Safe Alternatives for Fruit Fly Eradication v. Berryhill

No. CV 84-1662 AWT (C.D. Cal. May 9, 1984)

The court holds that a California fruit fly eradication program is not a major federal action under the National Environmental Policy Act (NEPA), and that plaintiffs lack standing to challenge the program under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) or Federal Aviation Administration (FAA) regulations. The court first holds that plaintiff municipalities lack standing to press a public health claim on behalf of their citizens. The court then rules that the spray program is not a major federal action under NEPA because federal involvement in the program is limited to a loan of equipment, supplies, and advisors. The state will ultimately bear all the costs of the program and make the major decisions of where and when to spray. Turning to plaintiffs' FIFRA claim, the court rules that neither FIFRA itself nor the Civil Rights Act create a citizen's cause of action for state violations of FIFRA. Likewise, plaintiffs may not press a claim for violation of FAA regulations governing aerial spraying.

Counsel for Plaintiffs
Richard Sontag
2700 N. Main St., Santa Ana CA 92701
(714) 835-8808

Counsel for Defendants
George Wu, Ass't U.S. Attorney
312 N. Spring St., Los Angeles CA 90012
(213) 688-6684

Charles W. Getz IV, Roderick E. Walston
California Department of Justice
350 McAllister St., Rm. 6000, San Francisco CA 94102
(415) 557-2544

[14 ELR 20587]

Tashima, J.:

Judgment

This action having been tried to the Court, in accordance with the Memorandum Order Denying Preliminary Injunction and of Dismissal, signed and filed concurrentl herewith,

IT IS ORDERED AND ADJUDGED that plaintiffs take nothing, that the action is dismissed on the merits and that defendants recover of plaintiffs their costs of suit in the sum of $ .

Memorandum Order Denying Preliminary Injunction and of Dismissal

This matter is before the court on plaintiffs' application for a preliminary injunction, after denial of a temporary restraining order. At the hearing, the application was consolidated with a trial on the merits. F.R. CIV. P. 65(a)(2).

Plaintiffs seek to enjoin defendants from the continued aerial broadcast application of the pesticide Malathion over approximately sixty square miles of residential Los Angeles (the "aerial spray area"). Plaintiffs are individuals who live or work in the aerial spray area, citizen groups whose members include such individuals and municipalities located within the aerial spray area. Defendants are the United States Secretary of Agriculture, the Director of the California Department of Food and Agriculture ("CDFA"), and the Los Angeles County Agricultural Commissioner.

The aerial spray program was commenced on November 4, 1983, in response to the discovery of a female Mexican fruit fly in Huntington Park on October 25, 1983. Pursuant to an executive order signed by Governor Deukmejian, CDFA was relieved of its obligation, under California law, to provide an environmental assessment of the aerial spray program.¹ Aerial spraying of Malathion under the fruit fly eradication program has continued since November, 1983.

On an application for a preliminary injunction, plaintiffs bear the burden of demonstrating either a combination of probable success on the merits and the possibility of irreparable injury, or that serious questions are raised and that the balance of hardships tips sharply in their favor. Los Angeles Memorial Coliseum Comm'n v. National Football League, 634 F.2d 1197, 1201 (9th Cir. 1980). At minimum, plaintiffs must demonstrate a "fair chance of success on the merits." Benda v. Grand Lodge, IAM, 584 F.2d 308, 315 (9th Cir. 1978), cert. dismissed, 441 U.S. 937 (1979). Because I find that plaintiffs have failed to show even a fair chance of success on the merits, the application is denied. Further, because I also conclude that plaintiffs lack standing to pursue their claims under the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA") and under the Federal Aviation Act ("FAA") regulations, adjudication on the merits of plaintiffs complaint is appropriate. See Glacier Park Found. v. Watt, 663 F.2d 882, 886 (9th Cir. 1981).

1. Plaintiffs' Standing

As a preliminary matter, I note that plaintiff municipalities purport to bring this action on behalf of their citizens, alleging that their city councils are directed by state law to protect the public health. Although cities may sue to vindicate a proprietary interest, they may not act as parens patriae on behalf of their citizens. United States v. City of Pittsburg, 661 F.2d 783, 787 (9th Cir. 1981); American Motorcyclist Ass'n v. Watt, 534 F. Supp. 923, 931 [12 ELR 20846] (C.D. Cal. 1981), aff'd, 714 F.2d 962 (9th Cir. 1983). The complaint is devoid of allegations which would demonstrate that the plaintiff municipalities seek to vindicate any proprietary interest. Plaintiffs City of Monterey Park, City of South Gate, and City of Lynwood therefore lack standing to seek relief in this action.

Plaintiff citizen groups have standing to sue in their own right to protect their members against the alleged injury to health and welfare. Hunt v. Washington Apple Advertising Comm'n, 432 U.S. 333, 342-43 (1977); Black Faculty Ass'n v. San Diego Community College Dist., 664 F.2d 1153, 1156-57 (9th Cir. 1981).

2. NEPA Federal Participation

The National Environmental Protection [sic] Act ("NEPA") requires that federal agencies prepare an environmental impact statement ("EIS") for "major federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(c) [sic]. Plaintiffs assert that federal participation in the aerial spray program mandates preparation of an EIS.

When the primary actors in a particular program are state or local governments rather than federal agencies, preparation of an EIS is not required. Alaska v. Andrus, 591 F.2d 537, 540 [9 ELR 20937] (9th Cir. 1979). In determining whether state action has become "federalized" within the meaning of NEPA, the following factors are relevant: (1) whether the action is financed wholly or in part by federal funds; (2) whether the relevant decisionmakers are federal or state employees; and (3) whether in the absence of federal participation, state officials would proceed with the action. Friends of the Earth, Inc., v. Coleman, 518 F.2d 323, 328-29 [5 ELR 20428] (9th Cir. 1975).

