Case 3:20-cv-01119-TWR-AGS Document 12 Filed 10/06/20 PageID.107 Page 1 of 16
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`
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`Tomas Morales (SBN 146578)
`tmorales@equityag.net
`Nathaniel R. Smith (SBN 257615)
`nsmith@equityag.net
`Unit 1, 3160 Lionshead Avenue
`Carlsbad, CA 92010
`
`Telephone: (760) 597-7011
`Facsimile: (760) 597-7029
`
`Attorneys for Plaintiff
`JCM FARMING, INC.
`
`
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`
`
`
`JCM FARMING, INC., a
`California corporation,
`
`
`
`Plaintiff,
`
`
`v.
`
`ANDREW WHEELER,
`Administrator, United States
`Environmental Protection
`Agency; and UNITED STATES
`ENVIRONMENTAL
`PROTECTION AGENCY,
`
`
`
`Defendants.
`
`
` Case No.: 3:20-cv-01119-TWR-AGS
`
`
`PLAINTIFF JCM FARMING, INC.’S
`OPPOSITION TO DEFENDANTS’
`MOTION TO DISMISS (ECF No. 8)
`
`Judge: Hon. Todd W. Robinson
`Hearing Date: October 19, 2020
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`TABLE OF CONTENTS
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`INTRODUCTION AND SUMMARY OF ARGUMENT ...................... 1 
`I. 
`II.  BACKGROUND ....................................................................................... 2 
`A.  Statutory Overview of FIFRA and the APA. ...................................... 2 
`1.  FIFRA and related regulations. .................................................. 2 
`2.  The Administrative Procedure Act (“APA”). .............................. 4 
`B.  Factual Background. ............................................................................ 4 
`III. ARGUMENT ............................................................................................. 6 
`A.  The APA Provides the Necessary Waiver of Sovereign Immunity. ... 6 
`B.  The Complaint States an APA Claim to Compel Agency Action. ...... 8 
`1.  The Complaint seeks to compel “agency action.” ....................... 8 
`2.  The agency action to be compelled is mandatory. .................... 10 
`C.  Venue is Proper Because the Case Does Not “Involve” Real Property
`for Venue Purposes. ........................................................................... 12 
`IV.  CONCLUSION ....................................................................................... 13 
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`TABLE OF AUTHORITIES
`Cases 
`Al Otro Lado, Inc. v. Nielsen, 327 F. Supp. 3d 1284 (S.D. Cal. 2018) ............ 7
`Cabrera v. Martin, 973 F.2d 735 (9th Cir. 1992) ............................................ 8
`Earth Island Inst. v. Quinn, 56 F. Supp. 3d 1110 (N.D. Cal. 2014) ......... 2, 12
`Natural Res. Def. Council, Inc. v. Tennessee Val. Auth., 340 F. Supp. 400
`(S.D.N.Y. 1971), rev’d on other grounds, 459 F.2d 255 (2d Cir. 1972) ....... 12
`Navajo Nation v. Dep’t of Interior, 876 F.3d 1144 (9th Cir. 2017) ................. 7
`Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (2004) .................. passim
`Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984) ........................................ 3
`Shell Oil Co. v. Babbitt, 920 F. Supp. 559 (D. Del. 1996) ............................. 12
`Yu v. Brown, 36 F. Supp. 2d 922 (D.N.M. 1999) ........................................... 11
`Statutes 
`28 U.S.C. § 1391(e)(1)(C) ................................................................................ 12
`5 U.S.C. § 136w-2.............................................................................................. 9
`5 U.S.C. § 551 ..................................................................................... 4, 8, 9, 10
`5 U.S.C. § 702 ........................................................................................... 4, 7, 8
`5 U.S.C. § 706 ........................................................................................... 1, 4, 8
`7 U.S.C. § 136 et seq. ........................................................................................ 2
`7 U.S.C. § 136l .................................................................................................. 4
`7 U.S.C. § 136w-2........................................................................................ 1, 10
`7 U.S.C. §§ 136j ................................................................................................. 4
`Other Authorities 
`40 C.F.R. § 170.409 ........................................................................................... 3
`BLACK’S LAW DICTIONARY 499 (8th ed. 2004) ................................................... 9
`H.R. Rep. No. 92-511 ........................................................................................ 3
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`I.
`
`INTRODUCTION AND SUMMARY OF ARGUMENT
`Toxic pesticides blanket the Coachella Valley’s agricultural fields.
