FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WASHINGTON TOXICS COALITION; 

NORTHWEST COALITION FOR

ALTERNATIVES TO PESTICIDES;

PACIFIC COAST FEDERATION OF

FISHERMEN’S ASSOCIATIONS, INC.;

INSTITUTE FOR FISHERIES RESOURCES,

Plaintiffs-Appellees,

v.

ENVIRONMENTAL PROTECTION

AGENCY; CHRISTINE TODD

WHITMAN,

Defendants,

No. 04-35138

and

D.C. No.

CALIFORNIA PLANT HEALTH  CV-01-00132-JCC

ASSOCIATION; OREGON

AGRICULTURAL CHEMICALS &

FERTILIZERS ASSOCIATION; FAR

WEST AGRIBUSINESS ASSOCIATION;

AGRICULTURAL COOPERATIVE

COUNCIL OF OREGON; FRUIT

GROWERS LEAGUE OF SOUTHERN

OREGON; HOOD RIVER GROWERSHIPPER ASSOCIATION; HOP

GROWERS OF WASHINGTON; IDAHO

MINT GROWERS ASSOCIATION;

MALHEUR COUNTY ONION GROWERS

ASSOCIATION; NATIONAL POTATO

COUNCIL, ORCHARD VIEW FARMS; 

7721
OREGON ALFALFA SEED GROWERS 

ASSOCIATION; OREGON CRANBERRY

FARMERS’ ALLIANCE; OREGON HOP

GROWERS ASSOCIATION; OREGON

HORTICULTURAL SOCIETY; OREGON

SEED COUNCIL; USA DRY PEA &

LENTIL COUNCIL; WASCO COUNTY

FRUIT & PRODUCE LEAGUE;

WASHINGTON ASSOCIATION OF

WHEAT GROWERS; WASHINGTON

MINT GROWERS ASSOCIATION;

WASHINGTON STATE HORTICULTURAL

ASSOCIATION; WESTERN

WASHINGTON AGRICULTURAL

ASSOCIATION; OREGON DAIRY 

FARMERS; AMERICAN FOREST

RESOURCE COUNCIL; OREGON

FOREST INDUSTRIES COUNCIL;

WASHINGTON FRIENDS OF

FARMS AND FORESTS;

OREGONIANS FOR FOOD AND

SHELTER; WESTERN WASHINGTON

GOLF COURSE SUPERINTENDENTS

ASSOCIATION; NATIONAL

AGRICULTURAL AVIATION

ASSOCIATION; CALIFORNIA

AGRICULTURAL AIRCRAFT

ASSOCIATION; CROPLIFE AMERICA,

Defendant-Intervenors-Appellants. 

7722 WASHINGTON TOXICS COALITION v. EPA
WASHINGTON TOXICS COALITION; 

NORTHWEST COALITION FOR

ALTERNATIVES TO PESTICIDES;

PACIFIC COAST FEDERATION OF

FISHERMEN’S ASSOCIATIONS, INC.;

INSTITUTE FOR FISHERIES RESOURCES,

Plaintiffs-Appellees,

v.

No. 04-35212

ENVIRONMENTAL PROTECTION

A D.C. No. GENCY; CHRISTINE TODD 

W CV-01-00132-JCC HITMAN,

Defendants,

CALIFORNIA PLANT HEALTH

ASSOCIATION; CROPLIFE AMERICA,

Defendant-Intervenors,

and

WASHINGTON STATE POTATO

COMMISSION,

Defendant-Intervenor-Appellant. 

WASHINGTON TOXICS COALITION v. EPA 7723
WASHINGTON TOXICS COALITION; 

NORTHWEST COALITION FOR

ALTERNATIVES TO PESTICIDES;

PACIFIC COAST FEDERATION OF

FISHERMEN’S ASSOCIATIONS, INC.;

INSTITUTE FOR FISHERIES RESOURCES,

Plaintiffs-Appellees,

No. 04-35237 v.

D.C. No. ENVIRONMENTAL PROTECTION 

A CV-01-00132-JCC GENCY; CHRISTINE TODD

WHITMAN,

Defendants,

CROPLIFE AMERICA, et al,

Defendant-Intervenor,

and

WASHINGTON STATE FARM BUREAU,

Defendant-Intervenor-Appellant. 

