Orr v. U.S. EPA

• Decision Date: 15 May 2020
• Docket Number: 1:19-cv-226-MOC-WCM
• Parties: WILLIAM ORR, Plaintiff, pro se, v. U.S. EPA, et al., Defendants.
• Court: U.S. District Court — Western District of North Carolina

WILLIAM ORR, Plaintiff, pro se, v. U.S. EPA, et al., Defendants.

1:19-cv-226-MOC-WCM

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA ASHEVILLE DIVISION

May 15, 2020

ORDER

THIS MATTER comes before the Court on the following motions: a Motion to Dismiss, filed by Defendants French Broad Electric Membership Corporation and Jeff Loven, (Doc. No. 37), a Motion to Dismiss filed by Defendants U.S. Department of Interior ("DOI"), U.S. EPA ("EPA"), U.S. Fish and Wildlife Service ("FWS"), and U.S. Forest Service ("USFS"), (Doc. No. 40); and pro Plaintiff William Orr's Motion for Reconsideration of the Court's Order denying Plaintiff's Motion to Toll Proceedings, (Doc. No. 50).

I. BACKGROUND

A. The Parties and Background to this Litigation

Plaintiff William Orr lives in an isolated portion of Roan Mountain in North Carolina and describes himself as a naturalist, hiker, scientist, inventor, and organic gardener. (Doc. No. 36 at 54, 56-59). Defendant FBEMC is a rural, electric membership cooperative based out of Marshall, North Carolina, serving over 39,000 people in Madison, Buncombe, Yancey, and Mitchell Counties in North Carolina, and Unicoi and Cocke Counties in Tennessee. FBEMC maintains over 4,500 miles of distribution line, with 3,300 miles being overhead, to ensure that its members receive reliable electricity service. (Doc. No. 1, Attachments 1-2). The biggest threat to FBEMC's service to its members are trees that grow under its power lines. (Id.). To maintain its rights-of-way, FBEMC has at times sprayed an herbicide compound of Rodeo and Polaris on the leaves of saplings. The herbicide compound is EPA-approved. FBEMC's service areas includes Roan Mountain. FBEMC used its herbicide spray to maintain the rights-of-way in the area in 2017 and 2019. FBEMC completed its spraying on Roan Mountain in 2019.

Plaintiff is not a member of FBEMC, nor does he live near any FBEMC rights-of-way. (Doc. No. 10). Plaintiff alleges, however, that the herbicide compound used by FBEMC, specifically glyphosate, an active ingredient in the compound, is irreparably harming the habitat and endangered species on Roan Mountain. (Doc. No. 36). Plaintiff contends that the harm has been caused by "secondary hydrous transport," which causes the herbicide to drift miles away from the initial spray site during times of atmospheric moisture. Plaintiff alleges that Roan Mountain's ecosystem's "wounds and hurt are felt emotionally and spiritually by [Plaintiff]." (Doc. No. 1-3¹,² at 3). Plaintiff believes this drift transported herbicide all over Roan Mountain, including "into" Plaintiff's home and affecting critical habitats and protected endangered species. See (Doc. No. 36 at 15).

Plaintiff further claims that, while living on Roan Mountain, he has developed an intimate relationship with the endangered species Bombus affinis, known as the Rusty Patched Bumble Bee. (Doc. No. 36, Attachment p. 20). Plaintiff's Amended Complaint alleges that, before the spraying in 2017, the Rusty Patched Bees frequently visited his home. He furtherclaims that the 2017 spraying caused the Roan Mountain area to be too toxic for the bees because thereafter he found two dead bees. (Doc. No. 1, p. 17-18; Doc. 36, p. 17, Attachment 1).

On or around April 30, 2018, Plaintiff alleges he submitted/served on Defendants a letter styled as both a supplement to his May 26, 2017, Notice of Intent to Sue Letter and as public comments to EPA regarding EPA's Human Health and Ecological Risk Assessment of Glyphosate. (Doc. No. 36 at 16-17; Doc. No. 1-4). These comments purportedly raise his concern that registered pesticides such as Glyphosate can affect protected species' habitat. (Doc. No. 36 at 16-17). Plaintiff supplemented this public comment on or around May 5, 2018, through a document titled "Supplemental Notice of Imminent ESA § 9 Take of Critical Habitat/Protected Species on Roan Mountain." (Doc. No. 1-5).

Plaintiff alleges that, on or around July 5, 2019, he sent another letter to all Defendants that appears to be additional comments regarding EPA's Proposed Interim Registration Review Decision of Glyphosate and a "Continuing § 9 Notice of Take and Intention to Sue [] Pursuant to ESA § 1540(g)." (Doc. No. 1-6 at 2; Doc. No. 36). The July 5, 2019, letter also purportedly serves as a supplement to Plaintiff's prior May 26, 2017, "take" letter and April 30, 2018, take/comment letter described above. (Doc. No. 1-6 at 2). Five days later, on July 10, 2019, FBEMC allegedly began re-spraying the Rodeo/Polaris herbicide mixture on portions of Roan Mountain, including the rights-of-way easements near Plaintiff's home. (Doc. No. 36 at 79, ¶ 78).

