1. law, govt and politics

Case 1:15-cv-00143-EJL Document 1 Filed 04/28/15 Page 1 of 30
Walter H. Bithell (ISB #1206)
William G. Myers III (ISB #5598)
A. Dean Bennett (ISB #7735)
HOLLAND & HART LLP
800 W. Main Street, Suite 1750
P.O. Box 2527
Boise, Idaho 83701-2527
Telephone: (208) 342-5000
Facsimile: (208) 343-8869
E-mail: [email protected]
[email protected]
[email protected]
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
MICKELSEN FARMS, LLC, an Idaho limited
liability company; RIGBY PRODUCE, INC.,
an Idaho corporation; WATTENBARGER
FARMS, an Idaho general partnership; ADAM
and BROOKE NEIBAUR, husband and wife,
d/b/a CRIPPLE CREEK FARMS; CAROL A.
ANDERSON FARMS TRUST; MARK
ANDERSON, Trustee; KORY FRANCE, an
individual; GERALD OLER, an individual,
d/b/a/ OLER FARMS; BOHEMIAN, LLC, an
Idaho limited liability company; GERALD and
HELEN KELLEY, husband and wife; CRAIG
V. and ANDREA KELLEY, husband and wife,
DAN G. and KAREN K. ELDREDGE,
husband and wife; LAMOND COOK, an
individual,
Plaintiffs,
v.
ANIMAL AND PLANT HEALTH
INSPECTION SERVICE; TOM VILSACK, in
his capacity as the United States Secretary of
Agriculture; KEVIN SHEA, in his capacity as
the Administrator of the Animal and Plant
Health Inspection Service; BRIAN
MARSCHMAN, in his capacity as the Idaho
Plant Health Director, Animal and Plant Health
Case No. 15-cv-143
COMPLAINT FOR DECLARATORY
JUDGMENT AND INJUNCTIVE
RELIEF
Case 1:15-cv-00143-EJL Document 1 Filed 04/28/15 Page 2 of 30
Inspection Service; TINA GRESHAM, in her
capacity as Director of Pale Cyst Nematode
Program, Animal and Plant Health Inspection
Service; IDAHO STATE DEPARTMENT OF
AGRICULTURE; and CELIA R. GOULD, in
her capacity as the Director of the Idaho State
Department of Agriculture,
Defendants.
Case 1:15-cv-00143-EJL Document 1 Filed 04/28/15 Page 3 of 30
INTRODUCTION
1.
Plaintiffs Mickelsen Farms, LLC; Rigby Produce, Inc.; Wattenbarger Farms;
Adam and Brook Neibaur, d/b/a Cripple Creek Farms; Mark Anderson as trustee of the Carol A.
Anderson Farms Trust; Kory France; Gerald Oler, d/b/a/ Oler Farms; Bohemian, LLC; Gerald
and Helen Kelley; Craig V. and Andrea Kelley; Dan G. and Karen K. Eldredge; and LaMond
Cook (collectively “Plaintiffs”) bring this action against Defendants Animal and Plant Health
Inspection Service (“APHIS”); Tom Vilsack, United States Secretary of Agriculture; Kevin
Shea, Administrator of APHIS; Brian Marschman, Idaho Plant Health Director; and Tina
Gresham, Director of Pale Cyst Nematode Program (collectively “APHIS”); and the Idaho State
Department of Agriculture (“ISDA”) and Celia Gould, Director of ISDA (collectively “ISDA”)
to challenge certain agency actions taken by APHIS and ISDA governing pale cyst nematodes,
which agency actions are adversely affecting Plaintiffs and their livelihoods. See, e.g, Pale Cyst
Nematodes’ Quarantine and Regulations, Final Rule, 74 Fed. Reg. 19374-19382 (Apr. 29, 2009)
(the “Final Rule”).
2.
Plaintiffs bring this action to address APHIS’s failure to comply with its legal
obligations under the : (1) Plant Protection Act, 7 U.S.C. §§ 7701 to 7786; (2) Administrative
Procedure Act, 5 U.S.C. §§ 553, 701-706; (3) National Environmental Policy Act, 42 U.S.C.
§§ 4321-70; (4) Federal Advisory Committee Act, 5 U.S.C. App. 2, §§ 1-16; (5) Tenth
Amendment of the United States Constitution; and (6) to otherwise challenge APHIS’s actions as
arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law, and
without observance of procedures required by law.
3.
Plaintiffs also bring this action to address ISDA’s failure to comply with its legal
obligations under Idaho Plant Pest Act, Idaho Code §§ 22-2001 to 22-2023, the Idaho
Administrative Procedure Act, Idaho Code §§ 67-5101 to 67-5292, Idaho’s Rules Governing the
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Pale Cyst Nematode (Globodera Pallida), IDAPA 02.06.10, and to otherwise challenge ISDA’s
actions as arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.
JURISDICTION AND VENUE
4.
This Court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question
jurisdiction) because this action arises under the laws of the United States, including the Plant
Protection Act (“PPA”), 7 U.S.C. § 7736, Administrative Procedure Act (“APA”), 5 U.S.C.
§§ 553, 601-612, 701-706, National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-70,
Federal Advisory Committee Act (“FACA”), 5 U.S.C. App. 2, §§ 1-16, Tenth Amendment of the
United States Constitution, and the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202.
5.
This Court has jurisdiction over Plaintiffs’ claim made against ISDA pursuant to
this Court’s supplemental jurisdiction under 28 U.S.C. § 1367.
6.
An actual, justiciable controversy now exists between Plaintiffs, APHIS, and
ISDA, and the requested relief is proper under the APA, 5 U.S.C. §§ 701–706; the Declaratory
Judgment Act, 28 U.S.C. §§ 2201–2202; and other authority cited herein.
7.
The federal government has waived sovereign immunity in this action pursuant to
the APA, 5 U.S.C. § 702. The State of Idaho has waived sovereign immunity in this action
pursuant to the Idaho APA, Idaho Code § 67-5270.
8.
Venue is proper in this Court pursuant to 28 U.S.C. § 1391(e) because this action
is brought against one or more officers of the Department of Agriculture who reside in the
District of Idaho, because a substantial part of the events giving rise to Plaintiffs’ claims
occurred in the District of Idaho, and because all of the property that is the subject of this action
is in the District of Idaho. Further, actions and decisions challenged by this lawsuit were taken
or made in substantial part in the District of Idaho. Dist. Idaho Loc. R. 3.1.
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9.
This Court may award costs and attorneys’ fees and expenses to Plaintiffs
pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(a), (d) as against APHIS. As
against ISDA this Court may award costs and attorneys’ fees and expenses to Plaintiffs pursuant
to Idaho Code § 12-117 and other applicable Idaho law.
PARTIES
Plaintiffs
10.
Mickelsen Farms, LLC (“Mickelsen Farms”) is an Idaho limited liability
company, with its principal place of business located in Jefferson County, Idaho. Mickelsen
Farms operates fifth and sixth generation family farms in Bingham, Bonneville, and Jefferson
Counties, Idaho. Mickelsen Farms grows potatoes and seed potatoes as well as canola, wheat,
and alfalfa. Mickelsen Farms employs over 100 people at peak season in its farming operations.