7724 WASHINGTON TOXICS COALITION v. EPA
WASHINGTON TOXICS COALITION; 

NORTHWEST COALITION FOR

ALTERNATIVES TO PESTICIDES;

PACIFIC COAST FEDERATION OF

FISHERMEN’S ASSOCIATIONS, INC.;

INSTITUTE FOR FISHERIES RESOURCES,

Plaintiffs-Appellees,

v.

ENVIRONMENTAL PROTECTION

AGENCY; CHRISTINE TODD

WHITMAN,

Defendants-Appellants,

and

CALIFORNIA PLANT HEALTH No. 04-35244 ASSOCIATION; OREGON

AGRICULTURAL D.C. No. CHEMICALS & 

FERTILIZERS ASSOCIATION; FAR CV-01-00132-JCC

WEST AGRIBUSINESS ASSOCIATION; OPINION

AGRICULTURAL COOPERATIVE

COUNCIL OF OREGON; FRUIT

GROWERS LEAGUE OF SOUTHERN

OREGON; HOOD RIVER GROWERSHIPPER ASSOCIATION; HOP

GROWERS OF WASHINGTON; IDAHO

MINT GROWERS ASSOCIATION;

MALHEUR COUNTY ONION GROWERS

ASSOCIATION; NATIONAL POTATO

COUNCIL; ORCHARD VIEW FARMS;

OREGON ALFALFA SEED GROWERS

ASSOCIATION; OREGON CRANBERRY

FARMERS’ ALLIANCE; OREGON FARM

BUREAU FEDERATION; OREGON HOP

GROWERS ASSOCIATION; 

WASHINGTON TOXICS COALITION v. EPA 7725
OREGON HORTICULTURAL SOCIETY; 

OREGON SEED COUNCIL; USA DRY

PEA & LENTIL COUNCIL; WASCO

COUNTY FRUIT & PRODUCE LEAGUE;

WASHINGTON ASSOCIATION OF

WHEAT GROWERS; WASHINGTON

MINT GROWERS ASSOCIATION;

WASHINGTON STATE HORTICULTURAL

ASSOCIATION; WESTERN

WASHINGTON AGRICULTURAL

ASSOCIATION; OREGON CATTLEMEN’S

ASSOCIATION; OREGON DAIRY

FARMERS; AMERICAN FOREST

RESOURCE COUNCIL; OREGON

FOREST INDUSTRIES COUNCIL;

W  ASHINGTON FRIENDS OF

FARMS AND FORESTS;

OREGONIANS FOR FOOD AND

SHELTER; WESTERN WASHINGTON

GOLF COURSE SUPERINTENDENTS

ASSOCIATION; NATIONAL

AGRICULTURAL AVIATION

ASSOCIATION; CALIFORNIA

AGRICULTURAL AIRCRAFT

ASSOCIATION; WASHINGTON STATE

POTATO COMMISSION; WASHINGTON

STATE FARM BUREAU; SYNGENTA

CORP PROTECTION; CROPLIFE

AMERICA,

Defendant-Intervenors. 

7726 WASHINGTON TOXICS COALITION v. EPA
Appeal from the United States District Court

for the Western District of Washington

John C. Coughenour, Chief Judge, Presiding

Argued and Submitted

September 14, 2004—Seattle, Washington

Filed June 29, 2005

Before: Mary M. Schroeder, Chief Judge,

James R. Browning, and A. Wallace Tashima,

Circuit Judges.

Opinion by Chief Judge Schroeder

WASHINGTON TOXICS COALITION v. EPA 7727
COUNSEL

Todd S. Kim, Department of Justice, Washington, DC, for the

defendants-appellants. 

WASHINGTON TOXICS COALITION v. EPA 7729
Karen Budd-Falen, Budd-Falen law Offices, Cheyenne, Wyoming, for the defendants-appellants. 

J. Michael Klise & Stephen P. Quarles, Crowell & Moring,

Washington, DC, for the defendants-appellants. 

Patti A. Goldman, Earthjustice, Seattle, Washington, for the

plaintiffs-appellees. 

