Case 1:20-cv-03190-RCL Document 58 Filed 06/15/21 Page 1 of 24
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`Plaintiffs,
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`AMERICAN SOYBEAN ASSOCIATION,
`and PLAINS COTTON GROWERS, INC.,
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`vs.
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`U.S. ENVIRONMENTAL PROTECTION
`AGENCY, et al.,
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`Federal Defendants, and
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`BASF CORPORATION, et al.
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` Case No.: 1:20-CV-03190
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`Defendant-Intervenors.
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`GROWERS’ OPPOSITION TO FEDERAL DEFENDANTS’ PARTIAL MOTION TO
`DISMISS THE COMPLAINT
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`INTRODUCTION
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`The Federal Defendants1 (collectively, “EPA”) and the Plaintiffs2 (collectively, the
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`“Growers”) agree on this much: this case concerns “registrat[ion of] of three dicamba-based
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`pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) for use
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`‘over-the-top’ of genetically modified cotton and soybean plants.” Dkt. 57, EPA Motion to
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`Dismiss at 1 (“EPA Motion”) (emphasis added). More specifically, Growers challenge
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`1 The Federal Defendants are the U.S. Environmental Protection Agency, EPA Administrator
`Michael S. Regan (automatically substituted for Andrew R. Wheeler under Federal Rule of
`Civil Procedure 25(d)), and Acting Division Director of EPA’s Office of Pesticide Programs,
`Registration Division, Marietta Echeverria.
`2 The American Soybean Association and Plains Cotton Growers, Inc.
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`1
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`Case 1:20-cv-03190-RCL Document 58 Filed 06/15/21 Page 2 of 24
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`aspects of three FIFRA herbicide registrations, issued under FIFRA authority, implemented
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`through FIFRA herbicide labels, in the form of FIFRA herbicide control measures, under
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`FIFRA’s judicial review provision. See, e.g., Compl. ¶ 17.
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`Yet EPA casts amorphous pieces of Growers’ challenges as Endangered Species Act
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`(“ESA”) “citizen-suit claims,” just because those pieces—which EPA struggles to isolate—
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`also involve ESA issues. This approach is misguided. While Growers’ case implicates ESA
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`questions, those questions flow from how EPA implemented ESA considerations (species
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`protections) through FIFRA control measures (herbicide application rules) to regulate
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`herbicide end users. Thus, because any ESA issues inhere in—and were incorporated into—
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`the FIFRA final actions before the Court, FIFRA supplies subject-matter jurisdiction. EPA’s
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`arguments otherwise undermine FIFRA reviewability, overread the ESA citizen-suit
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`provision, conflict with controlling case law, and let EPA game jurisdiction.
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`What is more, the Administrative Procedure Act (“APA”) supplies subject-matter
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`jurisdiction too. Because the heart of the Dicamba Decision is “made reviewable by
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`statute”—FIFRA—any related questions are reviewable under the APA. 5 U.S.C. § 704. In
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`fact, courts recognize a unique type of APA claim, a “maladministration” claim, in situations
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`like this. Finally, EPA’s ESA notice letter argument is misplaced—Growers provided ample,
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`sufficient notice, even though they are not suing under the ESA citizen-suit provision. In
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`short, because Growers’ case does not depend on ESA jurisdiction, the Court should deny
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`EPA’s motion to dismiss.
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`REGULATORY AND JURISDICTIONAL BACKGROUND
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`FIFRA generally requires EPA to register or license an herbicide before it can be sold
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`or distributed in the United States. See 7 U.S.C. § 136, et seq. If an herbicide “will perform
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`its intended function without unreasonable adverse effects on the environment,” among other
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`things, FIFRA dictates that EPA “shall register” it. 7 U.S.C. § 136a(c)(5). When registering
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`an herbicide, FIFRA authorizes EPA to establish rules for herbicide use, including how and
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`when a product may be used. See 7 U.S.C. § 136a. Thus, herbicide registrations usually
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`contain several application guidelines, restrictions, and directions which EPA often refers to
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`as herbicide “control measures.” See Dkt. 50-1 at 4–5. EPA regulations require that “[e]very
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`[herbi]cide product shall bear a label containing the information specified by the Act.” See
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`40 C.F.R. § 156.10(a)(1). These label requirements are the legal requirements for farmers’
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`use of the herbicide: when, where, and how much product, for example, a farmer can use. See
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`id.
