Oregon Environmental Council v. Kunzman

Civ. No. 82-504-RE (D. Or. May 12, 1982)

After refusing to enjoin aerial spraying of insecticide in South Salem, Oregon, 12 ELR 20766, 20769, the court rules that it has authority under the Administrative Procedure Act (APA) to review plaintiffs' allegations that the proposed gypsy moth eradication program violates the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and Federal Aviation Administration (FAA) regulations. While neither FIFRA nor FAA regulations provide a private right of action, judicial review is proper under the APA if not expressly limited by Congress. However, the court finds nothing in FIFRA or its legislative history which indicates a clear intent to preclude review under the APA. Turning to the substantive issues, the court rules that defendants' plan to spray does not violate § 136j of FIFRA, which requires that the method of spraying conform with label specifications. It concludes that the spraying plan does not violate the specific precautionary statements on the label. In addition, the plan does not violate FAA regulations. Thus, the court again denies plaintiffs' application for injunctive and declaratory relief.

Counsel are listed at 12 ELR 20766.

[12 ELR 20769]

Redden, J.:

On April 27, 1982, after trial, I denied the plaintiffs' application for injunctive and declaratory relief. On April 29, 1982, the plaintiffs filed a notice of appeal, thereby stripping this court of jurisdiction over the case. The general rule is that the filing of a notice of appeal "divests the district court of authority to proceed further." C & M, Inc. v. Newbern, 488 F.2d 742, 746 (9th Cir. 1973). Later that same day, the plaintiffs orally moved for reconsideration of my decision. The basis for the motion for reconsideration was the plaintiffs' contention that the Administrative Procedure Act (APA), 5 U.S.C. §§ 501 et seq., provides a cause of action for alleged violations of federal law. Oral argument on the motion for reconsideration was May 4, 1982. I ruled that I did not have jurisdiction to rule on the motion because of the filing of the notice of appeal.

On May 10, 1982, the United States Court of Appeals for the Ninth Circuit, apparently agreeing that I previously did not have jurisdiction, remanded for me to consider the narrow question of the applicability of the APA. For the reasons stated below, I deny the motion for reconsideration.

I. APA

The question first presented is whether the APA provides for judicial review of agency action which allegedly violates federal statutes. Plaintiffs rely on Glacier Park Foundation v. Watt, 663 F.2d 882 (9th Cir. 1981) to argue that it does. The federal defendants contend that the APA does not provide judicial review to determine if the proposed plan violates statutes which proscribe certain conduct and apply to both government and private entities. The federal defendants argue that if private persons attempt to enforce general regulatory statutes, the Cort v. Ash analysis, [12 ELR 20770] 422 U.S. 65 (1976) and not the APA, determines the right to judicial review.

The language of the APA supports the plaintiffs' position. 5 U.S.C. § 701(a) provides for judicial review unless the particular statute precludes it or unless the action is committed to agency discretion by law. 5 U.S.C. § 702 provides:

A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action, within the meaning of a relevant statute, is entitled to judicial review thereof.

5 U.S.C. § 706, entitled "Scope of review," provides that a reviewing court shall, to the extent necessary and when presented, "decide all relevant questions of law" and "interpret constitutional and statutory provisions . . . ." The section continues:

The reviewing court shall —

(2) hold unlawful and set aside agency action, findings, and conclusions found to be —

(A) Arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(D) without observance of procedure required by law; . . . .