OPINION

SCHROEDER, Chief Judge: 

This litigation is about the Environmental Protection Agency’s registration of 54 pesticide active ingredients that the

plaintiff environmental coalitions fear may harm endangered

or threatened salmon and steelhead in the waters of the Pacific

Northwest. The plaintiffs, Washington Toxics Coalition et al.,

(“WTC”), contend that EPA violated the Endangered Species

Act, 16 U.S.C. § 1536(a)(2), by failing to consult with the

National Marine Fisheries Service before approving the pesticides. 

EPA admittedly did not do any such consultation, and it

agrees that the Endangered Species Act requires consultation

with the National Marine Fisheries Service for action affecting these endangered or threatened fish. EPA contends, however, that because in registering the pesticides, it complied

with the requirements of the Federal Insecticide, Fungicide,

and Rodenticide Act (“FIFRA”), 7 U.S.C. §§ 136, et seq., it

was not bound by the consultation requirements of the Endangered Species Act (“ESA”). EPA therefore appeals the district

court’s orders requiring EPA to engage in consultation and

suspending EPA’s authorization of the pesticides pending the

consultation. 

7730 WASHINGTON TOXICS COALITION v. EPA
Plaintiffs Washington Toxics Coalition and Northwest

Coalition for Alternatives to Pesticides are non-profit organizations that promote alternatives to toxic pesticides and seek

to protect the environment from the harmful effects of pesticides. Plaintiff Pacific Coast Federation of Fishermen’s Associations, Inc., is an organization of commercial fishermen that

works to ensure the long-term survival of commercial fishing

as a way of life. Plaintiff Institute for Fisheries Resources is

a non-profit public interest marine resources protection and

conservation organization. 

A number of parties intervened in the action on the side of

defendant EPA. The defendant-intervenors are CropLife

America (“CLA”), Washington State Farm Bureau, and 35

other groups representing pesticide manufacturers, formulators, distributors, sellers, and applicators. The intervenors

contend that the case is governed by the principles of judicial

review and injunctive standards of the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 700, et seq., rather than by the

ESA. According to the intervenors, the district court lacked

jurisdiction to examine the effect of pesticides apart from

reviewing the administrative record pursuant to a cause of

action established by the APA. Intervenors so contend despite

the provision of the ESA creating individual causes of action

to challenge its violations. See 16 U.S.C. § 1540(g)(1). The

intervenors also contend that the injunctive relief granted by

the district court was excessive. They challenge various

aspects of the district court’s injunctive orders requiring

pesticide-free buffer zones around endangered salmon and

steelhead habitat. 

The district court granted the plaintiffs’ requests for injunctive relief in a series of well-crafted orders, after allowing all

parties, including the intervenors, to introduce evidence on the

effects of the use of the challenged pesticides. Although the

complaint originally disputed registration of hundreds of pesticides, the district court held EPA violated the ESA consultation requirement with respect to only 54 pesticide active

WASHINGTON TOXICS COALITION v. EPA 7731
ingredients. The district court ordered EPA to initiate and

complete consultation regarding the effects of those pesticide

registrations on threatened and endangered salmon and steelhead according to a schedule set out in the opinion. Because

it viewed the procedural violation of the ESA to have been a

substantial violation authorizing extraordinary relief, the district court also enjoined EPA’s authorization of any use of the

pesticides within proscribed distances of salmon-supporting

waters in California, Oregon, and Washington, pending

EPA’s fulfillment of its consultation obligations. 

We affirm the district court’s orders in their entirety. 

FACTUAL AND PROCEDURAL BACKGROUND

The National Marine Fisheries Service (“NMFS”) since

1989 has classified approximately 25 species of salmon and

steelheads, collectively known as salmonids, as “endangered”

or “threatened” throughout the Pacific Northwest. The NMFS

has determined that pesticides may kill or injure salmonids,

and may affect future salmonid behavior and reproductive

success. See, e.g., 65 Fed. Reg. 42,422, 42,473 (2000). The

district court found that scientific or competent declaratory

evidence in the record demonstrated a causal link between the

54 pesticide active ingredients at issue in this case and direct

or indirect adverse effects on salmonid populations. This is

not disputed on appeal. 

What is disputed is the applicability of ESA section 7(a)(2):

Each agency shall, in consultation with and with

the assistance of the Secretary, insure that any action

authorized, funded, or carried out by such agency . . .

is not likely to jeopardize the continued existence of

any endangered species or threatened species or

result in the destruction or adverse modification of

habitat of such species. . . . 

