ELR Citation: ELR 20061
No(s). s. 82-3562, -3655 (9th Cir. Dec 2, 1983)

The court rules that the Bureau of Land Management's (BLM's) environmental assessment (EA) of its Oregon herbicide spraying program is deficient under the Council on Environmental Quality's National Environmental Policy Act (NEPA) regulations for failure to do a "worst-case" analysis. The court rules that BLM must do a worst-case analysis even though BLM believes that adverse health effects from the program are unlikely. Where, as here, the agency admits a lack of information on the probability of an effect, the agency must either supply the information or do a worst-case analysis. Further, the court rules that registration of the herbicides under the Federal Insecticide, Fungicide, and Rodenticide Act does not exempt their use from NEPA review. The court rejects BLM's argument that only environmental impact statements (EISs) are subject to the worst-case rule. Where an EA is intended to supplement an EIS, the EA and EIS taken together must provide the analysis required in an EIS including, if necessary, a worst-case analysis.

The court then considers the district court's denial of attorney fees to plaintiff under the Equal Access to Justice Act. The court rules that it was improper to base the fee denial on the failure of three of plaintiff's four alternative claims. However, the district court was within its discretion in denying fees after finding the government's position at trial to be substantially justified. Even so, case law and administrative actions since the trial have undercut the government's position, and its appeal was not substantially justified. The court therefore invites plaintiff to submit a bill of attorney fees for the appeal.

Counsel for Plaintiff
Michael Jewett
Jacobson & Jewett
P.O. Box 518, Ashland OR 97520
(503) 482-4753

Counsel for Defendants
Albert M. Ferlo Jr.
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2774

Before WRIGHT, GOODWIN, and BOOCHEVER, Circuit Judges.