SOUTH FLA. GROWERS ASS'N v. US DEPT. OF AGR.

• Decision Date: 26 November 1982
• Docket Number: No. 82-2462-Civ-SMA.,82-2462-Civ-SMA.
• Citation: 554 F. Supp. 633
• Parties: SOUTH FLORIDA GROWERS ASSOCIATION, INC., Limeco, Inc., and J.R. Brooks & Son, Inc., Plaintiffs, v. UNITED STATES DEPARTMENT OF AGRICULTURE, John R. Block, Secretary, and Dr. Harry Mussman, Administrator Animal and Plant Health Inspection Service, Defendants.
• Court: U.S. District Court — Southern District of Florida

554 F. Supp. 633

SOUTH FLORIDA GROWERS ASSOCIATION, INC., Limeco, Inc., and J.R. Brooks & Son, Inc., Plaintiffs, v. UNITED STATES DEPARTMENT OF AGRICULTURE, John R. Block, Secretary, and Dr. Harry Mussman, Administrator Animal and Plant Health Inspection Service, Defendants.

No. 82-2462-Civ-SMA.

United States District Court, S.D. Florida, Miami Division.

November 26, 1982.

COPYRIGHT MATERIAL OMITTED

Joseph A. Moretz, Joseph L. Rebak, Blackwell, Walker, Gray, Powers, Flick & Hoehl, P.A., Miami, Fla., John M. Himmelberg, Washington, D.C., for plaintiffs.

Stanly Marcus, U.S. Atty. S.D. Fla. by Marc Fagelson, Asst. U.S. Atty., Miami, Fla., for defendants.

ORDER GRANTING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

ARONOVITZ, District Judge.

THIS MATTER was heard by the Court at an evidentiary hearing upon Plaintiffs' Motion for a Preliminary Injunction and for an extension of the existing Temporary Restraining Order prohibiting the importation of lemons and limes from Mexico into the United States. The Court has received testimony, affidavits, exhibits, and has heard oral argument of counsel for the parties. The Court, having reviewed the entire record, including the memoranda submitted by the parties,^* it is thereupon

ORDERED AND ADJUDGED that Plaintiffs' Motion for Preliminary Injunction is GRANTED, and the Temporary Restraining Order as set forth in this Court's Amended Order dated November 17, 1982, is hereby extended and converted into a preliminary injunction to remain in effect until five (5) days following the date that either an interim rule or a final rule is promulgated by the Secretary of Agriculture in accordance with law and regulations after a due and proper hearing and notice thereof, wherein the ban against importing limes and lemons from Mexico is lifted or modified in whole or in part, for reasons more fully set forth in this Court's Opinion containing Findings of Fact and Conclusions of Law, which follows.

OPINION

Factual Background

In late July, 1982, officials of the United States Department of Agriculture (USDA), Plant Protection and Quarantine (PPQ), were informed by representatives of Mexico's Plant Protection Agency, Sanidad Vegetal (S.V.), of the presence of a citrus disease, possibly citrus canker, in the State of Colima, Mexico. The disease as present in Colima infects the twigs and foliage of Mexican limes. Effective July 23, 1982, the USDA imposed an embargo on the importation of all citrus plants and fruits from Mexico into the United States. The Department took this action as an emergency measure pursuant to 7 U.S.C. § 150dd.

On July 28, 1982, a team of PPQ plant pathologists went to Mexico to examine the disease in the field. They collected specimens which were returned to the United States for use in making an accurate diagnosis of the disease. By early August, it became clear that the disease in Colima was some type of citrus canker. On August 11, a delegation from PPQ met with S.V. to establish the design for a 100,000 tree survey in Mexico. This survey was designed to determine whether the disease was present outside of the State of Colima. To date, the presence of citrus canker has been confirmed at two locations outside the State of Colima. S.V. reports that both of these plantings have been destroyed and that surveys indicate no additional presence of the disease. On September 11 through 15, teams consisting of Mexican and U.S. plant pathologists inspected lime growing trees in the States of Nuevo Leon, San Luis Potosi, Tamaulipas, Vera Cruz, Michoacan, Guerrero, Oaxaca, and Yucatan. Other than the two limited outbreaks previously mentioned, no additional evidence of citrus canker was observed.