7732 WASHINGTON TOXICS COALITION v. EPA
16 U.S.C. § 1536(a)(2). Plaintiff WTC claims that EPA violated this section when EPA failed to consult with the applicable agency, the NMFS, about the registration of pesticide

active ingredients potentially harmful to endangered or threatened salmonids. EPA maintains that it is not bound by the

provision. 

WTC filed this suit in 2001 under an ESA provision known

as the ESA citizen suit provision and frequently used to compel agency action. It allows individuals to bring suit “to enjoin

any person, including the United States and any other governmental instrumentality or agency . . . who is alleged to be in

violation of any provision of this chapter or regulation issued

under authority thereof.” 16 U.S.C. § 1540(g)(1). See Bennett

v. Spear, 520 U.S. 154, 173 (1997); Envtl. Prot. Info. Ctr. v.

Simpson Timber Co., 255 F.3d 1073, 1079 (9th Cir. 2001).

WTC’s complaint alleges that “EPA is violating § 7(a)(2) of

the ESA, 16 U.S.C. § 1536(a)(2), and its implementing regulations, 50 C.F.R. Part 402, by failing to consult with NMFS

regarding the effects of pesticide use under EPA pesticide

registrations that ‘may affect’ endangered and threatened

salmon and steelhead and/or their critical habitat.” 

EPA regulates pesticides under FIFRA, 7 U.S.C. §§ 136, et

seq. We have observed that FIFRA sets forth a comprehensive

regulatory scheme for controlling the use, sale, and labeling

of pesticides. Nathan Kimmel, Inc. v. DowElanco, 275 F.3d

1199, 1204 (9th Cir. 2002). It bars any person in any state

from distributing a pesticide EPA has not registered or

exempted pursuant to FIFRA. 7 U.S.C. § 136a(a). FIFRA

establishes the procedures through which EPA registers pesticides, labels pesticides, and cancels the registration of pesticides. See 7 U.S.C. § 136a-d. EPA took the position that only

FIFRA, and not the ESA, governs the rescission of pesticide

registrations. 

Both sides moved for summary judgment. The parties submitted voluminous filings on the effect of the various pestiWASHINGTON TOXICS COALITION v. EPA 7733
cides on endangered or threatened salmonids. The district

court ruled that WTC had standing only to challenge the 54

pesticides for which it offered competent declaratory evidence

demonstrating a causal link between EPA registration and

harm to salmonid. That ruling is not at issue before us. 

The district court also ruled that EPA was required to comply with the ESA, as well as with FIFRA. The district court

rejected EPA’s contention that WTC could challenge only

EPA compliance with the pesticide registration provisions of

FIFRA. The district court thus concluded that the ESA applies

to agency actions taken pursuant to FIFRA, and that where

endangered species may be affected, WTC could maintain a

challenge to EPA’s failure to consult under the ESA. 

The district court held that as a matter of law, EPA violated

section 7(a)(2) with respect to the disputed 54 pesticide active

ingredients. Section 7(a)(2) consultation requirements apply

to “each federal agency” and to “any action authorized,

funded, or carried out by that agency.” 16 U.S.C.

§ 1536(a)(2). The district court held that this comprehensive

language includes EPA, and that EPA, having provided no

evidence of formal or informal consultation as required by

section 7(a)(2), violated the ESA. The district court ordered

EPA to initiate and complete section 7(a)(2) consultation

according to a prescribed schedule. 

The district court also rejected the intervenors’ arguments

that the case could arise only under the APA. The intervenors

argued that the proceeding contravened APA standards

because the district court conducted its review outside an

administrative record, without identifying any final agency

actions or inactions under review, and without applying the

APA’s deferential standard of judicial review. The district

court held that because the ESA independently authorized a

right of action, the APA was inapplicable. See 16 U.S.C.

§ 1540(g)(1). 

7734 WASHINGTON TOXICS COALITION v. EPA
In subsequent orders, the district court granted WTC’s

motion for further, interim relief, holding such injunctive

relief necessary to fulfill what we have termed the “institutionalized caution mandate[ ]” of the ESA. See Sierra Club v.

