U.S. Citrus Sci. Council v. U.S. Dep't of Agric.
| Decision Date | 24 October 2017 |
| Docket Number | CASE NO. 1:17-cv-00680-LJO-SAB |
| Parties | US CITRUS SCIENCE COUNCIL; SANTA PAULA CREEK RANCH; CPR FARMS; GREEN LEAF FARMS, INC.; BRAVANTE PRODUCE; and RICHARD BAGDASARIAN, INC., Plaintiffs, v. THE UNITED STATES DEPARTMENT OF AGRICULTURE; SONNY PERDUE, Secretary of Agriculture; and KEVIN SHEA, Administrator, Animal and Plant Health Inspection Service, Defendants. |
| Court | U.S. District Court — Eastern District of California |
Plaintiffs US Citrus Science Council ("Council Plaintiff"); Santa Paula Creek Ranch; CPR Farms; Green Leaf Farms, Inc.; Bravante Produce; and Richard Bagdasarian, Inc. (collectively, "Grower Plaintiffs") bring this action against Defendants United States Department of Agriculture ("USDA"), Sonny Perdue, Secretary of Agriculture, and Kevin Shea, Administrator, Animal and Plant Health Inspection Service ("APHIS") (collectively, "Defendants" or the "Government"), to challenge a rule allowing for the importation of lemons from Argentina (the "Rule" or "Final Rule"). Defendants move to dismiss the action on the grounds that Plaintiffs lack standing and therefore that this Court lacks subject matter jurisdiction. This matter is suitable for disposition without oral argument. See Local Rule 230(g).
The Plant Protection Act ("PPA") authorizes the Secretary of the USDA to issue regulations "to prevent the introduction of plant pests into the United States or the dissemination of plant pests within the United States." 7 U.S.C. § 7711(a). The Secretary delegated that authority to APHIS, an agency within USDA. 7 C.F.R. §§ 2.22(a), 280(a)(36). Pursuant to the PPA, APHIS has issued a number of regulations regarding the conditions under which fruits and vegetables can be imported into the United States.
The Regulatory Flexibility Act ("RFA") requires that agencies issuing rules under the Administrative Procedure Act ("APA") must publish a final regulatory flexibility analysis assessing the negative impact of the rule on small businesses. 5 U.S.C. §§ 603, 604. However, the agency does not need to engage in flexibility analysis if the agency head certifies that the rule will not have a significant economic impact on a substantial number of small entities. 5 U.S.C. § 605(b).
Such an analysis must meet certain statutory requirements. It must state the purpose of the relevant rule and the estimated number of small businesses that the rule will affect, if such an estimate is available. In addition, each analysis must summarize comments filed in response to the agency's initial regulatory flexibility analysis, along with the agency's assessment of those comments. Finally, each analysis must include "a description of the steps the agency has taken to minimize the significant economic impact" that its rule will have on small businesses, "including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected." § 604(a)(5).
Since 1947, regulations under the PPA and its predecessor statutes have barred the importation of lemons and other citrus from Argentina. (FAC ¶ 36 & n.24.) In 2000, APHIS promulgated a rule lifting the ban on importing lemons from Argentina, but the regulation was vacated because APHIS had failed to analyze and explain the risks involved. See Harlan Land Co. v. U.S. Dep't of Ag., 186 F. Supp. 2d 1076 (E.D. Cal. 2001).
In May 2016, APHIS proposed a new regulation that would permit the importation of lemons from northwest Argentina. Importation of Lemons from Northwest Argentina, 81 Fed. Reg. 28,758 (May 10, 2016) ("Proposed Rule"). The Proposed Rule acknowledged the presence of certain pests affecting citrus crops in Argentina, but posited that the risk of pests could be effectively mitigated by the use of a "systems approach." Id. The "systems approach" outlined procedures intended to ensure the safety of imported lemons, including the responsibilities of the Argentine government's inspection agency ("SENASA"), the preventative measures required by Argentine growers, the mitigation measures required by Argentine lemon packinghouses, and the consequences of a lemon shipment failing inspection at a United States port of entry. Id. at 28,759-28,761.
The Proposed Rule was accompanied by an initial regulatory flexibility analysis. Id. at 28,762-28763. The analysis estimated that between 15,000 and 20,000 metric tons of fresh lemons would be imported from Argentina annually, causing the price of fresh lemons to drop between 2% and 4%. Id. at 28,762. It predicted a corresponding loss to California and Arizona lemon growers between $10.9 and $22 million each year. Id. at 28,762. The analysis concluded that the "[e]conomic effects of the rule for both producers and consumers are not expected to be significant." Id.
