Legal Actions regarding Pesticides / Herbicides

Various discussions related to Chemical Pesticides, Herbicides, Etc.

Legal Actions regarding Pesticides / Herbicides

Postby adminjt » Thu Nov 18, 2010 1:45 pm

August 25, 2010

Embassy Magazine

NAFTA chemical case goes Canada's way
Victory for Foreign Affairs over Chemtura may scare Dow off.

By Luke Eric Peterson

The lawyers at the Department of Foreign Affairs and International Trade are not bragging about it—at least not to date—but they've just won an impressive victory in an $80 million-plus NAFTA lawsuit.

Earlier this month, a panel of three arbitrators dismissed claims filed by the US chemical company Chemtura under Chapter 11 of the North American Free Trade Agreement.

Chemtura had sought to hold Canada liable for financial losses related to the government's phase-out of lindane, a hazardous agricultural chemical. However, the company failed to persuade arbitrators that government regulators acted without regard for scientific evidence or due process.

In addition to kicking Chemtura's claim to the curb, arbitrators also ordered the company to reimburse Canada for $3 million in legal costs and expenses.

While the feds will still be out of pocket for time devoted to defending the NAFTA lawsuit, the outcome is about as good as a government could hope for.

In fact, the victory could signal a set-back for another NAFTA claim which has been looming in the shadows.

In early 2009, a subsidiary of the Dow Chemical Company set in motion a similar NAFTA Chapter 11 claim. As was first revealed in these pages, Dow wants Canadian taxpayers to compensate them for losses arising out of provincial bans on cosmetic lawn pesticides.

After filing its papers in 2009, Dow ostentatiously sat on its hands—perhaps to see how arbitrators chose to resolve the earlier-launched Chemtura case.

However, with arbitrators refusing to compensate Chemtura for the loss of its lindane business, Dow may now think twice before attempting to recoup its own pesticide sales losses.

One can never be sure in the topsy-turvy world of international arbitration, where arbitrators often disagree with each other—and are under no obligation to follow the lead of earlier arbitration tribunals.

Yet the big picture suggests that some of the more excessive claims filed under the controversial NAFTA Chapter 11 mechanism are being beaten back.

This is certainly a good thing.

The NAFTA and other international investment treaties grease the wheels of international commerce by providing protection in cases where governments expropriate or nationalize foreign-owned businesses, or subject them to other forms of egregious treatment.

However, few bargained for such treaties to be used in an effort to immunize foreign businesses from the financial impact of legitimate public health, safety or environmental regulation.

Readers may recall that alarms about NAFTA Chapter 11 were raised more than a decade ago when the Canadian government caved in to another US chemical producer, Ethyl Corp., and agreed to roll back its plans to crack down on the gasoline additive MMT.

But in the years since, both Canada and the United States have stiffened their resolve and decided that they will not be pushed around on the legal playing field.

Over the last decade, the two governments have taken a few lumps, but they have been broadly successful in beating back efforts by claimants seeking to force taxpayers to bear the cost of strengthened government regulation.

Mind you, it's not all clear sailing for Canada.

The government may struggle to defend some of the dozen or more active NAFTA Chapter 11 cases pending at the moment. Indeed, where authorities have acted capriciously or in a discriminatory fashion against foreign investors, the government will still find itself on the wrong side of the NAFTA's strictures.

For instance, it would have been tough for the feds to duck liability for the outright expropriation by the province of Newfoundland of timber and water rights owned by Abitibi-Bowater.

The government might have argued that Abitibi was entitled to less than full compensation for its assets due to the environmental mess allegedly created by the financially-stricken company's closure of several pulp and paper operations.

No surprise then that as Embassy was on the verge of going to press, the government announced that it was settling the Abitibi claim for US$130 million, rather than permitting it to be arbitrated. As DFAIT lawyers know all too well: the rules of the global economy dictate that governments must pay when they seize foreign-owned property from its owners.

Nevertheless, the recent ruling in the Chemtura case may give pause to those considering copycat lawsuits. Slowly, but surely, international arbitrators are offering reassurances that NAFTA governments need not take out their chequebooks every time they introduce a new health or environmental regulation.