Marsh, 816 F.2d 1376, 1389 (9th Cir. 1987). The district

court relied on established law authorizing agency actions to

continue during the section 7(a)(2) consultation process only

if the actions are non-jeopardizing to the protected species

and will not result in a substantive violation of the ESA. See

id.; Thomas v. Peterson, 753 F.2d 754, 764-65 (9th Cir.

1985). The district court held that EPA did not meet its burden of showing that the 54 registrations were nonjeopardizing. 

After a hearing and consideration of voluminous evidence

bearing on the appropriate scope of injunctive relief, the district court entered an order that enjoined “EPA’s authorization

of any use of any pesticide identified in this order within 20

yards, or authorization of any aerial application within 100

yards, of any Salmon Supporting Waters in California, Oregon, and Washington.” The order exempted pesticide uses

EPA has determined to have “no effect” on the endangered

species, and exempted particular uses “not likely to adversely

affect” the endangered species. The district court also granted

further injunctive relief for certain pesticides in urban areas,

and required EPA and the intervening defendants to provide

a specified point-of-sale notification to urban distributors of

those pesticides. 

The injunction provided that it would terminate automatically on (1) completion by EPA of its ESA section 7(a)(2)

consultation requirements, (2) issuance by NMFS of a biological opinion, (3) a finding by EPA for ESA section 7(a)(2)

purposes that the pesticide is “not likely to adversely affect”

the endangered or threatened species, or (4) a finding by EPA

for ESA section 7(a)(2) purposes that the pesticide will have

“no effect” on the endangered or threatened species. 

WASHINGTON TOXICS COALITION v. EPA 7735
EPA and the intervenors on appeal challenge the applicability of the ESA requirements and the breadth of the injunctive

relief ordered by the district court. 

DISCUSSION

I. Applicability of ESA Requirements 

EPA argues on appeal, as it maintained in the district court,

that it is bound to follow only the provisions of FIFRA, which

include a limited provision dealing with endangered species.

Under FIFRA, any interested person can petition EPA to cancel a registered pesticide. See 40 C.F.R. § 154.10. FIFRA

allows EPA to suspend a registration immediately for an “imminent hazard,” including an “unreasonable hazard to the survival of a species declared endangered or threatened” under

the ESA. 7 U.S.C. § 136d(c)(1)-(2); § 136(l). 

[1] EPA argues that ESA section 7(a)(2) does not confer

independent responsibilities on EPA to comply with ESA provisions. That section provides: 

Each federal agency shall, in consultation with and

with the assistance of the Secretary, insure that any

action authorized, funded, or carried out by such

agency . . . is not likely to jeopardize the continued

existence of any endangered species or threatened

species or result in the destruction or adverse modification of habitat of such species . . . . 

16 U.S.C. § 1536(a)(2). 

[2] This circuit has not yet decided whether EPA’s regulation of a pesticide under FIFRA bars a suit under the ESA

asserting that the continued use of the pesticide violates the

ESA. The Eighth Circuit has, however, and it has decided

there is no bar. In Defenders of Wildlife v. EPA, 882 F.2d

1294 (8th Cir. 1989), environmental organizations brought

7736 WASHINGTON TOXICS COALITION v. EPA
suit against EPA under the ESA, challenging the continued

registration of above-ground pesticides containing strychnine.

The EPA, as in this case, argued that the plaintiffs were limited to seeking a cancellation of strychnine registrations under

FIFRA. Id. at 1298. The Eighth Circuit rejected EPA’s position, holding that FIFRA does not exempt EPA from compliance with the ESA requirements when EPA registers

pesticides. Id. at 1299. Therefore, the Eighth Circuit concluded that the ESA citizen suit provision permitted the plaintiffs to sue EPA to enjoin the alleged violation of the ESA. Id.

at 1300. We agree with the Eighth Circuit that even though

EPA registers pesticides under FIFRA, it must also comply

with the ESA when threatened or endangered species are

affected. See id. at 1299-1300. 

