Center for Environmental Health et al v. Pruitt et al

Filing 122

ORDER DENYING 83 DEFENDANTS MOTION TO STAY AS MOOT; DENYING 93 PLAINTIFFS MOTION FOR SUMMARY JUDGMENT WITHOUT PREJUDICE TO RENEWAL; AND DIRECTING PARTIES TO FILE JOINT STATUS REPORT BY JUNE 30, 2022 signed by Judge Richard Seeborg for Judge Saundra B. Armstrong. (bns, COURT STAFF) (Filed on 3/31/2022)

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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6 CENTER FOR ENVIRONMENTAL

Case No: 18-cv-03197 SBA

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ORDER DENYING DEFENDANTS’
MOTION TO STAY AS MOOT;
DENYING PLAINTIFFS’ MOTION
FOR SUMMARY JUDGMENT
WITHOUT PREJUDICE TO
RENEWAL; AND DIRECTING
PARTIES TO FILE JOINT STATUS
REPORT BY JUNE 30, 2022

HEALTH, et al.,

Plaintiffs,

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vs.
ANDREW WHEELER, in his official

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Environmental Protection Agency, et al.,
Defendants,
and
CROPLIFE AMERICA,
Intervenor-Defendant.

Plaintiffs Center for Environmental Health, Center for Biological Diversity, and

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Californians for Pesticide Reform (collectively, “Plaintiffs”) bring the instant action against

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the United States Environmental Protection Agency (“EPA”); Michael S. Regan, in his

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official capacity as Administrator of the EPA; the United States Fish & Wildlife Service

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(the “Service”); and Debra Haaland, in her official capacity as Secretary of the Department

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of Interior (collectively, “Defendants”). The action alleges that Defendants have failed to

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complete the requisite interagency consultation to ensure that certain pesticide products

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containing malathion do not jeopardize endangered or threatened species. Second Am. &

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Supp. Compl. (“SAC”), Dkt. 43. CropLife America, a trade association that represents the

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common interests of pesticide manufacturers, has intervened as a defendant (“CropLife”).

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The factual and procedural background, as well as the relevant statutory and

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regulatory frameworks, are set forth in detail in the Order Denying Defendants’ Motion to

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Dismiss Second Amended Complaint. Dkt. 62. In brief, the Federal Insecticide, Fungicide,

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and Rodenticide Act (“FIFRA”) charges the EPA with the oversight of chemicals used as

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pesticides, including registration of pesticide products and active ingredients used to

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manufacture such products. 7 U.S.C. § 136 et seq. Registration of a pesticide constitutes

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federal agency action subject to the interagency consultation requirements of the

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Endangered Species Act (“ESA”), 16 U.S.C. § 1536. Wash. Toxics Coal. v. EPA, 413 F.3d

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1024, 1032 (9th Cir. 2005). Pursuant to Section 7(a)(2) of the ESA, the EPA, in

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consultation with the Service, must insure that the registration of pesticides under FIFRA

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“is not likely to jeopardize the continued existence of any endangered species or threatened

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species or result in the destruction or adverse modification of habitat of such species which

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is determined . . . to be critical[.]” 16 U.S.C. § 1536(a)(2). The consultation process

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includes preparation of a biological opinion. See 50 C.F.R. § 402.14.

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The EPA began preparing a biological evaluation to assess the effects of pesticide

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products containing malathion in 2014. SAC ¶ 54. The EPA and the Service initially

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agreed to provide a draft biological opinion in May 2017 and to issue a final biological

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opinion by December 2017. Id. ¶ 62. Those targets were not met. Instead, the EPA and

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the Service extended the consultation period for malathion with the expectation that a draft

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biological opinion would issue in April 2020 and a final biological opinion would issue in

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March 2021. Id. ¶ 77. Again, those targets were not met. A draft biological opinion

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ultimately was issued on April 13, 2021. Frazer Decl. ¶ 3, Dkt. 83-2. At that time,

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Defendants planned to issue a final biological opinion by February 28, 2022. Id.