Luke Eric Peterson is the editor of InvestmentArbitrationReporter.com, an electronic news service dedicated to foreign investment and political risk disputes.

editor@embassymag.ca

http://www.embassymag.ca/page/view/nafta-08-25-2010

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NAFTA - Chapter 11 - Investment
Cases Filed Against the Government of Canada
Chemtura Corp. v. Government of Canada

Chemtura Corp., a United States company, served Canada with a ‘Notice of Intent to Submit a Claim to Arbitration' in November 2001. Chemtura filed its most recent Notice of Arbitration on Feb. 10, 2005. Crompton Corporation has changed its name to Chemtura Corporation following a merger.

A copy of the legal documents pertaining to this case can be found in the archive section of the Department's web site.

Archives of Legal Documents
http://www.international.gc.ca/trade-ag ... px?lang=en

Cases Filed Against the Government of Canada
Crompton (Chemtura) Corp. v. Government of Canada

Legal Documents (all documents are in pdf)

Copies of all legal documents posted in the document archive have been prepared in a language of operation of the Tribunal or Court in question. The Government of Canada has not modified or changed them in any way. As such they have not been translated from the original. They are provided in Acrobat (pdf) files. To view or download pdf files you need Adobe® Acrobat® Reader™ a free software that you can download from the web.

* Notice of Intent - November 6, 2001
* Second Notice of Intent - April 4, 2002
* Third Notice of Intent - September 19, 2002
* Notice of Arbitration (Related to First and Second Notices of Intent) - October 17, 2002
* Second Notice of Arbitration (Related to Third Notice of Intent) - February 10, 2005
* Investor's Memorial (Public Version) - June 2, 2008
* Counter-Memorial of Canada (Public Version) - October 20, 2008
* Investor's Reply (Public Version) - May 15, 2009 (PDF* 2.4 MB)
* Rejoinder Memorial of Canada - (Public Version) - July 10, 2009 (PDF* 5 MB)
* Government of Canada Post-hearing Brief - October 23, 2009 (PDF* 1.2 MB)
* Investor's Post-hearing Brief - October 23, 2009 (PDF* 4.7 MB)

Procedural Issues

*
Procedural Order No. 1 - January 21, 2008
* Confidentiality Order - January 21, 2008
* Procedural Order No. 3 - August 8, 2008
* Tribunal's letter concerning Procedural Order No. 3 - August 15, 2008 (PDF * )
* Procedural Order No. 4 - March 18, 2009 (PDF* 720 KB)
* Procedural Order No.5 - July 30, 2009 (PDF* 444 KB)
* Procedural Order No. 6 - September 29, 2009 (PDF * 169 KB)

Participation by a Party and Submissions by Non-Disputing Parties

*
Submission by the U.S. made pursuant to Article 1128 of the NAFTA - July 31 2009 (PDF * 358 ko)
*
Submission by Mexico made pursuant to Article 1128 of the NAFTA - July 31 2009 (PDF * 33 ko)

http://www.international.gc.ca/trade-ag ... px?lang=en

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NAFTA - Chapter 11 - Investment
Cases Filed Against the Government of Canada
"Dow AgroSciences LLC" v. Government of Canada

On August 25, 2008, Dow AgroSciences LLC, a U.S. corporation, served a Notice of Intent to Submit a Claim to Arbitration under Chapter Eleven of the NAFTA, for losses allegedly caused by a Quebec ban on the sale and certain uses of lawn pesticides containing the active ingredient 2,4-D.

A copy of any legal documents pertaining to this case can be found in the archive section of the Department's web site.

Archives of Legal Documents
http://www.international.gc.ca/trade-ag ... px?lang=en

NAFTA - Chapter 11 - Investment
Cases Filed Against the Government of Canada
"Dow AgroSciences LLC" v. Government of Canada

Legal Documents (all documents are in pdf)

Copies of all legal documents posted in the document archive have been prepared in a language of operation of the Tribunal or Court in question. The Government of Canada has not modified or changed them in any way. As such they have not been translated from the original. They are provided in Acrobat (pdf) files. To view or download pdf files you need Adobe® Acrobat® Reader™ a free software that you can download from the web.

