Cactus Corner, LLC v. U.S. Dept. of Agriculture
| Decision Date | 11 March 2004 |
| Docket Number | No. CIV-F-02-6270 OWW SM.,CIV-F-02-6270 OWW SM. |
| Citation | 346 F.Supp.2d 1075 |
| Court | U.S. District Court — Eastern District of California |
| Parties | CACTUS CORNER, LLC, a California Limited Liability Corporation; Venida Packing Company, a California Corporation; California Citrus Mutual; and California Grape and Tree Fruit League, Plaintiffs, v. U.S. DEPARTMENT OF AGRICULTURE; Ann V. Veneman, Secretary of Agriculture; and Bobby R. Acord, Administrator, Animal and Plant Health Inspection Service, Defendants, InterCitrus, a Spanish Trade Association; Ibertrade Commercial Corporation, a New York Corporation; LGS Special Sales, Ltd., a New York "S" Corporation; and Luke G. Sears, President of Lgs Special Sales, Ltd., Intervenor-Defendants. |
Neil J King, Wilmer Cutler Pickering LLP, Washington, DC, Jan L Kahn, Kahn Soares and Conway, Hanford, CA, for Cactus Corner LLC.
Jan L Kahn, Kahn Soares and Conway, Hanford, CA, for Venida Packing Co., California Citrus Mutual, California Grape and Tree Fruit League.
Linda Anderson, United States Attorney's Office, Fresno, CA, Daniel Bensing, United States Department of Justice, Civil Division, Washington, DC, for U.S. Dept. of Agriculture.
Brian C Leighton, Law Offices of Brian Leighton, Clovis, CA, for InterCitrus, Ibertrade Commercial Corp., LGS Specialty Sales Ltd.
David A Holzworth, Lepon Holzworth and Kato PLLC, Washington, DC.
MEMORANDUM DECISION AND ORDER RE: (1) PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT; (2) FEDERAL DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; (3) FEDERAL DEFENDANTS' REQUEST FOR JUDICIAL NOTICE; and (4) INTERVENOR-DEFENDANTS' REQUEST FOR JUDICIAL NOTICE(DOCS. 23, 31, 34, and 39)
Cactus Corner, LLC, Venida Packing Company, California Citrus Mutual, and the California Grape and Tree Fruit League ("Plaintiffs") sue the United States Department of Agriculture, Secretary of Agriculture Ann M. Veneman, and Bobby R. Acord, the Administrator of the Department of Agriculture's Animal and Plant Health Inspection Service ("Defendants" or "Federal Defendants") seeking judicial review of a final rule entitled "Importation of Clementines from Spain" (the "Rule") promulgated in 67 Fed.Reg. 64702 (October 21, 2002), effective October 15, 2002. See Doc. 1, Complaint for Declaratory and Injunctive Relief ("Complaint") at ¶¶ 1, 4-10. Plaintiffs advance four claims, that the Rule is: (1) inconsistent with and in excess of Defendants' statutory authority under the Plant Protection Act, 7 U.S.C. §§ 7701 et seq., as provided in section 10 of the Administrative Procedure Act, 5 U.S.C. § 706(2)(C); (2) "arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law" as provided in section 10 of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A); (3) violative of the Regulatory Flexibility Act, 5 U.S.C. §§ 601 et seq., and fails to observe procedure required by law, namely the preparation of an initial or final regulatory flexibility analysis for the Rule required by the Regulatory Flexibility Act (RFA), the decisional standards required under the PPA, and (4) violative of section 102 of the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4332. See id. at 10. Plaintiffs seek declaratory and injunctive relief to set aside and hold the Rule unlawful, to enjoin Defendants from implementing it or otherwise allowing the importation of clementines from Spain. See id. at 10. Plaintiffs also seek an award of costs, disbursements, and reasonable attorneys' fees. See id.
On November 12, 2002, InterCitrus, Ibertrade Commercial Corporation, LGS Specialty Sales, Ltd., and Luke G. Sears (Intervenor Defendants) moved under Fed.R.Civ.P. 24(a)(2) to intervene in the case as a matter of right. See Doc. 6. On December 20, 2002, the motion to intervene was granted. See Doc. 11, filed Jan. 7, 2003.
Plaintiffs move for summary judgment. See Doc. 23, filed Mar. 24, 2003, and Doc. 24. Federal Defendants filed a cross-motion and supporting memorandum for summary judgment.1 See Doc. 31, filed Apr. 25, 2003, and Doc. 32. Intervenor-Defendants filed opposition. See Doc. 30 filed Apr. 22, 2003. Plaintiffs filed opposition to Federal Defendants' motion and a response to Intervenor-Defendants' opposition to Plaintiffs' motion. See Doc. 38 filed May 27, 2003. Federal Defendants filed a response to Plaintiffs' opposition. See Doc. 43 filed Jun. 19, 2003.
