Opinion
20-CV-1119 TWR (AGS)
08-02-2021
JCM FARMING, INC., a California corporation, Plaintiff, v. ANDREW WHEELER, Administrator, United States Environmental Protection Agency; and UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendants.
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
(ECF NO. 8)
Todd W. Robinson United States District Judge
Presently before the Court is the Motion to Dismiss (ECF No. 8) the Complaint, filed by Defendants Andrew Wheeler and the United States Environmental Protection Agency (collectively, “EPA”). Having carefully reviewed the Motion to Dismiss, Plaintiff's Opposition (ECF No. 12), the EPA's Reply (ECF No. 13), and the relevant law, the Court GRANTS the Motion to Dismiss and DISMISSES the Complaint WITHOUT PREJUDICE and WITH LEAVE TO AMEND.
BACKGROUND
I. Allegations of the Complaint
Plaintiff JCM Farming, Inc. owns and maintains an agricultural “Ranch” in the Coachella Valley, in Riverside County, California. (Compl. ¶ 19, ECF No. 1.) In 2007, this Ranch “was subjected to repeated low and dangerous hot air balloon overflights.” (Id. ¶ 5.) In 2007 and thereafter, “balloon operators were … exposing their passengers (adults and children alike) to toxic chemicals by continuously contour flying just above ground level and by landing in hot fields where chemicals had recently been applied.” (Id. ¶ 30.) Despite “tons and tons of FIFRA [i.e., the Federal Insecticide, Fungicide, and Rodenticide Act] regulated chemicals were being used throughout the Coachella Valley, ” Plaintiff has not found any “chemical use warning signs” posted in the area. (Id. ¶ 32.) Specifically, “Worker Protection Standard [i.e., WPS] required warning signs have not been posted in the Coachella Valley.” (Id. ¶ 49.)
“The FIFRA violations Plaintiff observed, logged and photographed throughout the Coachella Valley evidence a complete lack of signage which, if present, would have warned tourists, workers and the public of pesticide usage and potential exposure to toxic chemicals.” (Id. ¶ 54.) “The FIFRA signage violations Plaintiff observed run counter to the obligations that the State of California is obligated to adhere to under the permit granted it by Defendant EPA.” (Id. ¶ 60.)
Plaintiff has engaged in years of negotiations with “the balloonists, local authorities, and federal authorities in efforts to end the low overflights.” (Id. ¶ 25.) “Plaintiff has met with members of the Department of Justice, Department of Transportation, and the Federal Bureau of Investigation on at least ten separate occasions and Plaintiff believes they are currently evaluating how to proceed.” (Id. ¶ 57.)
The Complaint alleges two causes of action pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 702, 706, and FIFRA, 7 U.S.C. § 136w-2. (See id. at 22-23.) The Complaint seeks declaratory and injunctive relief in the form of an order:
1. Declaring that the information set forth in this Complaint demonstrates a significant violation of the pesticide use provisions of FIFRA and the WPS regulations promulgated pursuant to FIFRA;
2. Directing the Administrator to refer these allegations to the California Department of Pesticide Regulation and the Riverside County Agriculture Commissioner for compliance and prosecution;
3. Directing the Administrator to engage in a process to determine why California is not carrying out its enforcement responsibility for pesticide use violations;
4. Directing the Administrator to engage in a process to determine how it is possible the Registrant chemical manufacturers are not enforcing the label laws and allowing illegal use of restricted chemicals; [and]
5. Directing the Administrator to fashion and implement a methodology for notifying all persons and guardians of children that may have unknowingly been exposed to dangerous FIFRA regulated chemicals in the Coachella Valley and require medical testing and/or treatment per FIFRA labeling and WPS regulations….(Id. at 23-24.)
II. Motion to Dismiss
The EPA moves to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(3) and 12(b)(6), contending that (1) Plaintiff has failed to identify an applicable waiver of sovereign immunity and (2) venue in this district is not proper.
With respect to the sovereign immunity argument, the EPA first contends: “[A]ny purported failures on the part of EPA to refer alleged violations-that EPA was not even made aware of-to the State for prosecution or to determine whether the State is carrying out its enforcement authority do not constitute ‘agency actions' under the APA and, thus, are not the type of actions that the Court can compel under APA section 706(1).” (Mem. Supp. Mot. to Dismiss at 19, ECF No. 8-1.) The EPA next contends: “Even if this Court finds that a final agency action exists, such action remains unreviewable if it is an agency action ‘committed to agency discretion by law, '” and “[b]ecause Plaintiff relies on section 27 of FIFRA, which authorizes EPA to take a number of discretionary enforcement measures, Plaintiff's claims are unreviewable under the APA.” (Id. (quoting 5 U.S.C. § 701(a)(2)); citing Heckler v. Chaney, 470 U.S. 821 (1985).)
