'I1 SEE SIGNATURE PAGE FOR

:A COMPLETE LIST OF COL~SEL 0 SUBMITTING THE DOCUMENT

,FOR FILING

"

:1 .IJ: §: ~T~T [oJ' "I

IN THE UNITED STATES DISTRICT COURTfi"~f,ef~~

FOR THE DISTRICT OF OREGON ~, -E C

MAt 24 '-. )

)

) ~ee~"Af fJ( c.-IT, CI..!-

~ n t:fit'/~~-, ~rt

2

3

4 :i

5

6 NORTHWEST COALITION FOR ALTERNATIVES

7 TO PESTICIDES, et al.,:,

.1

i

..

8 ,;

Ii

!I 9 ,I :!

Plaintiffs,

civil No. 83-6272-

E-BU

v.

ii RICHARD LYNG1, Secretary, United

10 !I States Department of Agriculture,

I: et al.,

.j

)

)

)

)

11

JOINT MOTION TO

DISSOLVE INJUNCTIOp

AND DISMISS COMPLAINT -

WITH PREJUDICE

Defendants,

12 ,I'.

)

)

)

)

)

and

13

OREGONIANS FOR FOOD &~D SHELTER, INC.,

14

Defendant-Intervenor.

)

)

The parties to this action, plus intervenor-applicant

Paul Merrell, move this court to dissolve the injunction and

dismiss with prejudice plaintiffs' and intervenor-applicant's

complaints against the vegetation management program of the

Secretary oX Agriculture and the United States Forest Service

..

upon the terms of the accompanying proposed stipulated order.

The motion is made under Rule 60(b) of the Federal Rules

1Pursuant to Rule 25(d) (1) of the Federal Rules of Civil

Procedure, Clayton Yeutter should be substituted for Richard

Lyng as Secretary of the United States Department ofAgriculture.

JOINT MOTION TO DISSOLVE--PAGE ONE

I'\JR~ OIlO.I.J

'1 -\11 .'
l'

..

of Civil Procedure. The reasons in support of the mot~on are 1

2

3

4

5

set out in the proposed stipulated order.

Respectfully submitted ~.1//f- thisv~ day of May, 1989.

--/l.-l /~"""1If)-~ --.~

RALPH A. BRADLEY

Bradley and Gordon

296 East Fifth Avenue, Suite 309

Eugene, Oregon 97401

(503) 343-8247

6

i

7 II

"

"

8 II

9 :1,I :j

10

Attorney for Plaintiffs

q~j In~. I ()(

p~~iI~E~~~ -'

7493 East Five Rivers Road

Tidewater, Oregon 97390 .

11 (503) 528-7151 ~

Pro ~e for Intervenor-Applicant

I/l6t ~ ~ ~l:"C ~-

ALLAN D. BROCK

U.S. Department of Justice

Land and Natural Resources Division

General Litigation Section/Room 846

P.O. Box 663

601 Pennsylvania Avenue, N.W.

Washington, D.C. 20044-0663

(202) 272-8237

.\'

M

--

.. .10ti~ I

O'C nnell and (

On Financial Center, suit~ 800

121 S.W. Morrison street

Portland, Oregon 97204-3138

(503) 227-2900

Attorney for Defendant-Intervenor

JOINT MOTION TO DISSOLVE--PAGE TWO

f~)R'" ~)BD.IMJ

"~M .,
1

2

3 I:

"

'i

,

4 'I

;1

"

5 II:'

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

U. s. OfSTR!Cr (.;\.,,-'~\;

Of STRICT OF OREGON

FILED

MAY 2 4, 1:~r')

I

6 :! NORTHWEST COALITION FOR ALTERNATIVES

;! TO PESTICIDES, et al.,

7 Ii

)

)

Plaintiffs,

8

ROS~RT M. CHRIST. a.1!~J(

h ~~-t'Ll-{,lj; ~ ~~~ In

and

9 )

)

)

)

)

)

)

PAUL MERRELL,

Plaintiff-Intervenor,

11 -

Civil No. 83-6272-E-~U

v.

12 il

;! CLAYTON YEUTTER,l Secretary, United

"

13 :1 States Department of Agriculture,

,! et al.,

STIPULATED ORDER

14 :,

;. Defendants,

15 :!

ii and

16

OREGONIANS FOR FOOD AND SHELTER, INC.,

11

)

)

)

)

)

)

)

Defendant/Intervenor~ )

18

1989, 

19 In a motion dated Janua~ 24, defendants asked

20 this court~o dissolve its previous order enjoining the

21 Secretary of 19riculture from using herbicides within Region

22 six of the United states Forest Service. The motion was made

pursuant to Rule 60(b) of the Federal Rules of civil Procedure. 23

24 lPursuant to Rule 25(d) (1) of the Federal Rules of civil

Procedure, Clayton Yeutter is substituted for Richard Lyng as

the Secretary of the United 'states Department of Agriculture. 25

26

it STIPULATED ORDER--PAGE ONE

:1

;1

fORM OBO.IM)

'" 'II MJ
#Its 

basis. was the Forest Service's Pacific Northwest Region's 1

Record of Decision (ROD) and accompanying new environmental

2 i

impact statement, entitled ManaqinqComoetinq and Unwantgg

Oregonians 

'I for Food and Shelter'subsequently joined in the 5 0'

I

motion.

6

After 

a status conference by telephone, plaintiffs

7

filed on February 6, 1989 an *Initial Response and Opposition

8 il

to Lift Injunction.* Paul Merrell filed a motion to intervene.