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`Congress provided a specialized review scheme for challenging actions taken by EPA
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`under FIFRA, including registration decisions. For challenges to EPA’s “refusal . . . to cancel
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`or suspend a registration or change a classification not following a hearing and other final
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`actions of the Administrator not committed to the discretion of the Administrator by law,”
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`FIFRA confers jurisdiction in “the district courts of the United States.” 7 U.S.C. § 136n(a).
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`For challenges “to the validity of any order issued by the Administrator following a public
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`hearing,” on the other hand, jurisdiction lies “in the United States court of appeals.” 7 U.S.C.
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`§ 136n(b).
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`FIFRA’s judicial review provision also “applies to ‘all issues inhering in the [FIFRA
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`registration] controversy,” including issues arising under the ESA. Dow AgroSciences LLC
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`v. NMFS, 637 F.3d 259, 265 (4th Cir. 2011) (holding that if an ESA-related “challenge to [a]
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`BiOp inheres in the challenge to a final EPA order under FIFRA, it would be reviewable under
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`FIFRA’s judicial review provisions.”) (quoting City of Tacoma v. Taxpayers of Tacoma, 357
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`U.S. 320, 336 (1958)). So when a claim under another statute is a “means to a broader end—
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`a challenge to the validity of [an herbicide] registration order itself,” FIFRA provides
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`sufficient subject-matter jurisdiction to adjudicate any comingled issues arising under the
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`other statute. Ctr. for Biological Diversity v. EPA, 861 F.3d 174, 187 (D.C. Cir. 2017)
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`(applying this principle to ESA issues intertwined in a FIFRA registration).
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`EPA, like all federal agencies, must evaluate the potential impacts of its actions on
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`threatened and endangered species and their “critical habitat” under the ESA. Specifically,
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`EPA must ensure that a FIFRA herbicide registration will not “jeopardize the continued
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`existence of any endangered species or threatened species or result in the destruction or
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`adverse modification” of designated critical habitat. See 16 U.S.C. § 1536(a)(2). Under that
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`ESA analysis, EPA—under the umbrella of its broader FIFRA review—assesses whether the
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`registration action “may affect” a listed species or habitat. See 50 C.F.R. § 402.14. If not,
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`the ESA analysis ends. See 50 C.F.R. § 402.12. If, on the other hand, the registration “may
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`affect” listed species or habitat, EPA must consult with either the U.S. Fish and Wildlife
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`Service (“FWS”) or the National Marine Fisheries Services (“NMFS”). See id. §§ 402.13,
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`402.14. The outcome of that consultation is either a “not likely to adversely affect” finding—
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`which ends ESA review—or a “likely to adversely affect” finding—which requires more
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`robust “formal” consultation. Id.
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`Aggrieved parties seeking “to enjoin” EPA for an ESA-specific violation, “to compel”
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`EPA to act on an ESA-specific basis, or sue EPA “alleg[ing] a failure” to perform an ESA-
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`specific “act or duty” can avail themselves of the ESA’s “citizen-suit provision.” See 16
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`U.S.C. § 1540(g)(1). If a plaintiff intends on using that provision, it must first provide EPA
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`(and others) a notice of intent to sue at least sixty days before filing suit. Id.
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`§1540(g)(2)(A)(i). But when ESA issues are “inextricably intertwined” with final actions
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`issued under other statutes, including FIFRA, the underlying statute supplies jurisdiction for
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`any related ESA challenges. Ctr. for Biological Diversity, 861 F.3d at 188.
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`Aggrieved parties can also challenge a federal agency’s “maladministration” of the
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`ESA, FIFRA, and other statutes. See Bennett v. Spear, 520 U.S. 154, 172–73 (1997).
