Harvey v. Veneman, 04-1379.
| Decision Date | 26 January 2005 |
| Docket Number | No. 04-1379.,04-1379. |
| Citation | 396 F.3d 28 |
| Parties | Arthur HARVEY, Plaintiff, Appellant, v. Ann VENEMAN, Secretary of Agriculture, Defendant, Appellee. |
| Court | U.S. Court of Appeals — First Circuit |
Paula Dinerstein with whom Lobel, Novins & Lamont was on brief for appellant.
Susan E. Stokes, Jill E. Krueger, Farmers' Legal Action Group, and Joseph Mendelson III, Center for Food Safety, on brief for Rural Advancement Foundation International-USA, Center for Food Safety, and Beyond Pesticides, Amici Curiae.
James Handley, Handley Environmental Law, on brief for Organic Consumers Association, Sierra Club, Public Citizen, Inc., Northeast Organic Farming Association/Massachusetts Chapter, Inc., John Clark, Merrill Clark, Anne Mendenhall, Greenpeace USA, and Waterkeeper Alliance, Amici Curiae.
Halsey B. Frank, Assistant United States Attorney, with whom Paula D. Silsby, United States Attorney, was on the brief for appellee.
Before BOUDIN, Chief Judge, SELYA, Circuit Judge, and SCHWARZER,* Senior District Judge.
Arthur Harvey appeals the District Court's grant of summary judgment to Secretary of Agriculture Ann Veneman on Harvey's claims alleging that multiple provisions of the National Organic Program Final Rule ("Final Rule" or "Rule"), 7 C.F.R. Pt. 205, are inconsistent with the Organic Foods Production Act of 1990, 7 U.S.C. §§ 6501-6523 ("OFPA" or "Act").
Harvey appeals on seven of the nine counts he originally brought. For the reasons set forth below, we affirm the judgment on the first, second, fifth, sixth, and eighth counts and reverse on the third and seventh counts, and we remand for entry of judgment in accordance with this opinion.
Congress enacted OFPA in 1990 to "establish national standards governing the marketing" of organically produced agricultural products, to "assure consumers that organically produced products meet a consistent standard," and to "facilitate interstate commerce in" organically produced food. 7 U.S.C. § 6501. The Act furthers these purposes by establishing a national certification program for producers and handlers of organic products and by regulating the labeling of organic products. Id. §§ 6503(a), 6504, 6505(a)(1)(A). In order to be labeled or sold as organic, an agricultural product must be produced and handled without the use of synthetic substances, such as pesticides, and in accordance with an organic plan agreed to by an accredited certifying agent and the producer and handler of the product. Id. § 6504; see also id. § 6505 (). Products meeting these standards may be labeled as such and may bear the USDA seal. Id. § 6505(a)(2).
Exceptions to the Act's general prohibition on synthetic substances appear on a National List of approved substances for organic products. 7 U.S.C. § 6517. OFPA requires the Secretary to establish a National Organic Standards Board to develop the National List and to recommend exemptions for otherwise prohibited substances. Id. §§ 6518(a), (k); 6517(c)(1). The Act contains detailed guidelines for the inclusion of substances on the National List. Id. § 6517(c).
The Act also requires the Secretary to promulgate regulations "to carry out" OFPA. Id. § 6521. The Secretary published the Final Rule at issue in this case in December 2000 and it became effective on October 21, 2002. See generally 7 C.F.R. Pt. 205. Among other things, the Rule sets forth a four-tier labeling system for organic foods. Id. § 205.301. Under this system, the type of labeling permitted on a product varies according to the percentage of organic ingredients it contains. Id. The Rule also includes loopholes concerning nonorganic ingredients and synthetic substances, id. §§ 205.600(b), 205.605(b), 205.606; exemptions for wholesalers and distributors, id. § 205.101(b)(1), as well as livestock herds converting to organic dairy production, id. § 205.236(a)(2)(i); and restrictions on the activities of private certifiers, id. §§ 205.303(a)(5), 205.303(b), 205.304(a)(3), 205.304(b)(2), 205.305(b)(2), 205.501(a)(11), 205.501(b). These are the provisions at issue in the present action and are outlined in more detail below.
Plaintiff-appellant Harvey is a producer and handler of organic blueberries and other crops, an organic inspector employed by USDA-accredited certifiers, and a consumer of organic foods. In October 2003 Harvey filed a complaint for declaratory and injunctive relief under the Administrative Procedure Act, 5 U.S.C. §§ 555(b), 702, 706(1), and under OFPA, alleging that nine provisions of the Final Rule are inconsistent with the Act and dilute its organic standards.