He asserted an interest in the subject matter of this lawsuit

stemming from Merrell v. Block, Civil No. 81-6138

(D.Ore. 

April

15,

740

1983), 

affirmed.§J:!Q nom., Save Our Ecosystems Y. Clark,

F.2d 1275 (9th Cir. 1984).

13 Ii -Thereafter 

the parties, plus Mr. Merrell, engaged in

14

court-approved and arranged mediation. They succeeded. The

outcome is the attached mediated agreement, together with its

incorporated Exhibit A (hereafter "mediated agreement")

Accordingly, 

by jo~nt motion and on the basis of the

mediated agreement, the parties to tbe mediation' have asked

that I do the following:

lr- Grant Mr. Merrell's motion to intervene;

~

2.

Approve the terms of the mediated agreement;

3. Incorporate the terms of the mediated agreement as

part of this order;

STIPULATED ORDER--PAGE TWO

~I

I

"

,!

;

'!

.1

I-QRM 

OBD-IA)

,!;;I( M.I
4 eo. Recognize that this court shall not retain1

jurisdiction for supervising compliance under the 2

3 I mediated agreement;

5.

Provide that the terms of the mediated agreement 4

represent obligations on the part of Forest 5

Service's Pacific Northwest Region that are

6

enforceable by the parties to it and subject to

7

judicial review in accordance with the terms of 8 !

.1

the mediated agreement:

6.

9 !i

.1

:;

1 0 1!

Conclude that no controversy remains among the

parties to this action regarding the ROD and FEIS;

11

in that as part of the mediated agreement all

parties thereto have consented to entry of this

12 :1

!I

I

13 I!

order: 7.

Conclude further that defendants' motion, dated

January 24,

1989, 

is moot;

8. Dissolve that portion of the prior order in this

action enjoining the Secretary of Agriculture and

18

the United states Forest Service from implementing

19

the ROD:

20

21

9. --Dismiss with prejudice the complaints in this

~

action against the vegetation management program

22

of the Secretary of Agriculture and the United

23 states Forest Service;

24

25 STIPULATED ORDER--PAGE THREE

26

FOKM OBO.II)

MAR IJ
~10. Caveat; 

none of the foregoing is with prejudice to

1

the reservations governing the Siuslaw National 2

Forest granted Paul Merrell under the mediated 3

agreement; 

and, 4

11. Confirm 

that each party is to bear its own 5

attorneys 

fees, expenses and costs incurred to 6

date.

7

After 

considering the joint motion, the mediated 8

agreement and the record in this action, I grant these eleven

9

'It

10 !I

requests, and,

11 :1

;j

12 :1

.,

IT IS SO ORDERED.

Dated this ~~ day of j~ ~, 1989.

i

14 ;!

;

,I

15 II

Court Judge

16

17

18

19

20

21

22

23

24

25

26 STIPULATED ORDER--PAGE FOUR

FORM 08 D.II)

\4~M MJ
MEDIATED AGREEMENT1Long-standing 

has been the dispute over how the ~nited 2

states Forest Service manages vegetation on national forests 3

and grasslands Principal in the Pacific Northwest.

4

participants 

in the dispute have included Paul Merrell,

5

Northwest Coalition for Alternatives to Pesticides (-NCA?H)l

6

oregonians for Food and Shelter "OFS"), and the united States

7

Forest Service (WForest Service"

On December 8, the Forest Service's Pacific

1988,

9

Northwest Region released a multi-volume document entitled

10

Managing Com~eting and Unwanted Vegetation--Final Envircnment~l

11Concurrently, 

ImDact statement and on the basis of~

"FEIS") 

.

12

that record, the Regional Forester for the Forest Service's

Pacific Northwest Region issued a Record of Decision (N?ODN)

14

Th~se documents proposed a program for managing vegetat:on on

15

national forests and grasslands throughout the Forest Service's

16Pacific 

Northwest Region, formerly known as Region Six. The

17 'II. Rap provides for the I1mited use of herbicides

The dispute ,reawakened in January of" this .year when the !i

!I

I

I

I

1

,

,I"

j

i

;

I

I'

I

I

I

II

19

20

federal government filed a motion asking the court to dissolve

an order enjoining the Secretary of Agriculture and the Forest

21 service from using herbicides in the Pacific Northwest ~egion.

22

~ Northwest Coalition for Alternatives to Pesticides v.-

23

24 lNCAP, for purposes of this mediated agreement, also

includes Oregon Environmental Council and Portland Aud~onSociety. 25 '

26 STIPULATED ORDER--PAGE FIVE

"OR~1 ()8().I~;

",w ~:
2.1984) 

Block, Civil No. 83-6272-E-BU (D. Ore. . In turn, NCAP 1

noticed its opposition to that motion and Mr. Merrell sought to

2

OFS joined in the government's motion

intervene.

3

Recognizing that a better way must exist for resolving

4 :i

the dispute, the parties and the court looked toward the

5

alternative of mediation. One day after the court ordered the

6

they began the process in earnest. They

parties 

to mediate, 7 II

'fI.

8 !i

il

did so with the able assistance of three mediators; Elaine

Hallmark, 

Bryan Johnston and sid Lezak. Numerous meetings took

9 il

:! place among the participants in March, April and May of 1989,

10 III

Specifically:

culminating in agreement.

11 ii

In implementing the ROD", the Forest Service's

1.2

,: Pacific Northwest Region shall comply with the provisions set

13 jl -

:! out in the accompanying document, entitled "Exhibit A to

14 :\

:i Mediated Agreement" ("Exhibit Air). Those provisions are

15 .j -.

incorporated as part of this mediated agreement. As used

16

throughout this document, *mediated agreement* includes Exhibit

17

Moreover, 

Exhibit A is the Forest Service's Pacific

A.

