United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
HONORABLE EDWARD J. LODGE JUDGE.
Before
the Court in the above entitled matter are cross Motions for
Summary Judgment filed by the parties in this action. (Dkt.
75, 84.) The Motions have been fully briefed and are ripe for
the Court's consideration. Having reviewed the record
herein, the Court finds the facts and legal arguments are
adequately presented in the briefs and record. Accordingly,
in the interest of avoiding further delay, and because the
Court conclusively finds that the decisional process would
not be significantly aided by oral argument, the Motions
shall be decided on the record before this Court without oral
argument.
FACTUAL
AND PROCEDURAL BACKGROUND
Plaintiffs
are a number of entities and individuals who farm potatoes in
southeastern Idaho. In April of 2006, Pale Cyst Nematode
(PCN), Globodera Pallida, [1] was detected in the soil of
a number of fields that raised potato crops in eastern Idaho.
As a result, the Animal and Plant Health Inspection Services
(APHIS)[2] published an Interim Rule and later
adopted a Final Rule which provided regulations for the
designation and quarantining of fields in Idaho as well as
Deregulation Protocols. The Idaho State Department of
Agriculture (ISDA) adopted rules and procedures that parallel
APHIS's and assisted APHIS in implementing its Interim
and Final Rules.
The
Plaintiffs filed this action against the federal and state
Defendants challenging the issuance and implementation of the
Interim Rule and Final Rule. (Dkt. 1.)[3]Specifically,
Plaintiffs claim the federal Defendants violated the
Administrative Procedure Act (APA), 5 U.S.C. §§
553, 701-706; the Plant Protection Act (PPA), 7 U.S.C.
§§ 7701 and 7786; the Federal Advisory Committee
Act (FACA), 5 U.S.C. App. II, §§ 1-16; the National
Environmental Policy Act (NEPA), 42 U.S.C. §§
4321-70; and the Tenth Amendment of the United States
Constitution. As to the state Defendants, the Plaintiffs
claimed the ISDA failed to comply with its legal obligations
under the Idaho Plant Pest Act (Idaho PPA), Idaho Code
§§ 22-2001 to 22-2023; the Idaho Administrative
Procedures Act (Idaho APA), Idaho Code §§ 67-5101
to 67-5292; and Idaho's Rules Governing the PCN (Idaho
PCN Rules), IDAPA 02.06.10. In general, Plaintiffs claim the
state and federal Defendants' actions were arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.
The
Court previously granted the state Defendants' Motion to
Dismiss. (Dkt. 35.) The Parties have also filed a Stipulation
for Voluntary Dismissal of the action as brought by
Plaintiffs Gerald and Helen Kelley, Craig V. and Andrea
Kelly, Dan G. and Karen K. Eldredge, and Bohemian, LLC. (Dkt.
47.) The Plaintiffs and federal Defendants have now filed
their cross Motions for Summary Judgment as to the remaining
claims which the Court takes up herein. (Dkt. 75, 84.)
STANDARD
OF LAW
Motions
for summary judgment are governed by Rule 56 of the Federal
Rules of Civil Procedure which provides, in pertinent part,
that judgment “shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter
of law.” Fed.R.Civ.P. 56(c). Under Rule 56, summary
judgment is mandated if the non-moving party fails to make a
showing sufficient to establish the existence of an element
which is essential to the non-moving party's case and
upon which the non-moving party will bear the burden of proof
at trial. See Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). If the non-moving party fails to make such a
showing, “there can be no ‘genuine issue of
material fact, ' since a complete[] failure of proof
concerning an essential element of the nonmoving party's
case necessarily renders all other facts immaterial.”
Id. at 323.
In
order to withstand a motion for summary judgment, a party
(1) must make a showing sufficient to establish a genuine
issue of fact with respect to any element for which it bears
the burden of proof; (2) must show that there is an issue
that may reasonably be resolved in favor of either party; and
(3) must come forward with more persuasive evidence than
would otherwise be necessary when the factual context makes
the non-moving party's claim implausible.