On cross-motions for summary judgment, Magistrate Judge Margaret J. Kravchuk issued a recommended decision finding that Harvey lacked standing to bring his seventh claim, granting Harvey summary judgment on his ninth claim, and granting the Secretary summary judgment on the remaining claims. Harvey v. Veneman, No. 02-216-P-H, 2003 WL 22327171 (D.Me. Oct. 10, 2003). The District Court adopted the magistrate judge's recommended decision with respect to Harvey's first eight claims, but granted summary judgment to the Secretary, rather than Harvey, on his ninth claim. Harvey v. Veneman, 297 F.Supp.2d 334, 335 (D.Me.2004). Harvey timely appealed the District Court's judgment on the following seven of his nine original claims:
Count 1: Harvey contends that the Rule provides for the blanket exemption of nonorganic products "not commercially available in organic form" from the review and recommendation process OFPA requires for inclusion of substances on the National List, in contravention of the purposes of OFPA and the National List.
Count 2: Harvey contends that the Rule's provisions allowing use of a private certifier's seal on products containing less than 95% organic ingredients, even though such products may not, according to OFPA, bear a USDA organic seal, are contrary to the purposes of OFPA.
Count 3: Harvey contends that the Rule's provisions permitting the use of synthetic substances in processing contravene OFPA, which prohibits the use of synthetic substances generally and specifically forbids the addition of synthetic ingredients in processing.
Count 5: Harvey contends that the Rule's exclusion of certain wholesalers and distributors from its coverage contravenes OFPA, which includes such entities among the "handlers" and "handling operations" to which it applies.
Count 6: Harvey contends that the Rule's prohibition on certifying agents' provision of uncompensated advice regarding certification standards contravenes OFPA, which prohibits only advice for compensation, and also violates the rights of such agents and their clients under the First Amendment to the United States Constitution.
Count 7: Harvey contends that the Rule's provisions allowing dairy animals being "converted" to organic production to be fed 80% organic feed for the first nine months of the year prior to sale of their products as organic contravenes OFPA, which requires dairy animals to be fed 100% organic feed for twelve full months prior to the sale of their products as organic.
Count 8: Harvey contends that the Rule's imposition of uniform standards on private certifiers contravenes the purposes of OFPA.
We review a district court's grant of summary judgment de novo. People to End Homelessness, Inc. v. Develco Singles Apts. Assocs., 339 F.3d 1, 8 (1st Cir.2003). In doing so, we draw all reasonable inferences from the facts in favor of the appellant. Id.
We also review de novo challenges to agency action under the APA (that is, we do not defer to a district court's conclusions). Associated Fisheries v. Daley, 127 F.3d 104, 109 (1st Cir.1997). Legal issues presented in such challenges are "`for the courts to resolve, although even in considering such issues the courts are to give some deference to the agency's informed judgment' in applying statutory terms if the statute is silent or ambiguous on the issue." Penobscot Air Servs., Ltd. v. FAA, 164 F.3d 713, 719 (1st Cir.1999) (quoting FTC v. Indiana Fed'n of Dentists, 476 U.S. 447, 454, 106 S.Ct. 2009, 90 L.Ed.2d 445 (1986)). "That deference is described in the familiar two-step test" of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), according to which we first use traditional tools of statutory construction to determine congressional intent. Penobscot Air Servs., 164 F.3d at 719. "[I]f the legislative intent is clear, we do not defer to the agency" and simply require that the regulations be consistent with the statute. Id. If, on the other hand, "the statute is silent or ambiguous with respect to the specific issue," the question "is whether the agency's answer is based on a permissible construction of the statute." Id. (citation and internal quotation marks omitted). We accord deference to the agency "as long as its interpretation is rational and consistent with the statute." Id. (citation omitted).
A plaintiff bringing legal claims in federal court must "establish standing to prosecute the action." Elk Grove Unified Sch. Dist. v. Newdow, ___ U.S. ___, 124 S.Ct. 2301, 2309, 159 L.Ed.2d 98 (2004). This is partly a constitutional requirement; to meet the requirements of Article III, a plaintiff must point to an "injury in fact" that a favorable judgment will redress. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). It is also a prudential requirement. To establish prudential standing, Harvey must show that his complaint "fall[s] within the zone of interests protected by the law invoked." Newdow, ___ U.S. at ___,...
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