Harlan Land Co. v. U.S. Dept. of Agr.
| Decision Date | 27 September 2001 |
| Docket Number | No. CV-F-00-6106 REC/LJO.,CV-F-00-6106 REC/LJO. |
| Citation | 186 F.Supp.2d 1076 |
| Parties | HARLAN LAND CO., Limoneira Company, Pecht Ranch, R7 Enterprises; and U.S. Citrus Science Council, Plaintiffs, v. U.S. DEPARTMENT OF AGRICULTURE; Daniel Glickman, Secretary of Agriculture; and Craig A. Reed, Administrator, Animal and Plant Health Inspection Services, Defendants. |
| Court | U.S. District Court — Eastern District of California |
Neil J. King, Roger M. Witten, Wilmer Cutler and Pickering, Washington, DC, Jon Wallace Upton, Kimble MacMichael and Upton, Fresno, CA, for plaintiff.
Jody Hunt, United States Dept. of Justice, Civil Division, Washington, DC, Linda Anderson, United States Attorney's Office, Fresno, CA, for defendant.
ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT, DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, SUSPENDING ARGENTINE CITRUS RULE AND REMANDING TO APHIS (Docs. 31 & 36)
On May 21, 2001, the court heard the parties' Cross Motion for Summary Judgment.
Upon due consideration of the oral and written arguments and the record herein, plaintiffs' motion for summary judgment is granted and defendants' motion for summary judgment is denied for the reasons set forth herein.
In 1993, Argentina officially requested Animal and Plant Health Inspection Service ("APHIS"), a division of United States Department of Agriculture, to amend its regulations so that lemons, oranges and grapefruit grown in the Argentine States of Catamarca, Jujuy, Salta, and Tucuman could be imported into the United States. Statement of Stipulated Facts, ¶ 1. Two citrus pests, citrus black spot and sweet orange scab, that exist in these Argentine States are not present in the United States. Id. at ¶ 2. APHIS officials visited the Argentina growing areas in May 1994 and determined that they could not fully assess the risk of citrus black spot and sweet orange scab under the protocol proposed by Argentina. 1994 Trip Report, AR 591. In 1995, APHIS denied Argentina's petition "unless pest free areas can be established or treatments can be approved" for the two diseases. Decision on Entry Status, AR at 2386. Consequently, at the request of APHIS, Argentina conducted research and surveys and submitted reports on the research to APHIS in support of its petition. Statement of Stipulated Facts, ¶ 3.
In September 1997, APHIS prepared a Supplemental Plant Pest Risk Assessment ("Risk Assessment") to evaluate the likelihood that plant pests and citrus diseases from Argentina would be introduced into the United States if commercial shipments of Argentine citrus to the United States were allowed. Id. at ¶ 4, AR at 1-110. The Risk Assessment consists of four basic components:
(1) Scenario Analysis: First, APHIS conceptualized the events ("probability nodesP") that must occur before introduction of a quarantine pest. AR at 28-30, 32. The nodes that must take place before a pest is introduced into the United States are that the pest has: infected/infested the harvested fruit (P1), avoided detection at harvest (P2), avoided detection at the packinghouse (P3), survived treatment (P4), survived shipment (P5), been shipped to a suitable habitat (P6), found a suitable host (P7), and will be able to complete the disease or life cycle (P8). P1-P4 occur in Argentina. P5-P8 happen in the United States.
(2) Mathematical Model: Second, APHIS constructed a mathematical model to use for the risk assessment. AR at 30. To estimate the annual likelihood of pest introduction, APHIS multiplied together nine numbers — the eight probability nodes above and the estimated annual number of imported boxes of Argentine citrus (F1). To estimate the effect of mitigation, APHIS used the mathematical model separately for all four pests with ("mitigated program") and without ("baseline program") specific mitigation measures anticipated to be contained in the proposed rule.
(3) Input Probabilities: Third, APHIS estimated the input values for F1 and P1 through P8 for each pest with and without specific mitigation measures. AR at 30-49, 2022-2052. APHIS used a range of values for F1 and P1 through P8, instead of a single value point because of the uncertainty involved in risk assessment. AR at 5. APHIS based the estimates needed for its input values on data provided by Argentina, pest interception records, the known biology of the pest or related organisms, expert judgment based on field experience with the pest or related organisms, expert judgment based on experience conducting commodity inspections at ports of entry or in the exporting country, and experience working with export programs and export-quality commodities.
(4) Computer Simulations: Finally, the last step involved quantitative analysis with randomly selected values that were entered into a computer program. AR at 30-31.