British Motor Car Distrib. v. San Francisco Auto. Indus.
Welfare Fund, 883 F.2d 371, 374 (9th Cir. 1989)
(citation omitted). When applying this standard, the court
views all of the evidence in the light most favorable to the
non-moving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986); Hughes v. United
States, 953 F.2d 531, 541 (9th Cir. 1992).
STATUTORY
FRAMEWORK
The
Plant Protection Act (PPA) authorizes the Secretary of the
United States Department of Agriculture (USDA) to adopt
and/or 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), 7712(c). The Secretary delegated that
authority to APHIS, making APHIS responsible for the
regulation and containment of PCN. 7 C.F.R. § 2.22(a).
Under that authority, APHIS issued the Interim and Final
Rules which quarantined certain infested fields and
associated fields in Idaho where PCN was found, restricts the
interstate movement of regulated articles from those
quarantined areas, and provides Deregulation Protocols for
quarantined fields. See 7 C.F.R. § 301.86; (RM
1, 438.) The claims against the federal Defendants in this
case allege violations of the APA, PPA, FACA, NEPA, and the
Tenth Amendment relating to their actions taken under the
PPA.
DISCUSSION
1.
Violation of the APA's Rulemaking Requirements
Plaintiffs
argue APHIS violated the APA's rulemaking requirements
with regard to the Deregulation Protocols, 7 C.F.R.
§§ 301.86-3(d)(1) & (2), because APHIS never
issued the protocol contemplated in the Final Rule to
deregulate infested fields and the multiple iterations of the
protocols for deregulating associated fields were never
subject to public notice or comment. (Dkt. 75 at 12-14) (Dkt.
87 at 6-7.)[4] Defendants counter arguing the
Deregulation Protocols were not subject to the rulemaking
requirements and, therefore, did not violate the APA. (Dkt.
84 at 14) (Dkt. 89 at 5.)
The APA
establishes the notice and comment procedures federal
administrative agencies must use when engaged in
“rulemaking, ” which is defined as the process of
“formulating, amending, or repealing a rule.”
Perez v. Mortgage Bankers Ass'n, 135 S.Ct. 1199,
1203-04 (2015); see also Hemp Industries Ass'n v.
Drug Enforcement Admin., 333 F.3d 1082, 1087-88 (9th
Cir. 2003); 5 U.S.C. §§ 551(5), 553. Those
procedures generally require agencies to: (1) publish a
notice of the proposed rule in the Federal Register; (2)
provide a period for interested persons to comment on the
proposed rule, which will be considered by the agency prior
to adopting the rule; and (3) publication of the final rule
in the Federal Register. 5 U.S.C. § 553; see also
Mora-Meraz v. Thomas, 601 F.3d 933, 939 (9th Cir. 2010).
There
are two types of rules under the APA: legislative rules and
interpretive rules. Perez, 135 S.Ct. at 1203. The
rulemaking procedures only apply to legislative rules, not
interpretative rules. If a rule is “legislative,
” the agency must use the notice and comment procedure
unless “it publishes a specific finding of good cause
documenting why such procedures ‘are impracticable,
unnecessary, or contrary to the public interest.'”
Hemp Indus., 333 F.3d at 1087 (quoting 5 U.S.C.
§ 553(b)(B)). On the other hand, “interpretive
rules, general statements of policy, or rules of agency
organization, procedure or practice” are exempt from
the rulemaking procedures. 5 U.S.C. § 553(b)(3)(A);
Mora-Meraz, 601 F.3d at 939.[5] The exceptions to the notice
and comment requirements are “narrowly construed and
only reluctantly countenanced.” Alcaraz v.
Block, 746 F.2d 593, 612 (9th Cir. 1984). Failure to
implement the notice and comment procedure when required,
invalidates the resulting regulation. See Paulsen v.
