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Ellis v. Housenger

United States District Court, N.D. California

June 12, 2015

STEVE ELLIS, et al., Plaintiffs,
JACK HOUSENGER, et al., Defendants, and BAYER CROPSCIENCE LP, et al. Defendants-Intervenors.


MAXINE M. CHESNEY, District Judge.

Before the Court are two motions: (1) "EPA's Motion to Limit Review to EPA's Administrative Record and Preclude Submission of Expert Declarations and Extra-Record Material, " filed April 3, 2015, on behalf of defendants Jack Housenger and Gina McCarthy (collectively, "EPA"); and (2) "Motion to Preclude Plaintiffs' Extra-Record Materials by Defendant-Intervenors, " filed April 3, 2015, on behalf of defendant-intervenors Bayer CropScience LP, Syngenta Crop Protection, LLC, Valent U.S.A. Corporation, and CropLife America (collectively, "Intervenors"). Plaintiffs have filed a single opposition addressing both motions; the EPA and Intervenors have filed separate replies. Having read and considered the papers filed in support of and in opposition to the motions, the Court rules as follows.[1]


By the instant action, plaintiffs, consisting of four individuals who are beekeepers and four public interest groups, challenge "the actions of [the EPA] to allow the ongoing use of pesticide products containing the active ingredients clothianidin and thiamethoxam." (See Second Amended Complaint ("SAC") ¶ 1.) Plaintiffs allege the subject pesticides "have been shown to adversely impact the survival, growth, and health of honey bees and other pollinators vital to U.S. agriculture" and have "harmful effects on other animals, including threatened and endangered species." (See SAC ¶ 2.)

In two of the SAC's six causes of action, the Fifth and Sixth Claims, respectively, plaintiffs allege that the EPA approved twenty-eight products containing clothianidin and forty-three products containing thiamethoxam, in violation of the Endangered Species Act ("ESA").[2] Specifically, plaintiffs allege that the EPA, prior to said approvals, "failed to consult with the FWS [Fish and Wildlife Service]." (See SAC ¶ 73.)


By order filed January 26, 2015, the Court approved the parties' stipulation as to a revised briefing schedule, by which plaintiffs agreed to disclose, no later than March 4, 2015, "the identity of any expert witness" as well as "any documents [p]laintiffs intend to use to support summary judgment, including any request to submit any non-Administrative Record material." (See Order, filed January 26, 2015, at 5:15-18.) In accordance therewith, plaintiffs, on March 4, 2015, identified three expert witnesses, each of whom, plaintiff stated, is expected to opine on the "potential effects from clothianidin and thiamethoxam pesticide products" on endangered species (see Tomaselli Decl., filed April 17, 2015, Ex. B ¶¶ IA-IC); additionally, plaintiffs disclosed twenty documents plaintiffs stated they intended to offer in support of the Fifth and Sixth Claims (see id. ¶ II).[3]

In their respective motions, the EPA and Intervenors, citing the Administrative Procedures Act ("APA"), argue that the Court's review as to the Fifth and Sixth Claims is limited to the administrative record, and, consequently, plaintiffs should be precluded from offering the proposed extra-record evidence identified in plaintiffs' notice. In the alternative, the EPA requests it be allowed to conduct expert discovery.

A. Scope of Review

The Fifth and Sixth Claims, as noted, allege the EPA violated the ESA. Specifically, plaintiffs allege the EPA violated section 7 of the ESA, 16 U.S.C. § 1536.

Section 1536 provides that all federal agencies "shall, in consultation with and with the assistance of [the FWS or the National Marine Fisheries Service ("NMFS"], insure that any... agency action... is not likely to jeopardize the continued existence of any endangered species or threatened species." See 16 U.S.C. § 1536(a)(2).[4] The duty to consult arises if the proposed agency action "may affect" an endangered species. See Karuk Tribe v. United States Forest Service, 681 F.3d 1006, 1020 (9th Cir. 2012). Here, plaintiffs allege that "[m]ore than fifteen threatened or endangered species, including, but not limited to, plant pollinators, ranging from beetles to butterflies to grasshoppers and other taxa, are potentially directly affected by the use of clothianidin and thiamethoxam products" (see SAC ¶ 74), and that the EPA "failed to consult with [the] FWS as required under the ESA" (see SAC ¶ 73).

As noted, the EPA and Intervenors argue review of plaintiffs' ESA claims is governed by the APA. Under the APA, "[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." See 5 U.S.C. § 702. In considering a claim brought under the APA, the district court "review[s] the whole record or those parts of it cited by a party." See 5 U.S.C. § 706. In other words, the court reviews "the administrative record already in existence." See Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-43 (1985) (internal quotation and citation omitted).[5]

In response, plaintiffs argue that a claim alleging an agency violated the ESA by failing to consult with the FWS or the NMFS is not a claim brought under the APA, but, rather, is a claim brought under the ESA. Specifically, plaintiffs argue that the ESA claims alleged here are properly brought under 16 U.S.C. § 1540(g) of the ESA, which provides that "any person may commence a civil suit... to enjoin any person, including the United States..., who is alleged to be in violation of any provision of [the ESA]." See 16 U.S.C. § 1540(g)(1).

The Supreme Court has held that a claim alleging a violation of the ESA may be brought under § 1540(g) of the ESA or under § 706 of the APA, depending on the type of violation alleged. See Bennett v. Spear, 520 U.S. 154, 171-79 (1997) (considering whether claims alleging violations of ESA reviewable under § 1540(g) or § 706; holding, in light of nature of alleged violations, one claim reviewable under § 1540(g) and remaining claims reviewable under § 706). Although the Supreme Court has not addressed the issue of whether a claim based on an alleged failure to consult is properly reviewed under the ESA rather than the APA, the Ninth Circuit, as set forth below, has twice done so and, in each instance, has held review ...

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