With respect to the venue argument, the EPA contends that Plaintiff can only establish venue in this district “if no real property is involved in this action, ” 28 U.S.C. § 1391(e), and “real property-farmland in Coachella Valley-is involved in this action.” (Mem. Supp. Mot. to Dismiss at 23, ECF No. 8-1.) The EPA requests that the Court dismiss the Complaint for lack of subject matter jurisdiction and improper venue.
Plaintiff opposes the Motion to Dismiss. (ECF No. 12.) Plaintiff contends that Section 702 of the APA supplies the waiver of sovereign immunity for this action because the Complaint seeks nonmonetary relief and “seeks to compel Defendants to take a discrete agency action that the EPA is required to take-namely, to refer the matter to State officials for investigation, as mandated by FIFRA.” (Id. at 8.) Plaintiff contends that the referral mandated by FIFRA constitutes an “agency action” or its equivalent pursuant to applicable caselaw. (Id. at 8-10.) Plaintiff contends that venue is proper in this district because this case does not “involve” real property as that term has been construed by caselaw because this case does “not concern the right, title or interest in real property, nor does it involve a dispute over real property interests.” (Id. at 12.)
LEGAL STANDARDS
A Rule 12(b)(1) jurisdictional attack may be facial or factual. Id. As is the case here, in a facial attack, the challenger asserts that the allegations contained in the complaint are insufficient on their face to invoke federal jurisdiction. See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). When considering this type of jurisdictional attack, a court must consider the allegations of the complaint to be true and construe them in the light most favorable to the plaintiff. See id.; Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1988). When subject matter jurisdiction is challenged, the plaintiff bears the burden of persuasion. See Indus. Tectonics, Inc. v. Aero Alloy, 912 F.2d 1090, 1092 (9th Cir. 1990).
II. Rule 12(b)(6)
Federal Rule of Civil Procedure 8(a)(2) requires “a short and plain statement of the claim showing that the pleader is entitled to relief, ” in order to “give the defendant fair notice of what the ... claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While a complaint attacked by a Rule 12(b)(6) motion to dismiss “does not need detailed factual allegations, ” it must set forth “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555. To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Id. at 570. A dismissal without leave to amend is improper unless it is beyond doubt that the complaint “could not be saved by any amendment.” Harris v. Amgen, Inc., 573 F.3d 728, 737 (9th Cir. 2009).
ANALYSIS
I. FIFRA
The Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C. §§ 136-136y, “is a comprehensive regulatory scheme aimed at controlling the use, sale, and labeling of pesticides.” Nathan Kimmel, Inc. v. DowElanco, 275 F.3d 1199, 1204 (9th Cir. 2002) (citing Wisc. Pub. Intervenor v. Mortier, 501 U.S. 597, 601 (1991)). FIFRA gives States primary enforcement responsibility for pesticide use violations if either (1) the EPA determines the State has an adequate pesticide use enforcement program or (2) the EPA enters into a cooperative agreement with the State. See 7 U.S.C. §§ 136i, 136u, 136w-1(a)-(b); see also Wisc. Pub. Intervenor, 501 U.S. at 601. California has entered into a cooperative agreement with the EPA. (See Mot. to Dismiss, Ex. A, ECF No. 8-2.)
If a State with primary enforcement responsibility fails to enforce pesticide use violations, the EPA may take different actions under FIFRA. See 7 U.S.C. §§ 136w-1(c), 136w-2; see also 40 C.F.R. Part 173.1. As relevant to this case, 7 U.S.C. § 136w-2 states:
Upon receipt of any complaint or other information alleging or indicating a significant violation of the pesticide use provisions of this subchapter, the [EPA] Administrator shall refer the matter to the appropriate State officials for their investigation of the matter consistent with the requirements of this subchapter. If, within thirty days, the State has not commenced appropriate enforcement action, the Administrator may act upon the complaint or information to the extent authorized under this subchapter.7 U.S.C. § 136w-2(a). If the EPA determines that a State is failing to or cannot carry out its enforcement responsibility, the EPA “shall notify” the State of its deficiencies. Id. § 136w-2(b). The State then has ninety days to correct the deficiencies and, if after that time the EPA determines that the State's enforcement program remains inadequate, the EPA “may rescind, in whole or in part, the State's primary enforcement responsibility for pesticide use violations.” Id. At that point, the EPA would assume primary enforcement responsibility under FIFRA. See 7 U.S.C. § 136w-1(c). Finally, Section 136w-2 does not “limit the authority of the Administrator to enforce this subchapter, where the Administrator determines that emergency conditions exist that require immediate action on the part of the Administrator and the State authority is unwilling or unable adequately to respond to the emergency.” 7 U.S.C. § 136w-2(c).
