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In re BIN-00029 (Field S-1)

United States District Court, D. Idaho

November 18, 2016

IN THE MATTER OF BIN-00029 (FIELD S-1); BIN-00030 (FIELD S-2); BIN-00033 (M-1); BIN-00135 (FIELD CALL); BIN-00137 (FIELD S-7/8); BIN- 00138 (FIELD S-4/5/6); BIN 00139 (FIELD S-11); BIN-00141 (FIELD S-9/10); BIN- 00142 (FIELD REID W); BIN-00143 (FIELD REID E); BIN-00146 (FIELD OLESON); AND BIN-00389 (FIELD S-3).

          MEMORANDUM DECISION AND ORDER REPORT AND RECOMMENDATION

          Honorable Candy W. Dale United States Magistrate Judge

         INTRODUCTION

         This matter is related to Case No. 1:15-cv-143-EJL-CWD, Mickelsen Farms, LLC et. al. v. Animal and Plant Health Inspections Service, et. al, . currently pending before the Court. In Mickelsen, the plaintiffs are challenging the rulemaking authority and enforcement mechanism APHIS employs to carry out the inspection and sampling procedures related to the detection and eradication of the Pale Cyst Nematode, a pest that attacks potato crops.

         In the instant matter, APHIS served subpoenas on several field owners and operators on October 19, 2016, requesting access to twelve fields to collect soil samples. The samples would be tested for the presence of Pale Cyst Nematode (PCN). The Farmers[1] refused access. APHIS then sought administrative search warrants based upon the declaration of Brian Marschman (Dkt. 1), to enter the fields and collect soil samples. The warrants were approved by United States Magistrate Judge Mikel Williams on November 8, 2016. Soil sampling commenced on November 9, 2016.

         On November 10, 2016, the Farmers filed a motion for the Court to quash the warrants, or alternatively, to stay execution of the warrants, to issue a protective order, and to suppress evidence. On November 10, 2016, the Court granted the motion to stay until briefing and a hearing on the motion could occur on an expedited basis. Prior to issuance of the order, APHIS was able to complete sampling on two fields, BIN-00139 (S-11 field) and BIN-00389 (S-3 field), and sampled approximately 64% of BIN-00138 (S-4/5/6 field). On November 14, 2016, APHIS filed a motion for reconsideration of the Court's order. The Court conducted a hearing on November 17, 2016.

         The Farmers here object to the warrants on three grounds: (1) the warrants were sought without regard to the pending litigation in Mickelson; (2) the warrants contravene the due process afforded to the Farmers under 7 U.S.C. § 7733(c); and (3) the warrants lack probable cause. The Farmers seek to quash the warrants, or alternatively to stay execution pending a final decision in Mickelson, or alternatively to be afforded due process under Section 7733(c). The Farmers seek also a protective order to prevent the damage allegedly caused by APHIS personnel driving tractors over the planted farm ground. And finally, the Farmers seek to suppress the soil samples that have been collected because they were collected under invalid warrants.

         DISCUSSION

         1. Consent

         The issue of consent to the jurisdiction of a magistrate judge to decide the pending motions without a report and recommendation to a district judge is a preliminary matter. There is persuasive authority holding that a motion to quash an administrative search warrant is not a pretrial matter under 28 U.S.C. § 636(b)(1)(A), because the motion decides the entirety of the issues. See N.L.R.B. v. Frazier, 966 F.2d 812, 817 (3rd Cir. 1992) (finding that a proceeding to enforce an agency subpoena is a dispositive matter); Aluminum Co. of Am. v. U.S. EPA, 663 F.2d 499 (4th Cir. 1981) (company's motion to quash administrative search warrant was not a pretrial matter under 636(b)(1)(A) because it set forth all the relief requested); U.S. v. Bell, 57 F.Supp.2d 898, 905 (N.D. Cal. June 22, 1999) (holding that motion to quash IRS administrative summons was dispositive because, unlike a discovery motion, the petition was not ancillary to a larger proceeding - it was the entire proceeding).[2]

         According to the above authority, the Court will issue a report and recommendation with regard to the Farmers' motion to quash. However, APHIS's motion for reconsideration of the Court's order staying these proceedings is not dispositive, and the Court has authority to reconsider its own order. The Court will issue a final order in that regard.

