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Northwest Food Processors Ass'n v. Reilly

Citation: 19 ELR 21385
No. Nos. 88-4339, -4389, 886 F.2d 1075/30 ERC 1404/(9th Cir., 09/27/1989)

The court holds that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) does not give nonregistrant users of a registered herbicide the right to prevent a cancellation settlement between remaining registrant users and the Environmental Protection Agency (EPA) and force further proceedings, once the registrants have agreed to abandon their registrations. EPA issued a notice of intent to cancel all registrations for the herbicide dinoseb, but the notice did not indicate that existing stocks could be adversely affected. The court first holds that FIFRA § 136n(b)'s public hearing requirement is satisfied when EPA conducts proceedings in which interested parties can present their positions by written briefs that produce a sufficient record to allow judicial review. The court finds the administrative record sufficient to establish the court's jurisdiction. The court next holds that because the notice did not mention existing stocks of the herbicide, EPA's determination that the existing stocks were not part of the cancellation hearing is a reasonable construction of FIFRA's notice requirement and is controlling. The court observes that, as a result, jurisdiction to review the existing stocks provisions would lie in the district court, but the court holds that to avoid frustrating Congress' goal of efficient judicial review, the court will assume original jurisdiction. The court holds that once the remaining herbicide registrants agreed to the cancellation of their registrations, EPA had no obligation to conduct further analyses or proceedings pertaining to cancellation, and nonregistrant users may not prevent such a settlement. Finally, the court holds that the potential for significant adverse economic consequences from the immediate discontinuance of existing stocks of the herbicide, together with EPA's reasonable conclusion that failure to settle and allow use of existing stocks might result in more prolonged use of the herbicide, established substantial evidence supporting EPA's decision to permit the use of existing stocks.

Counsel for Plaintiffs-Appellants
Susan Eggum
McEwen, Gisvold, Rankin & Stewart
1408 Standard Plaza, 1100 SW Sixth Ave., Portland OR 97204
(503) 226-7321

Counsel for Defendant-Appellee
Eileen T. McDonough
Land and Natural Resources Division
U.S. Department of Justice, P.O. Box 7611, Ben Franklin Station, Washington DC 20044
(202) 786-4785

Counsel for Respondents-Intervenors
Victor M. Sher
Sierra Club Legal Defense Fund, Inc.
216 First Ave. S., Ste. 330, Seattle WA 98104
(206) 343-7340

Before Skopil and Canby, JJ.