Plaintiff relies upon FIFRA's Worker Protection Standard (“WPS”), codified in the Code of Federal Regulations at Title 40, Part 170, as the basis for the alleged pesticide use violations at issue. The WPS is “designed to reduce the risks of illness or injury resulting from workers' and handlers' occupational exposures to pesticides used in the production of agricultural plants on farms or in nurseries, greenhouses, and forests and also from the accidental exposure of workers and other persons to such pesticides.” 40 C.F.R. § 170.1. Among other things, WPS requires employers to post notification of worker entry restrictions when a pesticide's product labeling so requires. See 40 C.F.R. § 170.409. The WPS also establishes an “[a]pplication exclusion zone, ” which is “the area surrounding the point(s) of pesticide discharge from the application equipment that must generally be free of all persons during pesticide applications.” 40 C.F.R. § 170.305; see also 40 C.F.R. § 170.405(a). FIFRA provides for civil and criminal penalties for committing unlawful acts as defined in the statute. See 7 U.S.C. § 136l; see also 7 U.S.C. § 136j.
However, other than lodging a complaint with the EPA as described in 7 U.S.C. § 136w-2(a) (quoted above), “a citizen has no recourse under FIFRA.” Arnold v. Dow Chem. Co., 91 Cal.App.4th 698, 709 (2001). Id. FIFRA's “legislative history confirms that Congress did not intend to create a private right of action under FIFRA.” Fiedler v. Clark, 714 F.2d 77, 79 (9th Cir. 1983). “Congress considered and explicitly rejected amendments that would have authorized citizen suits, including suits against the EPA Administrator for failure to perform nondiscretionary duties or for failure to investigate and prosecute violations.” Id.; see Almond Hill Sch. v. U.S. Dep't of Agric., 768 F.2d 1030, 1037-38 (9th Cir. 1985) (“The integration of state remedies to enforce the purposes of FIFRA further suggests to us that Congress intended to restrict the range of enforcement choices to those set forth in the Act itself. Private actions under section 1983 to enforce FIFRA would be inconsistent with the policy of state and federal cooperation encouraged in the Act's express enforcement scheme.”). In other words, “FIFRA does not provide for citizen enforcement suits. Such enforcement actions may be brought only by specified agencies of federal and state governments.” No Spray Coal., Inc. v. City of New York, 351 F.3d 602, 604-05 (2d Cir. 2003).
II. APA
“Suits against the EPA, as against any agency of the United States, are barred by sovereign immunity, unless there has been a specific waiver of that immunity. Similarly, suits against officials of the United States, including EPA Administrators, in their official capacity are barred if there has been no waiver.” Sierra Club v. Whitman, 268 F.3d 898, 901 (9th Cir. 2001) (citations omitted). One such waiver of sovereign immunity is provided by the APA, 5 U.S.C. § 702. See Navajo Nation v. Dep't of the Interior, 876 F.3d 1144, 1168 (9th Cir. 2017). Plaintiff relies solely upon Section 702 of the APA to provide the necessary waiver of sovereign immunity to maintain this suit to compel the EPA to take action pursuant to FIFRA. (See Pl. Opp'n to Mot. to Dismiss at 6-11, ECF No. 12.)
In addition to a waiver of sovereign immunity, see Navajo Nation, 876 F.3d at 1168, section 702 of the APA provides “an omnibus judicial-review provision, which permits suit for violations of numerous statutes that do not themselves include causes of action for judicial review.” Id. (quotation omitted). Specifically, the judicial review provision states: “A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. “Where no other statute provides a private right of action, the ‘agency action' complained of must be ‘final agency action.'” Norton v. S. Utah Wilderness All., 542 U.S. 55, 61-62 (2004) (“SUWA”) (quoting 5 U.S.C. § 704); see also Navajo Nation, 876 F.3d at 1172 (stating that the “‘final agency action' limitation applies only to APA claims”-i.e., “brought directly under the APA”). The APA provides relief for a failure to act pursuant to 5 U.S.C. § 706(1): “The reviewing court shall ... compel agency action unlawfully withheld or unreasonably delayed.” See SUWA, 542 U.S. at 62 (“[A] claim under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take.”) (emphasis in original).
Section 702 “establishes a basic presumption of judicial review for one suffering legal wrong because of agency action.” Dep't of Homeland Sec. v. Regents of the Univ. of Cal., 140 S.Ct. 1891, 1905 (2020) (quotations omitted). “That presumption can be rebutted by a showing that the relevant statute ‘preclude[s]' review, or that the ‘agency action is committed to agency discretion by law.'” Id. (quoting 5 U.S.C. §§ 701(a)(1) & 701(a)(2)). Pursuant to 5 U.S.C. § 701(a)(2), “[t]his limited category of unreviewable actions includes an agency's decision not to institute enforcement proceedings….” Dep't of Homeland Sec., 140 S.Ct. at 1905 (citing Heckler v. Chaney, 470 U.S. 821, 831-32 (1985)).
