Ctr. for Biological Diversity v. Envtl. Prot. Agency

316 F.Supp.3d 1156

CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs,

v.ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants.

Case No. 11–cv–00293–JCS

United States District Court, N.D. California.

Signed June 21, 2018

Justin Augustine, Jennifer Lynn Loda, Center for Biological Diversity, Oakland, CA, Collette Lucille Adkins, Pro Hac Vice, Center for Biological Diversity, Circle Pines, MN, Michael W. Graf, Law Offices of Michael Graf, El Cerrito, CA, Stephanie M. Parent, Pro Hac Vice, Center for Biological Diversity, Portland, OR, for Plaintiffs.

James Anthony Maysonett, Kevin William McArdle, Erik Edward Petersen, Travis James Annatoyn, United States Department of Justice, Environment & Natural Resources Division, Wildlife & Marine Resources Section, Washington, DC, Bridget Kennedy McNeil, United States Department of Justice, Environmental & Natural Resources Division, Wildlife & Marine Resources Section, Denver, CO, for Defendants.

ORDER REGARDING MOTIONS TO DISMISS THIRD AMENDED COMPLAINT

Re: Dkt. Nos. 275, 276

JOSEPH C. SPERO, Chief Magistrate Judge

I. INTRODUCTION

Plaintiffs Center for Biological Diversity ("CBD") and Pesticide Action Network North America assert that the Environmental Protection Agency ("EPA") and its administrator Scott Pruitt (collectively, the "Federal Defendants") violated duties under the Endangered Species Act ("ESA") by failing to initiate or reinitiate consultation with the Fish and Wildlife Service and National Marine Fisheries Service (the "Services") in the course of registering pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"). Chemical and agricultural business organizations ("Intervenors," or collectively with the Federal Defendants, "Defendants") have intervened as additional defendants. After the Ninth Circuit affirmed in part and reversed in part a previous order of this Court dismissing some of Plaintiffs' claims, Plaintiffs filed their operative Third Amended Complaint, and Intervenors and the Federal Defendants each filed a motion to dismiss. The Court heard argument on June 15, 2018. For the reasons discussed below, the motions are GRANTED in part but DENIED in large part. Plaintiffs may file a fourth amended complaint consistent with this order no later than July 20, 2018.¹

II. BACKGROUND

This order assumes the parties' familiarity with the subject matter and history of this case, which has been pending for more than seven years, including extended periods when the case was on appeal before the Ninth Circuit or stayed to allow for settlement discussions. The Ninth Circuit's opinion dated February 2, 2017 provides a detailed summary of the underlying statutory framework and the history of the action. See generally Ctr. for Biological Diversity v. U.S. Envtl. Prot. Agency ("CBD v. EPA "), 847 F.3d 1075, 1081–86 (9th Cir. 2017).

In brief, the "ESA seeks to protect and conserve endangered and threatened species and their habitats" by "requiring federal agencies to consult with the Service[s] to ensure their discretionary actions do not jeopardize endangered and threatened species, or adversely modify a listed species' critical habitat." Id. at 1084 (footnote and citations omitted). Consultation is required when an agency determines that its action " ‘may affect listed species or critical habitat,’ " and the Services must then prepare an opinion as to whether the action would in fact have such an effect. Id. at 1084–85 (quoting 50 C.F.R. § 402.14(h) ) (emphasis added). "FIFRA provides a comprehensive regulatory scheme for the use, sale, and labeling of pesticide active ingredients and pesticide products." Id. at 1085. As a result of legislation enacted in 1988, the EPA is currently undergoing a process of reregistering pesticides that were first registered before 1984, which involves multiple steps including the issuance of a "Reregistration Eligibility Decision" ("RED") related to each registered active ingredient, followed by reregistration of each individual product containing that active ingredient. Id. at 1085–86.

Plaintiffs filed their original complaint in 2011, asserting a single claim for relief based on the EPA's failure to consult under the ESA while continuing to exercise discretionary control over the use of 382 registered pesticide ingredients. On April 22, 2013, this Court granted a motion to dismiss on the grounds that retaining control is not an affirmative agency action requiring consultation under the ESA as interpreted by Karuk Tribe of California v. U.S. Forest Service , 681 F.3d 1006 (9th Cir. 2012) (en banc), and that Plaintiffs had not sufficiently alleged circumstances triggering an obligation to reinitiate consultation under 50 C.F.R. § 402.16. See generally Apr. 2013 Order (dkt. 157).² The Court held that more specific allegations would be necessary to evaluate standing, the jurisdictional requirements of FIFRA, and the application of 28 U.S.C. § 2401(a)'s six-year statute of limitations. See id. Plaintiffs filed an amended complaint, and Defendants moved for a more definite statement under Rule 12(e) of the Federal Rules of Civil Procedure. The Court granted those motions in part, holding that Plaintiffs needed to identify more specifically the agency actions—in particular, reregistrations of particular products—on which they based their failure-to-initiate-consultation claims, but that Plaintiffs did not need to identify particular agency actions related to their failure-to-reinitiate claims. See generally Nov. 2013 Order (dkt. 192).³

