For Immediate Release: November 8, 2002 Contacts: --George Wooten, Methow Field Specialist, 509-996-3835 --Asante Riverwind, League Of Wilderness Defenders-Blue Mountains Biodiversity Project, 541-468-2305, 541-617-1009 --Mike Peterson, The Lands Council, 509-838-4912
Circuit Court Finds Forest Service Tussock Moth Spray Proposal Illegal. Conservationists say bug attack failed to materialize
The Court of Appeals for the Ninth Circuit has concluded that the US Forest Service must obtain a National Pollution Discharge Elimination System permit (NPDES) before it resumes aerial spraying of Bacillus thuringensis to control tussock moths in national forests in the Pacific Northwest. Such permits are required by the Clean Water Act before discharging pollutants from any "point source" into navigable waters of the United States.
Appellants in the case-League Of Wilderness Defenders-Blue Mountains Biodiversity Project, Kettle Range Conservation Group (KRCG), The Lands Council, Hells Canyon Preservation Council, Northwest Ecosystem Alliance, Oregon Natural Resources Council, and American Lands-had challenged the Forest Service's decision that an NPDES permit was not required. The Forest Service maintained that spraying pesticides from an aircraft did not constitute a "point source" pollution, which is defined as a "discernible, confined and discrete conveyance," such as a pipe or ditch.
The court sided with the appellants, ruling that an airplane fitted with tanks and mechanical spraying apparatus met the definition, and that "the Forest Service cannot contravene the will of Congress through its reading of administrative regulations." "The reckless days of spraying insecticides over forests and water may well be over," said Mike Peterson, Executive Director of The Lands Council. In the November 4th ruling, the court also determined that the Forest Service's analysis of environmental impacts related to the spraying failed to meet the requirements of the National Environmental Policy Act (NEPA). Judge Dorothy Nelson cited contradictions in Forest Service documents and the agency's failure to analyze how far the pesticide might drift, in what direction, or of the effect of spraying or not spraying at different wind speeds as the foundation for her opinions regarding the analysis.
The Forest Service predicted an outbreak of tussock moths in years 2000-2002 and designed the spraying program to prevent what the agency predicted would constitute unacceptable levels of damage to trees in the National Forest. The predicted outbreak did not occur. "Just as in the case of the alleged 2000 Douglas fir bark beetle outbreak, the Forest Service estimated tussock moths would destroy forests across the region," said David Heflick, Director of KRCG's Forest and Rivers Program. "In both cases the courts found such decisions to be based on faulty analysis and therefore unlawful, and in both cases the projected insect attacks never materialized."
"Tussock moths are natural predators," said George Wooten, KRCG botanist. "Their populations rise and fall in cycles of over a decade. Spraying BTk kills not only the tussock moths, but [all] other moths and butterflies as well." "Rare endemic forest dependent butterflies have been spared thanks to this court decision, as have numerous other species throughout the forests," said Asante Riverwind, League Of Wilderness Defenders-Blue Mountains Biodiversity Project. "Biocides such as BTk should never be used so widely or foolishly as the Forest Service proposed to do." Appellants were represented by the legal team of Marianne Dugan, Brent Foster and Lauren Regan.