The EPA contends that the APA does not waive sovereign immunity for Plaintiff's claims because: (1) there is no “final agency action” at issue, and (2) any purported agency action at issue is committed to the discretion of the EPA.
A. Final Agency Action
As discussed above, because FIFRA does not provide a private right of action, “the ‘agency action' complained of must be ‘final agency action.'” SUWA, 542 U.S. at 61-62 (quotation omitted); see also San Luis Unit Food Producers v. United States, 709 F.3d 798, 803 (9th Cir. 2013) (“Where no other statute provides for judicial review of agency action, as is the case here, the APA allows challenges to final agency action. Agency action includes a ‘failure to act.'”) (quoting 5 U.S.C. § 551(13)). The Court first addresses the “agency action” requirement and then the “finality” requirement.
1. Agency Action
“[A]gency action” is defined to include “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. § 551(13). The Supreme Court has stated that “[t]he final term in the definition, ‘failure to act,' is … properly understood as a failure to take an agency action-that is, a failure to take one of the agency actions (including their equivalents) earlier defined in § 551(13).” SUWA, 542 U.S. at 62. Section 551 defines each of the terms used in § 551(13) as follows:
(4) “rule” means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing; ...
(6) “order” means the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing; ...
(8) “license” includes the whole or a part of an agency permit, certificate, approval, registration, charter, membership, statutory exemption or other form of permission; …
(10) “sanction” includes the whole or a part of an agency-
(A) prohibition, requirement, limitation, or other condition affecting the freedom of a person;
(B) withholding of relief;
(C) imposition of penalty or fine;
(D) destruction, taking, seizure, or withholding of property;
(E) assessment of damages, reimbursement, restitution, compensation, costs, charges, or fees;
(F) requirement, revocation, or suspension of a license; or
(G) taking other compulsory or restrictive action;
(11) “relief” includes the whole or a part of an agency-
(A) grant of money, assistance, license, authority, exemption, exception, privilege, or remedy;
(B) recognition of a claim, right, immunity, privilege, exemption, or exception; or
(C) taking of other action on the application or petition of, and beneficial to, a person; ….5 U.S.C. §§ 551(4), (6), (8), (10)-(11).
Plaintiff contends that “[r]eferring violations to State officials for investigation and/or prosecution, ” as stated in FIFRA, 7 U.S.C. § 136w2(a), “can properly be viewed as a ‘rule,' ‘order,' ‘license' or ‘relief' within the APA's definitions.” (Opp'n to Mot. To Dismiss at 9, ECF No. 12.) The Court does not agree. “[R]efer[ring] the matter to the appropriate State officials for their investigation, ” 7 U.S.C. § 136w2(a), is not “an agency statement of general or particular applicability and future effect” (i.e., a “rule”), “a final disposition” (i.e., an “order”), “an agency permit, certificate, approval, … or other form of permission” (i.e., a “license”), or the “recognition of a claim … or taking of other action on the application or petition of, and beneficial to, a person” (i.e., “relief”). 5 U.S.C. §§ 551(4), (6), (8), (11) (emphasis added).
This provision of FIFRA states:
Upon receipt of any complaint or other information alleging or indicating a significant violation of the pesticide use provisions of this subchapter, the [EPA] Administrator shall refer the matter to the appropriate State officials for their investigation of the matter consistent with the requirements of this subchapter. If, within thirty days, the State has not commenced appropriate enforcement action, the Administrator may act upon the complaint or information to the extent authorized under this subchapter.7 U.S.C. § 136w-2(a).
