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Appeals Court Remands Salmon/Pesticide BiOp Back to District Court; Demands Clarity by Staff Columbia Basin Bulletin, March 1, 2013

Citing a lack "reasoned decision making," a federal appeals court panel last week vacated a 2008 National Marine Fisheries Service decision which judged that the use of three specific pesticides, as now allowed, would jeopardize the viability of Pacific salmon stocks protected under the Endangered Species Act.

"Accordingly, the judgment of the district court is reversed," says the Feb. 21 opinion issued by the Maryland-based U.S. Court of Appeals for the Fourth District.

An Oct. 31, 2011 federal district court opinion upheld NOAA Fisheries "jeopardy" decision in its ESA biological opinion on the potential federal relicensing of chlorpyrifos, diazinon, and malathion, three pesticides commonly used for agricultural and urban purposes.

That district court decision was appealed by three of the chemicals' manufacturers, Dow AgroSciences LLC, Makhteshim Agan of North America, Inc., and Cheminova, Inc. USA.

The defendant in the case is NOAA Fisheries, which completed the BiOp as part of a required ESA process for evaluating a potential action by another federal agency, the Environmental Protection Agency. EPA is charged with examining chemical registration applications and, before granting permits, assuring that legal usage avoids "unreasonable" environmental impacts.

Intervening in the lawsuit on the side of NOAA Fisheries were environmental groups -- the Northwest Center for Alternatives to Pesticides, Pacific Coast Federation of Fishermen's Associations and Defenders of Wildlife -- represented by Earthjustice.

The appeals court opinion stated that ". . . the BiOp is vacated; and the case is remanded to the district court with instructions to remand the case to the Fisheries Service for further proceedings consistent with this opinion," according to the decision rendered by the three-judge appellate panel.

"In sum, the Fisheries Service's November 2008 BiOp relied on a selection of data, tests, and standards that did not always appear to be logical, obvious, or even rational," the Fourth Circuit decision concludes.

"While the Service may have had good and satisfactory explanations for its choices, the BiOp did not explain them with sufficient clarity to enable us to review their reasonableness. For that reason, we conclude the BiOp is arbitrary and capricious."

NOAA Fisheries had in its BiOp decided that the three pesticides' reregistration should not be issued without specific restrictions. Among the "reasonable and prudent alternatives" suggested by NOAA Fisheries to protect listed fish were prohibitions on the on-ground applications of the chemicals within 500 feet, and aerial application within 1,000 feet, of any salmonid habitat.

That part of the BiOp was particular vexing for the manufacturers and pesticide user organizations that joined the legal fight.

U.S. Rep. Doc Hastings of eastern Washington -- an area fueled in large part by its agriculture industry -- cheered the court decision.

"This Court ruling re-affirms what states, other federal agencies, and multiple House Committees have already found: that NOAA's salmon BiOps for crop protection products are based on flawed science, outdated data, and fail to consider the economic impact of buffers on as much as 60 percent of agriculture in Washington alone," said Hastings, chairman of the House Natural Resources Committee.

A press release issued by Hastings drew on support from other congressional leaders.

"Whether we are talking about NOAA's evaluation of pesticides in the Pacific Northwest, the Fish and Wildlife Service evaluation of the lesser prairie chicken in the southern Great Plains or countless other decisions, it amazes me how little regard there is within the Services for science and the economic consequences of their actions," said House Agriculture Committee Chairman Frank Lucas, R-Okla., "It is my hope that the order of the Fourth Circuit will finally encourage the Services to balance the goals of species protection with the requirement that their decisions be technically and economically feasible."

"The court's decision reaffirms the need for science-based information within the regulatory process. This is a long-needed step in the right direction," said Collin Peterson, D-Minn., ranking member of the House Agriculture Committee.

Industry officials likewise hailed the decision.

