Alaska Survival v. Weeks

No. A82-253 (D. Alaska August 6, 1982)

The court rules that the Alaska Railroad's herbicide spraying program for vegetation maintenance on railroad rights-of-way is subject to the National Environmental Policy Act (NEPA). The railroad had implemented a vegetation maintenance program in keeping with the Federal Railroad Safety Act regulations but did not prepare an environmental impact statement (EIS) because the regulations excluded railroad track right-of-way maintenance from NEPA procedures. The court notes that all federal agencies must comply with NEPA unless there is a statutory conflict. However, in this case there is no statute that conflicts with NEPA. It notes that compliance with an agency's own regulations is evidence of reasonableness, but nevertheless rules that the railroad's decision not to comply with NEPA was unreasonable. It failed to take a "hard look" at the environmental consequences of its vegetation maintenance program and its analysis of the environmental impacts failed to address alternatives to spraying and was incomplete, inaccurate, and out of date. In addition, a number of district courts have held that herbicide spraying programs are subject to NEPA. The court remands the case to the railroad to determine whether an EIS is required. The court also continues the preliminary injunction entered on July 22 against the railroad's use of Tordon 101 in its spraying program until it complies with NEPA.

Counsel for Plaintiffs
Durwood J. Zaelke Jr.
Sierra Club Legal Defense Fund, Inc.
419 6th St., Suite 321, Juneau AK 99801
(907) 586-2751

Counsel for Defendants
Michael R. Spaan, U.S. Attorney
701 C St., Mail Box 9, Anchorage AK 99513
(907) 271-5071

[12 ELR 20949]

VON DER HEYDT, J.:

Memorandum and Order

THIS CAUSE comes before the court on plaintiffs' motion for a preliminary injunction. Jurisdiction lies pursuant to 45 U.S.C. § 431(f) (1976), 5 U.S.C. §§ 701-06 (1976) and 28 U.S.C. § 1331 (1976).

I. Background

In enacting the Federal Railroad Safety Act of 1970, 45 U.S.C. §§ 431-41 (1976), Congress gave the Secretary of Transportation authority to "prescribe, as necessary, appropriate rules, regulations, orders and standards for all areas of railroad safety." Id. § 431(a). The Secretary of Transportation subsequently delegated this authority to the Federal Railroad Administration (FRA), see 49 C.F.R. § 1.49 (1981), which then promulgated certain railroad safety regulations. See e.g., id. at § 213.1.

Pursuant to the safety regulations, the Alaska Railroad (Railroad) implemented a Vegetation Maintenance Program. See id. at § 213.37. The program involves the spraying of herbicides along the Railroad's right-of-way to control vegetation. vegetation control is necessary to assure the safe operation of trains, safe working conditions and proper track maintenance.

Plaintiffs live near the Alaska Railroad right-of-way or use the area for subsistence living. They allege in this action that the spray program of the Alaska Railroad is a major federal action which significantly affects the quality of their human environment. Since the program has been implemented without the benefit of an environmental impact statement (EIS), they argue that it is in violation of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321-35 (1976). Hence, plaintiffs ask this court to enjoin the spray program until NEPA procedures have been followed.

Defendants maintain that all herbicides used in the program are approved, for use as required by the Railroad to maintain its right-of-way, by the United States Environmental Protection Agency. Defendants point out that the Railroad only sprays areas along the right-of-way where application is necessary properly to maintain railroad tracks. Further, they argue that under applicable FRA regulations neither an environmental assessment nor an EIS is required for the Vegetation Maintenance Program. See § 4(c)(11) of FRA REGULATIONS, attached to defendants' opposition to motion for preliminary injunction, docket #16.

II. NEPA and the FRA Regulations

As the Ninth Circuit has made clear, NEPA "is essentially a procedural statute." City of Davis v. Coleman, 521 F.2d 661, 670 [5 ELR 20633] (9th Cir. 1975). It requires federal agencies contemplating a major action to prepare an EIS if the proposed action may significantly affect the quality of the human environment. 42 U.S.C. § 4332(2)(C); see City & Cty. Of San Francisco v. [12 ELR 20950] United States, 615 F.2d 498, 500 [10 ELR 20346] (9th Cir. 1980). Failure to follow NEPA procedures "creates a risk that serious and avoidable environmental consequences of the action . . . will not be brought to the attention of the agency decision-makers." City of Davis, 521 F.2d at 670.

Nonetheless, § 102 of NEPA recognizes that when "a clear and unavoidable conflict in statutory authority exists, NEPA must give way." Flint Ridge Dev. Co. v. Scenic Rivers Assn., 426 U.S. 776, 788 [6 ELR 20528] (1976); see United States v. SCRAP, 412 U.S. 669, 694 [3 ELR 20536] (1973) ("NEPA not intended to repeal by implication any other statute.") Consequently, NEPA procedures are inapplicable when they "create an irreconcilable and fundamental conflict" with another statutory mandate. Flint Ridge, 426 U.S. at 788.