The closest category would seem to be “relief, ” but the referral in FIFRA does not involve the EPA “recognizing” a claim or taking action on an application or petition that is “beneficial” to anyone. 5 U.S.C. § 551(11). The referral ultimately might lead to State or EPA officials taking action that benefits a person, but it is not the referral itself that accomplishes this result. In this respect, a referral is analogous to the EPA filing a lawsuit alleging violations of FIFRA-although, importantly, unlike the filing of a complaint in court, a referral under 7 U.S.C. § 136w2(a) does not contemplate any investigation into the underlying facts being alleged. “[T]he filing of a civil action does not fit within the APA's definition of agency action: it is not a rule, order, license, sanction, form of relief, or failure to act.” City of Oakland v. Holder, 901 F.Supp.2d 1188, 1195 (N.D. Cal. 2013), aff'd sub nom. City of Oakland v. Lynch, 798 F.3d 1159 (9th Cir. 2015); see also Fed. Trade Comm'n v. Lunada Biomedical, Inc., No. CV-15-3380-MWF, 2016 WL 4698938, at *8 (C.D. Cal. Feb. 23, 2016) (holding that an agency's use of pleading terms in a civil complaint does not qualify as “agency action”). Stated differently, a referral under 7 U.S.C. § 136w2(a) is purely informational, transmitting a third-party complaint to State authorities but imposing no obligations on the State authorities or anyone else. This is not sufficient to constitute an “agency action.” See Indep. Equip. Dealers Ass'n v. E.P.A., 372 F.3d 420, 427 (D.C. Cir. 2004) (holding that the court lacked jurisdiction to consider an APA challenge to an informational letter sent by the EPA to a trade association because sending the letter was not an “agency action, ” stating: “The Letter was purely informational in nature; it imposed no obligations and denied no relief. Compelling no one to do anything, the letter had no binding effect whatsoever-not on the agency and not on the regulated community.”). The Court concludes that a referral pursuant to 7 U.S.C. § 136w2(a) does not constitute an “agency action, ” and therefore a failure to refer is not a “failure to act” within the meaning of 5 U.S.C. § 551(13).
Even if a failure to refer was properly considered to be a failure to take “agency action, ” Plaintiff's Complaint fails to adequately allege that a referral was mandated by 7 U.S.C. § 136w2(a) because the Complaint fails to allege the threshold requirement that the EPA was in “receipt of any complaint or other information alleging or indicating a significant violation of the pesticide use provisions of this subchapter.” 7 U.S.C. § 136w-2(a). Specifically, the Complaint does not allege that the EPA received the information alleged in the Complaint. In its opposition, Plaintiff contends that this threshold requirement is satisfied because “[t]he instant Complaint contains precisely such allegations-a complete disregard of pesticide warning signage requirements throughout the Coachella Valley.” (Opp'n Br. at 11 n.3, ECF No. 12.) While Plaintiff is correct that “FIFRA does not specify a form of complaint, nor does it preclude this Complaint (which the EPA clearly has received) from satisfying the requirement, ” see id., Plaintiff's Complaint alleges jurisdiction pursuant to the APA, which only allows judicial review to “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, ” 5 U.S.C. § 702, and authorizes a court to “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). At the time the Complaint was filed, Plaintiff could not plausibly allege that Plaintiff had “suffer[ed] legal wrong” or that the EPA “unlawfully withheld or unreasonably delayed” agency action on information the EPA had not yet received.
Accordingly, even if judicial review was otherwise available under the APA, the Complaint would be subject to dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6).
Moreover, even if a failure to refer was properly considered to be a failure to take “agency action” and even if Plaintiff had alleged that the EPA had received information “alleging or indicating a significant violation” of FIFRA and/or the WPS, 7 U.S.C. § 136w2(a), Plaintiff's Complaint seeks far more than the discrete action of a referral contemplated by 7 U.S.C. § 136w2(a). The Complaint seeks a declaration that “the information set forth in this Complaint demonstrates a significant violation” of FIFRA and the WPS regulations (Compl. at 23, ECF No.1), despite § 136w2(a) not requiring any investigation or weighing of evidence. The Complaint seeks an order referring the allegations to the State “for compliance and prosecution” (Compl. at 24), despite § 136w2(a) only stating that the referral is “for [State] investigation.” The Complaint next requests the following orders:
Directing the Administrator to engage in a process to determine why California is not carrying out its enforcement responsibility for pesticide use violations; …
Directing the Administrator to engage in a process to determine how it is possible the Registrant chemical manufacturers are not enforcing the label laws and allowing illegal use of restricted chemicals; … [and]
Directing the Administrator to fashion and implement a methodology for notifying all persons and guardians of children that may have unknowingly been exposed to dangerous FIFRA regulated chemicals in the Coachella Valley and require medical testing and/or treatment per FIFRA labeling and WPS regulations….(Compl. at 24.) Rather than being limited to a discrete action such as a referral, the Complaint is actually “the kind of broad programmatic attack” that the Supreme Court has held is unavailable under § 706(1) of the APA. SUWA, 542 U.S. at 64 (“[A] claim under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take. These limitations rule out several kinds of challenges. The limitation to discrete agency action precludes the kind of broad programmatic attack we rejected in Lujan….”) (emphasis in original); see also Lujan v. Nat'l Wildlife Federation, 497 U.S. 871, 891 (1990) (“[R]espondent cannot seek wholesale improvement of this [agency] program by court decree, rather than in the offices of the Department or the halls of Congress, where programmatic improvements are normally made. Under the terms of the APA, respondent must direct its attack against some particular ‘agency action' that causes it harm.”) (emphasis in original). Because the Complaint is not limited to compelling a discrete agency action, but is instead a broad programmatic attack, judicial review pursuant to § 706(1) of the APA is not available.