This conclusion is consistent with our own prior holdings

that compliance with FIFRA requirements does not overcome

an agency’s obligation to comply with environmental statutes

with different purposes. For example, we have held that the

registration and labeling of a substance under FIFRA does not

exempt a party from its obligations under the Clean Water Act

(“CWA”), 33 U.S.C. § 1342, to obtain a permit to discharge

that substance. Headwaters, Inc. v. Talent Irrigation Dist.,

243 F.3d 526, 532 (9th Cir. 2001). We reasoned that the statutes have different and complementary purposes. Id. at 531-

32. FIFRA’s objective is to protect human health and prevent

environmental harm from pesticides through a cost-benefit

analysis of the pesticides. Id. The CWA’s objective is to

restore and maintain the integrity of the Nation’s waters based

on a determination that the discharge of the pollutant satisfies

the limitations that EPA has imposed to protect water quality.

Id.

For the same reasons, we also have held that the registration and labeling of a substance under FIFRA does not

exempt an agency from its obligations under the National

Environmental Policy Act (“NEPA”), 42 U.S.C. § 4332. Oregon Envtl. Council v. Kunzman, 714 F.2d 901, 905 (9th Cir.

WASHINGTON TOXICS COALITION v. EPA 7737
1983); see also Save Our Ecosystems v. Clark, 747 F.2d 1240,

1248 (9th Cir. 1984). We concluded that a pesticide registration under FIFRA does not require the same examination of

environmental concerns that an agency is required to make

under NEPA. See id. at 1248. 

[3] The statutes at issue in this case similarly have different

but complementary purposes. FIFRA utilizes a cost-benefit

analysis to ensure that there is no unreasonable risk created

for people or the environment from a pesticide, taking into

account the economic, social, and environmental costs and

benefits of a pesticide’s use. Headwaters, Inc., 243 F.3d at

532. In contrast, the ESA affords endangered species the

“highest of priorities” in assessing risks and benefits. Tennessee Valley Auth. v. Hill, 437 U.S. 153, 174 (1978). The reasoning of our case law therefore leads us to conclude that an

agency cannot escape its obligation to comply with the ESA

merely because it is bound to comply with another statute that

has consistent, complementary objectives. 

EPA also makes a corollary argument with respect to the

remedy. It contends that it does not have any discretion to

cancel a pesticide’s use except through the regulatory framework in FIFRA, and that the district court therefore erred by

granting injunctive relief under the ESA. EPA contends, in

effect, that once a pesticide has been approved for use under

FIFRA, EPA lacks discretion to meet any other legal obligations. For this remarkable conclusion EPA relies on cases in

which the agency action had been completed and there was no

ongoing regulatory authority. For example, in Environmental

Protection Information Center v. Simpson Timber Co., 255

F.3d 1073, 1083 (9th Cir. 2001), we held that the United

States Fish and Wildlife Service did not have discretion to

comply with the ESA regarding a permit that it had already

granted and did not retain discretionary control to alter. Similarly, in Sierra Club v. Babbitt, 65 F.3d 1502, 1508-09 (9th

Cir. 1995), we held that the Bureau of Land Management did

not have discretion to comply with the ESA regarding a right7738 WASHINGTON TOXICS COALITION v. EPA
of-way it had already granted by contract to a private entity

before passage of the ESA. We have expressly observed that

in both of those cases, the agency activity had been completed

and was not ongoing. See, e.g., Turtle Island Restoration Network v. Nat’l Marine Fisheries Serv., 340 F.3d 969, 977 (9th

Cir. 2003). 

[4] The principle enunciated in those cases does not apply

here. This is because here EPA retains ongoing discretion to

register pesticides, alter pesticide registrations, and cancel

pesticide registrations. See 7 U.S.C. § 136a-d. Because EPA

has continuing authority over pesticide regulation, it has a

continuing obligation to follow the requirements of the ESA.

We have respected such continuing obligations in wellreasoned authority that binds us here. In Turtle Island, supra,

environmental organizations brought suit against the NMFS,

alleging that the issuance of fishing permits pursuant to the

High Seas Fishing Compliance Act, 16 U.S.C. §§ 5501-5509,

required consultation under the ESA. We recognized that the

ESA consultation requirement applies only if the agency has

the discretionary control “to inure to the benefit of a protected

species.” 340 F.3d at 974. We held that the Compliance Act

permit decisions were ongoing agency actions because they

entailed an “ongoing and lasting effect” and because the

NMFS could condition permits to benefit listed species. Id. at

977; see also Pac. Rivers Council v. Thomas, 30 F.3d 1050,

1053 (9th Cir. 1994). 

