League of Wilderness Defenders v. Forsgren

No. CV 00-1383-RE (D. Or. May 7, 2001)

ELR Digest

The court holds that the U.S. Forest Service did not violate the National Environmental Policy Act or the Clean Water Act (CWA) in its preparation of an environmental impact statement (EIS) for the aerial spraying of pesticide over approximately 628,000 acres of national forests in Oregon and Washington to control the Douglas Fir Tussock Moth (DFTM). The court first holds that although some of the pesticide sprayed will reach nearby waters either directly or through runoff, the spraying at issue does not violate CWA § 301(a), which prohibits discharge of a pollutant from a point source without a national pollutant discharge elimination system (NPDES) permit, because the spraying at issue is a pest control activity that is not considered point source pollution, and is not within the scope of the NPDES permitting program. The court next holds that the Forest Service's EIS properly considered the impact of the spraying on butterflies and other non-target species, birds, sensitive bat species, and aquatic species. The court further holds that the EIS also adequately examined the potential human health effects of the spraying; the cumulative effects of the spray project; the true scale of the DFTM outbreak and its potential harm; the beneficial role of the DFTM; and the risk of compromising the DFTM's strongest natural predator, the DFTM virus. The court additionally holds that site-specific impact assessments are not required or even feasible for this project. The Forest Service was also granted its motion to strike the testimony of three of the environmental group's experts because the testimonies were not included in the administrative record.

The full text of this decision is available from ELR (65 pp., ELR Order No. L-373).

Counsel for Plaintiffs
Marianne Dugan
Western Environmental Law Center
485 E. 13th Ave., Eugene OR 97401
(541) 485-2471

Counsel for Defendants
Thomas C. Lee, Ass't U.S. Attorney
U.S. Attorney's Office
1000 SW Third Ave., Ste. 600, Portland OR 97204
(503) 727-1000

[31 ELR 20692]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]