`Federal law and regulations require signage around “hot” fields, to warn of
`exposure to these dangerous chemicals. But these signs have been nowhere
`to be found in the Coachella Valley over the past ten years, even while
`pesticides are actively being sprayed. Plaintiff JCM Farming, Inc. has
`documented the lack of signage, and notified State, local, and federal
`officials, to no avail.
`Plaintiff JCM Farming, Inc. now brings this action to compel
`Defendants to do something about this persistent hazardous condition.
`More precisely, Plaintiff seeks to compel compliance with mandatory
`provisions of the Federal Insecticide, Fungicide and Rodenticide Act
`(“FIFRA”), including the following command: “Upon receipt of any
`complaint or other information alleging or indicating a significant violation
`of the pesticide use provisions of this subchapter, the Administrator shall
`refer the matter to the appropriate State officials for their investigation of
`the matter ….” 7 U.S.C. § 136w-2(a) (underlining added). That provision
`later provides that the Administrator may act upon the complaint or
`information if the State does not take action within thirty days of the
`referral. Id.
`Plaintiff seeks to compel Defendants to refer the lack of signage
`violations to the appropriate State officials for investigation. Plaintiff
`seeks injunctive relief pursuant to the Administrative Procedure Act
`(“APA”), which authorizes the Court to “compel agency action unlawfully
`withheld or unreasonably delayed.” 5 U.S.C. § 706(1). A failure to act
`claim can proceed “where a plaintiff asserts that an agency failed to take a
`discrete agency action that it is required to take.” Norton v. S. Utah
`Wilderness Alliance, 542 U.S. 55, 64 (2004).
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`Defendants move to dismiss the complaint (ECF No. 8), asserting the
`APA’s “agency action” requirement is not met because FIFRA’s
`enforcement options are discretionary, and therefore the APA’s waiver of
`sovereign immunity does not apply. This argument glosses over the
`referral provision, which is mandatory – the Administrator “shall” refer the
`matter – and skips instead to the federal enforcement option that arises if
`the State fails to act on the referral. Defendants’ motion also overlooks
`Ninth Circuit authority distinguishing the APA’s judicial review provision
`from the APA’s much broader waiver of sovereign immunity.
`Defendants also argue this case should be dismissed for improper
`venue because it “involves” real property for purposes of the venue statute.
`Defendants misconstrue the venue statute and the thrust of this lawsuit.
`For venue purposes, cases “‘involve real property’ when they involve
`disputes over real property interests.” Earth Island Inst. v. Quinn, 56
`F. Supp. 3d 1110, 1116 (N.D. Cal. 2014). This lawsuit does not concern the
`right, title or interest in real property, but rather the failure to enforce
`statutory and regulatory requirements. Venue is therefore proper in this,
`the district where Plaintiff resides.
`Accordingly, the Court should deny Defendants’ motion in its entirety.
`II. BACKGROUND
`A.
`Statutory Overview of FIFRA and the APA.
`1.
`FIFRA and related regulations.
`The Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”),
`7 U.S.C. § 136 et seq., provides for federal regulation of pesticide
`distribution, sale, and use. The revision of FIFRA through the adoption of
`the Federal Environmental Pesticide Control Act of 1972 transformed
`FIFRA from a labeling law into a comprehensive regulatory statute. As
`amended, FIFRA regulates the use, as well as the sale and labeling, of
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`pesticides. Ruckelshaus v. Monsanto Co., 467 U.S. 986, 991-92 (1984)
`(citing H.R. Rep. No. 92-511, at 1).
`Defendant United States Environmental Protection Agency (“EPA”)
`has primary federal responsibility for implementing and enforcing FIFRA,
`which is consistent with EPA’s mission statement: “[T]o protect human
`health and the environment.” Compl. ¶ 21. Defendant EPA Administrator
`Andrew Wheeler has enforcement authority for violations of FIFRA such as
`those that have occurred and continue to occur in the Coachella Valley,
`where dangerous Class 1 chemicals are currently being used and dispersed
`without public notice. Id. ¶ 20.