[5] In this case, EPA has similar discretion “to inure to the

benefit” of listed species. Pesticide registrations under FIFRA

are ongoing and have a long-lasting effect even after adoption. EPA retains discretion to alter the registration of pesticides for reasons that include environmental concerns. See 7

U.S.C. §§ 136d(c)(1)-(2), 136(l). Therefore, EPA’s regulatory

discretion is not limited by FIFRA in any way that would bar

an injunction to enforce the ESA. 

[6] Finally, EPA argues that administrative exhaustion or

primary jurisdiction under FIFRA applies in this case, and

WASHINGTON TOXICS COALITION v. EPA 7739
that the district court should first have required the plaintiffs

to exhaust FIFRA remedies before entering an injunction.

FIFRA, of course, contains a limited administrative remedy.

Section 136d(c) of FIFRA allows the Administrator to suspend a pesticide creating an “unreasonable hazard to the survival of a species declared endangered or threatened by the

Secretary pursuant to the Endangered Species Act” without

following the normal procedural requirements of FIFRA. 7

U.S.C. §§ 136d(c)(1)-(3), 136(l). Under FIFRA any interested

person can petition EPA for cancellation of a pesticide. See 40

C.F.R. § 154.10. Neither FIFRA nor the ESA, however, suggest any legislative intent to require exhaustion of the FIFRA

remedy before seeking relief under the ESA. See Thunder

Basin Coal Co. v. Reich, 510 U.S. 200, 207 (1994) (exhaustion is required only where Congress’ intent to allocate review

to an administrative body is “fairly discernible in the statutory

scheme”). 

[7] As the district court concluded, the mere fact that

FIFRA recognizes EPA authority to suspend registered pesticides to protect listed species does not mean that FIFRA remedies trump those Congress expressly made available under

ESA, or that FIFRA provides an exclusive or primary remedy.

The scheme of the two statutes suggests the exact opposite.

Indeed, this court has allowed plaintiffs to challenge whether

agency pesticide permit decisions comply with other environmental statutes, even though the plaintiffs did not first pursue

administrative remedies under FIFRA. See Headwaters, 243

F.3d at 530-32 (challenging EPA compliance with Clean

Water Act); Merrell v. Thomas, 807 F.2d 776 (9th Cir. 1986)

(challenging EPA compliance with National Environmental

Policy Act). EPA and the intervening defendants cite no relevant authority supporting their position. The doctrines of

exhaustion of remedies and primary jurisdiction are inapplicable in this case. 

II. Applicability of APA

[8] Intervenor CLA argues that the district court erred by

not applying the APA and its limited provision for judicial

7740 WASHINGTON TOXICS COALITION v. EPA
review of final agency action. The APA provides judicial

review for “final agency action for which there is no other

adequate remedy in a court.” 5 U.S.C. § 704. The district

court correctly held, however, that the ESA citizen suit provision creates an express, adequate remedy. That provision

states: “[A]ny person may commence a civil suit on his own

behalf . . . to enjoin any person, including the United States

and any other governmental instrumentality or agency . . .

who is alleged to be in violation of any provision of this chapter or regulation issued under the authority thereof.” 16

U.S.C. § 1540(g)(1). Because this substantive statute independently authorizes a private right of action, the APA does not

govern the plaintiffs’ claims. Plaintiffs’ suits to compel agencies to comply with the substantive provisions of the ESA

arise under the ESA citizen suit provision, and not the APA.

See, e.g., Pac. Rivers Council, 30 F.3d at 1056; Peterson, 753

F.2d at 763-64. 

III. Challenges to Scope of Injunctive Relief 

[9] The intervenors scatter a number of challenges to the

scope of relief that amount to the contention that, although the

district court could order the agency to comply with the ESA,

it had to permit the continuing use of the pesticides during

consultation. The purpose of the consultation process, however, is to prevent later substantive violations of the ESA.

Sierra Club v. Marsh, 816 F.2d at 1389. The remedy for a

substantial procedural violation of the ESA — a violation that

is not technical or de minimis — must therefore be an injunction of the project pending compliance with the ESA. Id.;

Peterson, 753 F.2d at 764. It is well-settled that a court can

enjoin agency action pending completion of section 7(a)(2)

requirements. See Sierra Club v. Marsh, 816 F.2d at 1389;

Peterson, 753 F.2d at 765. 