Daniels, 413 F.3d 999, 1008 (9th Cir. 2005).
Plaintiffs
assert the Deregulation Protocols are legislative rules
subject to the APA's rulemaking procedural requirements.
(Dkt. 87 at 6-7.) Defendants argue the protocols are not
legislative rules but, instead, general policy statements
and, therefore, excluded from the APA's rulemaking
procedures (Dkt. 89 at 5.)[6]
A.
Legislative Rules
Legislative
rules “create rights, impose obligations, or effect a
change in existing law pursuant to authority delegated by
Congress.” Hemp Indus., 333 F.3d at 1087
(internal citation omitted). Legislative rules trigger the
notice and comment process because they have the “force
and effect of law.” Perez, 135 S.Ct. at 1203
(citing Chrysler Corp. v. Brown, 441 U.S. 281,
302-303 (1979)); see also Erringer v. Thompson, 371
F.3d 625, 630 (9th Cir. 2004). A rule has the force and
effect of law:
(1) when, in the absence of the rule, there would not be an
adequate legislative basis for enforcement action;
(2) when the agency has explicitly invoked its general
legislative authority; or
(3) when the rule effectively amends a prior legislative
rule.
Hemp Indus., 333 F.3d at 1087(internal quotation
marks and citation omitted). “If the answer to any of
these questions is affirmative, ” the rule is
legislative, not interpretive. Oregon v. Ashcroft,
368 F.3d 1118, 1133 (9th Cir. 2004) (internal quotation marks
and citation omitted), aff'd sub nom. Gonzales v.
Oregon, 546 U.S. 243 (2006).
Interpretive
rules, on the other hand, “merely explain, but do not
add to, the substantive law that already exists in the form
of a statute or legislative rule.” Hemp
Indus., 333 F.3d at 1087 (internal citation omitted).
The “critical feature” of interpretive rules
“is that they are ‘issued by an agency to advise
the public of the agency's construction of the statutes
and rules which it administers.'” Perez,
135 S.Ct. at 1204 (quoting Shalala v. Guernsey Mem'l
Hosp., 514 U.S. 87, 99 (1995)). Interpretive rules do
not require notice and comment rulemaking, and “do not
have the force and effect of law.” Id.
(quoting Chrysler Corp., 441 U.S. at 302-03).
The
Deregulation Protocol at issue in this case is a legislative
rule. The Interim Rule itself states that it
“amends” the existing Domestic Quarantine Notices
regulation “by adding a new subpart regulating
PCN” pursuant to APHIS's authority under the PPA.
(RM 444-45.) The Deregulation Protocol, therefore, has the
force and effect of law because it changes existing law by
adding new substantive requirements for the quarantining and
deregulating of PCN infested and associated fields to be
implemented by APHIS pursuant to its authority under the PPA.
See e.g. Record Buck Farms, Inc. v. Johanns, 510
F.Supp.2d 868 (M.D. FL 2007) (Parties did not contest that a
similar amendment to the domestic quarantine notices
regulation, 7 C.F.R. § 301.75, was a legislative rule
but, instead, disputing whether the good cause exception to
the rulemaking requirement applied.). Contrary to the
Defendants' argument, the Deregulation Protocols do not
merely explain APHIS's interpretation of the PPA but,
instead, are themselves the rules governing APHIS's
implementation of the PPA with regard to PCN. The fact that
the regulations leave final approval of the protocol to the
Administrator does not make the regulations any less binding
on those who are obligated to follow the protocol. See
Nat. Mining Ass'n v. McCarthy, 758 F.3d 243, 251-51
(D.C. Cri. 2014) (“An agency action that purports to
impose legally binding obligations or prohibitions on
regulated parties-and that would be the basis for an
enforcement action for violations of those obligations or
requirements-is a legislative rule. An agency action that
sets forth legally binding requirements for a private party
to obtain a permit or license is a legislative
rule.”)).
