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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`
` Case No.: 20-CV-1119 TWR (AGS)
`
`ORDER GRANTING DEFENDANTS’
`MOTION TO DISMISS
`
`(ECF No. 8)
`
`JCM FARMING, INC., a California
`corporation,
`
`Plaintiff,
`
`v.
`ANDREW WHEELER, Administrator,
`United States Environmental Protection
`Agency; and UNITED STATES
`ENVIRONMENTAL PROTECTION
`AGENCY,
`
`Defendants.
`
`
`
`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
`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,
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`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;
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`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;
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`3. Directing the Administrator to engage in a process to determine why
`California is not carrying out its enforcement responsibility for pesticide use
`violations;
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`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]
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`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. §
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`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
`
`I.
`
`Rule 12(b)(1)
`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
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`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.
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`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.
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`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).
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`ANALYSIS
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`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.
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`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,
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`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
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`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
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`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;
`...
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`(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;
`...
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`(8) “license” includes the whole or a part of an agency permit, certificate,
`approval, registration, charter, membership, statutory exemption or other form
`of permission;
`
`…
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`(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
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`(G) taking other compulsory or restrictive action;
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`(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; ….
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`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),1 “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).
`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
`
`
`
`1 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).
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`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
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`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; …
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`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]
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`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….
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`(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
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`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).2
`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