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On April 13, 2021, Defendants filed a Motion for Stay of Proceedings, seeking to

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stay the action “until March 1, 2022 or issuance of the final Biological Opinion, whichever

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occurs sooner.” Dkt. 83 at 1. Defendants argued that they were committed to issuing a

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final biological opinion by February 28, 2022 and that moving forward with merits briefing

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on motions for summary judgment would divert agency resources from that task. They

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further argued that various aspects of the action would be moot once a final biological

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opinion was complete. Plaintiffs opposed a stay. Dkt. 89. Plaintiffs proposed that the

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parties engage in settlement discussions, however, indicating that they might be amenable
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to an agreement that included court enforceable deadlines. On May 18, 2021, Plaintiffs

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filed a motion for summary judgment, seeking, inter alia, an order requiring Defendants to

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complete the consultation by February 28, 2022. Dkt. 95. Defendants indicated that, if the

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action were not stayed, they intended to file a cross-motion. Dkt. 97.

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On May 20, 2021, an order issued referring the action to a magistrate judge for an

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expedited settlement conference. Dkt. 98. To facilitate settlement discussions, the parties’

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respective motions were held in abeyance pending conclusion of the settlement conference.

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Id. Thereafter, the parties engaged in extensive settlement discussions with the assigned

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Magistrate Judge. On December 12, 2021, the parties filed a Stipulated Partial Settlement

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Agreement, resolving Plaintiffs’ claims as to Defendants’ procedural duties under the ESA.

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Dkt. 111. In pertinent part, Defendants agreed to issue a final biological opinion and

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conclude the consultation by February 28, 2022. Id. at 3-4. The parties indicated that

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settlement discussions to resolve the remainder of the action were ongoing and requested

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that the abeyance continue through March 31, 2022. Dkt. 113.

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On March 1, 2022, Defendants filed a notice indicating that the final biological

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opinion had issued on February 28, 2022, consistent with the Stipulated Partial Settlement

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Agreement. Dkt. 118. On March 17, 2022, the parties filed a joint status report advising

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that they have drafted a Second Partial Settlement Agreement to resolve the remainder of

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the action and are in the process of obtaining the necessary approvals to execute the same.

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Dkt. 120. They request that the abeyance continue through June 30, 2022.

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Defendants’ motion for a stay of proceedings is moot. In their motion, Defendants

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sought a stay of the action “until March 1, 2022 or issuance of the final Biological Opinion,

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whichever occurs sooner.” Dkt. 83 at 1. Both of those events have now come to pass.

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Additionally, the purported justifications for a stay—i.e., that merits briefing would divert

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resources from the task of completing the final biological opinion and various aspects of the

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action would be mooted once a final biological opinion was complete—are now without

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force. Accordingly, the motion for a stay of proceedings shall be denied as moot.

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Plaintiff’s motion for summary judgment was filed before the parties’ Stipulated

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Partial Settlement Agreement was executed. Defendants have not filed either an opposition

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to the motion or their anticipated cross-motion. Plaintiff’s motion for summary judgment

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seeks, inter alia, an order requiring Defendants to complete the malathion consultation by a

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date certain. That consultation has been completed, and the parties currently are engaged in

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efforts to resolve the remainder of the action. In view of the foregoing, Plaintiff’s motion

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for summary judgment shall be denied without prejudice to renewal. Specifically, in the

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event the parties are unable to execute their draft Second Partial Settlement Agreement,

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Plaintiff may refile a motion for summary judgment directed to those aspects of the action

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that remain. A deadline to file dispositive motions and a briefing schedule will be set in the

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event the parties’ anticipated settlement is not realized.

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Accordingly,

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IT IS HEREBY ORDERED THAT:

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1.

Defendants’ motion for a stay of proceedings is denied as moot.

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2.

Plaintiffs’ motion for summary judgment is denied without prejudice to

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renewal. Specifically, in the event the parties’ anticipated settlement is not realized,

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Plaintiff may refile a motion for summary judgment directed to those aspects of the action

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that remains.

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3.

The parties shall file a joint status report addressing the progress of their

settlement efforts by no later than June 30, 2022.
IT IS SO ORDERED.
Dated: 3/31/2022

______________________________RS
Richard Seeborg for Saundra B. Armstrong
United States District Judge

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