NORTHWEST COALITION FOR ALTERNATIVES TO PESTICIDES, et al., Plaintiffs,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants,
CROPLIFE AMERICA, et al., Intervenor-Defendants.
THOMAS S. ZILLY, District Judge.
THIS MATTER comes before the Court on Intervenor-Defendants' motion to dismiss first and third claims, docket no. 147. Having considered the motion and all pleadings filed in support of and opposition thereto, the Court enters the following Order.
Plaintiffs filed a Supplemental Complaint on September 17, 2013. Supplemental Complaint, docket no. 137. Plaintiffs generally allege that the Environmental Protection Agency ("EPA") has failed to comply with its obligations under the Endangered Species Act ("ESA") to protect salmon and steelhead (collectively, "salmonids") from certain pesticide use. The pending motion is brought by Intervenor-Defendants ("Intervenors") to dismiss Plaintiffs' first and third claims. Intervenor's Motion, docket no. 147.
Plaintiffs' first claim alleges that EPA is violating ESA Section 7 by failing to complete consultation with the National Marine Fisheries Service ("NMFS") for its ongoing authorization of uses of three organophosphate ("OP") pesticides. Supplemental Complaint at ¶¶ 76-82. As a result of prior litigation, EPA initiated consultation with NMFS regarding these and other pesticides between August 2002 and December 2004. Id. at ¶ 3. NMFS issued a biological opinion ("BiOp") on the OP pesticides ("OP BiOp") on November 18, 2008, concluding that use of the OP pesticides would jeopardize the continued existence of 27 species and destroy or adversely modify the critical habitat of 25 of those species. Id. at ¶ 6. The OP BiOp required the implementation of certain measures to ensure protection of the affected species. Id . On February 21, 2013, the Fourth Circuit vacated the OP BiOp and remanded it to NMFS for additional explanation. Id. at ¶ 12 (citing Dow AgroSciences LLC v. Nat'l Marine Fisheries Serv. , 707 F.3d 462 (4th Cir. 2013)).
Plaintiffs' third claim alleges that EPA is unlawfully taking listed salmonids in violation of ESA Section 9. Id. at ¶¶ 89-97. Plaintiffs' third claim takes issue with EPA's authorization of both the OP pesticides as well as three "carbamate" pesticides. NMFS issued a BiOp with respect to the carbamate pesticides on April 20, 2009, ("Carbamate BiOp"), concluding that the use of the carbamate pesticides would jeopardize 22 species and likely destroy or adversely modify the habitat of at least 20 species. Id. at ¶ 7. The Carbamate BiOp articulated a comprehensive Reasonable and Prudent Alternative ("RPA") with specific protections to avoid harm to the affected species and required implementation of the RPA within one year. Id . The Carbamate BiOp included an Incidental Take Statement ("ITS") authorizing some "take" of listed salmonids from EPA's authorization of the carbamate pesticides, so long as EPA complied with the RPA and Reasonable and Prudent Measures ("RPMs") articulated in the BiOp. Id. at ¶ 9.
A. Standard of Review
In order to survive a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a plaintiff must allege "enough facts to state a claim for relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007). In reviewing the adequacy of the complaint, the Court must accept all well-pleaded allegations as true, South Ferry LP, No. 2 v. Killinger , 542 F.3d 776, 782 (9th Cir. 2008), and draw all reasonable inferences in favor of the plaintiff. Twombly , 550 U.S. at 555. Similarly, in considering a Rule 12(b)(1) motion to dismiss for lack of jurisdiction, the Court takes the allegations in the plaintiff's complaint as true. Wolfe v. Strankman , 392 F.3d 358, 362 (9th Cir. 2004).
B. Plaintiffs' First Claim: Failure to Complete Consultation with NMFS in Violation of ESA Section 7
Intervenors argue that Plaintiffs have failed to identify any affirmative agency action triggering a duty to consult with NMFS. In the alternative, Intervenors claim that any duty to consult has been met by EPA's prior initiation of consultation.
1. Agency Action Requiring Consultation
Section 7 of the ESA requires any federal agency to "insure that any action authorized, funded, or carried out by such agency (hereinafter... referred to as an "agency action") is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species." 16 U.S.C. § 1536(a)(2). Section 7 imposes on an agency a duty to consult with the expert wildlife agencies "before engaging in any discretionary action that may affect a listed species or critical habitat." Karuk Tribe of Cal. v. United States Forest Serv. , 681 F.3d 1006, 1020 (9th Cir. 2012). "The purpose of consultation is to obtain the expert opinion of wildlife agencies to determine whether the action is likely to jeopardize a listed species or adversely modify its critical habitat and, if so, to identify reasonable and prudent alternatives that will avoid the action's unfavorable impacts." Id . An "agency action" is defined broadly under the ESA, but is limited to "actions in which there is discretionary Federal involvement or control." Id . (citation omitted). "An agency must consult under Section 7 only when it makes an "affirmative" act or authorization." Id.
Intervenors argue that Plaintiffs have failed to identify any affirmative act by EPA triggering a duty to consult. Defendant EPA filed a response concurring with this argument. Defendant's Response, docket no. 149. Plaintiffs argue that the EPA's authorization is an ongoing agency action and that the Ninth Circuit's decision in Karuk Tribe ...