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`Maladministration claims, unlike ESA citizen suit claims for example, accuse an agency of
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`mis-administering a statute, commonly by overregulating regulated entities. Id. at 176–77
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`(recognizing that a maladministration claim that an agency’s ESA conclusions and conditions
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`were “not necessary to protect [species]” was reviewable under the APA). Put differently,
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`maladministration claims typically challenge an agency as the regulator, while citizen-suit
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`claims usually challenge the agency as the regulated party. See Conservation Force v.
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`Salazar, 699 F.3d 538, 543 (D.C. Cir. 2012) (distinguishing between “whether an agency is
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`administering the ESA or is being regulated by it”).
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`FACTUAL BACKGROUND
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`This lawsuit arises from three herbicide registrations that EPA issued last year.
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`Specifically, EPA registered or amended its preexisting registration for XtendiMax with
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`VaporGrip Technology, Tavium Plus VaporGrip Technology, and Engenia Herbicide
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`(collectively, the “Dicamba Products”). See Dkt. 50, Am. Compl. ¶ 76; see also Dkt. 50-1.
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`Four EPA documents form the heart of the challenged decision: EPA’s Dicamba
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`Memorandum (Dkt 50-1), the Engenia Registration (Dkt. 50-3), the Tavium Registration (Dkt.
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`50-4), and the XtendiMax Registration (Dkt. 50-5). Those documents also rely in part on,
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`and incorporate by reference, an ESA Assessment. See Dkt. 50-10.
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`EPA’s primary decisional document, the Dicamba Memorandum, is a twenty-eight-
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`page memorandum drafted and issued by the EPA Office of Pesticide Programs, Registration
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`Division, EPA’s FIFRA registration office. See Dkt. 50-1. That memorandum, which
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`supports the three individual herbicide registrations, “presents the rationale to support the
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`[EPA’s] decisions” to register the Dicamba Products “under section 3(c)(5) of the Federal
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`Insecticide, Fungicide, and Rodenticide Act (FIFRA).” See Dkt. 50-1 at 3. Although the
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`Dicamba Memorandum incorporated elements of the ESA Assessment by reference, most of
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`the document explains EPA’s FIFRA reasoning and registration conditions (e.g., control
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`measures). Where EPA does implement the ESA Assessment, it does so through FIFRA
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`registration and use conditions (e.g., the “spray buffers” and “application restrictions”). See
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`generally Dkt. 50-1. Likewise, the three individual registration documents provide that each
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`“named pesticide is hereby registered under the Federal Insecticide, Fungicide and
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`Rodenticide Act” and warn that if the application conditions “outlined below are not complied
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`with, the registration will be subject to cancellation in accordance with FIFRA section 6.”
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`See Dkt. 50-3 at 1; Dkt. 50-4 at 1; Dkt. 50-5 at 1.
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`Growers filed this lawsuit challenging how aspects of those FIFRA control measures
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`practically impact end users. See Am. Compl. ¶ 16 (alleging subject-matter jurisdiction under
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`FIFRA and the APA but not the ESA). Count I challenges date-dependent “application
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`restrictions” that prevent Growers from applying the Dicamba Products after nationally fixed
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`date cutoffs. Id. ¶¶ 117–23. Count II challenges “spray buffers” which limit where, when,
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`and how Growers can use the Dicamba Products on their farms. See id. ¶¶ 124–31. EPA
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`anchored its authority to impose both sets of spray buffers in FIFRA. See, e.g., Dkt. 50-1 at
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`3 (“Based on these robust assessments, which took into account the control measures required
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`by the labeling, EPA determined that the applications meet the standard for registration under
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`FIFRA section 3(c)(5).”). EPA also invoked the ESA as support for largely undefined aspects
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`of certain control measures, under the theory that those are necessary to protect certain
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`species. See EPA Mot. at 6 (claiming that “a host of other control measures” support EPA’s
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`ESA findings).
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`Growers challenge those decisions under FIFRA and the APA. See Compl. ¶¶ 119,
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`129 (invoking FIFRA and the APA). Growers’ case, at bottom, is about the reasonableness
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`of EPA’s various herbicide control measures as applied on the ground, in the field, and off
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`the FIFRA label.
