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Gem County Mosquito Abatement District v. Environmental Protection Agency

January 4, 2005

GEM COUNTY MOSQUITO ABATEMENT DISTRICT AND GEM COUNTY, PLAINTIFFS,
v.
ENVIRONMENTAL PROTECTION AGENCY, MICHAEL O. LEAVITT, PETER DILL, ST. JOHN'S ORGANIC FARM, AND DOES 1-50, DEFENDANTS.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Court Judge

MEMORANDUM OPINION

The Gem County Mosquito Abatement District ("GCMAD") and Gem County, Idaho, sue the Environmental Protection Agency ("EPA"), its Administrator, Michael O. Leavitt, in his official capacity (collectively, the "Federal Defendants"), and two Idaho private parties, Peter Dill and St. John's Organic Farm (collectively, the "Private Defendants"). The underlying dispute concerns GCMAD's use of pesticides to control mosquitos and mosquito larvae throughout the 2,000 square miles of Gem County that the Private Defendants have alleged is contrary to their interests in raising crops without pesticides. The Private Defendants alleged that the use of such pesticides requires a permit under the Clean Water Act ("CWA") and threatened to sue.*fn1 Although GCMAD believed that its activities were fully regulated by the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA"), 7 U.S.C. § 136 et seq., and that no CWA permit was necessary, it applied for such a permit to avoid litigation. EPA has not issued a permit because the Federal Defendants agree that no CWA permit is required under these circumstances. Meanwhile, the Private Defendants made good on their threat and sued the Plaintiffs in a separate action in the United States District Court for the District of Idaho.

In the instant case, GCMAD and Gem County seek a declaration that GCMAD is not required to obtain a CWA permit, as well as an injunction barring EPA or the Private Defendants from asserting that it does. In the alternative, the Plaintiffs seek an order directing the Federal Defendants to process GCMAD's application for a permit. All Defendants have filed motions to dismiss for lack of subject-matter jurisdiction and for failure to state a claim on which relief may be granted. Private Defendants also move in the alternative for transfer to Idaho federal district court. Plaintiffs oppose these motions and are joined by the Washington Potato Growers Association, et al., as amici curiae.*fn2 Having considered the parties' arguments and the entire record, the Court will grant the motions to dismiss.

BACKGROUND

Gem County is a political subdivision of the State of Idaho and contains approximately 2,000 square miles, much of it farmland. Amend. Compl. ¶ 7. Gem County is in a rural agricultural area of Idaho. In the 2000 census, Gem County's population was 15,181, id., or approximately 27 people per square mile. Id. ¶ 16.

Because of its terrain features and hydrology, much of the land in Gem County is suitable for mosquito habitat. Id. ¶ 17. In the absence of abatement activities, Gem County experiences an extremely high mosquito population. Id. ¶¶ 16, 17.

Established in 1960, GCMAD is a legal entity organized under the laws of the State of Idaho to undertake mosquito abatement activities against adult and larval mosquitoes. Id. ¶ 6. It uses chemical larvicide and pesticides that are subject to extensive regulation under FIFRA. Id. ¶ 6(a). These chemicals are evaluated and registered by EPA under FIFRA and their use is highly regulated. Id. ¶¶ 15, 23, 24.

Around August of 1999, Mr. Dill sent a letter to GCMAD demanding that it cease allowing its pesticides to enter his property. Id. ¶ 24.

He complained about the noise of the airplane, perceived threats to him and his family from a potential plane crash, and a perceived threat to the certification of [St. John's Organic Farm] as an organic operation, although no activity of GCMAD to the date of this Complaint has affected any organic certification. He also demanded that GCMAD observe flight levels set by him, much of which could not be done for safety reasons, and he opposed fogging in the vicinity of his property in addition to aerial application.

Id. GCMAD's attempts to accommodate Mr. Dill's concerns engendered complaints from other County residents that mosquito abatement was suffering. Id. ¶ 25. Threatened by a lawsuit from unhappy residents, GCMAD decided to continue its activities as originally planned. Id.

On or about June 16, 2003, GCMAD received a "60-day notice letter" from the Private Defendants threatening a citizen's suit under the CWA and promising to seek fines and penalties if GCMAD did not cease its activities until it obtained an NPDES permit. Although GCMAD firmly believes that its activities are regulated solely by FIFRA and that no NPDES permit is required, it submitted an application for a permit to EPA that was received by EPA on or about July 10, 2003. As luck would have it, on the very next day, EPA's Assistant Administrators for Water and for Prevention, Pesticides, and Toxic Substances, issued an "Interim Statement and Guidance on Application of Pesticides to Waters of the United States in Compliance with FIFRA" ("Interim Guidance"). See Amend. Compl., Exh. A. This interim guidance concluded that "the application of a pesticide to waters of the United States consistent with all relevant requirements of FIFRA does not constitute the discharge of a pollutant that requires an NPDES permit under the Clean Water Act" in at least two circumstances. Id. The two circumstances include application of pesticides directly to waters in the United States to control pests, such as mosquito larvae, and the application of pesticides to control pests that are present over waters of the United States, such as adult mosquitos. Id. According to the Interim Guidance, it reflected thirty years of consistent conduct by EPA. Id. After the Interim Guidance was issued, EPA sought public comments and is now considering those comments.

Because the Interim Guidance advises EPA Regional Offices that no NPDES permit need be issued when pesticides are applied in a manner consistent with FIFRA and its regulations, EPA has not issued an NPDES permit to GCMAD. Amend. Compl. ¶ 28(b). Indeed, an email from the EPA indicated that GCMAD would not receive a permit. See Amend. Compl., Exh. B ("HQ sent out their interim guidance for pesticides of certain situations.... I don't know what it will mean for you in your situation [the threatened lawsuit] but it does mean that EPA is not going to issue a permit for pesticide applications....").

The Plaintiffs filed this suit in an attempt to obtain a declaration that GCMAD does not need an NPDES permit and to avoid litigation with the Private Defendants. Four months after the complaint was filed in this case, the Private Defendants instituted litigation in Idaho, claiming that GCMAD must have an NPDES permit to use pesticides in mosquito abatement activities. That action has been stayed pending resolution of the motions to dismiss brought in this Court. See St. John's Organic Farm v. Gem County Mosquito Abatement Dist., No. 04-87 (D. Idaho filed Sept. 23, 2004).

ANALYSIS

The Plaintiffs claim that a series of actions by both the public and private defendants placed them in "an untenable position, the proverbial 'rock and a hard place.'" Opp. at 2. As explained in the Amended Complaint:

[D]efendants Peter Dill and St. John's Farm assert than an NPDES permit is required for application of FIFRA regulated pesticides. They demand that plaintiffs cease any application of pesticides, even in accordance with FIFRA regulations and EPA approved instructions, until it obtains such a permit on pain of suffering protracted and expensive litigation and the possible imposition of significant fines and penalties. The EPA, on the other hand, de facto and/or de jure denied plaintiff's permit application.....

The only other alternative left to plaintiffs under the private defendants' continuing demands is to abdicate plaintiffs' statutory responsibility which will subject them to litigation and other legal sanctions [by other citizens of the County]....

Amend. Compl. ΒΆΒΆ 31, 32. The prayer for relief seeks a judgment that no NPDES permits are required for the application of FIFRA-regulated pesticides, an injunction prohibiting all defendants from asserting otherwise, and, in the alternative, if the Court determines that an NPDES permit is ...


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