         2. Authority for the Warrants

         The Plant Protection Act, 7 U.S.C. § 7701 - 7786, bestows upon the Secretary of the Department of Agriculture and other Federal agencies the authority to regulate exports, imports, and interstate commerce in agricultural products and other commodities that pose a risk of harboring plant pests or noxious weeds as one way to reduce the risk of dissemination of plant pests or noxious weeds. 7 U.S.C. § 7701(2), (3). PCN is a pest to potatoes and other crops. It was first discovered in 2006, in soils that had accompanied potatoes into a potato processing facility in Eastern Idaho. There is no dispute that PCN is a soil-borne organism that infests roots, where females attach, feed, and reproduce. Females form cysts containing 200 to 600 eggs, which can lay dormant (but detectable through testing) and viable in soil for up to 30 years. If left unchecked, PCN can cause wilting, stunted growth, poor root development, and early plant death, thereby reducing crop yields up to 80%.

         PCN spreads through the transport of cysts in soil, which may occur with the movement of infested soil on farm machinery, or on soil adhering to potatoes or other crops. The PCN program is primarily concerned with the movement of soil on farm machinery. To eliminate the spread of PCN, there are two levels of sanitation. First, there are minimum sanitation requirements involving pressure washing. If a field is infested, however, the minimum requirements do not provide adequate protection, and full sanitation requirements, including steam treatments, are required to prevent the spread of PCN. Soil sampling is the primary method for determining the level of sanitation required.

         The Plant Protection Act allows the Secretary to “gather and compile information and conduct any investigations…necessary for the administration and enforcement of this chapter.” 7 U.S.C. § 7732. To that end, the Secretary has the power to subpoena the production of evidence, or to require a person to whom the subpoena is directed to permit the inspection of premises relating to any matter under investigation. 7 U.S.C. § 7733. Persons required to submit to inspection may disobey the subpoena. In the case of disobedience,

the Secretary may request the Attorney General to invoke the aid of any court of the United States within the jurisdiction in which the investigation is conducted, or where the person resides, is found, transacts business, is licensed to do business, or is incorporated, in requiring the attendance and testimony of any witness, the production of evidence, or the inspection of premises. In case of a refusal to obey a subpoena issued to any person, a court may order the person to appear before the Secretary and give evidence concerning the matter in question, produce evidence, or permit the inspection of premises. Any failure to obey the court's order may be punished by the court as a contempt of the court.

7 U.S.C. § 7733(c) (emphasis added).

         Alternatively, the Secretary may “enter, with a warrant, any premises … for the purpose of conducting investigations or making inspections and seizures under this chapter.” 7 U.S.C. § 7731(c)(1). Upon a showing of probable cause to believe that certain premises harbor a regulated plant pest, a United States magistrate judge may issue a warrant for the entry upon the premises to conduct any investigation or make any inspection or seizure. 7 U.S.C. § 7731(c)(2).

         A. Pending Litigation

         Mickelsen involves a challenge to the sampling protocols APHIS uses to regulate individuals, including the Farmers here. The Farmers argue the Court should quash or stay the execution of the warrants until Judge Lodge resolves the claims in Mickelson, which claims include whether the sampling protocols used by APHIS violate Federal law. The Farmers complain the warrants invoke the same sampling procedures contested in in Mickelsen.

         While there is inherent appeal to the Farmers' arguments, the sampling and testing protocols currently in place exist so that APHIS can carry out its statutory obligation to protect agriculture, the environment, and the economy of the United States. 7 U.S.C. § 7701(1). Permitting the Farmers to thwart that obligation, and force APHIS to wait until the litigation in Mickelsen is concluded before sampling may resume and testing can begin, may frustrate the purpose of the Act and allow PCN to multiply and spread.[3]Moreover, the Farmers' motion appears to the Court to be shortsighted. If PCN has spread to the twelve associated fields, or any one of them, and farm equipment does not receive the higher level of sanitation required to eradicate the pest, PCN may continue to multiply and attack future potato crops, thereby destroying the Farmers' livelihoods.

         Thus, until the sampling protocols are deemed to be in violation of federal law, the law is enforceable, and APHIS should be entitled to carry out its obligations under the authority of the Plant Protection Act.

         B. ...


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