18 !I Northwest Region's interpretation of. its obligations under the

19

ROD.

20 Each party agrees to be bound by the terms of the

.

2.-

21 mediated agreement. OFS enters into the mediated agreement

22 solely for the purpose of reaching settlement here. OFS does

23

24 2Subsequent references to the lawsuit shall substitute

Clayton Yeutter, the current Secretary of the united states

Department of Agriculture, as lead defendant. 25

26 STIPULATED ORDER--PAGE SIX

fOR.\! 0110.11.\

'1 ~K ..1
not endorse the terms set out in Exhibit A or the1

interpretation placed on them in the mediated agreement. 2

3. Once the court dismisses with prejudice 3

plaintiffs'

and intervenor-applicant's complaints against the

4

vegetation management program of the Secretary of Agriculture 5

and the Forest Service in Northwest Coalition for Alternatives

6

to Pesticides v. Yeutter, su2ra, the Forest Service's Pacific

7

Northwest Region hereby adopts as part of its administrative

8

: practice Exhibit A's terms. Writt~n directives will issue

9

within six months from that event so as to ensure that Exhibit

1 

0 ~I

A's provisions are recognized by personnel as being so

11

incorporated into the agency's administrative practice. Copie-s

of 

the written directives as they issue will be provided to ~he

parties 

to the mediated agreement. The absence of written

directives 

is no defense to a claim of failure to conform to

I

15 ii

the mediated agreement.

16 :1

Ii 4. The parties to this mediated agreement are

17 '

I! entitled to maintain an action to enforce or seek judicial

II

18 i'

II review of compliance with it. Any trivial violation shall not

19

give rise to a cause of action.

20 -

5. If 

any dispute arises about the agency's

t)IID.I~)

\. ~M ~I
the Forest Service on notice about the disputed issues. It 1

shall be given thirty days before bringing an action under the

2

above paragraphs. Upon notice being provided, the Regional 3

Forester 

or designated official and the aggrieved party, plus

4

the other parties to this mediated agreement if they elect,

5

will confer with the aim of settling the controversy and make a

6

good faith effort to resolve the dispute without litigation

7

If the Forest Service's proposed disputed action does not allow

8

thirty days' notice prior to implementation, reasonable

9

notice under the circumstances shall suffice. If upon request

10the 

Forest Service does not promptly stay the disputed actio~

11

pending completion of settlement discussion(s) , no additional

12

notice shall be required.

13 ;1 6. The parties agree that Paul Merrell should be

14

granted his application to intervene in Northwest Coalition for

15

Alternatives 

to Pesticides v. Yeutter, supra.

NCAP, 

OFS and Mr. Merrell shall join the federal

7.

government in a motion asking the court to dissolve the

injunction and dismiss with prejudice the complaints against

the vegetation management program of the Secretary of

Agriculture and the Forest Service in Northwest Coalition for

1 6 ;1

17 !i

18 il

;1

19 I

i

20 i

I

21 i

1

22 I

I

23 II

I

24 I

I

25 II

26 II

.1

Alternatives to Pesticides v. Yeutter, su~ra. NCAP withdraws

its objections to the legality of the ROD and FEIS to

facilitate this mediated agreement. Dismissal of Mr. Merrell's

complaint in intervention is without prejudice to any

subsequent action by him as to how the Forest Service manages

STIPULATED ORDER--PAGE EIGHT

t't)R~' ,'IIO-IX)

'I~N ~ \
vegetation- within the Siuslaw National Forest, including any1

claim about the ROD and FEIS for managing vegetation regionally 2

insofar as they apply or relate to the siuslaw National Forest. 3

If 

Mr. Merrell maintains an action for the limited purpose

4

stated above, he agrees to limit the relief he seeks to the

5

The foregoing

boundaries 

of the Siuslaw National Forest.

6

provision, 

however, shall not limit Mr. Merrell's right to

7

raise any claim about the adequacy of the ROD and FEIS for

8

managing vegetation regionally to the extent those documents

9

are raised as a defense in any such action

10

8. Upon the court dissolving the injunction and

11

: dismissing with prejudice the complaints against the vegetaticrn

! 12

management program of the Secretary of Agriculture and the

13

Forest Service in Northwest Coalition for Alternatives to

14

Pesticides v. Yeutter, su~ra, Mr. Merrell and NCAP hereby

15

withdraw their administrative appeals of the ROD currently

16

pending before the Chief of the Forest Service. In addition,

17

neither NCAP nor Mr. Merrell shall oppose the Chief of the

18 Forest Service from vacatingCthe existing administrative stay

19 of the ROD. In the event the Chief of the Forest Service

vacates the--stay, OFS hereby withdraws its administrative

appeal of the ROD.

9. The Forest Service's Pacific Northwest Region andMr. 

Merrell intend to further discuss how to manage vegetation

in 

the Siuslaw National Forest with the aim of avoiding any

subse~ent litigation, including but not limited to whether the

STIPULATED ORDER--PAGE NINE

H)R.'I.)tlO.I~'

'I ~M ."
1

2

Clat:~,

740 F.2d 1275 (9th Cir.

1984) 

3 . The other parties to the

4

5

concluded. Mr. 

Merrell maintains that the injunction in 6

Merrell v. Block, SUDra, remains in effect.

7 The Forest Service

not to oppose any application to intervene that may be filed by

10

OFS or NCAP.

11

The mediated agreement only applies to how the

12

13 :!

