Johanns

MEMORANDUM AND ORDER

Nine plaintiffs, comprised of organic farms and member organizations opposed to the over-use of pesticides and the propagation of genetically modified foods, are suing several government officials and agencies over the deregulation of alfalfa hay engineered to be genetically resistant to the common herbicide Roundup. In the Fourth Claim of the Complaint, Center for Food Safety (“CFS”), Beyond Pesticides, and Sierra Club (collectively referred to as “Plaintiffs”) claim the Environmental Protection Agency (“EPA”) violated the Endangered Species Act (“ESA”) when it determined the tolerance level of glyphosate in food for human consumption without consulting the Fish and Wildlife Service (“FWS”) to ascertain any potential effect on three endangered species.

Now pending before the Court is the EPA’s motion to dismiss this claim, the only claim against it, on the ground that the Court lacks subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Defendants contend the suit is not properly brought in the federal district court for two reasons: 1) that plaintiffs failed to exhaust their administrative remedies available under…