11.
Rigby Produce, Inc. (“Rigby Produce”) is an Idaho corporation in Jefferson
County, Idaho. Rigby Produce packages potatoes grown in eastern Idaho and it employs
between 100-120 people in its packaging operations.
12.
Wattenbarger Farms is an Idaho general partnership located in Bonneville
County, Idaho. Wattenbarger Farms owns or leases approximately 4000 acres where it grows
potatoes and wheat in Bingham and Bonneville Counties, Idaho.
13.
Adam and Brooke Neibaur, husband and wife, reside in Bingham County, Idaho,
and do business under the assumed name of Cripple Creek Farms. Cripple Creek Farms grows
potatoes, grain, and hay on over 1000 acres in Bingham County, Idaho.
14.
Mark Anderson is the trustee of the Carol A. Anderson Farms Trust. The
Carol A. Anderson Farms Trust owns over 400 acres that is leased to farmers to grow potatoes,
grain, and hay in and around Bingham County, Idaho.
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15.
Kory France is an individual who resides in Bonneville County, Idaho.
Mr. France leases and farms over 500 acres to grow potatoes and grain in and around Bingham
County, Idaho. Mr. France also provides custom farming services in and around Bingham
County, Idaho.
16.
Gerald Oler is an individual who resides in Bonneville County, Idaho and does
business as Oler Farms. Mr. Oler owns over 1500 acres and in any given year leases another 600
or more acres for farming potatoes and barley in and around Bingham County, Idaho.
17.
Bohemian, LLC is an Idaho limited liability company with its principal place of
business located in Bingham County, Idaho. Bohemian owns approximately 114 acres used
primarily to plant hay and run cattle in Bingham County, Idaho.
18.
Gerald and Helen Kelley are husband and wife and reside in Bingham County,
Idaho. They farm hay and own approximately 60 cattle in Bingham County, Idaho.
19.
Craig V. and Andrea Kelley, husband and wife, and Dan G. and Karen K.
Eldredge, husband and wife, reside in Bingham County, Idaho. Together, they farm hay and
own approximately 35 cattle in Bingham County, Idaho.
20.
LaMond Cook is an individual residing in Bingham County, Idaho. Mr. Cook
owns approximately 142 acres that he leases for growing potatoes in Bingham County, Idaho.
21.
As a result of APHIS’s and ISDA’s conduct described herein, each of the
Plaintiffs is under quarantine or regulation by APHIS and ISDA or has been otherwise directly
injured by APHIS’s and ISDA’s actions.
Defendants
22.
APHIS is a federal agency within the United States Department of Agriculture
that has been delegated the responsibility for ensuring compliance with federal law, including the
PPA, APA, NEPA and FACA, and is the federal agency that prepared and approved the Final
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Rule and that has applied and enforced ad hoc protocols and rules outside of those authorized by
the PPA or the Final Rule.
23.
Tom Vilsack is the United States Secretary of Agriculture, sued in his official
capacity. The Secretary is the official ultimately responsible for the approval of the Final Rule,
promulgation of APHIS’s regulations, and for the Department’s compliance with federal law,
including the PPA, APA, NEPA, and FACA.
24.
Kevin Shea is the Administrator of APHIS, sued in his official capacity. The
Secretary of Agriculture has delegated responsibility to the Administrator of APHIS to ensure
compliance with federal law, including the PPA, APA, NEPA, and FACA.
25.
Brian Marschman is the Idaho Plant Health Director for APHIS, sued in his
official capacity. The Secretary of Agriculture and the Administrator of APHIS have delegated
certain responsibilities to the Idaho Plant Health Director to ensure compliance with federal law.
26.
Tina Gresham is the Director of Pale Cyst Nematode Program for APHIS, sued in
her official capacity. The Secretary of Agriculture and Messrs. Shea and Marschman have
delegated certain responsibilities to the Director of Pale Cyst Nematode Program to ensure
compliance with federal law.
27.
ISDA is a state agency responsible for plant and insect programs within Idaho and
for ensuring such programs comply with, and are applied and enforced consistent with, state and
federal law.
28.
Celia R. Gould is the Director of the Idaho State Department of Agriculture, sued
in her official capacity. The Director is the official ultimately responsible for ensuring that the
State of Idaho’s programs regarding plant and insect programs comply with, and are applied and
enforced consistent with, state and federal law.
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LEGAL BACKGRO
B
OUND
I.
PLANT PROTECTION ACT
T (“PPA”)
29.
The PPA
P
is codifiied at 7 U.S.C. §§ 7701 tto 7786. It pprovides thatt the Secretaary of
ure may issu
ue regulation
ns “to preven
nt the introduuction of plaant pests intoo the United
Agricultu
States or the dissemin
nation of plaant pests witthin the Unitted States.” 7 U.S.C. § 77711(a).
30.
The PPA
P
also provides that th
he Secretary of Agricultuure must enssure that the
processess used in dev
veloping reg
gulations relaated to the im
mportation, eentry, exporttation, or
movemen
nt in interstaate commercce of plant peests are, amoong other thiings, transpaarent and
accessiblle. 7 U.S.C. § 7712.
II.
NATIONAL ENVIRONMEN
N
NTAL POLICY
Y ACT (“NE
EPA”)
31.
NEPA
A is the “basiic national charter
c
for prrotection of tthe environm
ment.” 40 C
C.F.R.
§ 1500.1(a).
32.
“The NEPA
N
proceess is intendeed to help puublic officiaals make deciisions that arre
based on understandiing of enviro
onmental con
nsequences, and take acttions that protect, restoree,
and enhaance the enviironment.” Id.
I § 1500.1((c). NEPA’ s twin goals are to: (1) ffoster inform
med
decision--making by “ensur[ing]
“
that
t the agen
ncy, in reachhing its decission, will havve available, and
will careffully consideer, detailed information
i
concerning significant eenvironmenttal impacts,”” and
(2) promote informed
d public partticipation by
y requiring fuull disclosurre of and oppportunities foor
the public to participate in govern
nmental deccisions affectting environm
mental qualiity. Robertsson v.
Methow Valley Citizeens Council,, 490 U.S. 33
32, 349-50 ((1989).
33.
Pursuant to NEPA
A, if a federaal agency prooposes a majjor federal aaction with
significan
nt environmental effectss, the agency
y must prepaare an Enviroonmental Im
mpact Statem
ment
(“EIS”), discussing th
he environm
mental impaccts of and altternatives to the proposeed action.
C. § 4332(2)((C)(i), (iii); 40
4 C.F.R. § 1508.11.
42 U.S.C
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34.
To determine whether an EIS is necessary, an agency may first prepare an
Environmental Assessment (“EA”). 40 C.F.R. §§ 1501.4(c), 1508.9. An EA is a “concise public
document . . . that serves to . . . [b]riefly provide sufficient evidence and analysis for determining
whether to prepare an [EIS] or a finding of no significant impact.” Id. § 1508.9. An EA must
contain sufficient information and analysis to determine whether the proposed action is likely to
have significant impacts, thus requiring preparation of an EIS. Id.
35.