Any oral statement, recording or writing made or

14

15

16 ;!

made or used in the course of mediation, shall not be offered

17 il

I

i

18 i

12.

Although third parties may seek judicial review of

Exhibit A's:-terms, they may do so only upon final agency action

interest. As 

to third parties, the failure of the agency to

to a cause of action independent of applicable statute, rule,

STIPULATED ORDER--PAGE TEN

f'()R~ 080-IM.\

"~I( ¥J
regulation" 

or any other legally cognizable interest

13.

In the event a third party attempts to bring an 2

action challenging the adequacy of the FEIS or the ROD, the 3

parties 

here agree that no provision of the mediated agreement4

-including Exhibit A--should be deemed an admission against

5

interest or otherwise used against the agency.

6

14.

The parties' consent to the mediated agreement is

7

conditioned upon entry by the court of the proposed stipulated

8 ,i

order attached hereto as Exhibit B.

15.

9 I

I

I

1 0 ;1

I

The parties to the mediated agreement are to bear

their own attorneys fees, expenses and costs incurred to date

Executed by the parties. this ~ day of May, 1989.

11

12

13

14

By !11y"~,~~~~~\4 ) , ~ -- 

By MARY 'BRIEN

For Northwest Coalition for Alternatives to

Pesticides, Portland Audubon Society,

and Oregon Environmental Council

1 ,j (

15

16 :i

;

'j

17 ;!

'I

II

18 ~i

;,

19

,,1 I '~111."L~{

-~~lMERRELL -

-,LBy I

20 :,

By IFor TORRENCE

United States Forest Service,

--Northwest Region

21

l

By

For

TERRY ~ITT

Oregonians for Food and Shelter

STIPULATED ORDER--PAGE ELEVEN

"()R~' UIIIJ.I~.\

"~II ~ I
EXHIBIT A TO MEDIATED AGREEMENT1

PART I. PROGRAM IMPLEMENTATION 2

A. CLARIFYING MANAGEMENT DIRECTION 3

4

5

6

7

* 1. Prevention: Prevention means to detect and ameliorate

~~.the conditions that cause or avor the resence of

competing or unwanted vecretation in the forests.

Preventi~ is in contrast t-o treatment, which refers to

activities for controlling or eradicating infestations

of competing or unwanted vegetation. ~t also shoul~

n-9..!.-:-b~ ~onfused with earlY treatmen~_, which refers to

activities for controlling or eradicating initial,

small infestations of competing or unwanted vegetation

before they interfere with the agency's objectives for

managing that area or adjacent lands. Guidance for

implementing this directive "is set out in the section

entitled Site-Specific Analyses.

8

9

10

2.

11

123

Expectations Reaardina Treatment: Acreage expectations

for treatment expressed in the FEIS are not to be used

to set management goals or limitations. Site-specific

analysis will be used to determine which projects are~

needed and how many acres will be treated in order to

meet vegetation management goals: Vegetation -

management in the Region will not rely on any single

method of treatment or control. A Region-wide review

of vegetation management goals and performance will be

prepared annually, including a summary of acreage

managed by different methods.

14

15

16 3.

17 11

2,4-D as a Remedy of Last Resort: Of the thirteen

h~rbicides available for use, one of them, 2,4-D, is to

be used only as a last resort. This means that 2,4-D

can be used only if all other methods for managing the

competing or unwanted vegetation are ineffective or tooexpensive.

18 if

19 il

20 il a. Effectiveness and expense are to be measured by

--the following yardsticks:

21 :1

;1

!j

22 !I

If

(1)

23

'I

24 1/

il

Effectiveness: The yardstick is whether

another method for treating the competing or

unwanted vegetation can achieve the resource

management goal. If it does, even though not

as easily or quickly as would happen with the

use of 2,4-D, then that other method is

deemed -effective-. Conversely, if all other

methods cannot achieve the resource

management goal but 2,4-0 can, then, the

26 Ii other methods are ineffective.

,

': 

" STIPULATED ORDER--PAGE TWELVE

H)R~ UBO.IM.I

'-I~M ,.1
(Exhibit A to Mediated Agreement, cont., page two) 1

(2) 2

3

Expense: 

If all methods (including noaction) other than 2,4-0 would render

resource management goals untenable

economically, then they are too expensive

4 b. If the agency is considering the use of 2,4-0, it

must make that consideration known to the public

5 at the earliest practicable time.

6 c. Additional guidance for implementing these

directives is set out in the section entitled

site-specific analysis. 7

8

B.

REGIONAL COORDINATOR

9 A Regional Coordinator in the Forest Service's Pacific

Northwest Region has, but is not limited to, the

following responsibilities:

1.0

11 Review selected proposed projects that may have

implications for the use of herbicides to treat

competing and unwanted vegetation before a

decision issues to proceed with them;

a.

12

13

b.

14

Monitor agency compliance with its program to

prevent and treat competing and unwanted

vegetation, wi~~ one of those duties being to

insure that the agency's practice reasonably

conforms with the Regional expectation governing

the use of herbicides and other vegetation

management methods.

15

16

ii

17 il

~ !

18 1i

II

19 !i

11

20 :1

21 II

22 II

I

23 I

I

24 I

I

2S I

I

II

26 :1

c. Arrange for annual meetings open to the public, "co

address -ideas, progress, and difficulties

regarding the agency's program to prevent and

treat competing and unwanted vegetation.

Serve as a contact with the public regarding

Regional vegetation management issues.

d.

-

Continue to develop, arrange and incorporate new

information about vegetation management methods.

e.

