Save Our Ecosystems v. Watt

No. 83-6090E (D. Or. March 21, 1983)

The court denies plaintiffs' motion for a temporary restraining order (TRO) to stop the Bureau of Land Management from spraying herbicides in Oregon forests. Plaintiffs failed to carry their burden of demonstrating an immediate threat of irreparable injury if the spraying proceeds. While there is sufficient scientific uncertainty as to human health dangers posed by the herbicides to warrant preparation of a worst case analysis in the environmental assessment, there is insufficient evidence of danger to warrant issuance of a TRO pending litigation of the adequacy of that analysis. The government would suffer considerable harm if the TRO were granted, since there are only a few weeks in spring to conduct effective brush control.

Counsel for Plaintiffs
Ralph A. Bradley
Bradley & Gordon
1397 Willamette St., Eugene OR 97401
(503) 343-8247

Counsel for Defendant
Thomas Lee, Ass't U.S. Attorney
312 U.S. Cthse., Portland OR 97205
(503) 221-2153

[13 ELR 20529]

Belloni, J.:

Opinion

On March 4, 1983, plaintiffs herein filed a motion for a temporary restraining order. That motion was denied by an Order entered March 10, 1983. This opinion will set out the reasons why I denied the motion for temporary restraining order.

Plaintiffs seek to restrain the Secretary of the Interior, acting through the Bureau of Land Management ("BLM"), from spraying certain named herbicides in the Eugene district of the BLM. Unless restrained, the BLM will spray the herbicides in the spring, summer and fall of 1983.

In support of their motion, plaintiffs argued that the spraying should be restrained for three reasons:

1. They asserted that the "worst case" analysis prepared by the BLM as part of its yearly Environmental Assessment¹ is inadequate.

2. They asserted that the BLM did not allow an adequate notice and comment period following the issuance of the "worst case" analysis.

3. They asserted that the Secretary's own regulations require that an action such as this be stayed pending an appeal within the Department.

It is not the Court's function, on a motion for a temporary restraining order, to resolve any controverted issue. The crucial issue which was before the Court on this motion was whether plaintiffs would be irreparably injured before the Court had an opportunity to hear both parties upon reasonable notice. Plaintiffs did not carry their burden of demonstrating an immediate threat of irreparable injury. They attempted to demonstrate that the BLM's "worst case" analysis is inadequate, in that the BLM did not assume the truth of the worst fears of the scientific community concerning the herbicides it proposes to use. I express no opinion as to the adequacy of the "worst case" analysis. However, plaintiffs did not demonstrate a strong likelihood that human health problems would result from spraying forests with these herbicides during the few days delay required in order to give the parties an adversary hearing upon reasonable notice.

Plaintiffs correctly point out that in Southern Oregon Citizens Against Toxic Sprays (S.O.C.A.T.S.) v. James Watt, et al., Civil No. 79-1098FR [13 ELR 20174] (1982), the Court found that there is sufficient scientific uncertainty as to the dangers to human health posed by these herbicides to require the preparation of a "worst case" analysis. Indeed, it was apparently in response to that decision that the "worst case" analysis at issue herein was prepared. However, it is one thing to demonstrate the existence of scientific uncertainty as to a danger to human health. It is quite another thing to demonstrate that the danger is so certain, immediate, and irreparable as to warrant the issuance of a temporary restraining order. Plaintiffs did not make this latter showing in support of their motion for temporary restraining order.

The harm that plaintiffs may suffer as a result of such spraying as may occur before their motion for a preliminary injunction can be heard is speculative at best. The government, on the other hand, alleged that it would suffer a very real harm if the temporary restraining order issued, since there are only a few weeks in March when the spring spraying can be effectively accomplished. If the temporary restraining order were issued, the government asserted that it would have to develop and implement an internative plan for brush control on very short notice. If it were to be unable to do so, it would suffer an expensive setback in its reforestation program in the Eugene area. When the government's real losses in consequence of the issuance of a temporary restraining order are weighed against the speculative losses whith plaintiffs assert, the balance does not tip sharply in plaintiffs' favor. This is an important factor in the determination of whether a temporary restraining order should be granted. City of Anaheim, Cal. v. Kleppe, 590 F.2d 285 (9th Cir. 1978).

In the S.O.C.A.T.S. case, cited above, the Secretary was enjoined from further spraying of these same herbicides in the Medford district of the BLM because a "worst case" analysis had not been prepared. Here, a "worst case" analysis has concededly been prepared. If that document is demonstrated to be inadequate, then further spraying may be enjoined pending the preparation of a proper one.

I would note, however, that the standard governing this Court's review of such a document is a narrow one. This Court will review the BLM's "worst case" analysis only to determine whether the BLM made the decision to proceed with spraying without observance of the procedure required by law. Trout Unlimited v. Morton, 509 F.2d 1276 [5 ELR 20151] (9th Cir. 1974). Application of this standard does entail review of the content of the document, to ascertain that it contains a reasonably through discussion of the factors relevant to the agency's decision, and to insure that the agency has taken a "hard look" at the environmental consequences of its action. Trout Unlimited v. Morton, 509 F.2d 1276. But it does not authorize this Court to go over the document with a find tooth comb, looking for inconsistencies and omissions in its details, and I do not intend to do so. I have neither the expertise nor the authority to substitute my judgment for that of the agency involved.

A temporary restraining order may be issued where the movants have clearly shown either a combination of probable success on the merits with irreparable injury, or that serious questions are raised and the balance of hardships tips sharply in the movants' favor. Sierra Club v. Hathaway, 579 F.2d 1162 [8 ELR 20736] (9th Cir. 1978); Federal Rules of Civil Procedure, Rule 65(b). [13 ELR 20530] Plaintiffs did not make the clear showing required by the rule. For that reason, the motion for temporary restraining order was denied.

1. The Environmental Assessment is a supplement to the programmatic Environmental Impact Statement (EIS) which covers the sprayings in issue here.