Almond Hill School v. U.S. Dept. of Agr.

• Decision Date: 12 August 1985
• Docket Number: No. 84-1943,84-1943
• Citation: 768 F.2d 1030
• Parties: , 15 Envtl. L. Rep. 20,985 ALMOND HILL SCHOOL, et al., Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF AGRICULTURE, John R. Block, Secretary; and California Department of Food and Agriculture, Clare Berryhill, Director; and T.L. Ladd, Chairman, Japanese Beetle Science Advisory Panel, in their official capacities, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1030

768 F.2d 1030

54 USLW 2129, 15 Envtl. L. Rep. 20,985

ALMOND HILL SCHOOL, et al., Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF AGRICULTURE, John R. Block Secretary; and California Department of Food and Agriculture, Clare Berryhill, Director; and T.L. Ladd Chairman, Japanese Beetle Science Advisory Panel, in their official capacities, Defendants-Appellees.

No. 84-1943.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 12, 1985.

Decided Aug. 12, 1985.

Duane C. Miller, Miller & Rolfe, Sacramento, Cal., for plaintiff-appellants.

Roderick E. Walston, San Francisco, Cal., David C. Shilton, Washington, D.C., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of California.

Before SNEED, TANG and CANBY, Circuit Judges.

TANG, Circuit Judge:

Almond Hill School and numerous other plaintiffs in the Sacramento area appeal the district court's denial of their motion for a preliminary injunction to halt the State's use of pesticide spraying to combat a Japanese beetle infestation in their area. The issues presented are whether these plaintiffs may state a private cause of action through 42 U.S.C. Sec. 1983 to enforce the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. Secs. 136 et seq., and whether federal participation in the California beetle eradication project is sufficient to trigger the environmental impact statement requirement of the National Environmental Policy Act (NEPA), 42 U.S.C. Secs. 4331 et seq.

I.

In June, 1983, several Japanese beetles were found in the Sacramento area. The California Department of Food and Agriculture (CDFA) conducted a trapping and detection program which indicated that the number of beetles in the area was increasing rapidly. ¹

In response to the threat, the CDFA convened a scientific advisory panel to study the problem and to recommend possible action to stop the infestation. The CDFA invited Thyril Ladd, a research entomologist with the United States Department of Agriculture, to head the eight-member advisory panel. As part of his responsibilities, Ladd aided in the selection of five other individuals to serve on the panel, including two federal officials. Their travel expenses were paid by the State of California although the State did not reimburse the federal government for any part of their federal salaries. The panel also included research entomologists from Pennsylvania State University, the New York State Agricultural Experiment Station, and three officials from the CDFA.

The panel recommended to the CDFA that insecticide spraying be used to combat the threat of infestation. The CDFA adopted the recommendation and implemented a spraying program later in the summer. Approximately 4,500 homes in a four square mile area were sprayed with carbaryl, diazinon and oftanol. The spraying of oftanol was halted after tests on laboratory animals indicated health risks associated with exposure to that pesticide which prompted the State to suspend its registration. Spraying with carbaryl and diazinon continued as part of the beetle eradication project.

The appellants, approximately 100 citizens in the Sacramento area, brought this action in the Eastern District of California to enjoin the pesticide spraying. They have brought an action through 42 U.S.C. Sec. 1983, claiming that the eradication project is utilizing pesticides in violation of the labeling provisions of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. Secs. 136 et seq. They also claim that the project violates the National Environmental Policy Act (NEPA), 42 U.S.C. Secs. 4332 et seq., because the spraying commenced without compliance with the Act's environmental impact statement requirement. Named as defendants in the action are the United States Department of Agriculture, the Secretary of the Department of Agriculture, the California Department of Food and Agriculture and its Director, and the head of the State's scientific advisory panel, Thyril Ladd.

The district court denied injunctive relief. It concluded that the plaintiffs could not demonstrate probable success on the merits of their NEPA claim because there was a lack of evidence that the federal government was sufficiently involved with the spraying project to render it federal for NEPA purposes. It also concluded that the balance of hardships tipped in favor of the State because the causal connection between exposure to the pesticides and the asserted health risks was questionable while the risk of significant agricultural losses was great. ² The district court considered the potential consequences of an erroneous injunction to be higher costs to agriculture, increased spraying costs upon resumption of the project, and a wider geographic exposure to spraying should the beetle infestation spread.