I STIPULATED ORDER--PAGE THIRTEEN

HIR)'( 080.1113

..1-'M KJ
1c.

SITE SPECIFIC ANALYSES

2

1.

In planning for, and before proceeding with sitespecific projects that may have implications for

vegetation management, one requirement is to consider

and analyze the strategy.of prevention.

3

4

a. 5

(1

6

What is the nature and role of associatedvegetation?

7 (2) Do conditions exist that favor the presence

of competing and unwanted vegetation? 8

(J) If conditions exist that favor the presenceof 

competing and unwanted vegetation, havepast 

management actions exacerbated thesituation?

9

10

11

(4) Do natural controls exist on the site?

12 (5) Can management actions be taken that either

encourage natural controls or help avoid theconditions 

that favor the presence of

competing and unwanted vegetation?

13

14

(6)

15

Is it feasible to undertake the managementactions, 

and if not, why? If undertaken, are

impacts on other Forest Service objectives

16 and goals acceptable?

17b.

'I~!

18 :1

I'

.1

19 11

In considering prevention at the planning stage of

site specific projects, the analysis of the

strategy as described above is to be made at the

earliest reasonable time.

c.

Although not considered a substitute for--prevention, 

early treatment methods should be

seriously considered where prevention alone is

insufficient or infeasible.

20 !i

21 ;1i,

I'

22 ;/

'/

23 /1I'

24 :1

d.

The site-specific analysis is to take place in

conjunction with and part of the environmental

review of the project under the National.

Environmental Policy Act.

25

26

STIPULATED ORDER--PAGE FOURTEEN

()R"I (IBD.IM)

\. \N "
1

(Exhibit A to Mediated Agreement, cont., page four)

.-.

2. In planning for, and before proceeding with si.te"-

specific projects to treat competing or unwanted

vegetation, another requirement is to analyze the

proposed strategy.

2

3

The following elements are basic to the analysis:

a.

4

an understanding of the resource management

goals and objectives for the site;

(1 5

6 (2) required mitigation measures and anticipated

resource outputs;

7

potential risk of adverse human health

effects, for both workers and the publici

(J)

8 !!

9 4 risk of environmental damage;

10 (5)

11

project feasibility, which is defined by

logistical considerations, including timing

of the project as well as the availability ~f

money, people, time, and equipmenti and, ~

12

(0) potential for development of preventive

strategies through post'habitat modifications

or the complementing of natural ecosystems

and processes.

13

14

b.

15

16

17

Also basic to the analyses is a consideration of

potential environmental effects for proposed

projects, as well as the project's design and

measures to mitigate adverse effects. The

diversity and integrity of the natural ecosystem

and long-term productivity are major components of

the analysis. 18

II

11

11

il

19

20 !I -

080.1..1

...~II ~.I
(Exhibit A to Mediated Agreement, cont., page five)1

Additional elements to the analyses are asfollows:

c.

2

(1)

..

3

describe and interpret the physical and

biological characteristics of the site, withemphasis 

on potential competition, diversity,

and production,. including: 4

5

(a) the management history of the site;

6

(b) the vegetation management history of thesite, 

including specific past treatments

7 and known effects;

8 (c) plant associations that have

demonstrated a beneficial, neutral orproblematic 

9 impact on this (or similar:sites;

10

(d) the proportion of the site on which

vegetation is or may become a problem;and,

11

~

12

surface and groundwater characteristics

and relationships on the site, as well-as 

soil types and potential for impact.

(e)

13

14

Evaluate the relationship between the

associated vegetation and the potential to

adversely impact specific management goals

and objectives, based on operationalexperience, 

existing data, or researchresults.

15

16

(3) Identify the least amount of acreage that

needs to be treatedA Look for specific early

treatment opportunities, with attention to

the minimal corrective action needed.

-(4) Consider the efficacy of the proposal and

alternative actions, and explain how efficacy

was determined.

17 :i

'I

:1

18 !i

'I"

19 :1

il

20 II

21 :i

"

'I

II

22 II

23 II

2411

2 5 ;1

11

26 ~i STIPULATED ORDER--PAGE SIXTEEN

.j

I

,.,III~1 "BD.IM.'

'. \11 MI
(Exhibit A to Mediated Agreement, cant., page six)

1 Evaluate the costs of the alternatives,including:

2

costs such as: (a) 3

4

5

6

7

8

9

--administration

--training

--performance of the work

--emergency response planning

--notification and posting

--herbicide storage

--marking buffers and sensitive areas

--pre- and post-treatment monitoring

--other mitigation measures

--public meetings and information

sessions

--protective equipment and clothing

--public information center and hotline

10 --recordkeeping

11

(b)

costs and benefits of foregoing actionpending development of more complete ~informat

12

13 (6)

14

Evaluate specific to the project the --

risks to humans, fish and wildlife, as

well as to the physical environment, that may

arise from the proposal.

15

16

Predict the expected results of the proposed

course of action, including the expected

occupancy of associated vegetation that would

result and the degree to which it can betolerated. "11 

i:

(8)

18 11

ij

19 ilI'

;1

20 i!

Describe what information needs to be tracked

to determine the beneficial roles and

competition of associated vegetation or

productivity of the site over time, the

selection of control sites for no action in

order to draw comparisons with the treatment,

and identify post-treatment evaluations to

assess efficacy.

21 Ii

.1

II

22 ;!

II

d.

The analyses are to take place in conjunction with

and part of the environmental review of the

project under the National Environmental PolicyAct.

25 II

:!

26 :1 STIPULATED ORDER--PAGE SEVENTEEN

1'( IR" I '80 I ~.\

"\K M'
(Exhibit~. 

to Mediated Agreement, cant., page seven)

1D. 

