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Ninth Circuit Upholds Salmon Pesticide Ban During Appeal by CBB Staff Columbia Basin Bulletin - June 25, 2004

Posted on Friday, June 25, 2004 (PST) A lower court injunction banning the spraying of certain pesticides near salmon-bearing streams will stay in place while agricultural interests and chemical companies appeal the decision, according to a ruling this week by the Ninth Circuit Court of Appeals.

The industry group CropLife and agricultural groups had requested a stay of the injunction imposed in January by Seattle-based U.S. District Court Judge John Coughenour. The stay was pursued at the appellate court level after Coughenour had denied the requests on May 18.

The Ninth Circuit communication consolidated the separate appeals in the case and set a schedule for expedited litigation. Briefing begins next month with arguments before the appeals panel during the week of Sept. 13.

Coughenour's injunction prohibits spraying pesticides containing certain ingredients near salmon streams in Oregon, Washington and California while the U.S. Environmental Protection Agency reviews with NOAA Fisheries a list of 54 chemicals.

As the result of a lawsuit filed by the Washington Toxics Coalition, the Northwest Coalition for Alternatives to Pesticides and the Pacific Coast Federation of Fishermen's Associations, Coughenour had ruled in 2002 that the EPA had violated the federal Endangered Species Act when it failed to consult with NOAA Fisheries when approving the physical applications of the pesticides. He required the EPA to complete its consultation by Dec. 1, 2004. Earthjustice represented the plaintiffs in court.

On Jan. 22, 2004, Coughenour set buffer zones for 34 of the pesticides until EPA completes its review and establishes its own restrictions on the pesticides. That injunction prohibited aerial spraying of the chemicals within 100 yards of salmon bearing streams and it prohibited ground spraying within 20 yards of those streams. It also required stores that sell seven of the pesticides used in urban areas to warn their customers that the pesticides may harm salmon.

This week's decision means the buffers and warning stipulation of the order remain in place through this growing season, said Patti Goldman of Earthjustice.

The EPA appealed the 2002 decision to the Ninth U.S. Circuit Court of Appeals and this year Croplife America, a pesticide manufacturer, the Washington State Farm Bureau and the Washington State Potato Commission filed a motion to stay Coughenour's January injunction, saying that the injunction was a hardship and would harm their private business and economic interests.

Coughenour denied the stay, saying that the "balance of hardships always tips sharply in favor of endangered and threatened species."

"The pesticide industry overreached in their effort to block protections for salmon," said Goldman, who represented the plaintiffs. "This injunction was clearly warranted to get pesticides out of streams while EPA complies with the Endangered Species Act and develops permanent protections for salmon."

"The pesticide industry brought all its resources to bear to convince the courts to stop salmon protections, but clean water and salmon won over industry profits," said Erika Schreder, staff scientist with the Washington Toxics Coalition. "The court has looked at the facts and found that action is needed now to prevent pesticide harm to salmon.

The Washington Farm Bureau feels the district court went beyond its authority in allowing the ban on chemicals that had already been scrutinized through the federal licensing process. That process has already judged that the chemicals, if used properly, do not pose harm to salmon, said Dean Boyer of the Washington Farm Bureau.

"Again, we are disappointed that the court system is not willing to recognize that farmers and ranchers are being punished financially for EPA's failure to consult with NOAA Fisheries," Boyer said. "Farmers have done nothing wrong."

He said the court went "beyond what was necessary" in issuing the injunction during the ongoing consultations.

The ban has forced farmers to employ less effective alternatives, switch crops and "leave land fallow in order to follow the judge's order," Boyer said. The pesticides are "necessary to produce food and fiber in this country."

"Tree fruit is going to be the hardest hit," he said of potential infestations that could get a foothold in the unsprayed buffers and then spread across the rest of the orchards.

He said a true assessment of the economic impacts resulting from the injunction cannot be done until after the growing season. He predicted it would be all for naught, with most of the chemicals getting "no harm" or "unlikely to harm" salmon judgments through the consultation process.