The Risk Assessment concludes that without using mitigation measures, there is a high likelihood for the introduction into the United States of fruit flies and sweet orange scab, a medium likelihood for citrus black spot, and a low likelihood for citrus canker. AR at 49-50. However, APHIS determined, based on the Risk Assessment, that the likelihood of pest introduction into the United States would be reduced to a negligible level if the mitigation measures set forth in the Argentine Citrus Rule were applied. AR at 1952. APHIS did not establish a level above which the risk would no longer be negligible.
On August 12, 1998, APHIS published a proposed rule to allow the importation of citrus fruit from Catamarca, Jujuy, Salta, and Tucuman into the United States in accordance with the provisions of the proposed rule. See 63 Fed.Reg. 43117, AR at 111-122. Following a 180 day period for public comment, APHIS published a final rule on June 15, 2000, allowing the importation of lemons, grapefruit, and oranges from Catamarca, Jujuy, Salta, and Tucuman in accordance with the provisions of the rule. See 65 Fed.Reg. 37608-69, AR at 1951-1981.
APHIS prepared an economic analysis and determined that the rule "[would] not have a significant economic impact on a substantial number of small entities." 65 Fed.Reg. at 37667, AR 1980B. Based on that determination, APHIS did not prepare a Regulatory Flexibility Analysis for the rule pursuant to 5 U.S.C. § 605. Id. APHIS also prepared an Environmental Assessment and issued a Finding of No Significant Impact, which concluded that the rule "would not have a significant impact on the quality of the human environment." AR at 2010-11. Based on the finding, APHIS did not prepare an Environmental Impact Statement for the final rule pursuant to. Id.
The final rule proposes a systematic approach to the importation of grapefruit, lemons and oranges from Argentina. The final rule, at 7 C.F.R. § 319.56-2f, states:
Fresh grapefruit, lemons and oranges may be imported from Argentina into the continental United States (the contiguous 48 States, Alaska, and the District of Columbia) only under permit and only in accordance with this section and all other applicable requirements of this subpart.
(a) Origin requirement. The grapefruit, lemons, or oranges must have been grown in a grove located in the region of Argentina that has been determined to be free from citrus canker. The following regions in Argentina have been determined to be free from citrus canker: The States of Catamarca, Jujuy, Salta, and Tucuman.
(b) Grove requirements. The grapefruit, lemons, and oranges must have been grown in a grove that meets the following conditions:
(1) The grove must be registered with the citrus fruit export program of the Servicio Nacional de Sanidad y Calidad Agrealimentaria (SENASA).
(2) The grove must be surrounded by a 150-meter-wide buffer area. No citrus fruit grown in the buffer area may be offered for importation into the United States.
(3) Any new citrus planting stock used in the grove must meet one of the following requirements:
(i) The citrus planting stock was obtained from within a State listed in paragraph (a) of this section; or
(ii) The citrus planting stock was obtained from a SENASA-approved citrus stock propagation center.
(4) All fallen fruit, leaves, and branches must be removed from the ground in the grove and the buffer area before the trees in the grove blossom. The grove and buffer area must be inspected by SENASA before blossom to verify that these sanitation measures have been accomplished.
(5) The grove and buffer area must be treated at least twice during the growing season with an oil-copper oxychloride spray. The timing of each treatment shall be determined by SENASA's expert system based on its monitoring of climatic data, fruit susceptibility, and the presence of the disease inoculum. The application of treatments shall be monitored by SENASA to verify proper application.
(6) The grove and buffer area must be surveyed by SENASA 20 days before the grapefruit, lemons, or oranges are harvested to verify the grove's freedom from citrus black spot (Guignardia citricarpa) and sweet orange scab (Elsinoe australis). The grove's freedom from citrus black spot and sweet orange scab shall be verified through:
(i) Visual inspection of the grove and buffer area; and
(ii) The sampling of 4 fruit from each of 298 randomly selected trees from each grove and buffer area covering a maximum area of 800 hectares. SENASA must contact APHIS for APHIS' determination as to the number of trees to be sampled. The sampled fruit must be taken from those portions of the trees that are mostly likely to have infected, symptomatic fruit (i.e. near the outer, upper part of the canopy on the sides of the tree that receives the most sunlight). The sampled fruit must be held in the laboratory for 20 days at 27°C, 80 percent relative humidity, and in permanent light to promote the expression of symptoms in any fruit infected with citrus black spot.
(c) After harvest. After harvest, the grapefruit,...
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