PUBLIC PARTICIPAT10N

2

1.

When a site-specific project to prevent or treat

competing or unwanted vegetation is being considered,

the official responsible for that project is to notify

the public. This notice is to be given at or before

the scoping stage of the "environmental review of the

project under the National Environmental Policy Act.

3

4

5

2.

Before a decision is made to proceed, the public is to

be invited t~ review and comment on the site specificanalyses 

undertaken in concert with the environmental

review of the project.

6

7

8

3.

The public is to be notified of the final decision for

a site-specific project as soon as it has been made.

9

E. 

MONITORING AND EVALUATION

10 ijI.

1.

In monitoring Forest-wide vegetation managementprograms, 

11 address the following points:

~

a.

The projected needs for vegetative management by

method over the next three to five years;-

b.

Describe how the projected need for treatment can

be reduced, and identify the steps that can be

taken to reduce reliance on herbicides and

prescribed burning; and,

14

c.

Determine criteria that can be used to reviewprogress 

on an annual basis toward reducing

reliance on herbicides and prescribed burning.

16 Ii

'0

~ i

17 ;

, :

i

18 :1

19 :1

20 !I

21 il:1

22 II

23 'I

24 I

./

2511

:1

26 :! STIPULATED ORDER--PAGE EIGHTEEN

)R..' \)HO.IK.I

\t ~IC ~I
(Exhibit ~ to Mediated Agreement, cant., page eight)1

d. How well the program is achieving resource

management goals such as: 2

(1)

preparation of sites for planting trees 3

(2)

seedlings 

planted and survival rates 4

(3 )

release of young conifers from competing

vegetation 5

6 (4) managing fuel hazards and preventingwildfires

7

(5) improving range condition for livestock

8

(6) controlling noxious weeds

9

7) improving wildlife habitat

10

maintaining recreational and administrative facilities .

\~I

11

12 (9 maintaining roadside and utility corridors

supporting tree genetics and other research

programs

13(10)

14

{ll maintaining timber growth and yields to meet

long-term fo=est produc~ needs of the area.

15

2. In monitoring individual vegetation managementprojects, 

address the following considerations:

16 :1

!

:1

1 7 :!

:!

il

18 il

Site-specific 

post-treatment information to aid

future project planning, i.ncluding:

a.

(1: efficacy of treatment or no treatment 19 :1

;!

20 I!

21 il

I

!

22 !

23 I

I

'I

24 !/

;1

25 I'..I

(2) experienced costs of the project (direct andindirect)

(3) residue analysis as appropriate

(4)

analysis 

of unintended effects as appropriate

(5)

accidents

26 !! STIPULATED ORDER--PAGE NINETEEN

I

'R~I IIsn.III.' "," ~,
(Exhibit ~- to Mediated Agreement, cont., page nine)b.

2

Indicate where there is missing operational"

information regarding efficacy and explain whatsteps 

can be taken to fill the data gaps.

3

c. Facilitate, 

as useful, Region-wide dissemination

of the information gained on this site. 4

3.

In monitoring the impacts to human health from usingherbicides 

and other methods of vegetation management,

the Region will have the capability to record and

compile essential human health information for workers

and the public. The capability should include thefollowing:

5

6

7

8

a.

9

A form for workers to use in recording possible

health effects connected with vegetationmanagement 

projects, including as appropriate:

10 

'! (1 Relevant identifying data

11

(2) Herbicide formulation, listed ingredients

12 (3 )

other 

hazards

13

(4)

Symptoms 

experienced

14 (5 Exposure incident(s)

15

b.

Systematic recordkeeping that stores pertinent

information about workers and the project they

worked on, such as:

16

17(l)

18

Dates of project work, the specificassignment, 

pesticide formulations involved

and the common chem"ical name of listedingredients, 

or other hazards; and,

:1

I'

:1

II

19

20 (2) Complaints filed'by the worker.

21c.

22

A compilation of citizen reports of possible

health effects connected with herbicide

applications and other methods of vegetationmanagement.

23

d. Annual, 

Region-wide summary of reported health

effects of vegetation management methods, so as to

be useful for region-wide analysis and publicinformation.

25 II

26 !! STIPULATED ORDER--PAGE TWENTY

"

".OR't 08D.IM.:

"~R M \
(Exhibit A ta Mediated Agreement, cant., page ten)

1 PART II. INFORMATION PACKAGES

2

A. PREFACE. 

To aid Forest Service staff in implementation

of the Environmental Impact Statement for Managing

Competing and Unwanted Vegetation, the Forest Service

plans to develop information packages for the methods

of managing competing and.unwanted vegetation, and for

each of the herbicides available for consideration

under the Record of Decision. These information

packages will be available for public review and use,

and will be reviewed annually, and revised as needed.

Responsible opposing viewpoints will be addressed.

3

4

5

6

7

B. INFOR'1ATION ABOUT METHODS 8 ii

'I

1.

9 ~!

Information packages will address the principal

known and reasonably foreseeable health and

environmental effects of each of the five methods

for managing competing and unwanted vegetation.

2.

Information packages will also address the use ofherbicide

in general, including at a minimum the following statements: ~ 12

13 synergism of Secret and Revealed Ingredients:

a.

14

15

16

"The capacity of various ingredients in an

herbicide formulation to act synergistically

to produce toxic effects is not known. One

ingredient, for instance, may be a cancer

initiator, another a cancer promoter; a

solvent may dry the skin, allowing enhanced

passage of another ingredient across the

skin into the body."