2. Finality
Even if a failure to refer was properly considered to be a failure to take “agency action, ” and even if Plaintiff's Complaint was limited to compelling a discrete agency action, that agency action would also need to be “final.” As discussed above, “the ‘agency action' complained of must be ‘final agency action'” because FIFRA does not provide a private right of action. SUWA, 542 U.S. at 61-62 (emphasis added) (quotation omitted); see Lujan, 497 U.S. at 882 (“When, as here, review is sought not pursuant to specific authorization in the substantive statute, but only under the general review provisions of the APA, the ‘agency action' in question must be ‘final agency action.'”) (citing 5 U.S.C. § 704).
Prior to the Supreme Court's SUWA decision, the Ninth Circuit indicated that a suit seeking to compel agency action pursuant to 5 U.S.C. § 706(1) was not required to show that the withheld or delayed agency action was “final.” See Ecology Ctr., Inc. v. U.S. Forest Serv., 192 F.3d 922, 926 (9th Cir. 1999) (“This court has refused to allow plaintiffs to evade the finality requirement with complaints about the sufficiency of an agency action ‘dressed up as an agency's failure to act.'”) (quoting Nevada v. Watkins, 939 F.2d 710, 714 n.11 (9th Cir. 1991)). However, district courts in the Ninth Circuit have interpreted SUWA to hold that, “[w]here no other statute provides a private right of action, the ‘agency action' complained of must be ‘final agency action.'” SUWA, 542 U.S. 55, 61-62 (2004) (quoting 5 U.S.C. § 704) (emphasis added by SUWA); see also id. at 62-63 (“Sections 702, 704, and 706(1) all insist upon an ‘agency action,' either as the action complained of (in §§ 702 and 704) or as the action to be compelled (in § 706(1)).”); see Fed. Trade Comm'n v. Lunada Biomedical, Inc., No. CV-15-3380-MWF, 2016 WL 4698938, at *9 (C.D. Cal. Feb. 23, 2016) (“[C]ourts require that the ‘agency action' subject to review under Section 706 be ‘final.'”) (citing, inter alia, SUWA, 542 U.S. at 62); High Sierra Hikers Ass'n v. U.S. Forest Serv., 436 F.Supp.2d 1117, 1140 (E.D. Cal. 2006) (“Suits under the APA challenging both agency action under section 706(2), and agency inaction under section 706(1), require that the action or inaction being challenged be a ‘final agency action'….”) (citing SUWA, 542 U.S. at 62).
Two conditions generally must be satisfied for agency action to be considered final under the APA: “First, the action must mark the consummation of the agency's decision-making process-it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow.” San Francisco Herring Ass'n v. Dep't of the Interior, 946 F.3d 564, 577 (9th Cir. 2019) (quoting, inter alia, U.S. Army Corps of Engineers v. Hawkes Co., 136 S.Ct. 1807, 1813 (2016)). For example, in Association of American Medical Colleges v. United States, 217 F.3d 770 (9th Cir. 2000), the court stated that “[a]n investigation, even one conducted with an eye to enforcement, is quintessentially non-final as a form of agency action.” Id. at 781 (citations omitted); see Id. at 780-81 (holding that agency actions in conducting Medicare reimbursement audits of hospitals were not “final” because “the audits themselves do not impose an obligation, deny a right, or fix some legal relationship as a consummation of the administrative process”) (emphasis in original) (quotation omitted).
As discussed above, an EPA referral pursuant to 7 U.S.C. § 136w2(a) is of less significance or “finality” than an investigation. A referral is a transmission of a third-party complaint to a State agency, and the State agency may then choose to investigate or not investigate at its discretion. Although the EPA may later decide to investigate and even prosecute, no such decision is implicit at the referral stage of the process outlined in 7 U.S.C. § 136w2. Hence, a referral is, at most, “tentative or interlocutory” in nature and not “final.” San Francisco Herring Ass'n, 946 F.3d at 577; see also id. at 578 (“When an agency decision is merely tentative, the final agency action requirement ensures that courts do not intrude on the agency's turf and thereby meddle in the agency's ongoing deliberations.”); cf. City of Oakland v. Lynch, 798 F.3d 1159, 1166-67 (9th Cir. 2015) (“The Government's decision to file the forfeiture action is not ‘final,' because it is not an action ‘by which rights or obligations have been determined, or from which legal consequences will flow.' A forfeiture action simply makes evident the Government's intention to challenge the status quo; any rights, obligations, and legal consequences are to be determined later by a judge.”) (quoting Bennett v. Spear, 520 U.S. 154, 177-78 (1997)).