Glacier Park Foundation v. Watt, 663 F.2d 882 (9th Cir. 1981) also supports the plaintiffs' position. In Glacier Park, the plaintiff brought action against the Secretary of Interior and alleged that the refusal of the plaintiff's proposals violated the Concessions Policy Act, 16 U.S.C. § 20d. The plaintiff's challenge was based on either the APA or an implied right of action under the Concessions Policy Act. 663 F.2d at 884. The appeals panel affirmed the trial court's denial of the plaintiff's claim of a private right of action under the Concessions Policy Act. Id. The panel then ruled that the plaintiff could nonetheless challenge the questioned administrative action under the APA. Id. at 885. The panel wrote:

Regardless of whether a statute implies a private right of action, administrative actions thereunder may be challenged unless they fall within the limited exceptions of that Act. 5 U.S.C. § 701(a) . . . . Judicial review under the APA may be denied only if Congress clearly intended to foreclose review or the issue is one committed to agency discretion. 5 U.S.C. § 701(a).

Id.

The language of Glacier Park and the APA does not constrict judicial review in the manner argued by the federal defendants. I rule that under the law of the Ninth Circuit, as expressed in Glacier Park, plaintiffs may seek review of agency action as violative of federal law under the APA, when properly presented.

The claim under the APA is properly presented. The complaint alleges that the action under the APA. The plaintiffs have alleged sufficient facts to show standing under 5 U.S.C. § 706. See Port of Astoria, Oregon v. Hodel, 595 F.2d 467 [9 ELR 20252] (9th Cir. 1979). The plan for spraying is ripe for review. See Abbott Laboratories v. Gardner, 387 U.S. 136 (1967); Continental Airlines v. C.A.B., 522 F.2d 107 (D.C. Cir. 1974) (en banc). In my opinion of April 2, 1982, I ruled that the spraying program is a "major federal action" that must comply with the federal requirements of the National Environmental Policy Act. That ruling was based on the extensive federal involvement in the planning and financing of the plan to spray carbaryl over South Salem. For the same reasons, I conclude that the spraying program is subject to review under the APA. The United States Department of Agriculture (USDA)/Forest Service, the lead agency and the USDA Animal Plant and Health Inspection Service, the Cooperating Federal Agency, for the Cooperative Gypsy Moth Suppression and Regulatory Program, are agencies within the meaning of 5 U.S.C. § 701(b)(1). The Work Plan with which I ordered compliance, is an order within the meaning of 5 U.S.C. § 551(6).

The question next presented is whether the challenged agency actions fall within the limited exceptions to judicial review under the APA. Those exceptions are: clear, congressional intent to foreclose review and the commitment of the issues to agency discretion. 5 U.S.C. § 701(a); Glacier Park Foundation v. Watt, 663 F.2d at 885. The latter exception is inapposite.

An examination of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) and its legislative history reveals nothing which indicates a clear intent to preclude an APA action to review agency compliance with FIFRA. Congressional rejection of amendments providing citizens' civil actions to enjoin violations, People for Environmental Progress v. Leisz, 373 F. Supp. 589, 592 [4 ELR 20706] (C.D. Cal. 1974), does not show congressional intent to foreclose court review of agency violations of the act. See Glacier Park, 663 F.2d at 882 (agency actions may be challenged under APA regardless of existence of implied right of action under substantive statute). I reach the same conclusion with regard to the Federal Aviation Administration (FAA) regulations.

In summary, I rule that I am bound by the Ninth Circuit's broad language in Glacier Park Foundation v. Watt and find nothing in the particular statute and regulations which indicates clear congressional intent to prohibit judicial review of agency compliance with the statute and regulations.

II. FIFRA

Plaintiffs contend that the defendants' plan to spray carbaryl will violate 7 U.S.C. §§ 136j(a)(2)(G) and 136j(a)(2)(P). 7 U.S.C. § 136j(a)(2) provides in pertinent part:

It shall be unlawful for any person —

(G) to use any registered pesticide in a manner inconsistent with its labeling;

(P) to use any pesticide in tests on humans unless such human beings (i) are fully informed of the nature and purposes of the test and of any physical and mental consequences which are reasonably foreseeable therefrom, and (ii) freely volunteer to participate in the test.