17 ~I

:1

18 If

19 I

i

20 ii

il

21 i!

.1

2211

23

24

i

25 ,i

i

26 "!

!

I

:

I.

b.. Male and Female Reproductive Health Risks:

*The Forest Service is uncertain whether

those herbicide ingredients identified as

reproductive toxins may also effect maleworkers 

who are exposed.w

STIPULATED ORDER--PAGE TWENTY ONE

l'uR~ OIlO.IR.\

"\R ~,

I10 

ii"

I

,

11 ,~
.I..

(Exhibit A to Mediated Agreement, cont., page eleven)

1

Susceptibility of children

c.

..,.

r

\

~

!

;

a

~; "

'"

~:.' i~

t

1

~,

~

,

i

i-

-

2

3

..~

4

"Children can be particularly susceptible topesticides 

for quantitative and qualitative

physiological reasons including smaller bodysize, 

incompletely functioning immunesystems, 

rapidly dividing cells (increasing

susceptibility to cancer), thinner bloodbrain barriers, and immature reproductive

systems."

5

6

INFORMATION ABOUT SPECIFIC HERBICIDES. Information

packages for specific herbicides (herbicide profiles)

will address as concisely as possible these topics

where appropriate:

c.

7

8

9

1.

Reasonably foreseeable significant acute or

chronic effects on h~man health from exposure to

the herbicide as proposed for use under the'

agency's program, including data gaps in the

available literature.

10

11 .'

12

2.

Reasonably foreseeable risks posed bycontaminants, 

inert ingredients, and carriers in

the herbicides commercial formulations, including

data gaps in identifying and characterizing inert

ingredients and carriers.

13

14

15 ;3 .

17

:!

Responsible anecdotal information or reports about

actual acute or chronic effects on human health

arising from exposure to the herbicide or its

commercial formulations, including the range of

symptoms associated with known incidents of mild

or severe poisoning from the herbicide, its

commercial formulations or methods of application,

and summary information from an annual Region-wide

compilation of worker/citizen complaints.

18 ;1

4.

20 !I

I,II

:,

21 !i

I',I

22 !I

23 II

"

'!

24 Ii

Acute or chronic effects on the health of fish and

-wildlife from exposure to the herbicide as

proposed for use or experienced under the agency's

program, including data gaps in the available

literature.

5.

Environmental fate of the herbicide in the air,

soil, vegetative communities and water, including

data gaps in the available literature, and

verified methods of residue detection, potential

for by-products if burned.

'I

25 II

I

26 

,

'1

: STIPULATED ORDER--PAGE TWENTY TWO

(IMDI".\

..1 ~M ~!
(Exhibit A to Mediated Agreement, cont., page twelve)16.

Societal attitudes and perceptions about the use

of herbicide.

2

PART III. PROCESS FOR NEW INFORMATIQti

3

A. 4

5

REGIONAL COORDINATOR RESPONSIBILITIES. As the Region

implements a program for, managing competing -and

unwanted vegetation, it will continue to develop and

incorporate new information about vegetation managementmethods

their usefulness and effects. Accordingly,

6 the Regional Coordinator has the followingresponsibilities:

7

1.

Monitor research findings about vegetation

8 management methods on a continuing basis.

2; .

10

Revise assessments of the risk and effects of

using vegetation management methods as needed,

based on field experience, research findings, and

new information about vegetation management

methods or their effects. -

11

12

3.

Recommend revisions to mitigation methods and

management practices as needed to reflect new

information about vegetation management methods~

14 4. Incorporate new information about herbicide use,availability, 

and effects in annual revisions of

15 information packages.

16

5.

Disseminate new information regarding prevention

and management of vegetation problems.

11 !'

,j

I'

.1:i

II

6. Indicate whether or not underlying data are

18 available .to the public.

B.

SPECIFIC INFORMATION NEEDS. As a beginning to the

above process, the Forest Service needs to locate,

assess, and to the extent possible, make the

in£ormation available to the public as follows:

19

'I

20 II

21

1.

2.4-D Contaminants: Determine the nature and

extent of 2,4-0 contamination with 2,3,7,8-TCDD. 22

2.

23 2.4-D and Malianant LYm~homa: Monitor research

findings. Review and revise mitigation measures

and management of risk as needed. Revise risk

discussions in herbicide profiles as necessary

annually.

24 II,I

I!

25 III.

26 STIPULATED ORDER--PAGE TWENTY THREE

F()R~ u8D.IM)

\, ~M .,
.

(Exhibit ~ to Mediated Agreement, cant., page thirteen)

1

3.

Inert Ingredients: Attempt to determine the inert

ingredients used in the herbicides available, and

seek clarification of EPA's screening process for

rating inert ingredients. Evaluate the need to

eliminate the use of formulations that containformaldehyde.

2

3

4

4.

5

6

Acute toxicit~: Seek acute toxicity information

for the full formulation of herbicides cited in

the EIS. Evaluate the need to eliminate

formulations that have not been tested for,legally

required acute toxicity (i.e. LD50, skin and eyeirritation).

5. Detectinq Herbicides in Water: Determine

availability of validated methods for detecting

the thirteen programmed herbicides (and theiringredients) 

in water.

9

10

6. Burninq He!"bicide Treated sites: Determine -

whether or not burning vegetation that has been.

treated with herbicide releases toxic chlorinatea

compounds into the environment.

11

12 ;;

13

7.

Pesticides in Soil: Review persistence and

mobility ratings cited in NCAP's DEIS comments and

14 revise information packages if appropriate.