ESA section 7(d) also belies the intervenors’ contention

that further injunctive relief could not be granted during consultation. Section (7)(d) states: 

WASHINGTON TOXICS COALITION v. EPA 7741
After initiation of consultation required under subsection (a)(2), the Federal agency and the permit or

license applicant shall not make any irreversible or

irretrievable commitment of resources with respect

to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures which would

not violate subsection (a)(2) of this section. 

16 U.S.C. § 1536(d). Section 7(d) was enacted to ensure that

the status quo would be maintained during the consultation

process, to prevent agencies from sinking resources into a

project in order to ensure its completion regardless of its

impacts on endangered species. See, e.g., Pac. Rivers Council

v. Thomas, 936 F. Supp. 738, 745 (N.D. Idaho 1996). There

is no irreversible or irretrievable commitment of resources at

issue in the present case. Rather, it is the very maintenance of

the “status quo” that is alleged to be harming the endangered

species. 

The intervenors also argue that the district court erred by

assigning EPA the burden of showing that its actions were

non jeopardizing to endangered or threatened species, and

instead should have made the plaintiffs demonstrate “imminent irreparable harm” or “substantial and immediate irreparable injury.” The intervenors alternatively argue that the

district court did not properly balance the interest in protecting endangered species against the costs of the injunction

when crafting the scope of the injunction. 

[10] We have held that the appropriate remedy for violations of the ESA consultation requirements is an injunction

pending compliance with the ESA. See Peterson, 753 F.2d at

764. We have also allowed non-jeopardizing agency actions

to continue during the consultation process. See, e.g., Sierra

Club v. Marsh, 816 F.2d at 1376. We have not expressly

stated who bears the burden of showing that the action is non7742 WASHINGTON TOXICS COALITION v. EPA
jeopardizing, but the burden should be on the agency, the

entity that has violated its statutory duty. 

Placing the burden on the acting agency to prove the action

is non-jeopardizing is consistent with the purpose of the ESA

and what we have termed its “institutionalized caution mandate[ ].” Sierra Club v. Marsh, 816 F.2d at 1389. We said as

much in Thomas v. Peterson, where the defendant, the U.S.

Forest Service, urged the district court to conclude that absent

proof by the plaintiffs to the contrary, a proposed project was

not likely to affect an endangered or threatened species. 753

F.2d at 765. We held that this was an inappropriate finding for

the district court to make. Id. “It is not the responsibility of

the plaintiffs to prove, nor the function of the courts to judge,

the effect of a proposed action on an endangered species when

proper procedures have not been followed.” Id. The district

court correctly assigned EPA the burden of proving that its

actions were non-jeopardizing. 

The district court was not required to balance interests in

protecting endangered species against the costs of the injunction when crafting its scope. Congress has decided that under

the ESA, the balance of hardships always tips sharply in favor

of the endangered or threatened species. See Marbled Murrelet v. Babbitt, 83 F.3d 1068, 1073 (9th Cir. 1996). 

Finally, the EPA challenges protective measures for urban

pesticide sales. The district court concluded that for the use of

certain pesticides in urban areas, buffers alone are an insufficient remedy to ensure that jeopardy to endangered salmonids

will be avoided. Rather than completely banning those pesticides in urban areas, the district court required EPA to

develop and distribute point-of-sale notifications detailing

pesticide harm to salmonids. EPA nevertheless argues this

portion of the injunction impermissibly impinges on its

authority. 

[11] The injunctive relief granted was well within the district court’s discretion to require compliance with the ESA

WASHINGTON TOXICS COALITION v. EPA 7743
and to tailor a remedy pursuant to Federal Rule of Civil Procedure 65. See United States v. Olander, 584 F.2d 876, 880-

81 (9th Cir. 1987), vacated on other grounds, 443 U.S. 914

(1979). 

CONCLUSION

[12] For the foregoing reasons, we affirm the district

court’s orders enjoining EPA pending its compliance with the

ESA section 7(a)(2) consultation requirements. 

AFFIRMED.

7744 WASHINGTON TOXICS COALITION v. EPA