As a
legislative rule, APHIS was required to satisfy the APA's
rulemaking notice and comment requirements that it provide:
1) publication of notice of the proposed rule, 2) a period
for interested individuals to comment on the proposed rule,
and 3) publication of the adopted rule not less than thirty
days before its effective date. 5 U.S.C. §§ 533(b),
(c), (d); Paulsen, 413 F.3d at 1008. Defendants have
not asserted nor shown that they satisfied the notice and
comment process. Therefore, summary judgment is granted in
favor of Plaintiffs on this claim.
B.
General Policy Statements
To
qualify for the “statement of policy” exception
to formal rulemaking, two requirements must be satisfied: (1)
the policy “must operate only prospectively, ”
and (2) the policy “must not establish a binding norm,
or be finally determinative of the issues or rights to which
[it is] addressed, but must instead leave officials free to
consider the individual facts in the various cases that
arise.” Mada-Luna v. Fitzpatrick, 813 F.2d
1006, 1013-14 (9th Cir. 1987).
On the
first factor, the parties appear to agree that the protocols
are prospective. (Dkt. 87 at 7) (Dkt. 89 at 7.) The Court
concurs. The Deregulation Protocols set forth the process
APHIS will apply in order to contain PCN and operate
prospectively by informing the public of the areas to be
quarantined, how APHIS will regulate and deregulate PCN
infested and associated fields in Idaho, and establish
restrictions on the interstate movement of regulated articles
from the quarantined area. (RM 1, 438.)
Turning
to the second factor - whether the deregulation protocol is
binding/finally determinative or is instead discretionary -
the parties are in disagreement. “The critical factor
to determine whether a directive announcing a new policy
constitutes a rule or a general statement of policy is the
extent to which the challenged [directive] leaves the agency,
or its implementing official, free to exercise discretion to
follow, or not to follow, the [announced] policy in an
individual case.” Mada-Luna, 813 F.2d at 1013
(internal quotation marks and citation omitted). “To
the extent that the directive merely provides guidance to
agency officials in exercising their discretionary powers
while preserving their flexibility and their opportunity to
make ‘individualized determination[s], ' it
constitutes a general statement of policy.”
Id. “In contrast, to the extent that the
directive ‘narrowly limits administrative
discretion' or establishes a ‘binding norm'
that ‘so fills out the statutory scheme that upon
application one need only determine whether a given case is
within the rule's criterion, ' it effectively
replaces agency discretion with a new ‘binding rule of
substantive law.' In these cases, notice-and-comment
rulemaking proceedings are required, as they would be for any
other substantive rule, and they will represent the only
opportunity for parties to challenge the policy
determinations upon which the new rule is based.”
Id.
There
is no dispute that the Deregulation Protocols are written in
mandatory language. (Dkt. 84 at 21.) Despite that mandatory
language, Defendants argue the protocols are not binding nor
finally determinative; pointing to examples of APHIS's
emails with individual farmers where it considered whether
particular fields would be deregulated. (Dkt. 84 at 21-22.)
The Court disagrees.
The
mandatory language of the Deregulation Protocols is binding
on APHIS and finally determinative of whether a field will be
deregulated. See Mada-Luna, 813 F.2d at 1014. Under
the protocols, the removal of a field from quarantine is
dependent on whether the field has been found to be free of
PCN and meets the applicable quarantine protocol approved by
the Administrator as sufficient to support removal of the
field from quarantine. 7 C.F.R. § 301.86-3(d). The
specific protocols to be approved is left to the
Administrator and those protocols have evolved over time, but
the Deregulation Protocol's mandatory language remains
final and binding on APHIS. (DEREG 800-02.) That the
Administrator has periodically changed the Deregulation
Protocols, in part, in response to feedback from the public
does not eliminate the fact that APHIS may not remove a field
from quarantine unless the field has satisfied the applicable
protocol and been found to be free of PCN. See 7
C.F.R. § 301.86-3(d).
