Southern Oregon Citizens Against Toxic Sprays, Inc. v. Andrus

No. 79-1098 (D. Or. September 22, 1979)

The courtdenies plaintiffs' request for a temporary restraining order against the Bureau of Land Management's spraying of the herbicide 2,4-D on public forest lands. Noting that there is no direct evidence of health problems associated with the spraying of 2,4-D and that the herbicide does not contain the toxic contaminant dioxin, the court rules that plaintiffs have failed to show that irreparable injury will occur pending a hearing on the merits of their request for injunctive relief.

Counsel for Plaintiffs
Michael Jewett
P.O. Box 518, Ashland OR 97520
(503) 482-4753

Counsel for Defendants
Thomas C. Lee, Ass't U.S. Attorney
P.O. Box 71, Portland OR 97207
(503) 221-2101

[9 ELR 20715]

Skopil, J.:

Plaintiffs request the issuance of a temporary restraining order. They seek an order restraining the Secretary of the Interior and the Bureau of Land Management (BLM) from spraying herbicides in the Medford district of the BLM. Principally they object to the use of 2,4-Dichlorophenoxyacetic acid, or 2,4-D. They allege that unless restrained, the defendants will spray the forest with 2,4-D beginning September 24, 1979.

The Department of the Interior prepared a final environmental statement for vegetation management with herbicides for Western Oregon for 1978 through 1987. On August 2, 1978 a draft statement was made available to EPA and the public. The plaintiffs contend that the EIS is inadequate. This action was filed on September 21, 1979. This is a very complex matter. By saying this late filing. I mention it only to highlight the difficulty of deciding on short notice a matter of this complexity.

On September 21, 1979 the plaintiffs and the defendants appeared in court, and a brief hearing was held. The plaintiffs confined their presentation to the use of 2,4-D. No presentation was made regarding any other herbicide. Both sides offered exhibits, and limited argument was heard.

For this reason the motion is more in the nature of a request for a preliminary injunction than a temporary restraining order. On a request for a preliminary injunction the court's purpose is not to determine any controverted right, such as the adequacy of the environmental impact statement, but only to determine whether an injury is threatened that would prejudice the court's power to render a meaningful decision on the merits. Benson Hotel Corp. v. Woods, 168 F.2d 694 (8th Cir. 1948). Generally in order to grant an injunction of this kind the court must find that (1) the plaintiffs will suffer irreparable injury if relief is not granted, (2) the plaintiffs will probably prevail on the merits, (3) in balancing the equities, the defendants will not be harmed more than plaintiff is helped by the injunction, and (4) granting the injunction is in the public interest. See Sierra Club v. Hickel, 433 F.2d 24, 33 [1 ELR 20015] (9th Cir. 1970), aff'd 405 U.S. 727 [2 ELR 20192] (1972). With respect to the likelihood of success on the merits, if the threatened harm is sufficiently serious, the plaintiffs need only show a fair chance of success on the merits. Wm. Inglis & Sons Baking v. ITT Cont. Baking Co., 526 F.2d 86, 88 (9th Cir. 1975).

The safety of various herbicides is not an entirely new subject to me. I have previously considered the adequacy of environmental impact statements concerning the use of herbicides in the Siuslaw National Forest. Citizens Against Toxic Sprays v. Berglund, 428 F. Supp. 908 [7 ELR 20325] (D. Ore. 1977), Supplemental Opinion, Civ. No. 76-438 [8 ELR 20350] (April 18, 1978). I ultimately approved the EIS in that case. It was with the understanding that 2,4-D was a relatively safe compound (particularly when compared with the alternative herbicides) whose properties were adequately discussed in the EIS.

Nevertheless, the question of the safety of 2,4-D is a complex one. The plaintiffs' exhibits illustrate some of the questions that have arisen as a result of laboratory experiments. Some of that work has shown that 2,4-D may cause cancer in laboratory animals when over an extended time the substance is administered orally or injected. The possibility that 2,4-D may have similar effects on humans is necessarily uncertain.

There is no direct evidence here of health problems associated with spraying forests with 2,4-D. This is in sharp contrast to the situation involving the compound 2,4,5-T in CATS v. Berglund, supra.

The letters and affidavits submitted by the plaintiffs add no substantive evidence of health hazards. I am satisfied that the concerns expressed are sincerely felt. However, they contain nothing more than general conclusions as to the hazards of herbicides. Further, it is worth noting that some of those writing do not in fact live in areas that the defendants intend to spray with 2,4-D.

It is also significant in this case that the substance with which I was most concerned in CATS v. Berglund (2,3,7,8-tetrachlorodibenzo-p-dioxin, or TCDD) is not contained in 2,4-D. TCDD is one of the most toxic chemicals known to man. There is simply no evidence that 2,4-D contains anything comparable to TCDD.

I must emphasize the court's limited role in controversies of this kind. I cannot substitute my judgment for that of the agency. My sole function is to determine whether the agency has taken a hard look at the possible environmental consequences of its actions. Based on the exhibits and affidavits before me I cannot conclude that the agency has been deficient in this respect.

There are unanswered questions in this area. I might not use 2,4-D if it were my decision simply because of the sincere concern that has been expressed by citizens of the target area. Nevertheless, this does not permit me to enjoin the agency from acting on its considered judgment.

I have examined the letters, affidavits, and research papers presented in support of the requested temporary restraining order. I cannot say that irreparable injury will occur pending a hearing on the merits of the request for injunctive relief.

The evidence received in support of and opposition to the request for a temporary restraining order shall become a part of the record upon the trial on the merits. It need not be repeated. I shall set this matter for hearing at the earliest possible time.

IT IS ORDERED that plaintiffs' request for a temporary restraining order is denied.