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`EPA now moves to dismiss nebulous “ESA claims”—EPA-invented parlance—from
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`the Amended Complaint, facially challenging jurisdiction under Rule 12(b)(1) and “in the
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`alternative,” Rule 12(b)(6). See EPA Mot. at 1, 7. EPA’s motion for “partial dismissal”
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`acknowledges that FIFRA supplies jurisdiction to challenge at least some of the FIFRA
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`registrations. Yet EPA offers no clues as to how to separate the admittedly reviewable FIFRA
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`challenges from the allegedly unreviewable ESA claims.
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`STANDARD OF REVIEW
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`Motions to dismiss “under Rule 12(b)(1) challenge[] the Court’s jurisdiction to hear a
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`claim and may raise a ‘facial’ or a ‘factual’ challenge to the Court’s jurisdiction.” See Am.
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`Oversight v. U.S. Dep’t of Veterans Affairs, -- F. Supp. 3d --, 2020 WL 6381895, at *5 (D.D.C.
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`2020) (citations omitted). Facial challenges, like this one, “contest[] the legal sufficiency of
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`the jurisdictional allegations contained in the complaint.” Id. (citing Erby v. United States,
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`424 F. Supp. 2d 180, 182 (D.D.C. 2006)). In so doing, “the Court must accept the allegations
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`of the complaint as true and most construe ‘the complaint in the light most favorable to the
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`non-moving party . . . in a manner similar to a motion to dismiss under Rule 12(b)(6).” Id.
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`(quoting I.T. Consultants, Inc. v. Republic of Pakistan, 351 F.3d 1184, 1188 (D.C. Cir. 2003)).
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`While a plaintiff “bears the burden of establishing subject matter jurisdiction,” “the Court
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`must accept the allegations in the complaint as true and draw all reasonable inferences in [the
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`plaintiff’s] favor.” Ranger v. Tenet, 274 F. Supp. 2d 1, 5 (D.D.C. 2003).
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`Similarly, when evaluating a Rule 12(b)(6) motion to dismiss, “the Court must accept
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`the factual allegations in the complaint as true and draw all reasonable inferences in favor of
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`[a] plaintiff.” McKoy v. Spencer, 271 F. Supp. 3d 25, 30 (D.D.C. 2017). As long as a
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`complaint has “facial plausibility, meaning it must plead factual content that allows the
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`[C]ourt to draw the reasonable inference that the defendant is liable for the misconduct
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`alleged,” it will survive a Rule 12(b)(6) motion to dismiss. Sellers v. Anthem Life Ins. Co.,
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`316 F. Supp. 3d 25, 32 (D.D.C. 2018) (citations and quotation marks omitted). For both Rule
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`12(b)(1) facial challenges and Rule 12(b)(6) motions, the Court can “consider the facts alleged
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`in the complaint [or] documents attached as exhibits or incorporated by referenced in the
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`complaint.” Morgan Drexen, Inc. v. CFPB, 979 F. Supp. 2d 104, 111 (D.D.C. 2013).
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`ARGUMENT
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`I.
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`Growers’ claims are independently reviewable under FIFRA.
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`EPA’s motion turns on an unstated, counterintuitive premise: FIFRA final actions are
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`not reviewable under FIFRA if they incorporate, in any part, other statutory authority. Yet
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`that proposition runs against the statute, the case law, EPA’s prior representations, and
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`common sense. Because the challenged orders are FIFRA final actions, FIFRA provides
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`subject-matter jurisdiction to challenge any aspects of those final orders.
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`a. FIFRA authorizes review of everything Growers challenge here.
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`FIFRA’s judicial review provision makes all “final actions . . . not committed to the
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`discretion of the Administrator by law . . . judicially reviewable by the district courts of the
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`United States.” 7 U.S.C. § 136n(a). FIFRA’s jurisdictional hook “applies to all issues
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`inhering in the controversy,” so that “if a challenge to [an ESA analysis] inheres in the
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`challenge to a final EPA order under FIFRA, it [is] reviewable under FIFRA’s judicial review
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`provisions.” Dow AgroSciences, 637 F.3d at 265 (quoting City of Tacoma, 357 U.S. at 336)
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`(emphasis added). Thus, if issues under another statute—including the ESA—are
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`“inextricably intertwined with FIFRA” registrations, FIFRA supplies subject-matter
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`jurisdiction for everything. See Ctr. for Biological Diversity, 861 F.3d at 187 (applying
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`FIFRA’s judicial review provision to review of ESA issues) (quotation marks omitted).