`EPA’s FIFRA-implementing regulations include the Worker
`Protection Standard (“WPS”) found in Code of Federal Regulations, Title
`40, Part 170. The WPS requires posted notification of entry restrictions
`under certain circumstances. If a pesticide with product labeling that
`requires a restricted-entry interval greater than 48 hours is applied to an
`outdoor production area, warning signs must be posted in areas “visible
`from all reasonably expected points of worker entry to the treated area,
`including at least each access road, … and each footpath and other walking
`route that enters the treated area. Where there are not reasonably
`expected points of worker entry, signs must be posted in the corners of the
`treated area or in any other location affording maximum visibility.” 40
`C.F.R. § 170.409(b)(3)(ii). The warning signs must be at least 14 inches by
`16 inches and must remain posted throughout the application and any
`restricted-entry interval (“REI”) – the time after a pesticide application
`when entry into the treated area is restricted. Id. § 170.409(b)(1)(iii),
`(b)(3)(ii).
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`Failure to comply with or perform the duties required by the WPS is
`punishable by civil penalty and/or criminal sanctions. 7 U.S.C. §§ 136j,
`136l.
`
`The Administrative Procedure Act (“APA”).
`2.
`The Administrative Procedure Act (APA) provides for judicial review
`of final agency action, including an agency’s failure to act. 5 U.S.C. §§ 702,
`551(13). Under the APA, a reviewing court “shall – (1) compel agency
`action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706. A
`“failure to act” claim under section 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.” Norton v. S. Utah Wilderness Alliance, 542 U.S. 55,
`64 (2004) (italics original).
`B. Factual Background.
`The modern agribusiness industry relies heavily on chemical
`pesticides.1 See Compl. ¶ 47. Pesticide use is thus rampant in the
`Coachella Valley, with its billion-dollar agricultural industry – an industry
`that is second only to tourism. Id. ¶¶ 35-37. Large swaths of the valley are
`in or above the seventy-fifth percentile (75th+ percentile) of all counties in
`California, meaning pesticide use in that geographic area is in the top
`twenty-five percent in total agricultural pesticide use in California. Id.
`¶ 41. Several of the pesticides heavily applied in the Coachella Valley are
`subject to an REI (restricted entry interval) of at least 48 hours. Id. ¶ 49.
`In 2007, Plaintiff began a detailed and thorough investigation into
`ballooning activities after it was subjected to repeated low and dangerous
`hot air balloon overflights at its ranch property in the Coachella Valley.
`Compl. ¶ 5. This investigation revealed that the balloon industry was
`
`1 Pesticide application is particularly heavy on leafy greens such as lettuce
`and kale, due to their surface area.
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`doing more than simply trespassing on take-off and landings, but also
`exposing its passengers to toxic chemicals – by “contour” flying close to
`ground level and by landing in “hot” fields where chemicals had recently
`been applied. Id. ¶ 12. Plaintiff then found that the mandated pesticide
`warning signs were nowhere to be seen in the Coachella Valley, and in fact
`were not even sold locally. Id. ¶¶ 31-32. Plaintiff notified local officials of
`the violations and learned that the local agencies either approve or at a
`minimum turn a blind eye to the lack of warning signage. 2 E.g., id. ¶ 29,
`44.
`
`Hot air ballooning is a highly publicized tourist attraction and
`activity in the Coachella Valley. Compl. ¶ 34. Hot air balloon operators
`often launch or land their balloons on private property, including
`agricultural fields that have “No Trespassing” signs posted around them.
`See id. ¶¶ 28, 30. However, none of these agricultural fields have signs
`posted warning of pesticide applications – not even while pesticide
`application is occurring. Id. ¶ 42.
`The lack of FIFRA-required warning signage makes the trespassing
`on private agricultural land doubly troubling. Trespassers are not only
`violating private property rights, but also may be unknowingly exposing
`
`
`2 It should go without saying that chemical manufactures cannot be left to
`police themselves. For example, in the Monsanto “Round-Up” coordinated
`actions in the Northern District of California, 16-md-02741-VC, the
`manufacturer stated that if it produced a chemical that was dangerous
`(suggesting Round-Up is not) it would definitely warn consumers and the
`public of the danger. Round-Up is not a restricted use chemical. The
`chemicals this Complaint relates to are toxic, dangerous, and defined as
`restricted use. The investigation Plaintiff has conducted belies
`manufacturer claims they would warn the public of dangerous chemicals by
`proving this has not been true in the Coachella Valley, for at least the last
`ten years.
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`themselves (and, in the case of balloon operators, exposing their passenger-
`customers) to harmful pesticides. The lack of FIFRA-required warning
`signage is also troubling in light the county’s promotion of agritourism,
`including the Ag Trail, and hot air ballooning.