In this case, there is no statute which presents a conflict with NEPA. Indeed the FRA has adopted railroad regulations which establish procedures for considering environmental impacts. See 40 C.F.R. § 1507.3 (federal agencies required to adopt procedures to ensure full NEPA compliance). Under § 4(c)(11) of the regulations adopted by the FRA, actions involving track and track right-of-way maintenance are excluded from NEPA procedures. And the Alaska Railroad has concluded that the Vegetation Maintenance Program falls within its track maintenance regulations. The court must now determine whether the Railroad's decision not to follow NEPA procedures, because of its track maintenance regulation, was reasonable. Cf. Portela v. Pierce, 650 F.2d 210, 213 [11 ELR 20792] (9th Cir. 1981) (in determining whether agency properly declined to prepare EIS, court must consider whether agency action was reasonable).

III. NEPA Applied

At the outset the court recognizes that "[c]ompliance with the agency's own . . . [regulations], while not dispositive, is some evidence of the reasonableness of the agency's action." Id. at 213. Nevertheless, regulations are implemented to effect Congressional intent as expressed in statutes and "[a] regulation which does not do this, but operates to create a rule of harmony with the statute, is a mere nullity." Dixon v. United States, 381 U.S. 68, 74 (1965) (citation omitted). Here, the Railroad's regulation as applied allows it to implement a herbicide spraying program without any consideration of the environmental consequences.

Once an agency has made a decision regarding NEPA's procedural requirements, "the only role for a court is to insure that the agency has considered the environmental consequences . . . ." Strycker's Bay Neighborhood Council v. Karlen, 444 U.S. 223, 227 [10 ELR 20079] (1980). It is clear that if the Railroad has failed to take a "hard look" at the environmental consequences of its Vegetation Maintenance Program, its decision not to follow NEPA procedures is unreasonable and in violation of NEPA mandates. Cf. Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017, 1024 [10 ELR 20559] (9th Cir. 1980) (decision not to file EIS must be upheld if reasonable).

The only analysis of potential environmental ramifications of its Vegetation Maintenance Program is the Railroad's "Vegetation Maintenance Program Environmental Impact Analysis." Exhibit one to plaintiffs' motion for temporary restraining order, docket #4. This 1978 analysis fails adequately to address possible track maintenance alternatives to herbicide spraying, and is incomplete and inaccurate in its analysis of the herbicides used. Additionally, the manual was prepared in 1978 for the years 1978-80 and it has not been updated or revised. Significantly, defendants do not argue that the 1978 analysis complies with NEPA. In short, it is manifest that neither an environmental assessment nor an EIS has been prepared by the Railroad prior to implementing its Vegetation Maintenance Program.

Other district courts faced with herbicide spray programs have found such programs to be subject to NEPA requirements. See NORML v. United States, 452 F. Supp. 1226, 1232 [8 ELR 20572] (D.D.C. 1978) (government participation in herbicide spraying of marijuana is major federal action significantly affecting human environment); Kelley v. Butz, 404 F. Supp. 925, 937 [8 ELR 20676] (W.D. Mich. 1975) (Forest Service herbicide spray program subject to NEPA); State Of Wisconsin v. Butz, 389 F. Supp. 1065, 1069 [5 ELR 20240] (E.D. Wis. 1975) (aerial spraying of herbicides in national forest held major federal action significantly affecting quality of human environment); Lee v. Resor, 348 F. Supp. 389, 394 [2 ELR 20665] (M.D. Fla. 1972) (army's spraying of water hyacinths with 2-4D requires EIS). This court holds that the Railroad's Vegetation Maintenance Program is subject to NEPA procedures and may not be excluded from NEPA mandates pursuant to the Railroad's track right-of-way maintenance regulation. Although it is apparent to the court that an EIS addressing the Vegetation Maintenance Program should be prepared, this determination rests initially with the agency. Thus, the court will remand this cause to the Alaska Railroad so it can at least prepare an adequate environmental assessment. See 40 C.F.R. § 1501.3; see also City of Davis, 521 F.2d at 669 n.9.

IV. Preliminary Injunction

On 22 July 1982 the court entered a preliminary injunction in this cause which, in essence, enjoined the Railroad from using Tordon 101 in its spray program. The injunction issued because of a lack of any detailed environmental inquiry into the herbicide spraying program. As the Ninth Circuit has recognized "formal environmental review . . . of projects is a factor in determining whether . . . [the] projects should be halted on a motion for preliminary injunction." Friends Of The Earth v. Coleman, 518 F.2d 323, 330 [5 ELR 20259] (9th Cir. 1975). In this case, plaintiffs' showing of the probable carcinogenic effect of Tordon 101, coupled with the Railroad's lack of any detailed environmental inquiry leads the Court to conclude that the injunction must remain in effect until NEPA procedures are fully satisfied. see City of Davis, 521 F.2d at 682 (injunction halting project ordered until NEPA procedures satisfied).

Accordingly, IT IS ORDERED:

1) THAT this cause is remanded to the Alaska Railroad so that it may comply fully with the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-35 (1976), in implementing its annual Herbicide Spraying Program.

2) THAT the court's preliminary injunction of 22 July 1982 shall remain in effect until the Alaska Railroad has complied with the National Environmental Policy Act of 1969 in implementing its annual Herbicide Spraying Program.

3) THAT the court retains jurisdiction in this cause to review the Alaska Railroad's compliance with the National Environmental Policy Act of 1969.

DATED at Anchorage, Alaska, this 6th day of August, 1982.