United Farm Workers Of America v. U.S. EPA

Jan 26: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-35528. According to the majority decision, "A single issue is presented by this case: Was an appeal from a decision of the Environmental Protection Agency (the EPA) filed in the right court? In the background are the merits of the litigation centered on the continued use of the pesticide Azinphos-Methyl (AZM). Our task is not to decide the merits but to ascertain the appeals process established by Congress."

While perhaps not relevant to the decision, by way of background, in the case EPA used a cost-benefit analysis to allow the continued use of a highly toxic chemical, AZM. The adverse effects of AZM on people exposed to AZM, such as agricultural workers, include headache, nausea, and dizziness. Anxiety and restlessness are also prominent. Worsening may result in twitching, weakness, tremor, incoordination, vomiting, abdominal cramps, diarrhea. In 2006, after receiving written comments from the public (notice and comment), the EPA issued an order that permitted growers to continue spraying of AZM on certain crops until 2012, after which the use of AZM would be “phased out.”

In short, according to the dissenting opinion, "without hearing any witness testimony or reviewing anything other than the submission of written comments, the EPA struck the cost-benefit analysis in favor of the AZM manufacturers and the growers who use AZM and against the agricultural workers and the environment. Because AZM’s toxic effects endanger the health of agricultural workers, the plaintiff-appellants, United Farm Workers of America (Farm Workers) opposed the continued use of AZM and challenged the EPA’s order in federal district court."

The dissenting opinion explains that, "To resolve this case we are required to interpret the words 'public hearing' under Section 16(b) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. § 136 et seq. Under § 16(b), whether the Farm Workers should have filed for review in federal district court or in the federal court of appeals depends on whether the EPA’s notice and comment procedure amounted to a “public hearing.” 7 U.S.C. § 136n(b). Simply put, if there was a public hearing, the Farm Workers would have been correct to file in the court of appeals. 7 U.S.C. § 136n(b). If there was not a public hearing, the Farm Workers were correct to file in district court. 7 U.S.C. § 136n(a)-(b)."

The majority ruled, "We hold that the choice of the district court by United Farm Workers of America and the other appellants (collectively Farm Workers) was mistaken and that the district court correctly dismissed their suit for lack of jurisdiction." The majority said further, "Jurisdiction in the Court of Appeals is conferred after an order is issued by the EPA 'following a public hearing.' Does the addition of 'public' alter the meaning of 'hearing'? It seems unlikely. If it did, there would be actions by the Administrator following 'a hearing' for which no review was provided. 'Hearing' and 'public hearing' should be read in tandem. Context does determine that 'the hearing' contain written submissions; otherwise, judicial review would be awkward. . . On this construction, review of the contested decision in this case should have been sought in this court. Unfortunately for the appellants it is now too late to seek it here. Petitions for review must be filed 60 days after the decision. . . The time is past."

The dissenting justice said in a lengthy dissent, "The Farm Workers sought review in the district court. They correctly determined that the court of appeals lacked jurisdiction to hear their challenge to the EPA’s order because the only evidentiary material presented to the EPA was in the form of written comments. The Farm Workers correctly concluded that this limited process did not constitute a public hearing. . . The majority would affirm the district court’s ruling that the EPA’s solicitation of written comments from the public is a 'public hearing' under § 16(b) and that the Farm Workers should have filed their challenge to the EPA’s order in the court of appeals. . . I disagree."

Access the complete opinion and dissent (click here).

Levine v. Vilsack (USDA)

Nov 20: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-16441. A number of parties including The Humane Society of the United States (collectively “Levine”) appealed from a summary judgment ruling in favor of the Secretary of the United States Department of Agriculture (Secretary or USDA). The case involves a dispute concerning whether chickens, turkeys and other domestic fowl are excluded from the humane slaughter provisions of what the parties (and references subsequent to the enactment) term the “Humane Methods of Slaughter Act of 1958 (HMSA).” In particular, the parties dispute whether poultry should be considered “other livestock” as that phrase is used in that statute.

Levine challenged USDA’s enunciation of its position -- made most recently on September 28, 2005, in a Federal Register Notice issued by USDA’s Food Safety and Inspection Service [see Treatment of Live Poultry before Slaughter, 70 FR 56,624, 9/28/05] -- that “there is no specific federal humane handling and slaughter statute for poultry.” In Levine v. Conner, 540 F. Supp. 2d 1113 (N.D. Cal. 2008), the United States District Court for the Northern District of California (district court) determined that, while the plain meaning of the word “livestock” as used in the HMSA of 1958 is ambiguous, Congressional intent behind the term was clear and consistent with the interpretation adopted by the USDA.