Consideration of all three factors indicates that the program here does not involve "major federal action." First, there has been no general grant of federal funding to CDFA. Federal aid has been limited and has consisted only of the loan of equipment (primarily trucks and radio equipment), 1,500 gallons of Malathion, and Staley's bait (with which the pesticide is mixed). CDFA has agreed to return the equipment and to replace the bait and Malathion at the close of the project. Second, the United States Department of Agriculture ("USDA") has deployed seven or eight of its employees to provide technical assistance and advice to CDFA. However, much of the work performed by these employees involves the enforcement of emergency federal quarantine [14 ELR 20588] regulations² and not the aerial spray program. USDA personnel do not have decisionmaking authority or control over administration of the program. Third, CDFA commenced the aerial spray program without a guarantee federal participation, and continued even after USDA decided, in January 1984, that it would not share the cost of the program. CDFA has determined whether and when to conduct its aerial spray program independent of federal involvement.

The aerial spray program, therefore, does not require perparation of an EIS.³

3. Rights of Action Under FIFRA

Plaintiffs allege violations of FIFRA, 7 U.S.C. §§ 136j(a)(2)(G) & (P), which prohibis the use of a registered pesticide in a manner inconsistent with its labeling and the use of any pesticide in tests on human beings, unless such human beings are fully informed of the purposes of the test and of any reasonably foreseeable health consequences and freely volunteer to participate in the test.

FIFRA contains a comprehensive enforcement scheme under which the Environmental Protection Agency ("EPA") and the Attorney General have authority to impose civil and criminal penalties for violations of its provisions. 7 U.S.C. § 1361.

Plaintiffs concede, as they must, that there is no private right of action under FIFRA. Fiedler v. Clark, 714 F.2d 77 (9th Cir. 1983). Although a private party may sue to enforce FIFRA under the Administrative Procedure Act, Oregon Environmental Council v. Kunzman, 714 F.2d 901, 903 [13 ELR 20901] (9th Cir. 1983), the challenged aerial spray program does not involve federal agency action.

In order to circumvent these jurisdictional obstacles, plaintiffs seek relief under the Civil Rights Act of 1864, 42 U.S.C. § 1983. Relying on Maine v. Thiboutot, 448 U.S. 1 (1980), plaintiffs argue that § 1983 is available to enforce violations of federal statutes, regardless of whether the statute itself affords plaintiffs a private right of action.

However, the Court in Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981), and Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1 [11 ELR 20684] (1981), recognized two limitations on the application of § 1983 to federal statutory violations. Availability of a § 1983 remedy depends upon whether: (1) Congress has foreclosed private enforcement of that statute in the enactment itself; and (2) the statute at issue is the kind that creates enforceable rights under § 1983. Middlesex, 453 U.S. at 19.

Middlesex involved a citizens' suit for violations of the Federal Water Pollution Control Act ("FWPCA") and the Marine Protection, Research and Sanctuaries Act of 1972 ("MPRSA"). The FWPCA authorizes enforcement by the EPA, and permits "any interested person" to seek judicial review of an administrative decision in the courts of appeals. That act also provides that private citizens may sue for injunctions to enforce its provisions. The MPRSA authorizes the EPA to impose civil and criminal penalties for violations of its provisions, and empowers the Attorney General to sue for injunctive relief. The Court in Middlesex held that the existence of express remedies under both the FWPCA and MPRSA demonstrated Congress' intent not only to foreclose implied private actions, but also to "supplant any remedy that otherwise would be available under § 1983." 453 U.S. at 19.

Thus, although FIFRA, unlike the FWPCA, does not authorize citizen suits, its enforcement scheme is almost identical to that of the MPRSA, which the Court in Middlesex found sufficiently comprehensive to supplant any § 1983 remedy. Moreover, the holding in Fielder, 714 F.2d at 79, suggests that FIFRA does not create rights which are enforceable under § 1983, since FIFRA does not "unmistakeably focus on any particular class of beneficiaries whose welfare Congress intended to further," and since Congress explicitly rejected amendments to FIFRA that would have authorized citizen suits.

For the foregoing reasons I conclude that plaintiffs lack standing to assert their claims under FIFRA or under 42 U.S.C. § 1983.

4. FAA Regulations

Plaintiffs claim violations of FAA regulations, 14 C.F.R. §§ 137.37 and 137.39, which govern aerial spraying of hazardous substances and "economic poisons." Like FIFRA, FAA regulations are not enforceable by private citizens. Oregon Environmental Council, 714 at 903. The court in Oregon Environmental Council also noted that §§ 137.37 and 137.39 do not impose any additional requirements beyond those imposed by FIFRA. Thus, the analysis with respect to FIFRA also controls here. I conclude that plaintiffs lack standing to assert their claim under FAA regulations or under 42 U.S.C. § 1983.

For the foregoing reasons, IT IS ORDERED:

(1) Plaintiffs' application for a preliminary injunction is DENIED.

(2) Judgment on the merits will be entered in favor of defendants.

(3) This Memorandum Decision shall serve as the Court's findings of fact and conclusions of law, pursuant to F.R. CIV. P. 52(a).

1. Plaintiffs concede that the actions at issue here were done in compliance with state law.

2. These regulations were promulgated pursuant to the Plant Quarantine Act, 7 U.S.C. §§ 161 & 162, and restrict the interstate movement of fruit fly hosts.

3. Plaintiffs indicated, at the hearing on April 9, 1984, that they did not wish to present any additional evidence of the merits of the NEPA claim.