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NATIONAL ORG. FOR THE REFORM OF MARIJUANA LAWS V.

August 17, 1982

The NATIONAL ORGANIZATION FOR THE REFORM OF MARIJUANA LAWS, Plaintiff,
v.
UNITED STATES DRUG ENFORCEMENT ADMINISTRATION, et al., Defendants



The opinion of the court was delivered by: PARKER

 BARRINGTON D. PARKER, District Judge:

 The plaintiff, the National Organization for the Reform of Marijuana Laws (NORML), *fn1" is a non-profit membership organization. It seeks to enjoin the herbicidal spraying of marijuana plants in the State of Florida. NORML alleges in the complaint that the federal defendants, the Drug Enforcement Administration (DEA) and the Environmental Protection Agency (EPA), together with the Florida Department of Law Enforcement (FDLE), have failed to prepare an environmental impact statement (EIS) on the eradication of marijuana with herbicides as required by the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq. NORML further claims that the defendants are violating the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. § 136 et seq., because the use of the herbicide paraquat on marijuana crops is a non-approved use under the Act. It contends that any attempt to use paraquat in the State of Florida without first complying with statutory requirements and safeguards is violative of the Acts.

 This proceeding was filed on July 28, 1982. At an earlier hearing on NORML's application for a temporary restraining order, all parties agreed to an expedited briefing schedule which would permit the Court to hear and consider full oral argument on the merits. The Court's ruling would then be final and subject to appeal. The State of Florida agreed, with the understanding, however, that its challenges to jurisdiction and venue would be preserved. The parties presented their oral arguments to the Court on August 11, 1982.

 The plaintiff has moved for a declaratory judgment and seeks a preliminary injunction barring further planning, expenditure of funds or any other assistance for the spraying of paraquat until the requirements of the NEPA and the FIFRA are fulfilled. The FDLE has moved to dismiss or, in the alternative, for summary judgment. The federal defendants have moved for summary judgment.

 Upon consideration of all the legal memoranda, affidavits, and oral argument of counsel, the Court denies the plaintiff's application for a preliminary injunction and determines that the defendants' motions for summary judgment should be granted and that this proceeding should be dismissed.

 The factual background of this case may be briefly stated. Paraquat is a pesticide used to control annual broadleafed weeds, such as marijuana. When sprayed on marijuana, paraquat destroys the plants within 24 to 72 hours, turning the plants yellowish and making them brittle and unsalable. If, however, the plants are harvested immediately after spraying and removed from sunlight, the marijuana remains saleable, although some residue of the paraquat may remain, potentially causing health hazards to marijuana consumers.

 In 1981, the FDLE, concerned about extensive illegal cultivation of marijuana in the state, selected paraquat as an herbicide effective in marijuana eradication. Florida and the DEA have, through aerial surveying, located over a hundred marijuana fields. The FDLE plans, within the next few weeks, to spray paraquat on some of the fields with backpack sprayers and trucks.

 The extent of federal involvement in this program is, as will be seen below, of central significance in the resolution of the legal issues posed by defendants' motions. The DEA has provided financial and technical assistance to the State of Florida for marijuana law enforcement. Such assistance has included training in aerial spotting techniques and financial assistance for aerial spotting equipment. The DEA has also shared technical information on herbicides. In fiscal year 1981, the DEA disbursed $14,000 to the State of Florida for marijuana law enforcement. In fiscal year 1982, DEA has budgeted $60,000 to assist in marijuana law enforcement of which approximately $30,000 has been authorized for expenditure to date. However, none of this money has been used for herbicidal spraying, and DEA personnel would not be involved in the actual spraying. FDLE officials have stated, in affidavits submitted in this action, that the State intends to eradicate marijuana with paraquat without regard to whether the DEA continues to provide financial and technical assistance to the state for other aspects of marijuana law enforcement.

 Even though the DEA itself does not conduct or finance herbicidal eradication, DEA officials have prepared an assessment of the environmental effect of use of paraquat on marijuana. The environmental assessment was prepared to determine whether DEA's involvement in the paraquat spraying program is a "major federal action significantly affecting the quality of the human environment" that requires preparation of an EIS under the NEPA. The DEA Administrator approved the environmental assessment on July 10, 1981, and concluded that DEA is insufficiently involved in the spraying program to require preparation of an EIS. The Administrator also concluded that the spraying of paraquat will not have a significant effect on the quality of the human environment.

 Legal Analysis

 The defendants' arguments are two-fold. First, they argue that the planned spraying program is a state, rather than federal, action. As a result, the FDLE contends that (a) the Eleventh Amendment serves as a bar to this suit, (b) subject matter jurisdiction is lacking, (c) venue is lacking in the District of Columbia. All defendants further contend that because there is minimal federal involvement, the requirements of the NEPA do not apply here. Second, the defendants argue that even if this Court has jurisdiction and venue over the defendants and even if a cause of action is stated ...


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