`Plaintiff witnessed chronic public exposure to restricted use
`chemicals, so it notified the Office of the U.S. Attorney for the Southern
`District of California and advised it of the chemical dangers associated with
`ballooning/Ag Trial public chemical exposure. See Compl. ¶ 57. Plaintiff
`met multiple times with DOJ counsel and alerted them to the dangers and
`presented extensive evidence of same. See Id. On DOJ’s recommendation,
`Plaintiff met with two agents from the Department of Transportation
`during the prime growing season, when chemical usage is at its highest.
`Id. ¶ 58. Tens of thousands of acres were observed and no notice signage
`was present anywhere. Id.
`Plaintiff was, and is, concerned that public exposure to restricted use
`chemicals, which are primarily inhaled, would have unintended
`consequences. With the prevalence of COVID-19 it is likely that countless
`adults and children, some with co-morbid conditions, are being
`unknowingly exposed to these chemicals and are at higher risk of
`contracting a life-threatening case of COVID-19.
`III. ARGUMENT
`A. The APA Provides the Necessary Waiver of Sovereign
`Immunity.
`Defendants argue sovereign immunity deprives this Court of
`jurisdiction because the Complaint does not allege an “agency action” as
`defined by the APA. Defendants’ argument fails to distinguish between
`two separate provisions of 5 U.S.C. section 702 – the judicial review
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`provision, which contains the “agency action” limitation, and the waiver of
`sovereign immunity, which does not.
`The waiver of sovereign immunity applicable here is found in section
`702 of the APA, which provides:
`[1] A person suffering a 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. [2] An action in a court of the United States seeking
`relief other than money damages and stating a claim that an
`agency or an officer or employee thereof acted or failed to act in an
`official capacity … shall not be dismissed nor relief therein be
`denied on the ground that it is against the United States.
`Navajo Nation v. Dep’t of Interior, 876 F.3d 1144, 1168 (9th Cir. 2017)
`(quoting 5 U.S.C. § 702) (brackets and ellipses in Navajo Nation).
`The second sentence in section 702 supplies a broad waiver of
`sovereign immunity. Unlike the first sentence – section 702’s judicial
`review provision – the sovereign immunity waiver in the second sentence is
`not limited to “agency action.” Navajo Nation, 876 F.3d at 1171; see also Al
`Otro Lado, Inc. v. Nielsen, 327 F. Supp. 3d 1284, 1305 (S.D. Cal. 2018)
`(“Unlike Section 702’s judicial review provision, which is textually limited
`to “agency action,” Section 702’s waiver of sovereign immunity contains no
`such textual limitation.”).
`“Thus, a plaintiff need only seek nonmonetary relief against the
`government in order to avail himself of the APA’s waiver of sovereign
`immunity.” Al Otro Lado, 327 F. Supp. 3d at 1306. As stated in
`Defendants’ own cited authorities, the Ninth Circuit “has repeatedly found
`that § 702 waives the sovereign immunity of the United States with respect
`to any action for injunctive relief under 28 U.S.C. § 1331.” Defs.’ Mem. at
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`14:4-8 (quoting Cabrera v. Martin, 973 F.2d 735, 741 (9th Cir. 1992))
`(emphasis original).
`Plaintiff JCM Farming’s complaint seeks nonmonetary relief against
`the federal EPA and its Administrator, including injunctive relief.
`Accordingly, the APA supplies the necessary waiver of sovereign immunity.
`Defendants’ argument that the Complaint fails to allege an “agency action”
`is an issue concerning the sufficiency of Plaintiff’s claims, not sovereign
`immunity from such claims. The Court should therefore deny Defendants’
`12(b)(1) motion to dismiss. The Court should also deny Defendants’
`12(b)(6) motion because, as discussed below, the Complaint also sufficiently
`alleges a claim under the APA.
`B. The Complaint States an APA Claim to Compel Agency Action.
`The Complaint 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. This is a discrete
`agency action that the EPA is required to take, and therefore satisfies the
`“agency action” requirement for an APA claim.
`1.
`The Complaint seeks to compel “agency action.”
`“[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.
`“The APA provides relief for a failure to act in section 706(1): ‘The
`reviewing court shall … compel agency action unlawfully withheld or
`unreasonably delayed.” Norton v. S. Utah Wilderness Alliance, 542 U.S. 55,
`62 (2004) (hereinafter SUWA) (quoting 5 U.S.C. § 706(1)). “‘[A]gency
`action’ includes 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). “Failure to act” is “properly understood as a failure to
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`take an agency action – that is, a failure to take one of the agency actions
`(including their equivalents) earlier defined in [5 U.S.C.] § 551(13).”