* Notice of Intent - August 25, 2008
* Notice of Arbitration - March 31, 2009

http://www.international.gc.ca/trade-ag ... px?lang=en

===============
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Herbicide ruling has little impact regarding Pesticid

Postby adminjt » Wed Dec 29, 2010 6:17 pm

Herbicide ruling has little impact on KNF program


Posted: Tuesday, April 13, 2010 12:00 am |

By Canda Harbaugh, The Western News |

A federal judge’s recent ruling that the U.S. Forest Service can’t use helicopters to spray herbicide in the Kootenai National Forest will have little impact on the agency’s invasive plant management program, an agency official said.

“The ruling doesn’t affect our current weed program because we don’t use helicopter spraying,” said Quinn Carver, KNF natural resource staff officer. “We have not used helicopters to spray yet due to the expense.”

U.S. District Judge Donald Molloy concluded that in order for the Forest Service to utilize aerial herbicide applications contemplated in its Invasive Plant Management Project, the agency would have to address how often flights would be allowed and how they would affect endangered grizzly bears.

Environmentalist group Alliance for the Wild Rockies sued the Forest Service over the plan’s Final Environmental Impact Statement and 2007 Record of Decision, alleging that grizzly bears would be permanently displaced up to a mile from any area that is sprayed by low-flying helicopters.

“The injunction against helicopter spraying is a great victory for the Cabinet-Yaak grizzlies,” said Michael Garrity, executive director of the Alliance for the Wild Rockies. “… This fragile population is barely hanging on and it cannot withstand invasive activities, like helicopter spraying, that would continually harass and displace bears for the next decade.”

Molloy affirmed all of U.S. Magistrate Judge Jeremiah Lynch’s rulings in the case, allowing the Forest Service to continue with the remaining aspects of the plan, including the use of ground-based herbicide applications and biological controls, such as weed-eating insects.

The ruling denied several of the plaintiff’s other claims. The group alleged that the Forest Service’s plan did not consider the effects of the herbicide on human health or on the reproductive health of male grizzly bears. According to the group, the Forest Service also failed to consider the impact the plan would have on migratory songbirds.

“We’re disappointed,” Garrity said. “We think the Forest Service should have taken a harder look at these herbicide sprays on people and animals. There is judicial precedence for that.”

The weed program’s ROD authorized treating a maximum of 30,000 acres annually over the next 15 years, though the document stated that funding would probably only allow treating 5,000 to 6,000 acres per year.

Kootenai National Forest’s ecosystem is threatened by an increase of noxious plants, the agency reported, and herbicide sprays are one of many ways the agency tries to keep them from eradicating native plants.

“We will comply and continue with our regular program to control the spread of noxious weeds,” Carver said, “and the subsequent impact to wildlife habitat that they cause.”
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Weed Spraying Could Harm Bears, Judge Rules