Plaintiff initiated this action on July 19, 2019, naming the following persons and entities as Defendants: (1) FBEMC; (2) Jeff Loven, FBEMC's general manager; (3) U.S. Department of Interior ("DOI"); (4) U.S. EPA ("EPA"); (5) U.S. Fish and Wildlife Service ("FWS"); and (6)U.S. Forest Service ("USFS").³ On September 13, 2019, Defendants FBEMC and Loven filed a motion to dismiss Plaintiff's Complaint. (Doc. No. 16). On September 30, 2019, DOI, EPA, FWS, and USFS (hereinafter referred to as the "federal defendants") filed their own motion to dismiss. (Doc. No. 20). On January 14, 2020, this Court granted Plaintiff's motion for leave to file his Amended Complaint. See (Doc. No. 35 at 7). Although Plaintiff's allegations are not clear, it appears that Plaintiff now raises the following claims against Defendants:

• Defendant FBEMC and Jeff Loven are violating the federal Endangered Species Act ("ESA") by spraying herbicides on Roan Mountain. (Doc. No. 36 at 13, 15, 23-25).

• the federal defendants have violated the ESA by failing to enforce/apply the provisions of the ESA and its regulations against FBEMC. (Doc. No. 36 at 10).

• FWS has violated Section 9 of the ESA, 16 U.S.C. § 1538, by failing to properly monitor ESA protected species and critical habitat on Roan Mountain, resulting in a "take" of protected species by FBEMC. (Id.).

• EPA and FWS have violated Section 7 of the ESA, 16 U.S.C. § 1536(a)(2), by failing to consult with each other to ensure Rodeo and Polaris herbicides and other registered pesticides/herbicides are not used in a manner that would jeopardize threatened or endangered species or destroy or adversely modify critical habitats. (Id.).

• EPA has violated the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA") by allowing for the continued registration and use of pesticides/herbicides containing Glyphosate and Imazapyr. (Id. at 11-14).

Plaintiff's Amended Complaint seeks to (1) enjoin the application of herbicides containing Glyphosate and Imazapyr on or near Roan Mountain to the extent these herbicides "take" protected species in a manner violating ESA Section 9; (2) require EPA to issue a notice of intentto cancel the registration of herbicides containing Glyphosate and Imazapyr; (3) require EPA to modify manufacturer product labels for registered pesticides/herbicides that cause a "take" of protected species at or near Roan Mountain; (4) require EPA to make a posting in EPA's Endangered Species Protection Program ("ESPP") Bulletin regarding herbicides that may cause a "take" under ESA Section 9; and (5) require the USFS and FWS to enforce ESA Section 9 against third-parties to prevent them from allowing the application of herbicides that cause a take of protected species on Roan Mountain and to conduct monitoring/testing on Roan Mountain as required by law. (Id. at 2-4).

B. Relevant Environmental Laws and Regulations

1. The Endangered Species Act

As noted, Plaintiff alleges that Defendants have violated the Endangered Species Act ("ESA"), which protects threatened or endangered species. 16 U.S.C. § 1533. The Secretaries of Commerce and the Interior share responsibility for implementing the ESA. The Secretary of the Interior, acting through the Fish and Wildlife Service ("FWS"), has responsibility over terrestrial and inland fish species. See id. § 1532(15); 50 C.F.R. §§ 17.11, 402.01(b). The Secretary of Commerce, acting through the National Marine Fisheries Service ("NMFS"), has responsibility over marine species (including anadromous salmonids), none of which are at issue in this case.

Section 7 of the ESA directs federal agencies to ensure, in consultation with FWS or NMFS (the "consulting agency"), that "any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of" any listed species or destroy or adversely modify designated critical habitat. 16 U.S.C. § 1536(a)(2). The term "action" is defined as "all activities or programs of any kind authorized, funded, or carried out, in whole or in part, byFederal agencies in the United States or upon the high seas." 50 C.F.R. § 402.02. Section 7 applies to "all actions in which [the Federal agency has] discretionary Federal involvement or control." Id. § 402.03. If the agency proposing the relevant action ("action agency") determines that the action "may affect" listed species or critical habitat, Section 7 requires the action agency to pursue consultation with either FWS or NMFS, depending on the species. Id. §§ 402.13-402.14. The purpose of consultation is to determine whether the proposed action is likely to "jeopardize the continued existence of" any listed species or destroy or adversely modify the critical habitat of such species. 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14.

Unlike Section 7, which applies only to federal agency actions, Section 9 of the ESA makes it unlawful for any person to "take" endangered species or engage in other prohibited acts regarding species protected under the ESA. 16 U.S.C. § 1538(a)(1)(B). To "take" means to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct" that would affect an endangered species. Id. § 1532(19). A person—defined to include, among other things, a corporation or...