Even a failure to refer was properly considered to be a failure to take “agency action, ” and even if Plaintiff's Complaint was limited to compelling a discrete agency action, the agency action of referral is not “final.” Accordingly, judicial review is unavailable under the APA because there is no “final agency action” at issue and therefore Plaintiff cannot rely on the APA's waiver of sovereign immunity.
B. Committed to Agency Discretion
The EPA contends that the APA does not waive sovereign immunity for Plaintiff's claims for the independent reason that any purported agency action at issue is committed to the discretion of the EPA. In so arguing, the EPA relies principally on Heckler v. Chaney, 470 U.S. 821 (1985), which “carved out a presumption of unreviewability of an agency's decision not to take enforcement action.” City & Cty. of San Francisco v. U.S. Dep't of Transp., 796 F.3d 993, 1001 (9th Cir. 2015) (citing Heckler, 470 U.S. at 831). As summarized by the Ninth Circuit, Heckler “set forth several reasons why agency enforcement decisions are generally not suitable for judicial review”:
(1) ‘an agency decision not to enforce often involves a complicated balancing of a number of factors which are peculiarly within its expertise,' such as allocation of resources and agency policies and priorities; (2) an agency is better equipped to make that balancing than a court; (3) an agency's refusal to enforce does not implicate personal liberty or property rights, which courts are often called on to protect; and (4) an agency's decision not to enforce is analogous to prosecutorial discretion, an arena in which courts have traditionally not interfered.City & Cty. of San Francisco, 796 F.3d at 1001-02 (quoting Heckler, 470 U.S. at 831-32). “The traditional presumption laid out in [Heckler v.] Chaney applies to decisions about enforcement, just as it applies to decisions about investigating and making findings.” Sierra Club v. Whitman, 268 F.3d 898, 903 (9th Cir. 2001) (citing Heckler, 470 U.S. at 831). However, this “presumption of unreviewability is rebuttable ‘where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers.'” City & Cty. of San Francisco, 796 F.3d at 1002 (quoting Heckler, 470 U.S. at 832-33).
In Sierra Club, the Ninth Circuit affirmed a dismissal on sovereign immunity grounds because the court determined that sections of the Clean Water Act (“CWA”) providing that the EPA Administrator “shall” take certain actions whenever the Administrator finds that a person is in violation of a CWA provision do not impose mandatory duties upon the Administrator to take enforcement actions, such that the Heckler presumption of unreviewability was rebutted. Sierra Club, 268 F.3d at 905. The Court stated, “[f]irst and most important is the traditional presumption that an agency's refusal to investigate or enforce is within the agency's discretion, unless Congress has indicated otherwise.” Id. at 902. The court further reasoned that “the EPA's decision not to take enforcement measures, like a prosecutor's decision not to indict, is one that is typically committed to the agency's absolute discretion, such that a court would have no meaningful standard against which to judge the agency's exercise of discretion.” Id. at 903 (quotation omitted). The court said that while the CWA sections at issue twice state that the
Administrator “shall” take certain actions, “when used in a statute that prospectively affects government action, ‘shall' is sometimes the equivalent of ‘may.'” Id. at 904 (citation omitted). “The question whether ‘shall' commands or merely authorizes is determined by the objectives of the statute.” Id. (citation omitted). The court stated that, despite the use of the word “shall, ” “[t]he language of authorization … shows congressional intent to give the Administrator these options, not to require their use in all instances.” Id.
In this case, Plaintiff emphasizes that 7 U.S.C. § 136w-2 states that the EPA “shall refer” a complaint or other information in certain circumstances: “Upon receipt of any complaint or other information alleging or indicating a significant violation of the pesticide use provisions of this subchapter, the [EPA] Administrator shall refer the matter to the appropriate State officials for their investigation of the matter consistent with the requirements of this subchapter.” 7 U.S.C. § 136w-2(a) (emphasis added). But the threshold, discretionary determination of what allegations or information indicate a sufficiently “significant violation” involves a “complicated balancing of a number of factors which are peculiarly within [the agency's] expertise,' such as allocation of resources and agency policies and priorities.” City & Cty. of San Francisco, 796 F.3d at 1001-02 (quoting Heckler, 470 U.S. at 831-32). The EPA's interpretative rule regarding § 136w-2(a) makes this point clear:
Given current resource limitations, EPA is not in a position to monitor State responses to every allegation of pesticide misuse referred by the Agency. Rather, the Agency will focus its oversight activities on evaluating the overall success of State pesticide enforcement programs, and will track, on a case-by-case basis, only those allegations involving particularly serious violations. Such ‘significant' allegations will be formally referred to the States and tracked by EPA, while other less serious complaints will be forwarded to the States for information purposes only.FIFRA, State Primary Enforcement Responsibilities, 48 Fed. Reg. 404-03, 406 (Jan. 5, 1983). The EPA's interpretative rule further discusses the criteria for making the discretionary decision as to the significance of an alleged violation:
To determine which alleged violations are sufficiently significant to warrant formal referral and tracking, the [EPA] regions will go through a two step process. First, the regions, in consultation with each State, will identify priority areas for referral. These priority areas will consist of those pesticide activities in the State which present the greatest potential for harm to health or the environment (e.g. the application of a pesticide by a certain method to a particular crop, such as ground application of endrin to apple trees). The selection of these priority areas will depend primarily on the results of pesticide enforcement program evaluations conducted by the States and the regions. The priority areas will be revised on an annual basis based upon the effectiveness of the program in reducing the harm associated with pesticide use.