Postby adminjt » Wed Dec 29, 2010 6:52 pm

Weed Spraying Could Harm Bears, Judge Rules
By ANNIE YOUDERIAN


(CN) - The U.S. Forest Service's plan to spray herbicide from helicopters over the Kootenai National Forest does not adquately consider the effects on grizzly bears, which typically flee from low-flying planes, a federal judge in Montana ruled.
U.S. District Judge Donald Molloy in Missoula barred the agency from aerial spraying in the 2.2 million-acre forest in northwest Montana until it properly examines how the plan would affect the endangered bears.
In the underlying lawsuit, the Alliance for the Wild Rockies argued that multiple flights over the forest might lead the roughly 35 grizzlies living in the area to abandon their habitat.
The group cited a 2006 Forest Service biological assessment, which stated that grizzlies "have been noted to panic and flee areas from over-flights in nearly all cases where they have been observed."
The agency conceded that the low-altitude flights would likely displace the bears temporarily, but said the plan would not have an "adverse effect" on the grizzlies.
Molloy sided with the environmental group, concluding that the Forest Service "acted arbitrarily and capriciously in determining that aerial spraying ... is not likely to adversely affect the grizzly bear."
His ruling adopts the recommendations of Magistrate Judge Jeremiah Lynch, who said the plan "clearly authorizes helicopter use that is low-altitude, high frequency, and of potentially extended duration." He pointed out that, according to the Forest Service's own guidance document, such use would likely have an adverse effect.
The agency countered that the document "should not be thought of as a 'cook book' or 'one size fits all' approach."
Judge Molloy ordered the Forest Service to consider the frequency of flights and how they might affect grizzly bears. But he ruled for the Forest Service on all other aspects of the plan, including proposed spraying from the ground. Molloy also rejected the environmental group's claims that the herbicide 2,4-D would harm people in the Libby, Mont., area and would ruin the habitat of migratory songbirds.
The noxious weed-control plan would allow ground spraying of up to 45,000 acres of forest and aerial spraying of up to 35,000 acres, to be completed in yearly increments of 6,000 acres over 15 years. Two-thirds of the annual spraying would be from the ground and a third from the air. The Forest Service said aerial spraying would be reserved for severe weed infestations.
Michael Garrity, executive director of the Helena-based environmental group, said he was pleased with the ruling, but thought the judge should have ordered the Forest Service to consider the effects of spraying on people, not just bears.

http://www.courthousenews.com/2010/04/09/26276.htm
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Re: Legal Actions regarding Pesticides / Herbicides