If an agency concludes, based on the EA, that an EIS is not required, it must
prepare a finding of no significant impact (“FONSI”), which explains the agency’s reasons for its
decision. Id. §§ 1501.4(e), 1508.13.
36.
The analysis of alternatives to a proposed agency action is “the heart of the
NEPA” document, and agencies should “[r]igorously explore and objectively evaluate all
reasonable alternatives.” Id. § 1502.14(a). The analysis must include a “no action” alternative,
as well as reasonable alternatives beyond the agency’s jurisdiction. Id. § 1502.14(c)-(d). These
alternative analysis requirements apply to both EISs and EAs. See 42 U.S.C. § 4332(2)(E);
40 C.F.R. § 1508.9(b).
37.
Where ongoing federal action and control remains, and there are new
circumstances or information relevant to environmental concerns or bearing on the agency’s
action or its impacts, a federal agency must determine under NEPA whether to supplement or
update its prior NEPA analysis. See 40 C.F.R. § 1502.9(c)(1).
38.
Federal agencies must ensure the professional integrity, including the scientific
integrity, of the analysis in EIS’s. 40 C.F.R. § 1502.24.
III.
FEDERAL ADVISORY COMMITTEE ACT (“FACA”)
39.
Pursuant to FACA, no advisory committee shall be established by a federal
agency unless such establishment is “determined as a matter of formal record, by the head of the
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agency involved after consultation with the Administrator [of General Services] with timely
notice published in the Federal Register, to be in the public interest in connection with the
performance of duties imposed on that agency by law.” 5 U.S.C. App. 2, § 9(a)(2).
40.
No advisory committee shall “meet or take any action until an advisory committee
charter has been filed . . . with the head of the agency to whom any advisory committee reports
and with the standing committees of the Senate and House of Representatives have legislative
jurisdiction of such agency.” 5 U.S.C. App. 2, § 9(c).
41.
The term “advisory committee” means “any committee, board, commission,
council, conference, panel, task force, or other similar group, or any subcommittee or other
subgroup thereof . . . which is . . . established or utilized by one or more agencies, in the interest
of obtaining advice or recommendations for the President or one or more agencies or officers of
the Federal Government, except that such term excludes (i) any committee that is composed
wholly of full-time, or permanent part-time, officers or employees or the Federal Government.”
5 U.S.C. App. 2, § 3(2).
42.
Agency heads or other federal officials creating an advisory committee shall
“require the membership of the advisory committee to be fairly balanced in terms of the points of
view represented and the functions to be performed by the advisory committee.” 5 U.S.C.
App. 2, § 5(b)(2), (c).
43.
Advisory committees must meet certain prescribed requirements and follow
certain prescribed procedures, including:
a)
Each advisory committee meeting shall be open to the public.
b)
Timely notice of each such meeting shall be published in the Federal
Register, and the Administrator shall prescribe regulations to provide for
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other types of public notice to insure that all persons are notified of such
meeting prior thereto.
c)
Interested persons shall be permitted to attend, appear before, or file
statements with any advisory committee, subject to such reasonable rules
or regulations as the Administrator of General Services may prescribe.
d)
Subject to section 552 of title 5, United States Code, the records, reports,
transcripts, minutes, appendices, working papers, drafts, studies, agenda,
or other documents which were made available to or prepared for or by
each advisory committee shall be available for public inspection and
copying at a single location in the offices of the advisory committee or the
agency to which the advisory committee reports until the advisory
committee ceases to exist.
e)
Detailed minutes of each meeting of each advisory committee shall be
kept and shall contain a record of the persons present, a complete and
accurate description of the matters discussed and conclusions reached, and
copies of all reports received, issued, or approved by the advisory
committee. The accuracy of all minutes shall be certified to by the
chairman of the advisory committee.
f)
There shall be a designated officer or employee of the Federal
Government to chair or attend each meeting of each advisory committee.
No advisory committee shall conduct any meeting in the absence of that
officer or employee.
g)
Advisory committees shall not hold any meetings except at the call of, or
with the advance approval of, a designated officer or employee of the
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federal government, and with an agenda approved by such officer or
employee. 5 U.S.C. App. 2, § 10.
IV.
ADMINISTRATIVE PROCEDURE ACT (“APA”)
44.
The APA provides for judicial review of final agency action by persons
“aggrieved” by such action. 5 U.S.C. § 702. The actions reviewable under the APA include any
“preliminary, procedural, or intermediate agency action or ruling . . . on the review of the final
agency action.” Id. § 704.
45.
Pursuant to the APA, a reviewing court shall “hold unlawful and set aside agency
action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). A reviewing court shall “hold
unlawful and set aside agency action, findings, and conclusions found to be . . . without
observance of procedure required by law.” 5 U.S.C. § 706(2)(D).
46.
The APA standards apply when a federal agency proposes and adopts substantive
or legislative rules. Id. §§ 553, 551(4). Specifically, agencies must provide “[g]eneral notice” of
any “proposed rulemaking” to the public through publication in the Federal Register. That
notice must include “(1) a statement of the time, place, and nature of the public rule making
proceedings; (2) reference to the legal authority under which the rule is proposed; and (3) either
the terms or substance of the proposed rule or a description of the subjects and issues involved.”
Id. § 553(b). An agency’s responsibility to consider public comments on a proposed rulemaking
is required by 5 U.S.C. § 553(c).
V.
THE TENTH AMENDMENT
47.
The Tenth Amendment provides that “[t]he powers not delegated to the United
States by the Constitution, nor prohibited by it to the States, are reserved to the States
respectively, or to the people.” U.S. Const. amend. X.
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48.
The Tenth
T
Amend
dment has beeen interpretted to prohibbit Congress from
command
deering the legislative
l
prrocesses of the
t States byy directly com
mpelling theem to enact aand
enforce a federal regu
ulatory prog
gram. See New
Ne York v. U
United Statess, 505 U.S. 1144, 161 (19992).
FACTUAL
L BACKGR
ROUND
I.
PALE CYST NEMATODE OR
O “PCN”
49.
Pale Cyst
C Nemato
ode (“PCN”)), Globoderaa pallida, is a pest of pottato crops. T
The
microsco
opic nematod
de poses no threat
t
to hum
man health aand never acttually enterss the tuber off a
potato. Some
S
foreign
n studies sug
ggest that PC
CN can reducce potato yieelds throughh root damagge if
present in
n a large eno
ough numberr.
50.
Althou
ugh prevalen
nt in South America
A
andd Europe, PC
CN had neveer been deteccted
in the Un
nited States before
b
it wass found in Id
daho in 20066.
51.
There have been no
n known occcurrences inn Idaho or ellsewhere in tthe United S
States
CN has reducced the yield
d of potatoess.
where PC
II.
DISCOVERY OF
O PCN IN IDAHO
52.
On Ap
pril 19, 2006
6, APHIS an
nnounced thee detection oof PCN in eaastern Idaho.
d
PCN through a survey of tare soil at aan ISDA graader facility. After this
APHIS discovered
detection
n, APHIS con
nducted soill sample testing from a nnumber of fieelds that proovided potatooes
to the ISD
DA grader facility
fa
on thee day the positive tare sooil was colleected. As a rresult of the
sample teesting, APHIIS determineed that at leaast one field contained P
PCN.