`SUWA, 542 U.S. at 62. “Thus, 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.” SUWA, 542 U.S. at 64 (emphasis
`original).
`Plaintiff’s failure to act claim meets these requirements. The First
`Cause of Action seeks to compel Defendants to refer the violations of the
`pesticide warning signage requirements in the Coachella Valley to the
`appropriate State officials for investigation and/or prosecution. Compl.
`¶¶ 77-82. The Second Cause of Action seeks to compel Defendants to
`engage in a process to determine whether the State is carrying out its
`enforcement responsibility for pesticide use violations in the Coachella
`Valley. Id. ¶¶ 83-85.
`These are “discrete” actions, specific to the distinct violations of
`FIFRA’s pesticide warning requirements. See BLACK’S LAW DICTIONARY 499
`(8th ed. 2004) (defining “discrete” as meaning “individual; separate;
`distinct”).
`Referring violations to State officials for investigation and/or
`prosecution falls within any of several categories of “agency action” as
`defined in the APA. The statutorily-mandated referral (5 U.S.C. § 136w-
`2(a)) can properly be viewed as a “rule,” “order,” “license” or “relief” within
`the APA’s definitions. 5 U.S.C. § 551(4), (6), (8), (11). Referral to State
`officials is a “rule” insofar as referral is “the whole or a part of an agency
`statement of … particular applicability and future effected designed to
`implement … law” – i.e., implementing FIFRA. 5 U.S.C. § 551(4). Referral
`can also be properly viewed as a “license” – an agency “approval … or other
`form of permission” for the State officials to take the lead on enforcing
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`federal law (FIFRA). Id. § 551(8). Referral is also “relief” within the APA,
`as referral (1) involves “recognition of” Plaintiff’s “claim” that pesticide
`warning signage requirements are being ignored and (2) is the “taking of
`other action on” Plaintiff’s “application or petition.” Id. § 551(11)(B), (C).
`And Defendants’ referral to State officials of FIFRA violations can also be
`seen as an EPA “order” – “the whole or part of a final disposition” by the
`EPA. Id. § 551(6). If the State takes appropriate action on the referred
`claims, the referral serves as the EPA’s final involvement in (or disposition
`of) those claims.
`Furthermore, “agency action” is not strictly limited to actions falling
`squarely within one or more of these definitions. “Agency action” also
`includes “their equivalents.” SUWA, 542 U.S. at 62; 5 U.S.C. § 551(13).
`Thus, referral to State officials satisfies the “agency action” requirement if
`referral is the equivalent of an order (or license, or relief).
`2.
`The agency action to be compelled is mandatory.
`The agency actions that the Complaint seeks to compel are
`mandatory; Defendants are “required to take” the requested actions.
`FIFRA section 27 (7 USC § 136w-2(a)) contains mandatory command
`– “Upon receipt of any complaint or other information alleging or indicating
`a significant violation of the pesticide use provision of this subchapter, the
`Administrator shall refer the matter to the appropriate State officials for
`their investigation of the matter consistent with the requirements of
`[FIFRA].” 7 U.S.C. § 136w-2(a). Although FIFRA section 27 also provides
`the EPA discretionary options if the State does not investigate after the
`referral (id., second sentence), the Complaint seeks to compel compliance
`with the mandatory, threshold command – to refer the matter to the
`appropriate State officials.
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`Case 3:20-cv-01119-TWR-AGS Document 12 Filed 10/06/20 PageID.120 Page 14 of 16
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`Defendants argue Plaintiffs’ claims are unreviewable because this
`referral provision (7 U.S.C. § 136w-2(a)) “authorizes EPA to take a number
`of discretionary enforcement measures.” Defs.’ Mem. at 19:18-21.
`Defendants’ argument glosses over the mandatory threshold step and
`focuses, incorrectly, on the discretionary, secondary step. The Supreme
`Court and lower courts have rejected similar efforts to conflate mandatory
`and discretionary duties. As the Supreme Court observed in SUWA, “when
`an agency is compelled by law to act within a certain time period, but the
`manner of its action is left to the agency’s discretion, a court can compel the
`agency to act, but has no power to specify what the action must be.”