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`All of Growers’ claims are, therefore, reviewable under FIFRA. Each of Growers’
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`two counts invokes FIFRA (and the APA) for subject-matter jurisdiction over these
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`challenged FIFRA final actions (i.e., the three registrations and supporting memoranda). See
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`Am. Compl. ¶¶ 16, 119, 126. Jurisdictional pleading aside, Growers’ case, practically
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`speaking, is also a FIFRA challenge. Growers’ case focuses on how four FIFRA registration
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`documents (a “Memorandum Supporting Decision to Approve [FIFRA] Registration” and
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`three herbicide registrations), issued by EPA’s Office of Pesticide Programs, under FIFRA
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`authority, impact herbicide end users in the field through FIFRA labels and conditions. See
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`Dkt. 50-1, 50-3, 50-4, 50-5. Thus, both counts, which challenge aspects of EPA’s “final
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`actions” under FIFRA, are reviewable under section 136n(a).
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`To be sure, EPA wrapped ESA considerations into the disputed FIFRA decisions. And
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`Growers’ challenges do implicate, in part, those ESA considerations. But those ESA issues
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`are just an aspect of the ultimate FIFRA issues posed by Growers’ suit—are the herbicide
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`registration conditions legal? Put differently, any ESA questions are merely “a means to a
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`broader end—a challenge to the validity of the [herbicide] registration order itself,” which
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`Congress routes through FIFRA. See Ctr. for Biological Diversity, 861 F.3d at 187. Consider
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`Count II, challenging the “spray buffers.” That claim disputes, in part, how EPA used ESA
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`considerations (whether one particular spray buffer is necessary to protect species) to impose
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`herbicide spray conditions in a FIFRA registration. But because spray buffer authority flows
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`from FIFRA (the ESA does not, independently, authorize EPA to impose herbicide application
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`conditions) this is a classic FIFRA challenge to herbicide control measures. See Ctr. for
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`Biological Diversity v. EPA, 369 F. Supp. 3d 1, 19 n.8 (D.D.C. 2019) (acknowledging that
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`EPA often “use[s] its authority under the FIFRA to modify federal actions . . . to avoid effects
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`to listed species”) (emphasis added). What is more, several of EPA’s control measures—
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`although it does not say which ones—do not rely on ESA considerations at all. See generally
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`EPA Mot. (conceding that at least some of Growers’ claims are not subject to dismissal on
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`ESA grounds). In short, the ESA issues raised in the complaint are functionally inseparable
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`from the challenged FIFRA final actions and, by extension, EPA’s authority to register and
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`regulate herbicides under FIFRA.
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`b. Because FIFRA authorizes review of EPA’s entire “final action,” EPA
`cannot piecemeal FIFRA’s right of review.
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`EPA’s motion boils down to the idea that courts should artificially atomize FIFRA
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`jurisdiction. In EPA’s view, Growers can use FIFRA to challenge pieces of FIFRA “final
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`actions,” but not anything touching another statute (or, at least, any statute containing its own
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`citizen-suit provision, of which there are many). See EPA Mot. at 11 (suggesting that because
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`EPA’s Dicamba Memorandum, Dkt. 50-1, incorporates ESA considerations, that FIFRA does
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`not apply). Yet EPA’s hypothesis guts FIFRA’s clear-cut right of review, misconstrues the
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`ESA, conflicts with the case law, and promotes jurisdictional subterfuge.