After consultation with Mexican officials, on September 22, 1982, the USDA modified its embargo to allow oranges, grapefruits, and tangerines from Mexico, but not from Colima, to come into the United States, if they had been treated by a thorough wetting with a solution containing 200 parts per million active chlorine for a period of at least two minutes. Limes continued to be denied entry because Mexico refused to agree to an immediate eradication program and they did not have an acceptable regulatory procedure in place in Colima to prevent a further spread of the disease.

In late October, 1982, the USDA again reviewed the situation with the view toward allowing Persian limes (as opposed to Mexican-type limes) to come into the United States from areas in Mexico other than Colima.¹ It was determined by the USDA that if certain regulatory measures were applied, the importation of Persian limes from areas other than Colima could occur without the danger of spreading the disease to the United States.

Consequently, the USDA decided to further modify its embargo by allowing Persian limes from any area except Colima to come into the United States under certain restrictions. This modification occurred in the form of emergency interim regulations, published pursuant to 7 U.S.C. § 150dd in the Federal Register on November 17, 1982, and effective immediately upon publication. The USDA determined that these regulations were authorized on an emergency basis and that notice and a public hearing did not have to be held before these regulations went into effect. Although certain nonformal meetings were held prior to the USDA's decision to publish the interim regulations, no formal record was made nor formal presentations or testimony was received at these meetings. An after-the-fact public hearing has been scheduled for December 7, 1982, in San Antonio, Texas, before the modification achieves permanent status as a restriction on importation under the Plant Quarantine Act, 7 U.S.C. §§ 151 et seq.

Plaintiffs have brought this action to prevent these interim regulations from becoming effective before notice and a public hearing have been held.² They claim that the Defendants were in error in relying on 7 U.S.C. § 150dd since this provision authorizes the USDA to take certain emergency measures to prevent the dissemination of plant pests by seizing, treating, destroying, etc., any product which it thinks is infected by the pest and, while not requiring a hearing, is an exception to 7 U.S.C. § 159. That section states "that before the Secretary of Agriculture shall promulgate his determination that the unrestricted importation of any plants, fruits, ... may result in the entry into the United States ... of injurious plant diseases ..., he shall, after due notice, give a public hearing ... at which any interested parties may appear and be heard...."

The Law

The Fifth Amendment prohibits the government from depriving a person of life, liberty, or property without due process of law. In order to ascertain whether governmental action affecting a person is violative of this prohibition, two inquiries are made: first, a life, liberty, or property interest within the meaning of the clause must be identified; and, second, the degree of process due to the person before he can be deprived of that interest must be ascertained. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

The former inquiry may, of necessity in certain cases, require an examination of the particular property or liberty interests the affected person has. The Supreme Court has made clear "that the property interests protected by procedural due process extend well beyond actual ownership of real estate, chattels or money...." Board of Regents, 408 U.S. at 571, 92 S.Ct. at 2706. Certain attributes of "property interests" were delineated:

To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined.

* * * * * *

Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.

Id. at 577, 92 S.Ct. at 2709.

The Plaintiffs' rights are defined by their entitlement to preserve their property and protect their livelihoods in accordance with rights vested by statutory law and governmental regulations, at least until the legality or correctness of the USDA's action is determined. The harm and hardship that will occur to Plaintiffs should the citrus which is imported from Mexico be contaminated with citrus canker would be irreparable. In his affidavit, Norman E. Sutton, vice-president of Plaintiff South Florida Growers Association, stated:

Should the citrus canker in any of its forms become established in our lime groves, this infectious disease will spread very easily and quickly throughout the entire grove area. It also can be expected that this disease will spread to and destroy other citrus fruit groves. Past experience with citrus canker in Florida shows that it can seriously affect all types of citrus fruits.

Sutton Affidavit of November 9, 1982, at ¶ 5. There can be no doubt that the importation of limes and other citrus fruits from Mexico will expose similar crops in the United States to contamination and infection. In such a case, if other means of eradication fail, it may be necessary to treat the disease by burning the groves. There is, therefore, the distinct prospect that Plaintiffs would be totally deprived of all property other than land and be left with nothing, with the attendant loss of jobs for Plaintiffs' employees. This is a $190,000,000 industry, according to the testimony.

Failure to provide adequate protection when property is placed in jeopardy by governmental action can amount to...