"This important ruling is critical to the success of future ESA consultations," said Rachel G. Lattimore, senior vice president and general counsel for CropLife America, which intervened in the lawsuit. CropLife represents developers, manufacturers, formulators and distributors of plant science solutions for agriculture and pest management in the United States. Its member companies produce, sell and distribute virtually all the crop protection and biotechnology products used by American farmers

"CLA is pleased that the court made a reasonable judgment that will hopefully set a standard for future BiOp decisions that affect the crop protection industry," Lattimore said. She called the chemicals three valuable crop protection products.

NOAA Fisheries officials have just begun to study the new court decree.

"We will be promptly conducting an internal discussion," and conferring with the Justice Department, about next steps, said Will Stelle, administrator for NOAA Fisheries Northwest Region.

The BiOp completed in 2008 is the first of several pledged by NOAA Fisheries as the result of an earlier court settlement.

The agency has completed six BiOps in all so far, and has yet to judge the impact of seven other commonly used chemicals that could be affecting the survival of listed salmon and steelhead stocks native to the West Coast in California, Oregon and Washington.

The agency could ask the Fourth Circuit to reconsider the decision, or ask the U.S. Supreme Court to take up the issue.

Or they could embrace the ordered remand, and provide the explanations and justifications that the Fourth Circuit panel demands.

"We have to go back and take a hard look at what the court found," Stelle said.

Defendant-intervenors don't think the bottom line will change.

"They are three of the most toxic pesticides still in use, if you're looking from a fish's perspective," said Earthjustice's Steve Mashuda.

"The agency will go back and address the need for addition explanations," Mashuda said. "But I don't think they are going to fundamentally change the opinion."

"They spent many, many years putting the biological opinion together," Defenders of Wildlife attorney Jason Rylander said of what turned out to be a 482-page document.

"They need to make whatever changes they think are necessary to address the court's concerns, and do what's best for salmon," Rylander said.

The BiOp concluded that chlorpyrifos, diazinon, and malathion would jeopardize numerous salmonid species and adversely affect critical habitat for the species. It found that exposure to these pesticides would kill salmonids and, even at low levels, would reduce salmonid growth, reduce availability of prey, and impair salmonids' swimming and olfactory senses," according to background information included in the new Fourth Circuit opinion.

"And it found ultimately that the reregistration of the pesticides would jeopardize the survival of 27 of 28 listed salmonid species and adversely affect the critical habitat of 25 of 26 listed species."

"The Pesticide Manufacturers contend, on the merits, that the Fisheries Service's BiOp failed to justify numerous critical components of its analysis, rendering the BiOp substantially arbitrary and capricious," the Fourth Circuit opinion says.

"Rather than address each claimed deficiency, we address what we consider to be their three most significant claims: (1) that the Fisheries Service failed to justify its model's assumption that juvenile salmonids would be exposed to a lethal level of pesticides continuously for 96 hours; (2) that the BiOp fails to justify its reliance on water monitoring data that the Manufacturers allege were outdated and not representative of current conditions; and (3) that it failed to explain why it imposed uniformly sized buffers to all bodies of water, whether they be rivers or drainage ditches, and regardless of the economic feasibility of such uniform buffers."

The appellate panel agreed with the plaintiffs on all three points, saying NOAA Fisheries had failed to explain why it had taken its chosen course. The once-size-fits-all prescription for buffers failed to address both scientific and economic questions, the court said.

"We cannot agree with this position, as it effectively reads out the explicit requirement of Regulation 402.02 that the agency evaluate its reasonable and prudent alternative recommendation for, among other things, economic and technological feasibility," the Feb. 21 opinion says.

"Moreover, economic feasibility becomes especially relevant when recommending uniform buffers because, as the Pesticide Manufacturers point out, pesticide applications would be prohibited within 500 feet (for ground applications) and 1,000 feet (for aerial applications) of any waterway that is connected, directly or indirectly, at any time of the year, to any water body in which salmonids might be found at some point.

"Such a broad prohibition readily calls for some analysis of its economic and technical feasibility."

For more information about the NOAA Fisheries process, see: www.nmfs.noaa.gov/pr/consultation/pesticides.htm