53.
APHIS published an interim rule
r in the Feederal Regisster on Septeember 12, 20007,
quarantin
ning and regu
ulating certaain parts of Bingham
B
andd Bonnevillee Counties, IIdaho. 72 Feed.
Reg. 519
975-51988 (S
Sept. 12, 200
07) (“Interim
m Rule”).
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54.
On April 29, 2009, APHIS adopted the Interim Rule, with some changes, as a
Final Rule. See 74 Fed. Reg. 19374-19382 (Apr. 29, 2009). The Final Rule is codified at
7 C.F.R. §§ 301.86-301.89.
55.
Pursuant to the Final Rule, the Administrator of APHIS will designate an entire
State as quarantined unless the Administrator determines that the State has adopted restrictions
on the intrastate movement of regulated articles that are equivalent to the interstate requirements
promulgated by APHIS.
56.
Pursuant to the Final Rule, the Administrator of APHIS may designate “infested
fields” and “associated fields.” A designation of “infested field” or “associated field” will
subject a grower’s field to quarantine or regulation by APHIS.
57.
Pursuant to the Final Rule, the Administrator will designate a field as an “infested
field” when PCN is found in the field.
58.
Pursuant to the Final Rule, an “associated field” is a field where a PCN host crop
has been grown in the last 10 years, and where the field: (1) shares a border with an “infested
field;” (2) the field came into contact with a regulated article from an “infested field” within the
last 10 years, or (3) within the last 10 years the field shared ownership, tenancy, seed, drainage
or runoff, farm machinery, or other elements of shared cultural practices with an “infested field”
that could allow spread of the pale cyst nematode, as determined by the Administrator. This
portion of the Final Rule is referred to herein as the “10-year look back” provision.
59.
Pursuant to the Final Rule, an “infested field” or an “associated field” will be
removed from quarantine, and thus removed from regulation by APHIS, only after the field has
been found to be free of PCN according to a protocol to be approved by the Administrator after
the promulgation of the Final Rule. 7 C.F.R. § 301.86-3; 74 Fed. Reg. 19376 (Apr. 29, 2009).
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60.
APHIS has not issued a protocol approved by the Administrator for public review
or comment related to the deregulation of an “infested field” or an “associated field. Indeed,
Plaintiffs are unaware of any written “protocol” formulated or drafted by APHIS for this
purpose. On information and belief, to date, APHIS has instead applied ad hoc and everchanging informal protocols in its designation and de-designation of “infested fields” and
“associated fields.”
61.
After APHIS detected PCN in Idaho, and after it promulgated the Interim Rule,
APHIS designated certain fields farmed by certain Plaintiffs as “infested” or “associated,”
placing the fields under APHIS’s quarantine regulations. The effective date of the Interim Rule
was November 1, 2007. Beginning on that date, APHIS imposed strict sanitation and washing
requirements on certain Plaintiffs to prevent movement of PCN out of the fields. Plaintiffs
abided by the APHIS requirements.
62.
In or about 2009, APHIS informed many Plaintiffs that certain testing and surveys
showed that the fields owned or farmed by Plaintiffs were PCN free, and therefore those fields
that had been designated “infested” or “associated” by APHIS pursuant to the Interim Rule and
Final Rule were released from APHIS regulation. Plaintiffs are unaware of the scope of the
testing and surveys referenced by APHIS because APHIS has not made any deregulation
protocol public.
63.
After APHIS released those fields, some Plaintiffs initiated their own sanitation
and washing standards to guard against future designation of uninfested fields as “associated
fields.” Those Plaintiffs implemented their own standards after their fields became deregulated.
The same standards remain in effect.
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III.
THE TECHNICAL WORKIING GROUP
64
4.
As part of its regu
ulation of PC
CN, APHIS sselected an iinternationall group of
individuaals to form what
w it calls the
t Technicaal Working G
Group. The Technical W
Working Grooup
consists of
o at least 16
6 members and
a three obsservers incluuding non-feederal membbers from a
number of
o states and
d foreign gov
vernments.
65.
On infformation an
nd belief, no
o private secttor potato grrowers or pootato farm lannd
owners were
w invited to be members of the Teechnical Woorking Groupp, or to proviide opinionss,
advice, or
o recommen
ndations to th
he Technicall Working G
Group.
66.
The purpose of the Technical Working Grroup is to prrovide advicee and
t control of
o PCN basedd on currentt scientific innformation. The
recommeendations to APHIS for the
Technicaal Working Group
G
has prrovided adviice and has m
made recomm
mendations to APHIS thhat
form the basis of man
ny of APHIS
S’s ad hoc prrotocols as w
well as APH
HIS’s decision to delay
developm
ment of proto
ocols until th
he publicatio
on of the Finnal Rule.
67.
On infformation an
nd belief, AP
PHIS has addopted some of the opinioons, advice, or
recommeendations of the Techniccal Working Group as th ough they arre promulgaated regulatioons.
68.
nd belief, thee opinions, aadvice, or reccommendatiions of the
On infformation an
G
form the
t basis of many
m
of AP
PHIS’s ad hooc protocols.
Technicaal Working Group
IV.
THE CANADA
A AND UNITE
ED STATES GUIDELINES
69.
Certaiin guideliness called the Canada
C
and United Statees Guidelinees on
Surveillaance and Phy
ytosanitary Actions
A
for th
he Potato Cyyst Nematoddes Globoderra rostochieensis
and Glob
bodera pallid
da have been
n created by the Canadiaan Food Insppection Agenncy and APH
HIS
(“Canadaa and United
d States Guid
delines”). While
W
there arre multiple iiterations off the Canada and
United States Guidellines, the lateest version iss dated Mayy 7, 2014.
COMPLAIINT FOR DEC
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70.
The Canada
C
and United
U
Statess Guideliness state that thhey are regullatory, and,
among otther things, outline
o
meassures to be taaken on the detection off PCN, proviide guidancee on
managem
ment or the reelease of reg
gulated areass, and establiish requirem
ments for the movement oof
regulated
d articles including potattoes.
71.
On infformation an
nd belief, AP
PHIS has addopted some of the methoods and
protocolss in the Canaada and Unitted States Gu
uidelines as though theyy are APA-prromulgated
regulations.
72.
On infformation an
nd belief, thee Canada an d United Staates Guidelinnes form thee
basis of many
m
of APH
HIS’s ad hocc protocols.
V.
POST-REGUL
LATION MON
NITORING OF
F PLAINTIFF
FS’ FIELDS IN
N 2011
73.
At thee same time APHIS
A
was releasing fieelds from itss federal reguulatory contrrol,
g fields owneed or farmed
d by Plaintiff
ffs, it was unndertaking baack-channel efforts to enngage
including
in unauth
horized activ
vities includiing continued “monitorinng” and “surrveillance” oof deregulateed
fields.
4.
74
Intern
nal APHIS co
orresponden
nce indicates that this addditional “moonitoring” annd
“surveillaance” would
d include a teesting regim
me that wouldd consist of ffour additionnal surveys, each
one to bee conducted as soon as possible afterr a PCN hostt crop was grrown in a deeregulated fiield.