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`First, EPA’s theory rewrites FIFRA. Section 136n(a) authorizes judicial review of all
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`“final actions of the Administrator not committed to the discretion of the Administrator.” 7
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`U.S.C. § 136n(a). FIFRA contains no carve outs—anything part of a final FIFRA action is
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`reviewable under section 136n(a). If Congress meant to make something less than the entire
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`“final action” reviewable, or impose a 60-day pre-filing notice, it could have. Accord All. for
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`the Wild Rockies v. USDA, 772 F.3d 592, 603 (9th Cir. 2014) (“Were we to read [the ESA’s
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`60-day prefiling notice] as encompassing claims under NEPA and NFMA, we would be
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`imposing a de facto notice requirement for cases that also potentially raise ESA issues where
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`Congress has explicitly declined to do so.”). But it did not.
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`Second, the ESA citizen-suit provision’s plain language confirms its inapplicability
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`here. Under the ESA, 60-day presuit notices are only necessary for suits “commenced under
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`subparagraph (1)(A) of this section,” which describes the three categories of ESA “citizen
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`suits.” See 16 U.S.C. § 1540(g)(2). But this is not an ESA citizen suit in either form or
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`function. Because the “[t]he text of” the statute “makes clear the notice requirement pertains
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`only to actions commenced under [it],” and because Growers do not invoke section
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`1540(g)(2), the ESA presuit notice is inapplicable. Alliance for the Wild Rockies, 772 F.3d
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`at 603. Nor is this an ESA citizen suit in disguise. Growers do not seek “to enjoin” EPA
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`under the ESA (category one); they seek reconsidered FIFRA herbicide control measures. See
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`§ 1540(g)(1)(A); see also Conservation Force v. Salazar, 916 F. Supp. 2d 15, 23 n.2 (D.D.C.
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`2013) (explaining that cases seeking “remand” of permits—like this one—“do not seek to
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`‘enjoin’ the agency action” for citizen-suit purposes). Likewise, Growers do not aim “to
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`compel” EPA to act over an imminent species “taking” (category two) or allege “a failure” of
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`EPA “to perform any act or duty” related to listing species (category three). See id. §
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`1540(g)(1)(B)-(C). Even if Growers had tried to shoehorn their suit into, say, category one,
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`they would have ended up with inadequate, incomplete, ESA-limited relief. At bottom,
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`Growers seek modified herbicide control measures. See, e.g., Am. Comp. ¶¶ 122, 130
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`(alleging that the challenged actions “harm Growers by imposing unreasonable and expensive
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`growing and herbicide conditions on Growers and their farmland.”). That FIFRA relief, at its
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`core, is unavailable through the ESA.
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`In this way, EPA’s string cite of ESA authority misses the point. See EPA Mot. 8–9.
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`Growers do not dispute that the ESA’s 60-day notice requirement “acts as an absolute bar to
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`bringing suit under the ESA”—when a plaintiff depends solely on the ESA to raise ESA issues.
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`Id. But those cases, unlike this one, involved ESA issues raised through the ESA citizen-suit
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`statute. And none of them contradicts the well-established rule that ESA issues intertwined
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`into FIFRA orders are reviewable under FIFRA. In short, EPA’s cases say nothing about the
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`question presented here: whether ESA issues folded into FIFRA registrations are reviewable
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`under FIFRA.
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`Third, the idea that Growers need extra or different jurisdiction to challenge ESA
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`elements of FIFRA registrations is antithetical to the case law.3 Courts in this circuit and
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`3 EPA might argue that FIFRA’s judicial review provision only provides subject-matter
`jurisdiction for ESA issues raised in circuit court challenges, under FIFRA section 136n(b).
`That argument would fail for several reasons. First, EPA waived that argument by not making
`it in its motion. EPA knew Growers relied on FIFRA jurisdiction for both claims but declined
`to challenge that reliance. Additionally, the argument is simply wrong. Courts read FIFRA
`section 136n, as they should, on the whole. See Dow AgroSciences, 637 F.3d at 265 (holding
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`beyond extend FIFRA subject-matter jurisdiction “to all issues inhering in the controversy,”
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`including ESA issues. See, e.g.., Dow AgroSciences, 637 F.3d at 265. As the D.C. Circuit
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`explained in Center for Biological Diversity v. EPA, FIFRA’s judicial review provisions reach
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`any ESA issues “inextricably intertwined with FIFRA.” 861 F.3d at 187. Like the Center for
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`Biological Diversity claimants, Growers do not “object to the EPA’s” ESA analyses “in
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`vacuo; rather, their [ESA] claim[s] [are] a means to a broader end—a challenge to the validity
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`of [aspects] of the [herbicide] registration order itself.” Id. The ESA issues that Growers
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`raise, in other words, stem from how EPA applied its ESA analyses through FIFRA
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`registrations and conditions, not whether EPA, in a vacuum, complied with the ESA.