Postby adminjt » Wed Dec 29, 2010 6:55 pm

http://www.courthousenews.com/2008/12/02/Kootenai.pdf

Rebecca K. Smith
PUBLIC INTEREST DEFENSE CENTER, P.C.
P.O. Box 7584
Missoula, MT 59807
(406) 531-8133
publicdefense@gmail.com
Timothy M. Bechtold
BECHTOLD LAW FIRM, PLLC
P.O. Box 7051
Missoula, MT 59807
(406) 721-1435
tim@bechtoldlaw.net
Attorneys for Plaintiffs
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
ALLIANCE FOR THE WILD ROCKIES,
Plaintiff,
vs.
TOM TIDWELL, Regional Forester of Region
One of the United States Forest Service, and
UNITED STATES FOREST SERVICE, an
agency of the U.S. Department of Agriculture,
Defendants.
CV 08-168-M-DWM-JCL
COMPLAINT FOR INJUNCTIVE AND
DECLARATORY RELIEF
I. INTRODUCTION
1. This is a civil action for judicial review under the Administrative Procedure Act of the
U.S. Forest Service’s April 20, 2007 Record of Decision (ROD) approving the Kootenai
National Forest Invasive Plant Management Project (Project) for the Kootenai National
Forest. Plaintiff Alliance for the Wild Rockies attests that the final decision approving
the Project is arbitrary and capricious, an abuse of discretion, and/or otherwise not in
COMPLAINT 1
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accordance with law.
2. The ROD authorizes noxious weed treatment on 94,000 acres over the next 15 years.
Specifically, the ROD authorizes aerial herbicide application by helicopter on 30 - 35,000
acres, ground-based herbicide application on 45 - 55,000 acres, hand-pulling on five
acres, use of biological controls (i.e. weed-eating insects) on 375 acres, and seeding on 1 -
3,000 acres.
3. Defendants’ approval of the Project as written is a violation of the National
Environmental Policy Act (NEPA), 42 U.S.C. 4331 et seq., the National Forest
Management Act (NFMA) 16 U.S.C. § 1600 et seq., and the Administrative Procedure
Act (APA), 5 U.S.C. §§ 701 et seq.
4. Plaintiff seeks declaratory and injunctive relief to protect Plaintiff’s interests at law,
including its interests that the Forest Service comply with NEPA’s mandates to consider
reasonable alternative actions, conduct Environmental Assessments for site-specific
projects that tier to a programmatic Environmental Impact Statement, candidly disclose
environmental impacts, and take a hard look at environmental impacts, as well as
NFMA’s mandates to protect biodiversity, and mitigate harm and prevent irreparable
injury to the environment.
5. Plaintiff requests that the Court set aside the ROD approving the Project, pursuant to 5
U.S.C. § 706(2)(A), and that the Court enjoin the Forest Service from implementing this
Project.
6. Plaintiff seeks a declaratory judgment, injunctive relief, the award of costs of suit,
including attorney and expert witness fees pursuant to the Equal Access to Justice Act, 28
U.S.C. § 2412, and such other relief as this Court deems just and proper.
II. JURISDICTION
7. This action arises under the laws of the United States and involves the United States as a
defendant. Therefore, this Court has subject matter jurisdiction over the claims specified
COMPLAINT 2
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in this Complaint pursuant to 28 U.S.C. §§ 1331, 1346.
8. An actual controversy exists between Plaintiff and Defendants. Plaintiff’s members use
and enjoy the Kootenai National Forest for hiking, fishing, hunting, camping,
photographing scenery and wildlife, and engaging in other vocational, scientific, spiritual,
and recreational activities. Plaintiff’s members intend to continue to use and enjoy the
area frequently and on an ongoing basis in the future.
9. The aesthetic, recreational, scientific, spiritual, and educational interests of Plaintiff’s
members have been and will be adversely affected and irreparably injured if Defendants
implement the Project. These are actual, concrete injuries caused by Defendants' failure
to comply with mandatory duties under NFMA, NEPA, and the APA. The requested
relief would redress these injuries and this Court has the authority to grant Plaintiff’s
requested relief under 28 U.S.C. §§ 2201 & 2202, and 5 U.S.C. §§ 705 & 706.
10. Plaintiff submitted timely written comments concerning the Project and fully participated
in the administrative review and appeal process, thus it has exhausted administrative
remedies. Defendants’ denial of Plaintiff’s administrative appeal was the final
administrative action of the U.S. Department of Agriculture Forest Service. Thus, the
challenged decision is final and subject to this Court’s review under the APA, 5 U.S.C.
§§ 702, 704, and 706.
III. VENUE
11. Venue in this case is proper under 28 U.S.C. § 1391(e) and LR 3.3(a)(1). Defendant
Tidwell, an officer of the U.S. Forest Service with its Region One office in Missoula,
resides within the Missoula Division of the United States District Court for the District of
Montana, and is the principal representative in this District of Defendant U.S. Forest
Service (Forest Service). The challenged decisions were upheld by the Regional Forester,
and are representative of official policies and procedures common to the Northern
Region.
COMPLAINT 3
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IV. PARTIES
12. Plaintiff ALLIANCE FOR THE WILD ROCKIES (Alliance) is a tax-exempt, non-profit public
interest organization dedicated to the protection and preservation of the native