Pursuant to Fed.R.Evid. 201, Federal Defendants request the Court take judicial notice of a report entitled "Spanish Clementine Data Report and Analysis," published on the website of the United States Department of Agriculture, Animal and Plant Health Inspection Service ("APHIS"). See Doc. 34, filed Apr. 28, 2003. Intervenor-Defendants request the Court take judicial notice of a letter entitled "Clementine Stakeholder Letter," authored by the Department of Agriculture and published on its website. See Doc. 39, filed Jun. 10, 2003. Plaintiffs objected to both requests. See Doc. 35 filed May 1, 2003, and Doc. 40, filed Jun. 16, 2003. Intervenor-Defendants filed a supporting memorandum. See Doc. 36, filed May 8, 2003.
A. Jurisdiction.
Jurisdiction over the parties exists under 28 U.S.C. § 1331 and authority to grant the declaratory and injunctive relief sought by Plaintiffs is provided under 28 U.S.C. § 2201 and 5 U.S.C. §§ 705 and 706. Oral argument was heard on January 8, 2004.
On March 24, 2003, the parties submitted a statement of stipulated facts pursuant to Local Rule 56-260(c).2 See Doc. 25. The parties agree that "this action for judicial review of an agency rule can be decided by the Court on the basis of the Motion, Opposition thereto and Cross-Motions for Summary Judgment, the responsive pleadings, the stipulated facts set forth below, and the Administrative Record filed by the Federal Defendants-on the understanding that, to do so, the Court will have to examine the portions of the Administrative Record (AR) cited by the parties."3 See id. at 1-2:28-5. The parties further stipulated that "[b]ecause this case involves judicial review under the Administrative Procedure Act, 5 U.S.C. § 706(2), the Court's decision on the cross-motions for summary judgment does not involve an inquiry into whether there are any genuine issues of material fact." Doc. 25 at 2:5-7 (citing Northwest Motorcycle Association v. United States Department of Agriculture, 18 F.3d 1468, 1472 (9th Cir.1994); Environment Now! v. Espy, 877 F.Supp. 1397, 1421 (E.D.Cal.1994)).
The parties agree the following are undisputed material facts:
1. On December 5, 2001, following reports of live Mediterranean fruit fly ("Medfly") larvae being found in Spanish clementines purchased at retail outlets in a number of states, the U.S. Department of Agriculture's Animal and Plant Health Inspection Service ("APHIS") suspended imports of clementines from Spain indefinitely and initiated an investigation. (Doc. 25 at 2:10-13).
2. On July 11, 2002, APHIS published a proposed rule that would authorize a resumption of Spanish clementine imports on specific conditions. 67 Fed.Reg. 45922. APHIS held two public hearings and accepted comments on the proposal until September 9, 2002. (See id. at 2:14-16).
3. On October 15, 2002, APHIS promulgated the final rule ("Rule") that is the subject of this action. The Rule, which was published in the Federal Register on October 21, 2002, 67 Fed.Reg. 64702, allows the importation of clementines grown in regions of Spain where Medfly is found — as long as certain conditions specified in the Rule are met. (See id. at 2:17-20).
4. APHIS did not prepare an initial or final regulatory flexibility analysis for the Rule, because it determined that the Rule will not have a significant economic impact on a substantial number of small entities. That determination was based on a Regulatory Impact Analysis dated October 15, 2002.
5. The relevant facts for purposes of judicial review are contained in the Administrative Record that APHIS filed with the Court on February 13, 2003. The parties hold differing views as to the meaning, significance, and implications of these facts and will express those views, with appropriate references to the Administrative Record, in their respective pleadings. (See id. at 2:25-28).
Clementines (several varieties of Citrus reticulata) from Spain have been imported into the United States for over fifteen years. See A.R. 1230. . Prior to the import ban of 2001, Federal Defendants allowed the importation of Spanish clementines under a regimen of cold treatment that was designed to prevent the risk of the Mediterranean Fruit Fly ("Medfly") using the imported citrus as a pathway into the United States. See A.R. 1130, 1238.
The pre-ban cold treatment regimen was specified in the Plant Protection and Quarantine Manual (7 C.F.R. § 300.1), which required fruit to be held at the following temperatures:
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Temperature Exposure Period (Days)
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32°F or below 10
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33°F or below 11
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34°F or below 12
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35°F or below 13
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36°F or below 14
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Pursuant to 7 C.F.R. § 319.56-2(e), Federal Defendants allowed the import of Spanish clementines under permit, subject to inspection at the port of entry to ensure the implementation of cold treatment measures. See A.R....
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