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Wyoming v. Hathaway

Citation: 6 ELR 20169
No. No. 75-1491, 525 F.2d 66/8 ERC 1416/(10th Cir., 10/28/1975)

The court of appeals dissolves a preliminary injunction entered by the lower court against the Environmental Protection Agency's order banning three economic poisons used for predator control. Acting under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), the EPA Administrator issued pesticide Regulation Notice No. 72-2 (1972), which suspended and cancelled the registrations of strychnine, sodium fluoracetate (1080), and sodium cyanide. Neither administrative nor judicial review of this order was sought. Instead, the plaintiffs, users of the banned poisons, belatedly sued in district court over the Administrator's asserted failure to file an environmental impact statement under NEPA. The court of appeals concludes that the district court lacked authority to issue the injunction. The proper remedy was a timely petition to the court of appeals to review the agency action. Nor is there any judicial authority for the proposition that EPA must file formal NEPA impact statements; indeed, many cases hold to the contrary. In any event, the Administrator's opinion that accompanied the ban was the substantial equivalent of an impact statement. The case is remanded for consideration of issues not originally considered below.

Counsel for Plaintiffs
George S. Andrews
Boyd Building, 3d Floor
Cheyenne WY 82001
(307) 634-8871

Houston G. Williams
Wehrli & Williams
1st National Bank Bldg., Suite 700
Casper WY 82601
(307) 265-0700

Counsel for Intervenor
Glenn Parker
Hirst & Applegate
200 Boyd Building
Cheyenne WY 82001
(307) 632-0541

Counsel for Defendants
John J. Zimmerman
Department of Justice
Washington DC 20530
(202) 739-4519

Seth, Circuit Judge for himself & Hill, J.; Seth, J. dissents with opinion.