biodiversity of the Northern Rockies Bioregion, its native plant, fish, and animal life, and
its naturally functioning ecosystems. Its registered office is located in Helena, Montana.
The Alliance has over 2,000 individual members, including members who reside on
private land within or close to the Kootenai National Forest, and more than 600 member
businesses and organizations, many of which are located in Montana. Members of the
Alliance work as fishing guides, outfitters, and researchers, who observe, enjoy, and
appreciate Montana’s native wildlife, water quality, and terrestrial habitat quality, and
expect to continue to do so in the future, including in the Project area. Alliance’s
members’ professional and recreational activities are directly affected by Defendants’
failure to perform their lawful duty to protect and conserve these ecosystems by
approving the challenged Project.
13. Defendant TOM TIDWELL is the Regional Forester for the Northern Region of the U.S.
Forest Service, and in that capacity is charged with ultimate responsibility for insuring
that decisions made at the National Forest (unit) level in the Northern Region are
consistent with applicable laws, regulations, and official policies and procedures.
14. Defendant UNITED STATES FOREST SERVICE is an administrative agency within the U.S.
Department of Agriculture, entrusted with the management of our National Forests.
V. PROCEDURAL BACKGROUND
15. On April 20, 2007, Paul Bradford, Forest Supervisor for the Kootenai National Forest,
signed the Record of Decision approving the Kootenai National Forest Invasive Plant
Management Project (Project) on the Kootenai National Forest.
16. Plaintiff Alliance for the Wild Rockies filed an administrative appeal of the ROD on
June 11, 2007, and it was denied, constituting the final decision of the Forest Service.
COMPLAINT 4
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VI FACTUAL ALLEGATIONS
17. The Project authorizes noxious weed treatment on 94,000 acres of the Kootenai National
Forest over the next 15 years. Specifically, the Project authorizes ground-based herbicide
application on 45 - 55,000 acres, aerial herbicide application on 30 - 35,000 acres, handpulling
on five acres, use of biological controls (i.e. weed-eating insects) on 375 acres,
and seeding on 1 - 3,000 acres.
18. The stated purposes of the Project are to prevent the introduction and spread of new and
established noxious weeds, restore native plant communities and improve forage, treat
weeds on private lands near the Forest, and limit the spread of weeds in wilderness areas.
19. The Environmental Impact Statement (EIS) for the Project does not consider any
alternatives that include preventative measures, such as standards addressing roadbuilding,
timber harvest, or cattle grazing.
20. The Forest Service admits that the noxious weed problem on the Forest threatens native
plant diversity, and is getting worse, and that the Project will not stop the spread of
noxious weeds on the Kootenai National Forest.
21. The public overwhelmingly opposes the Project. Twelve of the 14 individual letters
commenting on the Draft EIS opposed the Project. Six of ten organizations commenting
on the Draft EIS opposed the Project. Additionally, a petition signed by over 90 local
residents opposed the Project.
22. The Project authorizes herbicides to be aerially sprayed over areas with tree and shrub
cover, and the design criteria do not limit spraying based on percent canopy closure.
23. The design criteria for aerial spraying do not preclude the use of any herbicide.
24. The design criteria state that the Forest Service will create an annual plan for weed
treatment with site-specific interdisciplinary analysis and mitigation measures.
25. The EIS requires that the annual analysis maps annual herbicide application locations and
determines (a) effects on local sensitive, threatened, or endangered plants, (b)
COMPLAINT 5
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displacement areas for grizzly bears, (c)bald eagle nest buffer zones, (d) herbicide limits
for each affected 6th code HUC watershed, (e) cumulative effects of new regeneration
harvest, (f) cumulative effects from yearly livestock grazing, (g) cumulative effects of the
annual plan in general, and (h) wolf dens and rendezvous sites. The annual analysis for
2008 did not include this information and was not analyzed in an Environmental
Assessment (EA) subject to public notice and comment.
26. The design criteria allows aerial herbicide spraying if wind speed is less than six miles
per hour.
27. The most recent aerial herbicide drift study cited by the Forest Service in the Final EIS
recommends applying aerial herbicides as a last resort, and at speeds no greater than three
miles per hour, not applying during an inversion, and not applying when there is rain
forecasted in the next 24 hours. None of these measures were incorporated into the
design criteria for the Project.
28. The design criteria allow aerial herbicide application by helicopter for two days annually
in each grizzly bear management unit, and requires that adjacent undisturbed
“displacement areas” be available.
29. The Forest Service admitted that helicopter operations will occur over core grizzly bear