On August 13, 2014, the Court granted in large part Defendants' motions to dismissPlaintiffs' Second Amended Complaint. See generally Aug. 2014 Order (dkt. 222).⁴ The Court held that claims based on the EPA's issuance of REDs either warranted dismissal based on the statute of limitations or fell within the exclusive jurisdiction of the courts of appeals under FIFRA section 16(b), and thus outside the jurisdiction of this Court, because all REDs issued within the limitation period were subject to public notice and comment and thus constituted actions "following a public hearing" based on the Ninth Circuit's interpretation of section 16(b). Id. at 15–17 (citing, e.g. , United Farm Workers of Am. v. Adm'r, Envtl. Prot. Agency , 592 F.3d 1080 (9th Cir. 2010) ). The Court again held that discretionary control over registered pesticides did not constitute agency action sufficient to require consultation under the ESA, id. at 17–19, and also held that the "completion" of all product reregistrations for a particular active ingredient was "a mere fact" and did not constitute an agency action distinct from the product reregistrations themselves, id. at 20. The Court held that the reregistrations were themselves agency actions, but dismissed claims based on the reregistrations as impermissible collateral attacks on the REDs, which, as noted above, were not subject to challenge in a district court. Id. at 20–28. The Court granted Plaintiffs leave to amend to include more specific allegations identifying any salient differences between the REDs and the subsequent product reregistrations. See id. The Court denied Defendants' motion as to Plaintiffs' claims for failure to reinitiate consultation, except with respect to active ingredients for which all product reregistrations had been completed, because in those circumstances the reregistrations fully superseded the original registrations on which Plaintiffs sought reinitiation of consultation. Id. at 28–39.

Plaintiffs appealed to the Ninth Circuit, which affirmed this Court's order except as to claims based on failure to initiate consultation regarding product reregistrations. See generally CBD v. EPA , 847 F.3d 1075. The Ninth Circuit held that "[t]he collateral attack doctrine is not at issue here" because the reregistrations were separate actions from the REDs based on different data and determinations, and that Plaintiffs were "not required to allege facts beyond what [they] already ha[d] alleged in [their] Second Amended Complaint" with respect to the reregistration claims. Id. at 1092–94.

Following remand, the parties stipulated to allow Plaintiffs to amend their complaint once again. Plaintiffs' Third Amended Complaint asserts thirty-eight claims: thirty-five claims for failure to consult under the ESA when registering or reregistering over two thousand pesticide products⁵ containing thirty-five active ingredients (3d Am. Compl. ("TAC," dkt. 259–2) ¶¶ 842–1051), and three claims for failing to reinitiate consultation regarding the pesticide active ingredients dazomet (id. ¶¶ 793–807, 1052–59), malathion (id. ¶¶ 808–27, 1060–67), and permethrin (id. ¶¶ 828–41, 1068–75). Plaintiffs seek a declaration that the EPA is violating the ESA by failing to consult or reinitiate consultation, an order that the EPA begin or reinitiate consultation by a date certain, and vacatur of the EPA's authorizations of the products at issue until consultation is complete and the EPA is in compliance with section 7(a)(2) of the ESA, as well as an award of attorneys' fees and costs. Id. at 270–71, ¶¶ 1–5 (prayer for relief).

The Federal Defendants now move to dismiss for failure to include sufficient allegations regarding Plaintiffs' standing, failure to comply with the ESA's pre-suit notice requirement, and failure to bring claims regarding certain products within the statute of limitations. See generally Fed. Defs.' Mot. (dkt. 275). Intervenors move to dismiss on the same grounds, and also based on mootness as to certain claims, failure to identify agency actions with respect to reinitiation claims, and failure to follow court orders. See generally Intervenors' Mot. (dkt. 276).

III. ANALYSIS

A. Legal Standards

1. Rule 12(b)(1)

Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, a district court must dismiss an action if it lacks jurisdiction over the subject matter of the suit. See Fed. R. Civ. P. 12(b)(1). "Subject matter jurisdiction can never be...