The Appeals Court said, "Because we conclude that Levine cannot satisfy the redressability prong of Article III standing, we vacate that decision and remand to the district court so that it can dismiss the action." Further, the Appeals Court concluded, "Because Levine’s alleged injuries are not redressable by way of this lawsuit, there is a lack of standing to proceed with this action. Consequently, the decision of the district court granting the USDA’s motion for summary judgment is vacated and the case is remanded with instructions to dismiss."

Access the complete opinion (click here).

Geerston Seed Farms v. Monsanto Co.

Jun 24: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-16458, 07-16492, & 07-16725. This ruling affirms a major ruling under the National Environmental Policy Act (NEPA) involving many Plaintiff and Defendant Appellees and Intervenors on both sides involving the controversial practice of genetically modified crops, in this case specifically herbicide resistant alfalfa manufactured by Monsanto. The original decision was issued on September 2, 2008 [See WIMS 9/4/08]. In the latest action, the Ninth Circuit, has voted to deny the petition for panel rehearing and recommend denial of the petition for rehearing en banc. The full court was advised of the petition for rehearing en banc and no Judge has requested a vote on whether to rehear the matter en banc. The Appeals Court ruled, "The petition for panel rehearing and rehearing en banc is denied. No further petitions for rehearing will be accepted."

The ruling affirms an injunction entered by the district court in May 2007, enjoining future planting of Monsanto alfalfa, called “Roundup Ready alfalfa,” pending the preparation by the United States Department of Agriculture, Animal and Plant Health Inspection Service (APHIS), of an environmental impact statement (EIS). The injunction was sought by plaintiffs Geertson Seed Farms and Trask Family Seeds, conventional alfalfa-seed farms, together with environmental groups, because they fear cross-pollination of the new variety with other alfalfa, thereby possibly causing conventional alfalfa to disappear.

Andrew Kimbrell, executive director of the Center for Food Safety, lead plaintiff and counsel in the lawsuit said, “This ruling affirms a major victory for consumers, ranchers, organic farmers, and most conventional farmers across the country. Roundup Ready Alfalfa represents a very real threat to farmers’ livelihoods and the environment; the judge rightly dismissed Monsanto’s claims that their bottom line should come before the rights of the public and America’s farmers. This ruling is a turning point in the regulation of biotech crops in this country.”

Access the latest ruling (click here). Access the 9/2/08 ruling (click here). Access a release from Beyond Pesticides (click here).

Clark v. U.S. Department of Agriculture

Aug 12: In the U.S. Court of Appeals, Eighth Circuit, Case No. 07-3127. Appellant Dorothy Clark appealed the district court’s refusal to grant a declaratory judgment and set aside a United States Department of Agriculture (USDA) determination that she converted wetlands in violation of the "Swampbuster" provisions of the Food Security Act of 1985. Because the USDA determined she had converted wetlands, Clark became ineligible for certain farm program payments. Clark challenged the USDA’s interpretation of the term “converted wetland” and argues the evidence is insufficient to support the USDA’s determination that she converted wetlands. In addition, she challenged a USDA regulation that placed the burden on her to request, and prove her eligibility for, a “minimal effect” exemption. The Appeals Court said, "Given the deference we owe to the USDA’s regulation, its interpretation of the applicable law, and its factual determinations, we affirm the district court’s denial of relief."

The so-called Swampbuster provisions, designed to deter the conversion of wetlands, authorize the USDA to make determinations as to whether certain lands qualify as wetlands and whether wetlands that have been manipulated qualify as converted wetlands. A person determined to have converted wetlands may become ineligible to receive farm program payments; however, there is an exception to the ineligibility provision for manipulations determined to have only a "minimal effect" upon wetland and biological functions.

In making its ruling, the Appeals Court indicates that, Clark notes that Congress amended 16 U.S.C. § 3822(f) in 1990, replacing the phrase “The Secretary may exempt,” with the phrase “The Secretary shall exempt.” Pub. L. 101-624, Title XIV, § 1422, Nov. 28, 1990, 104 Stat. 3573. Clark argued generally that this amendment reflects a legislative desire to curb perceived resistance from the USDA towards issuing such exemptions.

The Appeals Court says, "We do not disagree with this general statement: the amendment clearly deprives the USDA of discretion where discretion previously existed, and following the 1990 amendment the USDA must grant such exemptions where a manipulation is shown to have a minimal effect. The statute, even as amended, however, does not apportion the burden of proof regarding the technical determination of whether a manipulation has more than minimal effect. Nor does it contain any language suggesting the USDA is without authority to impose a burden of proof upon landowners who fail to request a determination prior to taking action likely to hinder the USDA in its assessment of the wetlands’ pre-manipulation function and value."

Access the complete opinion (click here).