`SUWA, 542 U.S. at 65. Similarly, the court in one of Defendants’ cited
`authorities noted the defendant there was “confusing its discretion over
`how it resolves [the applications] with its discretion over whether it
`resolves them.” Yu v. Brown, 36 F. Supp. 2d 922, 931 (D.N.M. 1999) (cited
`in Defs.’ Mem. at 18:25-28) (brackets in Yu).
`Here, FIFRA section 27 compels the EPA to refer the matter to the
`appropriate State officials (“… shall refer …”), and gives the EPA discretion
`to act upon the matter if the State does not commence action within thirty
`days (“… may act …”). Defendants err in conflating the two.3
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`3 Defendants also err in suggesting the EPA has not received any complaint
`or information alleging a significant violation of FIFRA’s pesticide use
`provisions. Defs.’ Mem. at 17:16-19, 21:12-13. The instant Complaint
`contains precisely such allegations – a complete disregard of pesticide
`warning signage requirements throughout the Coachella Valley. FIFRA
`does not specify a form of complaint, nor does it preclude this Complaint
`(which the EPA clearly has received) from satisfying the requirement.
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`C. Venue is Proper Because the Case Does Not “Involve” Real
`Property for Venue Purposes.
`Venue is proper under 28 U.S.C. § 1391(e)(1)(C), which authorizes
`venue in the district where “the plaintiff resides if no real property is
`involved in the action.” Defendants assert venue is improper because real
`property is “involved” in this action. Defendants misconstrue the meaning
`of “involved,” as it is used in the venue context.
`Numerous courts have rejected the expansive interpretation of
`“involved” that Defendants urge. As one court colorfully observed:
`“Gravity being what it is, the vast bulk of human activities take place on
`the face of the earth. Consequently, almost any dispute over public or
`private decisions will in some way ‘involve real property,’ taken literally.”
`Natural Res. Def. Council, Inc. v. Tennessee Val. Auth., 340 F. Supp. 400,
`406 (S.D.N.Y. 1971), rev’d on other grounds, 459 F.2d 255 (2d Cir. 1972).
`“Rather, the action must center directly on the real property, as with
`actions concerning the right, title or interest in real property.” Id.; see also
`Earth Island Inst. v. Quinn, 56 F. Supp. 3d 1110, 1116 (N.D. Cal. 2014)
`(“Most authority appears to have followed that logic, generally finding that
`actions ‘involve real property’ when they involve disputes over real
`property interests – and perhaps not even then if the real property dispute
`is peripheral to the central cause of action.”); Shell Oil Co. v. Babbitt, 920
`F. Supp. 559, 563 (D. Del. 1996) (“In construing this subsection of the
`venue statute, courts have also uniformly held that if real property is only
`‘peripherally’ or ‘marginally’ involved, a plaintiff retains its right to sue in
`the judicial district in which it resides.”).
`This case does not concern the right, title or interest in real property,
`nor does it involve a dispute over real property interests. Rather, Plaintiff
`JCM Farming seeks to compel Defendants to comply with FIFRA – i.e., to
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`Case 3:20-cv-01119-TWR-AGS Document 12 Filed 10/06/20 PageID.122 Page 16 of 16
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`refer the violations alleged in the Complaint to the appropriate State
`officials. Real property is at best “peripherally” or “marginally” involved.
`Therefore, venue is proper in this, the district where Plaintiff resides.
`Compl. ¶ 19.
`IV. CONCLUSION
`Defendants could moot this lawsuit by simply referring to State
`authorities the violations set forth in Plaintiff JCM Farming’s complaint.
`Defendants’ failure to do so – and their attempt instead to stymie Plaintiff’s
`efforts to call attention to this public health threat, by moving to dismiss
`the Complaint – should concern everyone.
`Regardless, this Court has authority to compel Defendants to carry
`out FIFRA’s statutory mandate. The APA’s broad waiver of sovereign
`immunity requires only that a plaintiff seek nonmonetary relief against the
`government, and Plaintiff does so here. The Complaint adequately alleges
`a “failure to act” claim under the APA –referral to the appropriate State
`officials is a discrete agency action (order, relief, etc., or their equivalents)
`that Defendants are required to take. Venue is proper because Plaintiff
`resides in this district and the case does not involve a dispute over interest
`in real property.
`Accordingly, Plaintiff respectfully submits that the Court must deny
`Defendants’ motion to dismiss.
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`DATED: October 5, 2020
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`_s/ Tomas Morales________
`Tomas Morales
`Nathaniel R. Smith
`Attorneys for Plaintiff,
`JCM Farming, Inc.
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