ELR Citation: ELR 20706
No(s). 73-1405-LTL (C.D. Cal. Mar 25, 1974)

The court grants partial summary judgment against plaintiff who alleged that the Brushland Management Program of the U.S. Forest Service violates both NEPA and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Plaintiff's contention that defendants are violating FIFRA by using a pesticide in a manner inconsistent with its label is improperly advanced since Congress reserved enforcement of the statute to EPA and the Attorney General, and violations are consequently not the proper subject of citizen suits. The court also rules that defendants' use of the pesticide does not constitute agency action within the meaning of 5 U.S.C. §551, and therefore is not subject to judicial review under the Administrative Procedure Act. Holding that plaintiff thus lacks standing to maintain its FIFRA claims, the court grants summary judgment to defendants on those issues. Plaintiff's NEPA claims, however, are ruled to be properly based on §10 of the Administrative Procedure Act.

Counsel for Plaintiff
Jonathan M. Yost
1532 Third Street
Santa Monica, CA 90401

Counsel for Defendants
William D. Keller U.S. Attorney
Matthew A. Schumacher
Huston T. Carlyle, Jr. Asst. U.S. Attorneys
U.S. Courthouse
312 N. Spring Street
Los Angeles, CA 90012

Counsel for Intervenor City of Los Angeles
Burt Pines City Attorney
Claude E. Hilker Asst. City Attorney
Gary R. Netzer
Gregory C. O'Brien Jr. Deputy City Attorneys
City Hall
200 N. Spring Street
Los Angeles, CA 90012