The
examples pointed to by Defendants do not show the
Deregulations Protocols are discretionary. The emails and
communications between APHIS and individual farmers
identified in the Administrative Record by Defendants instead
had to do with whether the particular fields were properly
subject to quarantine/regulation in the first instance; not
whether they had satisfied the Deregulation Protocol and
should be removed from quarantine. (DEREG 437-509) (DEREG
1467-68.) Those examples, therefore, do not show the
protocols are discretionary because APHIS's decisions
with regard to those fields were based on its application of
the regulations to those fields, not any discretionary action
on the part of APHIS.
For
these reasons, the Court concludes the Deregulation Protocols
are not general statements of policy. They are instead
legislative rules subject to the APA's rulemaking notice
and comment requirements. Accordingly, the Court grants the
Plaintiffs' summary judgment on this claim.
2.
Violation of the Federal Advisory Committee Act
The
Fourth Claim for Relief alleges APHIS violated FACA and the
APA when it established and utilized the Technical Working
Group (TWG) as an advisory committee. (Dkt. 1 at ¶¶
119-127.) Defendants argue TWG is not subject to FACA because
APHIS never established or utilized the group as a federal
advisory committee under the statute. (Dkt. 84 at 8.)
Plaintiffs maintain the opposite is true. (Dkt. 75 at 3-7)
(Dkt. 87 at 1-5.)
FACA
imposes a number of procedural requirements on “federal
advisory committees, ” which are defined to include
“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…one or more agencies or officers
of the Federal Government....” 5 U.S.C. App. II, §
3(2). Although this definition of an “advisory
committee” is broad, the Supreme Court has cautioned
that FACA was “not intended to cover every formal and
informal consultation between ... an Executive agency and a
group rendering advice.” Public Citizen v. United
States Dep't of Justice, 491 U.S. 440, 452 n. 8
(1989). Instead, the “Supreme Court has given a narrow
interpretation to the words ‘established' and
‘utilized.'” Idaho Wool Growers Ass'n
v. Schafer, 637 F.Supp.2d 868, 878 (D. Idaho 2009)
(citing Heartwood, Inc. v. United States Forest
Serv., 431 F.Supp.2d 28, 34 (D.D.C. 2006) (quoting
Public Citizen, 491 U.S. at 457-58)).
“A
federal advisory committee is ‘established' by the
federal government when a federal government entity forms an
advisory committee for the purpose of obtaining advice or
recommendations from that committee.” Washington
Toxics Coal. v. United States E.P.A., 357 F.Supp.2d
1266, 1271 (W.D.Wa. 2004) (citing Aluminum Co. of Am. v.
Nat'l Marine Fisheries Serv., 92 F.3d 902, 905 (9th
Cir. 1996); Food Chem. News v. Young, 900 F.2d 328,
332-33 (D.C. Cir. 1990)). A committee is
“utilized” when a federal agency exercises
“strict ‘management or control” over an
advisory committee. Id. (quoting Public
Citizen, 491 U.S. at 440, 457-58). In determining if a
committed is “utilized” courts inquire as to
“whether the committee in question is ‘purely
private, ' whether it accepted any public funds, whether
federal agencies or officials ‘actually' managed or
controlled the committee, and whether it was formed
‘for the explicit purpose of furnishing advice to the
Government.'” Id. (quoting Public
Citizen, 491 U.S. at 460; Aluminum Co. of Am.,
92 F.3d at 906).
The
Ninth Circuit has further refined the definition of a FACA
“advisory committee” as “a formal group of
a limited number of private citizens who are brought together
to give publicized advice as a group.” Aluminum Co.
of Am., 92 F.3d at 906 (quoting Ass'n of Am.
Physicians & Surgeons, Inc. v. Clinton, 997 F.2d
898, 915 (D.C. Cir. 1993) (The committee must ...