habitat and will displace grizzly bears up to one mile from spray operations.
30. The Forest Service admitted that herbicides will be aerially sprayed over spring forage
vegetation for grizzly bears, thereby killing native forage plants and rendering the area
unsuitable for foraging by grizzly bears for two to three years.
31. The EIS did not discuss the potential toxic effects of herbicides on grizzly bear
reproduction.
32. The Forest Service concluded that the Project would not have an adverse impact on
grizzly bears.
33. The Forest Service admitted that the application of one herbicide, 2, 4-D, at all
COMPLAINT 6
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application rates may have adverse impacts on migratory birds, particularly on the 30,000
acres proposed for aerial spraying. The Forest Service did not analyze the viability of
migratory birds on the Kootenai National Forest in light of this potential for adverse
impact.
34. The human health discussion in the Final EIS did not candidly disclose the actual physical
effects of herbicides on humans, as found in scientific studies. Instead it primarily
discussed the problem in terms of “hazard quotients” and undefined degrees of risk (low
risk, moderate risk, significant risk) determined by risk assessment modeling.
VII. CLAIMS FOR RELIEF
FIRST CLAIM FOR RELIEF
The Project EIS violates NEPA because it fails to consider
an alternative that included preventive measures.
35. All above paragraphs are incorporated by reference.
36. NEPA requires that agencies consider all reasonable alternatives in an Environmental
Impact Statement.
37. The first two listed purposes for the Project are to prevent noxious weed infestations.
38. The Forest Service acknowledged that road-building and maintenance, logging, and cattle
grazing have created and exacerbated noxious weed infestations and will continue to do
so in the future, even if the Project is implemented.
39. The Forest Service did not consider any EIS alternative with preventive measures, such as
Forest-wide thresholds or standards, that address these causes of the noxious weed
problem.
40. The Project therefore violates NEPA because the Forest Service failed to consider a
reasonable alternative with preventive measures that address the causes of noxious weed
infestations.
SECOND CLAIM FOR RELIEF
The Project ROD violates NEPA because the Forest Service will not conduct
COMPLAINT 7
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NEPA analysis for its annual site-specific herbicide treatment plans.
41. All above paragraphs are incorporated by reference.
42. NEPA requires that agencies conduct an Environmental Assessment to determine and
mitigate the site-specific environmental impacts of a project, and ensure that the agency
and public are fully informed of the direct, indirect, and cumulative effects of a sitespecific
action.
43. The ROD stated that the Forest Service will create an annual plan for weed treatment with
site-specific interdisciplinary analysis and mitigation measures. The annual analysis must
map annual herbicide application locations and determine (a) effects on local sensitive,
threatened, or endangered plants, (b) displacement areas for grizzly bears, (c)bald eagle
nest buffer zones, (d) herbicide limits for each affected 6th code HUC watershed, (e)
cumulative effects of new regeneration harvest, (f) cumulative effects from yearly
livestock grazing, (g) cumulative effects of the annual plan in general, and (h) wolf dens
and rendezvous sites.
44. The annual analysis for 2008 did not include this information and was not analyzed in an
Environmental Assessment (EA) subject to public notice and comment.
45. The Forest Service’s failure to analyze its 2008 treatment plan in an Environmental
Assessment, and its plan (evidenced in the ROD) to continue this omission for all future
annual treatment plans, violates NEPA.
THIRD CLAIM FOR RELIEF
The Forest Service is violating NFMA by failing to address the causes
of noxious weed infestations in its Forest-wide Invasive Plant Management Plan.
46. All above paragraphs are incorporated by reference.
47. NFMA requires that the Forest Service maintain native plant diversity and avoid
irreversible damage to soils.
48. The Forest Service admits that noxious weed infestations destroy native plant diversity by
occupying native plant habitat and requiring repetitive herbicide treatments.
COMPLAINT 8
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49. The Forest Service admits that noxious weed infestations may irreversibly degrade soil
productivity, quality, and quantity.
50. The Forest Service admits that major causes of the noxious weed infestations are its own
land management activities, including logging, road building and use, and cattle grazing.
51. The Forest Service admits that – even with herbicide application over thousands of acres
– its land management activities will to cause noxious weed infestations over thousands
of acres at increasing rates.
52. The Forest Service’s failure to address the causes of noxious weed infestations, by
requiring preventive measures in the EIS, violates NFMA because it is not ensuring the
protection of soils and native plant communities.
FOURTH CLAIM FOR RELIEF
The Forest Service is violating the APA and NFMA because the Project
will adversely impact the Cabinet-Yaak grizzly bear.