A. Labeling

Plaintiffs content that the defendants' plan will violate two aspects of the precautionary statements of the label of Sevin 4-Oil. These parts are:

HARMFUL IF INHALED OR SWALLOWED. Avoid Breathing of Spray. Do Not Take Internally. Avoid Contact with Skin and Eyes . . . .

ENVIRONMENTAL HAZARDS: Avoid direct application to lakes, streams and ponds. Do no apply when weather conditions favor drift from area treated.

Defendants' Substitute Exhibit G. Plaintiffs contend that the planned spraying will result in direct application to bodies of water and human skin and eye contact with the pesticide, in violation of the labeling.

I conclude that the prohibitions on the label are binding. I reject the defendants' contention that they are not. The case they rely on, Save America's Vital Environment (SAVE) v. Butz, 347 F. Supp. 521 [2 ELR 20563] (N.D. Ga. 1972), precedes the 1972 amendments of FIFRA. In United States v. Corbin Farm Service, 578 F.2d 259 (9th Cir. 1978) (a criminal case), the Ninth Circuit affirmed the district court's ruling, 444 F. Supp. 510 [8 ELR 20333] (E.D. Cal. 1978), that it was a violation of FIFRA to apply a pesticide in a manner contrary to the directions on the label.

In my opinion of April 29, 1982, I ruled that the Programmatic Environmental Impact Statement, on which defendants rely as an environmental impact statement to comply with the National Environmental Policy Act, requires that the method of applying insecticide "conform with label specifications." Memorandum Opinion at 9. In the April 29 opinion and in my order of May 4, 1982 I ruled that the spraying must be conducted so that there will be no direct application of carbaryl to lakes, ponds and the six streams in the treatment area. Memorandum Opinion at 9; Order at 3. I therefore conclude that the spraying plan does not violate that aspect of the label.

Plaintiffs also contend that the aerial broadcast spraying of [12 ELR 20771] Sevin 4-Oil over the residential South Salem area violates the label's precautionary statement to avoid breathing of the spray and to avoid contact with the skin and eyes. Plaintiffs argue that there will be harmful human contact with the insecticide through the primary application, drift, run-off and contact with objects which have been sprayed.

Residents of the target area have been given notice of the spraying. The final operational plan submitted shows that spraying will be done in early morning hours to minimize human exposure during the direct application. It is true that humans will be able to have direct skin contact with the insecticide by touching objects that were sprayed, but I conclude that the spraying will not be conducted in a manner inconsistent with the label's precautionary statement that breathing of the spray and direct contract with skin and eyes are to be avoided.

B. Tests on Humans

Plaintiffs contend that the plan to spray carbaryl violates 7 U.S.C. § 136j(a)(2)(P) of FIFRA because it is a test on human beings interpreting this section of the statute. Webster's Third International conditions designed to negate or confirm it." Plaintiffs have submitted no evidence which indicates a test is being conducted. Because I find that they have not shown the existence of a test, the plaintiffs' claim under this section is denied.

III. FAA Regulations

Plaintiffs contend that the plan to spray carbaryl will violate 14 C.F.R. §§ 137.37, 137.39(2) and 137.39(3). 14 C.F.R. § 137.37 prohibits dispensation:

from an aircraft, any material or substance in a manner that creates a hazard to persons or property on the surface.

14 C.F.R. 137.39 prohibits dispensation from an aircraft of a pesticide registered under FIFRA:

(2) contrary to any safety instructions or use limitations on this label; or

(3) in violation of any law or regulation of the United States.

I conclude that plaintiffs have not shown that the carbaryl will be sprayed "in amanner that creates a hazard to persons or property on the surface." For the reasons stated above, I conclude that the Sevin 4-Oil will not be dispensed "contrary to safety instructions or use limitations on its label." I also conclude that the plaintiffs have not shown that the carbaryl spraying will be "in violation of any law or regulation of the United States."

I therefore, after considering the plaintiffs' motion for reconsideration, deny the plaintiffs' application for injunctive and declaratory relief.

Dated this 12th day of May, 1982.