And then
n, even if thee deregulated
d field was negative
n
for aall four survveys, the ownners or farmers
of the derregulated fieeld would stiill be expectted to allow aadditional A
APHIS testinng.
75.
APHIS delegated,, at least in part,
p
its “monnitoring” annd “surveillannce” testing
SDA.
regime of deregulated fields to IS
76.
APHIIS, through ISDA,
I
thereafter requestted Plaintiffs
fs’ permissioon to conductt
d fields farm
med by Plainttiffs. Numerrous Plaintifffs, knowingg their fields were
testing off deregulated
COMPLAIINT FOR DEC
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Case 1:15-cv-00143-EJL Document 1 Filed 04/28/15 Page 18 of 30
deregulatted, and rely
ying on APH
HIS’s represeentations thatt it had no auuthority to regulate the
deregulatted fields ow
wned or farm
med by Plainttiffs, denied APHIS’s reequest.
77.
APHIIS, through ISDA,
I
has procured
p
searrch warrantss to force at lleast one
Plaintiff, Mickelsen Farms,
F
to alllow the testing of the derregulated fieelds that it had farmed. The
deregulatted fields weere not withiin APHIS’s federal
f
regullatory controol.
78.
On thee basis of these search warrants,
w
in tthe fall of 20011, APHIS, through ISD
DA,
tested thee deregulated
d fields farm
med by Mick
kelsen Farmss. All of the deregulatedd fields testedd
came bacck negative for
f PCN. AP
PHIS again told
t
Mickelssen Farms thhat the dereggulated fieldss
farmed by
b it were not subject to further
f
regullation by AP
PHIS.
VI.
MORE POST-R
- EGULATIO
ON TESTING OF PLAINTIIFFS’ FIELDS
S IN 2014
79.
In 201
13 and 2014, APHIS, thrrough ISDA
A, notified some Plaintifffs that certainn
wned or prev
viously farmeed by Plaintiiffs had beenn overlookedd by APHIS
deregulatted fields ow
during prrior testing of
o the deregu
ulated fields.
80.
In 201
13 and 2014, APHIS, thrrough ISDA
A, and over thhe objection of many
o these field
ds even thouugh the fieldss were dereggulated and
Plaintiffss, undertook the testing of
outside of
o APHIS’s and
a ISDA’s regulatory control.
c
VII.
APHIS
A
DESIG
GNATES AN OVERLY BROAD
R
NUMBEER OF “ASSO
OCIATED FIE
ELDS”
81.
Due to
o its testing of deregulatted fields in 22013 and 20014, and purssuant to the Final
PHIS designaated certain fields
f
as “infested fieldss.” Once a fi
field is designnated as infeested,
Rule, AP
the Final Rule then reequired APH
HIS to design
nate “associaated fields” which are allso subject too
quarantin
ne or regulattion by APH
HIS.
82.
Using
g the 10-yearr look back in the Final R
Rule, APHIS
S informed P
Plaintiffs thaat it
was conssidering all or
o nearly all of the fields owned or faarmed by Plaaintiffs as poossible
“associatted fields” beecause thosee acres had been
b
farmed since 2005. APHIS theen told Plainttiffs
COMPLAIINT FOR DEC
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Case 1:15-cv-00143-EJL Document 1 Filed 04/28/15 Page 19 of 30
that it was their burden to demonstrate to APHIS which of the fields were not exposed to the
infested fields by contemporaneous documentary evidence.
83.
APHIS improperly forced Plaintiffs to prove a negative by demanding that they
produce documentation such as handwritten notes, calendar or planner entries, tractor logs,
emails, scale tickets, or any other original source documentation to demonstrate that fields they
owned or farmed were not associated fields. Many Plaintiffs nonetheless did provide APHIS
with the documentation it requested, including documentation as to Plaintiffs’ self-imposed
sanitation standards.
84.
Even after Plaintiffs submitted the information requested by APHIS showing that
there is no risk of the spread of PCN from infested fields owned or farmed by Plaintiffs, APHIS
still designated a number of those as “associated fields” without any basis for the designation.
85.
Since at least 2011, and consistent with its conduct since 2007, APHIS has
applied ad hoc and impossible-to-satisfy conditions on Plaintiffs, without a basis in law or fact to
do so.
86.
APHIS has no written protocol for deregulating fields. It is therefore completely
unclear how an “infested field” or an “associated field” becomes deregulated, if ever.
87.
APHIS has told many Plaintiffs, in writing, that when the newly quarantined or
regulated fields owned or farmed by Plaintiffs become deregulated, the fields will still be subject
to testing after at least each of the next three host crops are planted in the fields. APHIS’s
unauthorized testing will have the effect of regulating Plaintiffs’ deregulated fields for at least 15
to 20 additional years after APHIS deregulates the fields.
88.
APHIS’s application and enforcement of the Final Rule and its ad hoc protocols
are having and will have significant adverse impacts on Plaintiffs.
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VIII. APHIS’
A
S USE
E OF METHY
YL BROMIDE
E
89.
Methy
yl Bromide is
i a highly to
oxic fumigannt used as a ppesticide. W
While the
applicatio
on of Methy
yl Bromide iss known to be
b toxic to huumans and llivestock, AP
PHIS has noot
adequately studied orr evaluated the
t applicatio
on of Methyyl Bromide too attempt to eradicate orr
control PCN.
P
90.
ne of 2004, APHIS
A
issueed an Environnmental Asssessment related to the uuse of
In Jun
Methyl Bromide
B
for generalized quarantine use
u (“2004 E
EA”).
91.
In Maay of 2007, APHIS
A
issueed an environnmental asseessment to adddress, amonng
other thin
ngs, the use of Methyl Bromide
B
as a way to eraddicate PCN inn Bingham C
County, Idahho
(“May 20
007 EA”).
92.
In July
y of 2007, APHIS
A
issued
d an amendeed environm
mental assessm
ment to addrress
t the fumig
gant formulattion of the Methyl
M
Brom
mide product (“July 20077 EA”).
changes to
93.
In August of 2007
7 APHIS issu
ued a findingg of no signiificant envirronmental im
mpact
related to
o the use of Methyl
M
Brom
mide in Bing
gham Countyy, Idaho (“20007 FONSI””). By the teerms
of the 2007 FONSI, the
t use of Methyl
M
Bromiide “could exxtend as lonng as 7 years,” ending in
o 2014.
August of
94
4.
In April of 2007 APHIS
A
issueed an addenddum to the 20007 FONSI related to ceertain
limited changes to itss use of Meth
hyl Bromidee in Bingham
m County, Iddaho (“2007 FONSI
Addendu
um”).
95.
On infformation an
nd belief, sin
nce the 20044 EA and thee July 2007 E
EA and FON
NSI,
h made sub
bstantial chan
nges to the way
w it uses M
Methyl Brom
mide with reggard to PCN
N
APHIS has
quarantin
ne and regulaation. Theree are significcant new circcumstances and informaation relevannt to
the envirronmental efffects from th
he use of Meethyl Bromidde that bearss on its contiinued use in the
PCN program.
COMPLAIINT FOR DEC
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96.