53. All above paragraphs are incorporated by reference.
54. The APA requires that agency findings be supported by substantial evidence in the
record.
55. NFMA requires that the Forest Service ensure species viability of native wildlife species.
56. The ROD authorized aerial herbicide application by helicopter over grizzly bear habitat
each year for 15 years, and admits that each application will displace grizzly bears up to
one mile.
57. In light of the precarious status of the Cabinet-Yaak grizzly bear, the Forest Service’s
finding that this displacement is not an adverse impact is arbitrary and capricious, in
violation of the APA, and the Project approval violates NFMA because it fails to ensure
the viability of the Cabinet-Yaak grizzly bear.
FIFTH CLAIM FOR RELIEF
The EIS violates NEPA and NFMA because the it does not
take a hard look at impacts of the Project on the viability of migratory songbirds.
COMPLAINT 9
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58. All above paragraphs are incorporated by reference.
59. NFMA requires that the Forest Service ensure the viability of native wildlife species.
60. The Forest Service admits that herbicide application at all foreseeable rates may adversely
impact insectivorous migratory songbirds.
61. The Forest Service fails to include a discussion in the EIS regarding how it will ensure
the viability of insectivorous migratory songbirds in light of these likely adverse impacts.
The failure to include this discussion violates NEPA’s hard look requirement and
NFMA”s requirement to ensure species viability.
SIXTH CLAIM FOR RELIEF
The Forest Service is violating NEPA and the APA because the EIS does not take a
hard look at the adequacy of the mitigation measures for aerial herbicide drift.
62. All above paragraphs are incorporated by reference.
63. NEPA requires that the Forest Service take a hard look at the impacts of its projects, and
provide analytical support for proposed mitigation measures. Likewise, the APA requires
that the Forest Service support its decisions with substantial evidence in the record.
64. The most recent science on aerial herbicide drift – cited by the Forest Service in the EIS –
recommended the following mitigation measures: (1) applying aerial herbicides as a last
resort; (2) applying herbicides at speeds no greater than three miles per hour; (3) not
applying herbicides during an inversion; and (4) not applying herbicides when there is
rain forecasted in the next 24 hours.
65. The design criteria for the Project does not incorporate any of these mitigation measures,
and neither the ROD nor the EIS discuss why they have been excluded nor why the
existing design criteria are adequate.
66. The Forest Service’s failure to take a hard look at aerial herbicide drift mitigation
measures violates NEPA and the APA.
SEVENTH CLAIM FOR RELIEF
The EIS violates NEPA because it did not
COMPLAINT 10
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candidly disclose the human health effects of herbicides.
67. All above paragraphs are incorporated by reference.
68. NEPA requires that the Forest Service candidly disclose and discuss the impacts of its
proposed projects in an EIS.
69. In the EIS discussion on the human health effects of herbicides on the general public, the
Forest Service discusses the issue in terms of risk levels and hazard quotients. It does not
candidly disclose the actual physical effects of these herbicides, as found in scientific
studies. The language of the EIS misleads the general public by implying that the only
people who may experience adverse health effects from herbicide exposure are
“sensitive” individuals and workers in occupational exposure scenarios.
70. The Forest Service’s failure to candidly disclose the potential physical effects of herbicide
exposure on the general public violates NEPA.
VII. REQUEST FOR RELIEF
For all of the above-stated reasons, Plaintiff requests that this Court:
A. Declare that the Forest Service’s failure to consider an alternative that addresses the cause
of the noxious weed problem violated NEPA and NFMA;
B. Declare that the Forest Service’s plan and practice to avoid conducting an Environmental
Assessment for each annual herbicide treatment plan violates NEPA;
C. Declare that the Forest Service’s plan to spray herbicide by helicopter over grizzly bear
habitat fails to ensure the viability of the grizzly bear, in violation of NFMA;
D. Declare that the Forest Service’s failure to discuss the Project’s effects on the viability of
migratory songbirds in the EIS violates NEPA and NFMA;
E. Declare that the Forest Service’s failure to take a hard look at the adequacy of its
proposed mitigation measures for aerial herbicide drift violates NEPA;
F. Declare that the Forest Service’s failure to candidly disclose the physical effects of
COMPLAINT 11
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herbicides on human health violates NEPA;
G. Enjoin the implementation of the Project;
H. Award Plaintiff its costs, expenses, expert witness fees, and reasonable attorney fees
under EAJA; and
I. Grant Plaintiff such further relief as may be just, proper, and equitable.
DATED this 1st day of December, 2008
/s/ Rebecca K. Smith
Rebecca K. Smith
One of Plaintiff’s Attorneys
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