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Sierra Club v. Peterson

ELR Citation: 13 ELR 20585
Nos. Nos. 82-4489, -4490, 705 F.2d 1475/19 ERC 1001/(9th Cir., 04/13/1983)

The Ninth Circuit reverses the district court, ruling that the Forest Service (USFS) must comply with California herbicide control laws or seek a presidential exemption. Executive Order (E.O.) No. 12088 requires federal agencies to comply with certain state environmental laws or seek presidential exemption. A state court had ordered California to cease granting herbicide spraying permits pending promulgation of new regulations. USFS, unable to get a state permit, planned to spray without one. The court rules that USFS is bound by the E.O. and thus by the state statutes and court rulings and may not spray. The Forest and Rangeland Renewable Resources Planning Act, though calling for intensive management, does not mandate use of herbicides and so does not preempt state herbidide control laws. The court rejects the Service's argument that because the Federal Insecticide, Fungicide, and Rodenticide Act has no citizen suit provision, appellants are implicitly precluded from seeking judicial review of agency herbicide decisions under the Administrative Procedure Act. The court refuses to find an implied bar to judicial review.

Counsel for Appellants
Laurens Silver
Sierra Club Legal Defense Fund, inc.
244 Fillmore St., San Francisco CA 94115
(415) 567-6100

David Van Note
P.O. Box 163, Downieville CA 95936
(916) 862-1431

Counsel for Appellees
Francis Boone, Ass't U.S. Attorney
450 Golden Gate Ave., San Francisco CA 94102
(415) 556-1126

Martin Green
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 933-2813

Before MERRILL, GOODWIN, and SNEED, Circuit Judges.