APHIS application of Methyl Bromide to certain fields owned or farmed by
Plaintiffs has caused, among other things, significant disruption to Plaintiffs’ farm operations,
has made farm crops toxic and unsellable, and has caused disease and death to livestock owned
by multiple Plaintiffs.
97.
On information and belief, APHIS has not issued any further environmental
assessments, findings of no significant impact, or environmental impact statements regarding its
continued use of Methyl Bromide as part of its PCN program.
98.
APHIS has used Methyl Bromide with regard to PCN quarantine and regulation
after expiration of the 7-year term identified in the 2007 FONSI.
FIRST CLAIM FOR RELIEF
(Violation of APA and PPA – APHIS’s Failure to Comply with Rulemaking
Requirements in Issuing the Final Rule)
99.
Plaintiffs incorporate by reference each of the allegations in paragraphs 1 through
100.
The PPA requires the Secretary to ensure that the processes used in developing
98.
regulations related to plant pests are, among other things, transparent and accessible. 7 U.S.C.
§ 7712.
101.
APHIS is required to comply with APA notice and comment procedures when
formulating and issuing substantive or legislative rules. 5 U.S.C. §§ 553, 551(4).
102.
APA procedural requirements apply not only to those rules which an agency
denominates as such but also to other agency pronouncements that can, as a practical matter,
have a binding effect.
103.
Where the Final Rule has a binding effect, APHIS was required to comply with
APA notice and comment procedures when it formulated and issued the Final Rule. 5 U.S.C.
§ 553(b)–(d).
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104.
APHIS violated its APA notice and comment duties when it formulated and
issued the Final Rule without: (1) notifying the public through publication in the Federal Register
that APHIS was proposing to issue the Final Rule; (2) providing the public an opportunity to
submit written comments on the a draft Final Rule; and (3) publishing the Final Rule in the
Federal Register at least 30 days prior to its effective date. 5 U.S.C. § 553(b)–(d).
105.
By not complying with PPA regarding formulating and issuing the Final Rule,
APHIS acted arbitrarily, capriciously, not in accordance with law or the procedure required by
law, entitling Plaintiffs to the relief requested below.
106.
By not complying with APA notice and comment procedures regarding
formulating and issuing the Final Rule, APHIS acted arbitrarily, capriciously, not in accordance
with law or the procedure required by law, entitling Plaintiffs to the relief requested below.
SECOND CLAIM FOR RELIEF
(Violation of APA and PPA – APHIS’s Failure to Comply with Rulemaking
Procedures in Adopting the Ad Hoc Protocols)
107.
Plaintiffs incorporate by reference each of the allegations in paragraphs 1 through
108.
The Final Rule contemplates further rulemaking in that it requires the creation of
106.
a future “protocol” to be used to support removal of infested and associated fields from
regulation. APHIS has not issued proposed or final regulations defining such protocols. Yet,
APHIS purports to have previously used, and to currently using, a deregulation protocol.
109.
APA procedural requirements apply not only to those rules which an agency
denominates as such but also to other agency pronouncements that can, as a practical matter,
have a binding effect.
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110.
APHIS’s ad hoc protocols have a binding effect. Therefore, APHIS was required
to comply with APA notice and comment procedures when it formulated and issued the
protocols. 5 U.S.C. § 553(b)–(d).
111.
APHIS’s adoption of the Canada and United States Guidelines has a binding
effect. Therefore, APHIS was required to comply with APA notice and comment procedures
when it adopted the Guidelines. 5 U.S.C. § 553(b)–(d).
112.
APHIS’s adoption of the opinions, advice, and recommendations of the Technical
Working Group has a binding effect. Therefore, APHIS was required to comply with APA
notice and comment procedures when it adopted those opinions, advice, and recommendations.
5 U.S.C. § 553(b)–(d).
113.
By not complying with the APA notice and comment procedures, APHIS acted
arbitrarily, capriciously, not in accordance with law or the procedure required by law pursuant to
the APA and PPA, entitling Plaintiffs to the relief requested below.
THIRD CLAIM FOR RELIEF
(Violation of APA and PPA – APHIS’s Application of Ad Hoc Protocols to Plaintiffs is
Arbitrary and Capricious, an Abuse of Discretion, Not in Accordance with Law)
114.
Plaintiffs incorporate by reference each of the allegations in paragraphs 1 through
115.
APHIS has used the Final Rule and its ad hoc protocols to regulate, deregulate,
113.
and reregulate numerous fields owned or farmed by Plaintiffs and to unlawfully monitor and
surveil fields owned or farmed by Plaintiffs.
116.
APHIS’s ad hoc and ever-changing protocols have put, and will continue to put
fields owned or farmed by Plaintiffs into a circuitous and undefined state of regulation for an
undefined period of time.
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117.
APHIS has applied and continues to apply ad hoc and impossible-to-satisfy
conditions on Plaintiffs. APHIS continues to change and add to the ad hoc conditions it has
placed on Plaintiffs without a basis in law or fact to do so.
118.
APHIS’s application of the Final Rule and the ad hoc protocols to Plaintiffs, as
described above, is arbitrary and capricious, constitutes an abuse of discretion, and is otherwise
not in accordance with law, entitling plaintiffs to the relief requested below.
FOURTH CLAIM FOR RELIEF
(Violation of FACA and APA – APHIS’s Failure to Comply with FACA Procedures)
119.
Plaintiffs incorporate by reference each of the allegations in paragraphs 1 through
120.
APHIS is required to comply with FACA procedures when establishing and
118.
conducting advisory committees. 5 U.S.C. App. 2, §§ 1-16.
121.
Under the APA, this Court has authority to “hold unlawful and set aside agency
actions found to be arbitrary, capricious, an abuse of discretion or not in accordance with the
law,” 5 U.S.C. § 706(2)(A), and to set aside an agency decision “without observance of
procedure required by law.” 5 U.S.C. § 706(2)(D).
122.
The Technical Working Group was an advisory committee within the meaning of
FACA. APHIS was required to comply with FACA procedures when it established the
Technical Working Group.
123.
On information and belief, APHIS violated its nondiscretionary FACA duties by
not establishing the Technical Working Group following a determination as a matter of formal
record, with timely notice published in the Federal Register, that the Technical Working Group
was in the public interest.
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124.
Based on information and belief, APHIS violated its nondiscretionary FACA
duties by not filing an advisory committee charter with the Senate and House of Representatives
having legislative jurisdiction over APHIS before convening the Technical Working Group.
125.
APHIS violated its nondiscretionary FACA duties by not ensuring that
membership of the Technical Working Group was fairly balanced by including Plaintiffs’ points
of view.
126.
Based on information and belief, APHIS violated its nondiscretionary FACA
duties by not meeting the following requirements, among others:
a)
Having the Technical Working Group meetings open to the public;
b)
Publishing timely notice of the Technical Working Group meetings in the
Federal Register;
c)
Permitting interested persons or groups such as Plaintiffs to attend, appear
before, or file statements with the Technical Working Group;
d)
Making available for public inspection and copying the records, reports,
transcripts, minutes, appendices, working papers, drafts, studies, agenda,
or other documents which were made available to or prepared for or by the
Technical Working Group;
e)
Keeping detailed minutes of the meeting of the Technical Working Group
containing a record of the persons present, a complete and accurate
description of the matters discussed and conclusions reached, and copies
of all reports received, issued, or approved by the Technical Working
Group; or
f)
Certifying the accuracy of all minutes.
COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF - 23
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127.
By not complying with the FACA procedures regarding the Technical Working
Group, APHIS violated the FACA, 5 U.S.C. App. 2, §§ 1-16, and acted arbitrarily, capriciously,
not in accordance with law or the procedure required by law pursuant to the APA, entitling
Plaintiffs to the relief requested below.
FIFTH CLAIM FOR RELIEF
(Violation of NEPA and APA – APHIS’s Failure to Prepare NEPA Review)
128.
Plaintiffs incorporate by reference each of the allegations in paragraphs 1 through
129.
APHIS is required to comply with NEPA procedures if it proposes or has ongoing
127.
major federal action that may have significant environmental effects. 42 U.S.C. §§ 4321-70.
130.
APHIS’s actions, including its decisions to bring certain fields farmed by
Plaintiffs under quarantine and regulation, including Methyl Bromide fumigation, are major
federal actions with the potential for significant environmental effects.
131.
APHIS was required to comply with NEPA environmental evaluation procedures
prior to quarantine and regulation of Plaintiffs fields, including prior to the ordering of Methyl
Bromide fumigation.
132.
APHIS violated its NEPA duties when it took the actions set forth herein without
considering the potential for significant environmental effects as required by NEPA.
133.
APHIS violated its NEPA duties when it took the actions set forth herein. These
actions are outside the scope of the 2004 EA, the 2007 EA, the 2007 FONSI, and/or the 2007
FONSI Addendum, and therefore have not been evaluated pursuant to NEPA.
134.
APHIS violated its NEPA duties by failing to supplement its 2004 and 2007 EAs
when substantial changes in its use of Methyl Bromide subsequently occurred, when significant
new circumstances arose, and when additional information became available.
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135.
Upon information and belief, APHIS violated its NEPA duties when it failed to
insure the scientific integrity of its NEPA analysis and when it failed to obtain the special
expertise of other federal agencies such as the Environmental Protection Agency and
Agricultural Research Service.
136.
By not complying with NEPA procedures regarding its actions, APHIS acted
arbitrarily, capriciously, not in accordance with law or the procedure required by law pursuant to
the APA, entitling Plaintiffs to the relief requested below.
SIXTH CLAIM FOR RELIEF
(ISDA’s Violation of the Idaho APA)
137.
Plaintiffs incorporate by reference each of the allegations in paragraphs 1 through
138.
The Idaho Plant Pest Act allows the ISDA to control PCN by rules and
136.
regulations. Idaho Code § 22-2004.
139.
Idaho’s Rules Governing the Pale Cyst Nematode (Globodera Pallida) are found
at IDAPA 02.06.10 (the “Idaho PCN Rules”).
140.
On March 2, 2015, ISDA sent Mickelsen Farms a formal notice stating that a
number of Plaintiff Mickelsen Farms’ fields were subject to ISDA’s regulation pursuant to the
Idaho PCN Rules.
141.
On March 18, 2015, Mickelsen Farms asked ISDA to reconsider its March 2,
2015 decision. On April 2, 2015, ISDA denied Mickelsen Farms’ request.
142.
Mickelsen Farms therefore timely seeks judicial review of this final agency action
pursuant to Idaho Code § 67-5273(3).
143.
ISDA’s application of and reliance on the Idaho PCN Rules for the regulation of
Mickelsen Farms was arbitrary, capricious, an abuse of discretion, in excess of the statutory
COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF - 25
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authority of ISDA, not in accordance with law, and entitles Plaintiffs to the relief requested
below.
144.
Pursuant to Idaho Code § 67-5229(1)(a), significant portions of the Idaho PCN
Rules incorporate or rely upon the Final Rule and APHIS’s protocols by reference. Because the
Final Rule and APHIS’s protocols should be vacated and set aside, the portions of the Idaho
PCN Rules incorporating or relying on the Final Rule or APHIS’s protocols, in any way, should
also be vacated and set aside.
SEVENTH CLAIM FOR RELIEF
(Violation of APA and United States Constitution – APHIS’s Regulation
Violates the Tenth Amendment)
145.
Plaintiffs incorporate by reference each of the allegations in paragraphs 1 through
146.
The PPA, 7 U.S.C. § 7754, allows the Secretary to issue such regulations and
144.
orders as the Secretary considers necessary to carry out the purposes and requirements of the
PPA.
147.
The Final Rule requires the designation of the entire state of Idaho as quarantined
unless Idaho adopts and enforces APHIS’s regulations on the intrastate movements of the
regulated articles.
148.
The Final Rule violates the Tenth Amendment because it coerces the state of
Idaho to adopt and enforce APHIS’s regulatory program.
149.
APHIS’s coercion of the state of Idaho is arbitrary and capricious, an abuse of
discretion, otherwise not in accordance with law, in violation of the APA and the United States
Constitution, and entitles Plaintiffs to the relief requested below.
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ATTORNEYS’ FEES
150.
Under 28 U.S.C. § 2412 and other applicable law, Plaintiffs are entitled to recover
their costs and attorneys’ fees incurred in bringing this action against APHIS. Under Idaho Code
§ 12-117, and other applicable Idaho State law, Plaintiffs are entitled to recover their costs and
attorneys’ fees incurred in bringing this action against ISDA.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court enter judgment providing
the following relief:
1.
Declare that APHIS violated the PPA, APA, NEPA, FACA, and the Tenth
Amendment;
2.
Declare that APHIS’s actions, as set forth above, were arbitrary and capricious, an
abuse of discretion, not in accordance with law, and without observance of procedures required
by law;
3.
Declare that ISDA’s actions, as set forth above, were arbitrary and capricious, an
abuse of discretion, in excess of the statutory authority of the agency, and not in accordance with
law;
4.
Vacate and set aside the Final Rule, APHIS’s ad hoc protocols, and the Idaho
PCN Rules;
5.
Enjoin APHIS and ISDA from relying on or enforcing the Final Rule, APHIS’s ad
hoc protocols, the Canada and United States Guidelines, the advice recommendation or reports
of the Technical Working Group, or the Idaho PCN Rules;
6.
Enjoin and immediately end the quarantine and regulation of all fields owned or
farmed by Plaintiffs;
COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF - 27
Case 1:15-cv-00143-EJL Document 1 Filed 04/28/15 Page 30 of 30
7.
Award Plaintiffs their attorneys’ fees and costs incurred in bringing and
maintaining this action pursuant to 28 U.S.C. § 2412, Idaho Code § 12-117, and other applicable
authorities; and
8.
Grant Plaintiffs such other and further relief as the Court may deem necessary and
appropriate.
DATED this 28th day of April, 2015.
HOLLAND & HART LLP
By: /s/ Walter H. Bithell
Walter H. Bithell, of the firm
Attorneys for Plaintiffs
7704554_4
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CIVIL COVER SHEET
-65HY
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SXUSRVHRILQLWLDWLQJWKHFLYLOGRFNHWVKHHW(SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS
DEFENDANTS
MICKELSEN FARMS, LLC, ET AL.