15

16

21

22

23

24

25

26 STIPULATED ORDER--PAGE TWENTY FOUR

HJR.'11I8().IXI

'" II .I
EXHIBIT B TO MEDIATED AGREEMENT1

2 IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

3

4 NORTHWEST COALITION FOR ALTERNATIVES

TO PESTICIDES, et al.,

)

)

)

)

)

)

)

Plaintiffs,

6

and

7

PAUL MERRELL,

8 

::

; )

)

)

Plaintiff-Intervenor,

civil No. 83-6272-E-BU

v.

10 )

)

)

;: CLAYTON YEUTTER,l Secretary, United

11 ,i States Department of Agriculture,

': et al.,

PROPOSED STIPULATED

ORDER ;..

12Defendants,

13 )

)

)

)

and

14OREGONIANS 

FOR FOOD AND SHELTER, INC.,

Defendant-Intervenor. 1989, 

In a motion dated January 24, defendants asked

this court to dissolve its previous order enjoining the

Six of the United States Forest Service. The motion was made

pursuant to Rule 60(b) of the Federal Rules of civil Procedure.

Its basis was the Forest Service's Pacific Northwest Region's

1Pursuant to Rule 25(d) (1) of the Federal Rules of CivilProced

Clayton Yeutter is substituted for Richard Lyng as

the Secretary of the United States Department of Agriculture.

STIPULATED ORDER--PAGE TWENTY FIVE

f'(IR...1 OBQ-.\~)

'I ~~ ~,
.~.

(Exhibit B to Mediated Agreement, cont., page two) 1

Record of Decision (ROD) and accompanying new environmental 2

impact statement, entitled Manaqinq Competinq and Unwanted 3

Vegetation--Final Environmental ImDactStatement (FEIS). 4

Oregonians for Food and Shelter subsequently joined -in the

5

motion.

6

:; After a status conference by telephone, plaintiffs 7 I

:j,filed on February 6, 8 Ii

II

1989 an WInitial Response and Opposition

.to Lift Injunction.. 9 !!"

:; He asserted an interest in the subj ect matter of this lawsuit

Paul Merrell filed a motion to intervene.

10 i!

(D.Ore. April

15, 1983), affirmed .§.YQ nom., ~ave Our Ecosvstems v. Clark, 7~40

stemming from Merrell v. Block, Civil No. 81-6138

11

12 ;i

I F.2d 1275 (9th Cir. 1984)

13

Thereafter the parties, plus Mr. Merrell, engaged in

14 i!

court-approved and arranged mediation. They succeeded. The

15

outcome is the attached mediated agreement,- together with its

16 11

17

'! incorporated Exhibit A (hereafter "mediated agree,:pentl).

I Accordingly, by joint motion and on the basis of the

18 mediated agreement, the parties to the mediation have asked

19 that I do the following:

20 -

1.

Grant Mr. Merrell's motion to intervene;

21 Approve the terms of the mediated agreement;

2.

22

3.

Incorporate the terms of the mediated agreement as

23 part of this order;

24

25

26 II STIPULATED ORDER--PAGE TWENTY SIX

"'IA\4 ()BI).IKJ
(Exhibit B to Mediated Agreement, cant., page three)1

4. Recognize that this court shall not retain 2

jurisdiction for supervising compliance under the 3

mediated agreement:

4

5.

Provide that the terms of the mediated agreement

5

represent obligations on the part of Forest

6

Service's Pacific Northwest Region that are

7

enforceable by the parties to it and subject to

8

judicial review in accordance with the terms of

the mediated agreement;

9

10 :,

6.

Conclude that no controversy remains among the

11

parties to this action regarding the ROD and FE~S,

12

in that as part of the mediated agreement all

13

parties thereto have consented to entry of this

14 ;!

order;

15

7.

Conclude further that defendants' motion, dated

16

January 24,

1989, 

is moot;

17 Dissolve that portion of the prior order in this

8.

action enjoining the Secretary of Agriculture and

19

'j the United States Forest Service from impleme.nting I.

!i

:!

20

- the ROD;

21 :1I 9. Dismiss with prejudice the complaints in this

action against the vegetation management program

of 

the Secretary of Agriculture and the United

states Forest Service;

26 !! STIPULATED ORDER--PAGE TWENTY SEVEN

,"OR.\4 ()80.IK)

"~K ~I
»

(Exhibit B to Mediated Agreement, cont., page four)

1

Caveat; 

.l.o. none of the foregoing is with prejudice to

2

the reservations governing the Siuslaw National

3

Forest granted Paul Merrell under the mediated

4

agreement: 

and

1.:

v

Confirm that each party is to bear its own

11.

6

! attorne y s fees, ex penses and costs incurred to 7 ;i :!

:' date.

8 il

'I -

:! After considering the joint motion, the mediat.ed 9 :: .

:1

! agreement and the record in this action, I grant these el:even

1 0 11

:: requests, and,

IT IS SO ORDERED.

, .j..J

Dated this -~

11 :i"

:'

12 i!

1989.

day of Jhcl'

13

14 ';

15

aCLlj~ LA X ,,-~ .

J~~:==i~1Rlfs""k ~'~~""- ~ -

United States District Court Judge

1 6 !!

,I

17 il

II

18 il

19 !I

:1"

20 i!

;j

21 il

II

,I

22 II

23 II

24 i

I

I

251

it

26 il

-

.:

.

.

;.

Go

.'

t

I..

~

t:" b:...c

~=

1'""

;:',

~::

\

"'.'

:: .

,:

;: STIPULATED ORDER--PAGE Th""ENTY EIGHT

I

:!

~

",

,

4..

.., '

.