rules that USFS violated the National Environmental Policy Act by failing to prepare a site-specific EIS for the spraying. Neither a programmatic EIS for gypsy moth spraying programs in the northeastern United States nor an environmental assessment for local spraying provide enough information to make a reasoned decision since they do not discuss the effects of human contact with the pesticide. In addition, new techniques for fighting gypsy moths and potential carcinogenic effects of carbaryl were not considered. However, the court rules that the method of application of the pesticide did not violate labelling restrictions of FIFRA.

Counsel for Appellants
Larry N. Sokol
Jolles, Sokol & Bernstein
721 SW Oak St., Portland OR 97205
(503) 228-6474

Counsel for Appellees
Thomas Lee, U.S. Attorney
312 U.S. Cthse; 620 SW Main St., Portland OR 97205
(503) 221-2101

Luther Jensen, Ass't Attorney General
100 State Office Bldg., Salem OR 97310
(503) 378-4400

Before CHOY, FERGUSON, and CANBY, Circuit Judges.