ANIMAL AND PLANT HEALTH INSPECTION SERVICE, ET AL.
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Bonneville
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(IN U.S. PLAINTIFF CASES ONLY)
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(c)$WWRUQH\V(Firm Name, Address, and Telephone Number)
Holland & Hart LLP
P.O. Box 2527
Boise, ID 83701
208-342-5000
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VI. CAUSE OF ACTION
&LWHWKH86&LYLO6WDWXWHXQGHUZKLFK\RXDUHILOLQJ(Do not cite jurisdictional statutes unless diversity)
7 U.S.C. §§ 7701-7786; 5 U.S.C. §§ 551-553, 701-706; 5 U.S.C. App. 2, §§ 1-16; 42 U.S.C. §§ 4321-70
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Failure to comply with obligations in the above-cited statutes
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VII. REQUESTED IN
81'(558/()5&Y3
COMPLAINT:
VIII. RELATED CASE(S)
(See instructions):
IF ANY
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JURY DEMAND:
DEMAND $
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6,*1$785(2)$77251(<2)5(&25'
/s/ Walter H. Bithell
04/28/2015
FOR OFFICE USE ONLY
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Case 1:15-cv-00143-EJL Document 1-2 Filed 04/28/15 Page 1 of 1
AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
District
of Idaho
__________
District
of __________
MICKELSEN FARMS, LLC, ET AL.
Plaintiff(s)
v.
ANIMAL AND PLANT HEALTH INSPECTION
SERVICE, ET AL.
Defendant(s)
)
)
)
)
)
)
)
)
)
)
)
)
Civil Action No. 15-cv-143
SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address) Animal and Plant Health Inspection Service
4700 Rivers Road
Riverdale, MD 20737
A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,
whose name and address are: Walter H. Bithell
William G. Myers III
A. Dean Bennett
Holland & Hart LLP
P.O. Box 2527
Boise, ID 83701
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.
CLERK OF COURT
Date:
Signature of Clerk or Deputy Clerk
Case 1:15-cv-00143-EJL Document 1-3 Filed 04/28/15 Page 1 of 1
AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
District
of Idaho
__________
District
of __________
MICKELSEN FARMS, LLC, ET AL.
Plaintiff(s)
v.
ANIMAL AND PLANT HEALTH INSPECTION
SERVICE, ET AL.
Defendant(s)
)
)
)
)
)
)
)
)
)
)
)
)
Civil Action No. 15-cv-143
SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address) Tom Vilsack, in his capacity as
Secreary, United States Department of Agriculture
1400 Independence Ave., S.W.
Washington, DC 20250
A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,
whose name and address are: Walter H. Bithell
William G. Myers III
A. Dean Bennett
Holland & Hart LLP
P.O. Box 2527
Boise, ID 83701
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.
CLERK OF COURT
Date:
Signature of Clerk or Deputy Clerk
Case 1:15-cv-00143-EJL Document 1-4 Filed 04/28/15 Page 1 of 1
AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
District
of Idaho
__________
District
of __________
MICKELSEN FARMS, LLC, ET AL.
Plaintiff(s)
v.
ANIMAL AND PLANT HEALTH INSPECTION
SERVICE, ET AL.
Defendant(s)
)
)
)
)
)
)
)
)
)
)
)
)
Civil Action No. 15-cv-143
SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address) Kevin Shea, in his capacity as
Administrator, Animal and Plant Health Inspection Service
USDA/APHIS
4700 Rivers Rd.
Riverdale, MD 20737
A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,
whose name and address are: Walter H. Bithell
William G. Myers III
A. Dean Bennett
Holland & Hart LLP
P.O. Box 2527
Boise, ID 83701
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.
CLERK OF COURT
Date:
Signature of Clerk or Deputy Clerk
Case 1:15-cv-00143-EJL Document 1-5 Filed 04/28/15 Page 1 of 1
AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
District
of Idaho
__________
District
of __________
MICKELSEN FARMS, LLC, ET AL.
Plaintiff(s)
v.
ANIMAL AND PLANT HEALTH INSPECTION
SERVICE, ET AL.
Defendant(s)
)
)
)
)
)
)
)
)
)
)
)
)
Civil Action No. 15-cv-143
SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address) Brian Marschman, in his capacity as
Idaho Plant Health Director
USDA-APHIS-PPQ
9118 W. Blackeagle Dr.
Boise, ID 83709
A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,
whose name and address are: Walter H. Bithell
William G. Myers III
A. Dean Bennett
Holland & Hart LLP
P.O. Box 2527
Boise, ID 83701
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.
CLERK OF COURT
Date:
Signature of Clerk or Deputy Clerk
Case 1:15-cv-00143-EJL Document 1-6 Filed 04/28/15 Page 1 of 1
AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
District
of Idaho
__________
District
of __________
MICKELSEN FARMS, LLC, ET AL.
Plaintiff(s)
v.
ANIMAL AND PLANT HEALTH INSPECTION
SERVICE, ET AL.
Defendant(s)
)
)
)
)
)
)
)
)
)
)
)
)
Civil Action No. 15-cv-143
SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address) Tina Gresham, in her capacity as
Director of PCN Program
Animal and Plant Health Inspection Service
USDA/APHIS
4700 Rivers Rd.
Riverdale, MD 20737
A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,
whose name and address are: Walter H. Bithell
William G. Myers III
A. Dean Bennett
Holland & Hart LLP
P.O. Box 2527
Boise, ID 83701
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.
CLERK OF COURT
Date:
Signature of Clerk or Deputy Clerk
Case 1:15-cv-00143-EJL Document 1-7 Filed 04/28/15 Page 1 of 1
AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
District
of Idaho
__________
District
of __________
MICKELSEN FARMS, LLC, ET AL.
Plaintiff(s)
v.
ANIMAL AND PLANT HEALTH INSPECTION
SERVICE, ET AL.
Defendant(s)
)
)
)
)
)
)
)
)
)
)
)
)
Civil Action No. 15-cv-143
SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address) Idaho State Department of Agriculture
2270 Old Penitentiary Rd.
Boise, ID 83712
A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,
whose name and address are: Walter H. Bithell
William G. Myers III
A. Dean Bennett
Holland & Hart LLP
P.O. Box 2527
Boise, ID 83701
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.
CLERK OF COURT
Date:
Signature of Clerk or Deputy Clerk
Case 1:15-cv-00143-EJL Document 1-8 Filed 04/28/15 Page 1 of 1
AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
District
of Idaho
__________
District
of __________
MICKELSEN FARMS, LLC, ET AL.
Plaintiff(s)
v.
ANIMAL AND PLANT HEALTH INSPECTION
SERVICE, ET AL.
Defendant(s)
)
)
)
)
)
)
)
)
)
)
)
)
Civil Action No. 15-cv-143
SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address) Celia R. Gould, in her capacity as
Director, Idaho State Department of Agriculture
2270 Old Penitentiary Rd.
Boise, ID 83712
A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,
whose name and address are: Walter H. Bithell
William G. Myers III
A. Dean Bennett
Holland & Hart LLP
P.O. Box 2527
Boise, ID 83701
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.
CLERK OF COURT
Date:
Signature of Clerk or Deputy Clerk