The district court denied relief on the FIFRA claim, concluding that probable success on the FIFRA claim was not likely and that the balance of hardships did not tip in favor of the plaintiffs. The district court expressed doubt as to whether a private right of action existed through 42 U.S.C. Sec. 1983 to enforce FIFRA, but did not decide that issue. The plaintiffs' motion for an injunction pending appeal was denied by this court on May 14, 1984.

II.

Initially, we must address a challenge to our jurisdiction. The state defendants contend that the eleventh amendment bars this action against them for alleged violations of federal statutes. They concede that actions seeking injunctive relief against state officials may be heard in federal court when the complaint alleges that the officials were acting unconstitutionally. Because the claim in this case alleges violations of federal statutory law only, the state defendants urge this court to apply the general eleventh amendment rule prohibiting suits against state officials when the state is the real party in interest.

The eleventh amendment prohibits federal courts from entertaining suits brought by private citizens against any state in the absence of state consent. Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). ³ Naming state officials as defendants rather than the state itself will not avoid the eleventh amendment when the state is the real party in interest. The state is the real party in interest when the judgment would tap the state's treasury or restrain or compel government action. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 908 n. 11, 79 L.Ed.2d 67 (1984) (Pennhurst II ); Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L.Ed.2d 15 (1963).

An exception for suits against state officers that impact on the state itself is allowed to prevent the enforcement of unconstitutional state action. Such suits are not considered suits against the state because the state cannot authorize officials to act in violation of the federal constitution. The official acting unconstitutionally is therefore "stripped of his official or representative character." Ex parte Young, 209 U.S. 123, 160, 28 S.Ct. 441, 454, 52 L.Ed. 714 (1908). The Ex parte Young exception is necessary "to permit the federal courts to vindicate federal rights and hold state officials responsible to 'the supreme authority of the United States.' " Pennhurst II, 104 S.Ct. at 910 (quoting Ex parte Young, 209 U.S. at 160, 28 S.Ct. at 454). Thus, the eleventh amendment does not bar an injunctive action against a state official that is based on a theory that the officer acted unconstitutionally.

The doctrine of Ex parte Young, however, has been limited to actions for prospective relief. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). Fiscal effects on state treasuries are acceptable only to the extent they are necessarily incident to compliance with prospective orders. Hutto v. Finney, 437 U.S. 678, 690, 98 S.Ct. 2565, 2573, 57 L.Ed.2d 522 (1978); Edelman, 415 U.S. at 668, 94 S.Ct. at 1358. Extending Ex parte Young to actions for retroactive relief (damages) would eviscerate the concept of sovereign immunity inherent in the eleventh amendment. Edelman, 415 U.S. at 665, 94 S.Ct. at 1356. Thus, limiting Ex parte Young to actions which only seek prospective relief "fulfills the underlying purpose of Ex parte Young while at the same time preserving to an important degree the constitutional immunity of the States." Pennhurst II, 104 S.Ct. at 911.

The state defendants' contention that the eleventh amendment bars injunctive actions against state officials for violations of statutory law contravenes the supremacy clause itself, as well as the thrust of Ex parte Young. The underlying purpose of Ex parte Young seems to require its application to claims against state officials for violations of federal statutes. Allegheny County Sanitary Authority v. U.S. Environmental Protection Agency, 732 F.2d 1167, 1174 (3d Cir.1984). Certainly, such claims have been entertained in the past. See, e.g., Swift & Co. v. Wickham, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965). To hold otherwise would allow states to disregard the requirements of federal statutes, undermining the power of federal courts to "vindicate federal rights and hold state officials responsible to 'the supreme authority of the United States.' " Pennhurst II, 104 S.Ct. at 910. States may not act inconsistently with the supreme authority of federal statutes and regulations. Fidelity Federal Savings & Loan Assn. v. De la Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014, 3022, 73 L.Ed.2d 664 (1982); Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963); Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581 (1941). Consequently, a state cannot authorize its officials to act in violation of federal statutory law. Here, the state defendants contend that the Ex parte Young exception to eleventh amendment immunity does not embrace claims for relief based on...