After a period of notice and comment, APHIS published its Final Rule governing the importation of Argentine Lemons. Importation of Lemons From Northwest Argentina, 81 Fed. Reg. 94,217 (Dec. 23, 2016) (codified at 7 C.F.R. § 319.56-76) ("Final Rule"). In the Final Rule, APHIS concluded that it would allow the importation of fresh lemons from northwest Argentina, subject to conditions andrequirements articulated in the Final Rule. Id. The Final Rule was scheduled to go into effect on January 23, 2017, but was postponed until May 26, 2017. See Importation of Lemons From Northwest Argentina: Stay of Regulations, 82 Fed. Reg. 8353 (Jan. 25, 2017); Importation of Lemons From Northwest Argentina: Stay of Regulations, 82 Fed. Reg. 14,987 (Mar. 24, 2017). On May 1, 2017, USDA issued a Stakeholder Announcement stating that the previously issued Final Rule would go into effect on May 26, 2017 and announcing that "[f]or 2017 and 2018, Argentine lemons would be imported only into the northeastern United States." See USDA, APHIS Will Not Extend Stay on Import Regulations for Lemons from Northwest Argentina (May 1, 2017), available at https://www.aphis.usda.gov/aphis/newsroom/stakeholder-info/sa_by_date/sa-2017/sa-05/argentina-lemons. The northeast port restriction is referred to by both parties as an amendment to the Final Rule ("Amendment"). The Rule is now effective. See 7 C.F.R. § 319.56-76.
Plaintiffs filed the instant lawsuit on May 17, 2017, challenging the Final Rule and the Amendment promulgated by APHIS under the PPA, APA, National Environmental Policy Act ("NEPA"), and RFA. (ECF No. 2.) Defendants moved to dismiss the original complaint, and Plaintiffs filed an amended complaint ("FAC") on August 10, 2017. (ECF No. 26.) Plaintiffs bring six counts in the FAC: failure to disclose for public comment data, notes, or a trip report for the 2015 harvest season site visit under the PPA and APA (Count I); failure to consider properly SENASA's failed history, and unjustified reliance on SENASA workplan under the PPA and APA (Count II); failure to use notice and comment procedures to amend, and failure to provide reasoned decision-making in amending, the rule to restrict importation to northeastern ports under the PPA and APA (Count III); failure to provide reasoned decision-making under the APA (Count IV); failure to comply with NEPA (Count V); and failure to comply with the RFA (Count VI). Plaintiffs filed an opposition on September 7, 2017. (ECF No. 30.) Defendants filed a reply on September 14, 2017. (ECF No. 32.)
This Court has federal question jurisdiction pursuant to 28 U.S.C. §§ 1331, 1361, and 2201-2202, as well as the APA, 5 U.S.C. §§ 701-706, and the RFA, 5 U.S.C. § 611. Venue is proper in this Court and the matter is ripe for review.
A motion to dismiss for lack of subject matter jurisdiction determines whether the plaintiff has a right to be in federal court, whereas a motion to dismiss for failure to state a claim questions whether a cognizable legal claim has been stated. Tr. of Screen Actors Guild-Producers Pension & Health Plans v. NYCA, Inc., 572 F.3d 771, 775 (9th Cir. 2009) (quoting 5B Wright & Miller, Federal Practice and Procedure § 1350 (3d ed. 2004)). A federal court is a court of limited jurisdiction, and may adjudicate only those cases authorized by the Constitution and by Congress. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). Faced with a Rule 12(b)(1) motion, a plaintiff bears the burden of proving the existence of the court's subject matter jurisdiction. Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir. 1996). A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears. Gen. Atomic Co. v. United Nuclear Corp., 655 F.2d 968, 968-69 (9th Cir. 1981).
"A motion to dismiss for lack of subject matter jurisdiction may either attack the allegations of the complaint or may be made as a 'speaking motion' attacking the existence of subject matter jurisdiction in fact." Thornhill Pub. Co., Inc. v. Gen. Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979) (internal citations omitted); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 890-892 (3d Cir. 1977); Exchange Nat'l Bank v. Touche Ross & Co., 544 F.2d 1126, 1130-1131 (2d Cir. 1976)). "In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction." Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). "By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." Id.
In resolving a factual attack on jurisdiction, the district court may review evidence beyond thecom...
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