Plaintiff Counters EPA’s Attempt to Dismiss Lawsuit Over Lack of Pesticide Warning Signs

On Tuesday in the Southern District of California, JCM Farming Inc. filed an opposition to the Environmental Protection Agency (EPA)’s motion to dismiss a lawsuit filed against it, alleging that the EPA and its administrator, Andrew Wheeler, breached the Administrative Procedure Act (APA) and the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) when they did not properly place signs in Coachella Valley agricultural fields warning of dangerous pesticides and chemicals. 

JCM Farming said that it “documented the lack of signage and notified State, local, and federal officials, to no avail,” which led the company to file the lawsuit to compel action. The company said signs have not warned of exposure to chemicals in the valley for at least ten years, and pesticides have continually been sprayed on the farmland. 

The EPA asserted in its motion that the APA charges were not applicable because FIFRA’s enforcement is discretionary. The EPA said the complaint did not allege an action by the agency under the APA. The plaintiff, however, claimed that the referral provision is mandatory and that the APA must refer the matter to the state and act if the state does not take action. 

The EPA also claimed improper venue, based on the case discussing real property. The plaintiffs countered this claim and purported that the venue is correct because the case does not concern real property, but rather a failure to enforce regulations. 

The plaintiffs’ opposition stated, the “defendants could moot this lawsuit by simply referring to State authorities the violations set forth in Plaintiff JCM Farming’s complaint. Defendants’ failure to do so – and their attempt instead to stymie Plaintiff’s efforts to call attention to this public health threat, by moving to dismiss the Complaint – should concern everyone.” The opposition asked for a complete dismissal of the defendant’s motion to dismiss the lawsuit. 

The plaintiffs are represented by Tomas Morales and Nathaniel R. Smith and the EPA is represented by the U.S. Department of Justice. The motion to dismiss will be considered by the court during a hearing on October 19.