ELR Citation: ELR 20035
No(s). s. 83-3908 et al (9th Cir. Jan 27, 1984)

In consolidated cases, the Ninth Circuit affirms, as modified for added breadth, two district court injunctions, 13 ELR 20887 and 14 ELR 20225, against the spraying of herbicides in certain federally managed forests in Oregon, and orders that some of the plaintiffs below be awarded attorney fees. Turning first to the Save Our Ecosystems case, the court notes that the Council on Environmental Quality's regulations under the National Environmental Policy Act (NEPA) require that an environmental impact statement (EIS) for a proposed federal action contain a "worst-case analysis" where essential information relating to the environmental effects of the action is unavailable and difficult to obtain. The court rules that a site-specific worst-case analysis prepared under court order, 12 ELR 20174, to amend an environmental assessment supplementing defendant's programmatic EIS for herbicide spraying in several Oregon forests violates NEPA. Defendants erred by stating in the worst-case analysis that human exposure to the herbicides to be sprayed is not dangerous at a sufficiently low level of exposure, because the statement is contradicted by available scientific studies. On remand, the defendants must evaluate the range of worst possible effects that might occur, the likelihood of such effects occurring, and the costs of proceeding with the spraying programs in the face of this lack of information.

The court also affirms the district court's conclusion that defendants violated NEPA by providing only five days of public comment on the environmental analysis. Even though this document is technically not an EIS, it is subject to the same procedural requirements because it serves as the functional equivalent of an EIS. A minimum of 45 days of public comment was required.

With regard to the Merrell case, the court affirms the district court's ruling that defendants were required to perform original research on the health effects of the herbicides rather than rely on safety information previously developed under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) by the Environmental Protection Agency. The NEPA deliberative process is too different from that in FIFRA to permit wholesale borrowing of the latter's conclusions.

The court next expands the scope of the injunctions issued below, expressing puzzlement at the fact that they were limited to small geographic areas and to aerial, as distinguished from ground applications. The court notes that issuance of a total injunction against a challenged federal action presumptively follows a finding of a NEPA violation. In addition, the court rules that plaintiffs below are entitled, under the Equal Access to Justice Act, to award of attorney fees for the appeal in amounts to be determined by the trial court. Defendants' legal positions were improper in light of earlier decisions.

[Note: the court substantively amended only the portion of the earlier opinion, 14 ELR 20241, dealing with attorney fees]

Counsel for Appellants
Thomas C. Lee, Ass't U.S. Attorney
312 U.S. Cthse., 620 SW Main St., Portland OR 97401
(503) 687-6771

Jacques B. Gelin
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2762

Counsel for Appellees
Michael Axline
Pacific Northwest Resources Clinic
Univ. of Oregon School of Law, Eugene OR 97403
(503) 686-3823

Ralph A. Bradley
Bradley & Gordon
1397 Willamette St., Eugene OR 97401
(503) 343-8247

Before ANDERSON and FLETCHER, Circuit Judges, and THOMPSON,^* District Judge.