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`Yet “even if the claim [was] that a registration is deficient is based solely on ESA
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`violations . . . subject-matter jurisdiction should [still] be governed by the . . . FIFRA
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`jurisdictional provision, not the . . . ESA’s citizen-suit provision.” Orr v. EPA, No. 1:19-cv-
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`226, 2020 WL 2512985, at *10 (W.D.N.C. May 15, 2020) (emphasis added) (citing Dow
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`AgroSciences, 637 F.3d at 265). At bottom, because Growers “rely on another statutory grant
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`to provide subject matter jurisdiction, such as FIFRA’s review provision,” the “ESA’s notice
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`requirement simply does not apply.” Ctr. for Biological Diversity v. EPA, 106 F. Supp. 3d 95,
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`102 (D.D.C. 2015) (confirming that “if Plaintiffs do not rely on the ESA’s citizen suit
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`that “if a challenge to [an ESA issue] inheres in the challenge to a final EPA order under
`FIFRA, it would be reviewable under” all of “FIFRA’s judicial review provisions.”). That
`makes sense because “[s]tatutory provisions are to be construed not in isolation, but together
`with other related provisions.” Potomac Plaza Terraces v. QSC Prods., 868 F. Supp. 346, 351
`(D.D.C. 1994) (quoting United Marine Workers of Am. v. Andrus, 581 F.2d 888, 892 (D.C.
`Cir. 1978)). For this reason, courts in this District review “FIFRA’s jurisdiction, 7 U.S.C. §
`136n,” on the whole—not in pieces. Ctr. for Biological Diversity v. EPA, 106 F. Supp. 3d at
`102.
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`Case 1:20-cv-03190-RCL Document 58 Filed 06/15/21 Page 14 of 24
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`provision for subject matter jurisdiction, they need not provide the government with ESA
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`notice”).
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`And applying FIFRA subject-matter jurisdiction to interconnected ESA issues makes
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`good sense. As EPA has conceded elsewhere, it often “use[s] its authority under the FIFRA
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`to modify federal actions (i.e., . . . pesticide registration[s] issued under FIFRA)”
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`symbiotically with its ESA authority. Ctr. for Biological Diversity, 369 F. Supp. 3d at 19 n.8
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`(D.D.C. 2019). It makes little sense, in turn, to treat EPA’s FIFRA and ESA authority “as if
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`they were entirely walled-off from one another.” Id. Because ESA and FIFRA determinations
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`“do[] not happen in a vacuum,” neither do the statutes’ jurisdictional triggers. Id. at 19.
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`Courts even use other statutes’ judicial review provisions to review comingled ESA
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`issues. Indeed, the general rule is that if ESA issues arise “under [another federal statute],
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`the Endangered Species Act’s notice requirement need not be met.” See Washington v. Daley,
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`173 F.3d 1158, 1170 n.16 (9th Cir. 1999). In Washington v. Daley, for example, the Ninth
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`Circuit adjudicated claims that “the Department of Commerce violated the Endangered
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`Species Act” under the auspices of Magnuson Fishery Conservation and Management Act
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`jurisdiction. Id. at 1170. Even facing much clearer-cut ESA claims—where the plaintiffs
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`alleged things like failure to consult, failure to analyze impacts on northern chinook salmon,
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`and more—the court, acting solely under Magnuson Act jurisdiction, held that the government
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`“did not violate the Endangered Species Act.” Id. There, as here, the ESA’s notice
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`requirements must yield to the actual jurisdictional statute in play. See also Am. Bird Conserv.
