Judge rules in favor of potato farmers in PCN lawsuit
By: Sean Ellis
Published in Blog on March 29, 2018
BOISE – Claims by a group of potato farmers in Eastern Idaho affected by a federal pale cyst nematode quarantine program that they had no real voice in its crafting have been upheld by a U.S. District Court judge.
PCN is a tiny worm that feeds off potato plant roots and can significantly reduce potato yields if present in high numbers. It is considered a quarantine pest by about 80 nations.
It is not a human health threat.
After PCN was detected in a small area near Shelley in East Idaho in 2006, APHIS set up the quarantine area to prevent its spread.
The federal agency said the quarantine program was necessary to convince trading partners who closed their door to Idaho or U.S. potato exports following the discovery to reopen their borders to U.S. spuds.
According to APHIS, there are 27 PCN-infested fields totaling 3,047 acres within the quarantine area and the total number of acres under regulation, including fields associated with the infested fields through the use of the same equipment, is 9,540 acres.
A group of 15 potato farmers affected by the quarantine filed a federal lawsuit in 2015 that claimed USDA’s Animal and Plant Health Inspection Service developed the PCN quarantine program without the proper public notice or input.
District Court Judge Edward Lodge agreed that APHIS violated the rulemaking requirements of the Administrative Procedure Act.
Lodge said that under the APA, the federal agency was required to publish notice of the proposed rule, give interested individuals a chance to comment on it and publish the adopted rule not less than 30 days before it became effective.
“Defendants have not asserted nor shown that they satisfied the notice and comment process,” Lodge wrote in his March 20 ruling.
Growers in the regulated area face strict testing and phytosanitary requirements.
Stephanie Mickelsen, one of the potato growers affected by the PCN quarantine program and a party in the lawsuit, said Lodge’s ruling was confirmation that the growers most impacted by the program never got a real say in how it was crafted.
Those growers have been hit hard financially by the program’s strict requirements, she said.
“We’re pleased that these people who have been knocked down and really suffered under this program finally got their voices heard,” she said of Lodge’s ruling. “These growers didn’t get a seat at the table, yet they are the ones who have had to suffer through the requirements.”
The U.S. Department of Justice, which represented APHIS in the lawsuit, declined to comment for this story.
Plaintiffs had asked the court to vacate the quarantine program and its regulations, but Lodge declined, saying that could seriously disrupt and harm the state’s $1.2 billion potato industry.
“The consequences that would likely result from vacating or enjoining the (PCN quarantine program) will have significant immediate and long-term consequences to both the state of Idaho as well as the United States as a whole,” Lodge wrote.
The judge noted that Idaho ranks first in U.S. potato production and that the United States ranks fourth in the world in potato production and is a net exporter of spuds.
The discovery of PCN in Idaho necessitated the need for the quarantine program to be initiated on an emergency basis to protect those interests and prevent the spread of the nematode to other, non-infested areas of the United States, he wrote.
“In the long run, the quarantine and PCN regulations will help to preserve consumer confidence, both nationally and internationally, in the potato crops of Idaho and the United States,” Lodge wrote.
He stated that the “important interests harmed by the defendants’ procedural violations are outweighed by the disruptive consequences that would result from vacatur of the agency’s rule at this time.”
Lodge ruled the court will temporarily retain APHIS’ PCN quarantine program but he ordered the agency to immediately start the process of providing the required public notice and comment opportunities.
Lodge’s ruling will result in no immediate changes in the implementation of the PCN program, said Bill Myers, lead attorney for the potato growers.
However, he added, “Now APHIS has to go back and do it right. When they are doing it right, things may change. They’ll have a better decision with better public involvement, including the growers who are most affected by the program.”
Lodge also agreed with the potato growers that APHIS violated the Federal Advisory Committee Act in the establishment of a PCN technical working group (TWG) as an advisory committee.
Defendants argued the working group was not subject to FACA because it was never utilized as a federal advisory committee under the statute.
However, Lodge ruled that the working group was a formal FACA advisory committee established and utilized by APHIS and “there is no evidence presented that defendants have satisfied FACA.”
Lodge wrote that “it does not appear that the public was afforded any notice or opportunity to participate in the discussions, recommendations or input provided to the agency by TWG. Nor is there anything in the record showing the public was apprised of the existence, activities, and costs of TWG or any assurances that TWG was not dominated by industry representatives or special interest groups seeking to advance their own agendas.”
He wrote that the “plaintiffs have been significantly prejudiced and irreparably harmed as a result of the defendants’ failure to adhere to FACA’s procedural requirements.”
He ordered APHIS to make available to the plaintiffs, at their request, all past recommendations or information produced by the technical working group and give them a reasonable opportunity to review the past materials and comment on or challenge them as well as challenge the rules and protocols adopted based on TWG’s past recommendations.
“Defendants shall provide an appropriate response and, if necessary, reopen discussions on the rules and protocols or issue new rules or protocols incorporating and addressing plaintiffs’ comments or challenges to the past materials,” Lodge wrote.
He also prohibited APHIS from relying on any past TWG recommendations in any future agency actions.