Thereafter EPA will determine on a case-by-case basis which allegations in these priority areas involve sufficiently “significant” violations to be formally referred to the State and tracked. If a complaint received by EPA alleges a minor infraction which clearly presents little or no danger to health or the environment, or if the information contains patently spurious allegations, such as those from sources which have repeatedly proved unreliable, the matter will be forwarded to the State for information purposes only.Id. The EPA's interpretative rule details the lengthy and complicated “[p]rocedures EPA will follow when referring allegations of pesticide use violations to the State and tracking State responses to these referrals.” Id. at 405; see generally id. at 405-411. Furthermore, if the EPA determines that “emergency conditions exist, ” the EPA may act immediately prior to or without a referral. 7 U.S.C. § 136w-2(c). The Court finds that, with respect to whether an alleged FIFRA or WPS violation is sufficiently “significant” to warrant referral pursuant to 7 U.S.C. § 136w-2, the “agency is better equipped to make that balancing than a court.” City & Cty. of San Francisco, 796 F.3d at 1002.
Moreover, as discussed above, Plaintiff's Complaint invokes more than simply § 136w-2(a)'s “referral” obligation. Among other things, the Complaint seeks a Court order “[d]irecting the Administrator to engage in a process to determine why California is not carrying out its enforcement responsibility for pesticide use violations, ” “[d]irecting the Administrator to determine how it is possible the Registrant chemical manufacturers are not enforcing the label laws and allowing illegal use of restricted chemicals, ” and “[d]irecting the Administrator to fashion and implement a methodology for notifying all persons and guardians of children that may have unknowingly been exposed to dangerous FIFRA regulated chemicals in the Coachella Valley and require medical testing and/or treatment per FIFRA labeling and WPS regulations.” (Compl. at 24, ECF No. 1.) The Court finds that these matters are related to the EPA's FIFRA enforcement arrangement with the State, and “the EPA's decision not to take enforcement measures, like a prosecutor's decision not to indict, is one that is typically committed to the agency's absolute discretion, such that a court would have no meaningful standard against which to judge the agency's exercise of discretion.” Sierra Club, 268 F.3d at 903 (quotation omitted).
The Court finds that, to the extent the Complaint adequately alleges an APA claim to compel agency action, such action is committed to the discretion of the EPA. Accordingly, for this independent reason, judicial review is unavailable under the APA because “agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a)(2); see also Heckler, 470 U.S. at 837-38. Therefore, Plaintiff cannot rely on the APA's waiver of sovereign immunity.
III. Venue
The EPA alternatively argues that this action should be dismissed because venue is not proper in this district. Because the Court has found that Plaintiff has failed to identify an applicable waiver of sovereign immunity-which is a jurisdictional issue-the Court does not reach the issue of whether venue is proper.
IV. Leave to Amend
“Dismissal without leave to amend is improper unless it is ‘clear' that ‘the complaint could not be saved by any amendment.'” Harris v. Amgen, Inc., 573 F.3d 728, 737 (9th Cir. 2009) (quoting Lee v. City of Los Angeles, 250 F.3d 668, 692 (9th Cir. 2001)). The Complaint represents Plaintiff's first attempt to plead its claims and it is not clear that the Complaint could not be saved by any amendment. Accordingly, the Complaint is dismissed with leave to amend.
CONCLUSION
For the reasons discussed above, the Court GRANTS Defendant's Motion to Dismiss (ECF No. 8) and DISMISSES WITHOUT PREJUDICE Plaintiffs Complaint. No later than thirty (30) days from the date this Order is filed, Plaintiff MAY FILE an amended complaint. If Plaintiff fails to timely file an amended complaint, the Court will order the Clerk to close this case.
IT IS SO ORDERED.