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`v. FCC, 545 F.3d 1190, 1193 (9th Cir. 2008) (finding the ESA jurisdictional provision
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`inapplicable when the plaintiff “d[id] not object to the agency’s failure to consult in the
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`abstract; rather, it identifie[d] seven discrete [agency] registrations that it alleges were not
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`supported by adequate [ESA] investigation” making those registrations “inextricably
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`intertwined” with the Communications Act).
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`Fourth, EPA’s approach encourages agency gamesmanship. Allowing EPA to shield
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`swaths of its FIFRA reviews from immediate judicial review by mere mention of statutes with
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`different review schemes—like the ESA 60-day notice—turns the ESA jurisdictional shield
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`into a sword. And it incentivizes salting FIFRA records with mini-ESA “hooks,” to get a
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`sixty-day litigation head start. This concern is more than hypothetical—EPA has expanded
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`its ESA jurisdictional theory in this very action. In EPA’s initial motion to dismiss, the
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`agency conceded that FIFRA supplies subject-matter jurisdiction for Growers’ Count I claims
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`(challenging the application restrictions). See Dkt. 43, EPA Partial Mot. to Dismiss at 12
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`(seeking dismissal of Count II—”ESA Buffers”—and Count IV—“ESA Determinations”—
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`only). Now, just two months later, and despite the Amended Complaint alleging a
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`substantively unchanged Count I claim, which did not and does not invoke the ESA, EPA has
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`changed its mind. In its latest motion, EPA argues that Growers’ “claims concerning . . .
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`Application Restrictions . . . must be dismissed for violation of the ESA’s 60-day notice
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`requirement.” EPA Mot. at 8–9. Indeed, taking EPA’s about-face to its logical end, the ESA
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`could render all of these (and other) FIFRA control measures unreviewable under FIFRA
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`itself simply because those control measures also support certain ESA findings. See EPA
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`Mot. at 6. (arguing that “a host of other” undefined “control measures” support the ESA
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`findings). EPA’s ever-expanding ESA defense proves Growers’ point: EPA’s use of FIFRA
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`authority and control measures to support separate ESA findings cannot “de-FIFRAtize” those
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`control measures.
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`As it turns out, EPA and DOJ have elsewhere conceded that plaintiffs can raise ESA
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`issues under FIFRA. In Center for Biological Diversity, EPA ultimately agreed that “[u]nder
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`FIFRA, Plaintiffs are still able to argue that EPA violated the ESA.” See EPA Reply in
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`Support of its Motion to Dismiss, Dkt. 45 at 5, Ctr. for Biological Diversity v. EPA, No. 1:14-
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`cv-00942 (D.D.C. Dec. 10, 2014). As EPA explained, FIFRA does not “prohibit Plaintiffs
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`from raising ESA challenges” within FIFRA’s jurisdictional framework. Id. And in another
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`case, EPA “concede[d] that if Plaintiffs do not rely on the ESA’s citizen-suit provision for
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`subject-matter jurisdiction, they need not provide the Government with ESA notice before
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`filing suit.” Ctr. for Biological Diversity, 106 F. Supp. 3d at 102 (finding that “FIFRA’s
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`jurisdictional provision, 7 U.S.C. § 136n, governs [the] Plaintiffs’ claim” concerning ESA
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`consultation). EPA should not backpedal now.
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`II.
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`The APA also provides independent jurisdiction.
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`FIFRA aside, if the Court believes Growers need more or different jurisdiction to hear
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`EPA’s cryptic “ESA claims,” the APA provides it. See EPA Mot. at 2 (casting undefined
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`aspects of the Amended Complaint as “ESA claims”). Indeed, each of Growers’ claims
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`already invokes APA jurisdiction. See Am. Compl. ¶¶ 119, 126. EPA disagrees, suggesting
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`that the ESA displaces the APA here and, separately, that Growers cannot state a
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`maladministration claim against EPA. See EPA. Mot at 11–14. EPA is incorrect in both
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`respects.
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`To begin, EPA is right that the APA authorizes judicial review of final agency actions
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`“where there is no adequate remedy.” Id. at 11. But that is, at best, a half-statement of the
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`law. By its own terms, the APA provides that “[a]gency action[s] made reviewable by statute
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`and final agency action for which there is no