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Defenders of Wildlife v. Administrator

ELR Citation: 18 ELR 20960
Nos. No. 4-86-687, 688 F. Supp. 1334/(D. Minn., 04/11/1988) Plaintiffs' motion for summary judgment partially granted

The court holds that registration by the Environmental Protection Agency (EPA) of strychnine under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) for above-ground use as a rodenticide violates the Administrative Procedure Act (APA), the Bald and Golden Eagle Protection Act (BGEPA), the Endangered Species Act (ESA), and the Migratory Bird Treaty Act (MBTA). The court first holds that the plaintiffs need not exhaust their administrative remedies under FIFRA. They are not seeking cancellation of strychnine under FIFRA, but compliance with the APA, BGEPA, ESA, and MBTA. There is thus an independent basis for judicial review. The court also holds that EPA's 1987 Notice of Intent to Cancel constitutes final Agency action under APA §704. The court next holds that the plaintiffs have standing. They satisfy the constitutional standing requirements because they allege that the registration will cause mortality that will impair their ability to study, observe, and enjoy wildlife. They satisfy the APA standing requirement because their claims address conservation of protected species, which is within the zone of interests protected by the BGEPA, ESA, and MBTA.

The court next holds that EPA's revocation of its 1983 Notice of Intent to Cancel violated the APA. The court holds that APA review is available, because the registration process constituted informal rulemaking. The court also holds that EPA has not adequately supported its change of position between 1983, when it took steps to protect numerous protected species, and 1987, when it took steps to protect only the black-footed ferret. No evidence reverses the finding of likely jeopardy to the other species or shows that label restrictions will protect them. EPA thus changed its position arbitrarily and capriciously, without adequate scientific basis. The court also holds that EPA violated ESA §7(b)(4) by failing to obtain authorization from the Secretary of the Interior for incidental take of endangered species.

The court holds that registration resulting in taking of eagles and migratory birds violates the BGEPA and the MBTA and is subject to an APA action for declaratory or injunctive relief. The plaintiffs have shown that above-ground strychnine use poses a threat to protected birds, that the application methods recommended by EPA do not eliminate non-target kills, and that the Secretary has not authorized these takings.

The court holds that EPA's actions as a whole did not constitute arbitrary and capricious failure to conserve and promote protected species under ESA §§3(c)(1) and 7(a)(1). The court also holds that the Agency did not act arbitrarily or capriciously by not renewing consultations with the FWS under ESA §7(a)(2) for several months after it received non-target kill data from the plaintiffs. The court holds that the registration results in illegal taking of protected species in violation of ESA §9(a)(1)(B). The "taking" prohibition, §3(19), is expansive. There is unrebutted evidence that strychnine has killed endangered species, and no threat to these species can be deemed insignificant without an "incidental take" statement. There is no evidence that the permitted strychnine use will be safe for any endangered species except the black-footed ferret, and there is evidence of likely jeopardy to many species. The court notes that when an injunction is sought under the ESA, the courts' traditional balancing of equities is abandoned in favor of an almost absolute presumption in favor of the endangered species.

The court grants declaratory and injunctive relief and allows plaintiffs to file for attorney fees under the ESA and the Equal Access to Justice Act.

Counsel for Plaintiffs
Brian B. O'Neill
Faegre & Benson
2300 Multifoods Twr., Minneapolis MN 55402
(612) 371-5300

Counsel for Defendants
Charles R. Shochey
Department of Justice, P.O. Box 7369, Washington DC 20044-7309
(202) 633-2000