The opinion of the court was delivered by: James Robertson United States District Judge
Plaintiff, an organization representing orchid growers in Hawaii, challenges a new rule removing restrictions on the importation of phaleonopsis orchids from Taiwan in approved growing media. Cross-motions for summary judgment are presented. The government's motion will be granted because, for the reasons discussed below, I cannot find the rule to be arbitrary, capricious, or unlawful, and because I have no jurisdiction to consider plaintiff's Endangered Species Act claims.*fn1
The Animal and Plant Health Inspection Service (APHIS) is an entity within the Department of Agriculture. Acting pursuant to the Plant Protection Act of 2000, APHIS promulgates the "Quarantine 37" regulations, 7 C.F.R. § 319.37, to protect the nation's plant resources from foreign pests. Among those plant resources are orchids, which are grown mostly in Hawaii, Florida, and California.
Most potted orchids in the U.S. belong to the phaleonopsis (moth orchid) genus. Phaleonopsis orchids are epiphytic (capable of growing without deriving nutrients from soil). Taiwan is the world's largest grower of phaleonopsis orchids. Until recently, Quarantine 37 restricted the importation of phaleonopsis to plants with bare roots (or those established on tree fern slabs, coconut husks, or coconut fiber). Such plants were then further "grown out" in U.S. nurseries before they were sold at the retail level. The Quarantine 37 restrictions made them easier to inspect for pests but also tended to limit the size and maturity of imports. Moreover, unlike potted orchids, bare-rooted plants cannot survive long shipping delays, so they must be shipped by air instead of sea, adding dramatically to the cost of importation.
On May 5, 2004, APHIS amended the Quarantine 37 rules to allow the importation of potted phaleonopsis orchids from Taiwan (only Taiwan) in approved growing media. 69 Fed. Reg. 24,916 (codified at 7 C.F.R. § 319.37-8(e)). The new rule adds Taiwanese phaleonopsis orchids to the list of plants covered by the plants-in-growing-media rule, 7 C.F.R. § 319.37-8(e), which allows for imports with a number of restrictions, including these:
a. Plants may be imported in fresh approved growing media only, which include, inter alia, sphagnum moss (apparently the most commonly used medium), coal cinder, cork, glass wool, organic and inorganic fibers, peat, plastic particles, polyethylene, polymer stabilized starch, polystyrene, vermiculite, and volcanic rock.
b. There must be agreements between APHIS and foreign plant services, and between foreign plant services and growers, providing for local inspections and enforcement of the plants-in growing-media restrictions.
c. Plants must be grown in clean, pest-free greenhouses with a number of requirements for screens, storage, packaging, clean water, bench heights, automatic doors, disinfection, and other protective phytosanitary measures.
d. There are a number of restrictions on seeds and parent plants that can be used to produce new plants.
e. Plants must be grown for at least four months in rule-compliant greenhouses, and they must be inspected no more than 30 days before export.
During the first year of implementation of the new rule, APHIS plans to inspect a minimum of 50 percent of imports (as compared to 2 percent of imports under established importation programs, A.R. at 523), and APHIS has flexibility to deal with new problems should they arise by stopping imports or shutting down the entire import program. 69 Fed. Reg. 24,927; 1/6/05 Tr. at 44-45.
The new rule is the product of a long history in which plaintiff has actively participated. The Taiwanese government requested a rule change in 1994. APHIS performed a risk assessment and proposed that the rule be changed to allow for phaleonopsis imports in approved growing media from all countries. 63 Fed. Reg. 46,403 (Sept. 1, 1998). After receiving comments, APHIS modified the proposed rule to allow for imports only from Taiwan. APHIS then consulted with the Fish and Wildlife Service, acting pursuant to the Endangered Species Act. On April 7, 2003, FWS concluded that the proposed new rule would not adversely affect federally listed or proposed endangered species or their habitats. A.R. at 299. On December 18, 2003, acting pursuant to the National Environmental Policy Act, APHIS published an environmental assessment and a finding of no significant impact. A.R. at 414. On May 6, 2003, APHIS published an updated and expanded risk assessment, A.R. at 1707; and it prepared both a required economic analysis, A.R. at 1506 (suggesting possible negative impact on domestic orchid producers), and a required civil rights impact analysis, see A.R. at 1519 (finding no adverse civil rights impact, but not analyzing possible disparate economic impact).
Plaintiff represents Hawaiian orchid growers who, all parties agree, will be economically impacted by increased competition from Taiwanese orchid growers. That issue is not before me, however.*fn2 The question presented is whether the new rule lacks a rational basis and whether its issuance violated the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq., the Plant Protection Act of 2000 (PPA), 7 U.S.C. § 7701 et seq., or the Endangered Species Act (ESA), 16 U.S.C. § 1531 et seq.
Plaintiff's Endangered Species Act (ESA) Claim
Plaintiff claims that APHIS violated the ESA in determining that the new rule would not adversely affect listed, proposed, or threatened species. The ESA provision for citizen suits, 16 U.S.C. § 1540(g)(1)(A), would apply to plaintiff's claims here, except that, under the ESA, plaintiff was required to provide 60 days notice of intent to sue, 16 U.S.C. § 1540(g)(2)(A)(I), and it failed to do so. Plaintiff thus attempts to invoke the ESA through the APA. The APA may only be used as a vehicle to challenge government action, however, when "there is no other adequate remedy in a court." 5 U.S.C. § 704; Bennett v. Spear, 520 U.S. 154, 161-62 (1997). The cases on which plaintiff relies, including Bennett, 520 U.S. at 174-77, and Maine v. Norton, 257 F. Supp. 2d 357, 376 (D. Me. 2003), are inapposite. In those cases, the agency being sued was the one charged with ESA implementation. In Bennett, the Court found that the APA was an appropriate vehicle only for claims that could not be recognized under the ESA's citizen suit provision, Id. at 171-77. This is not such a claim.*fn3
Because a failure to provide 60 days notice under the ESA is jurisdictional, plaintiff's ESA claim must be dismissed for lack of jurisdiction. See Southwest Ctr. for Biological Diversity v. United States Bureau of Reclamation, 143 F.3d 515, 520 (9th Cir. 1998); Bldg. Indus. Ass'n of S. Cal. v. Lujan, 785 F.Supp. 1020 (D.D.C. 1992); 1/6/05 Tr. at 52-53.
Defendant argues that plaintiff lacks standing to bring its claim. Although better pleadings by plaintiff on this issue might have avoided the need for the extensive discussion below, this argument does not withstand scrutiny.
Plaintiff represents "breeders, propagators, and growers of orchids in Hawaii," and at least one of its members grows potted phaleonopsis orchids. Second Am. Compl. at 4. Where plaintiff is an organization serving as a representative of its members, the requirement for standing is that "(1) at least one of its members would have standing to sue in his own right, (2) the interests the association seeks to protect are germane to its purpose, and (3) neither the claim asserted nor the relief requested requires that an individual member of the association participate in the lawsuit." Sierra Club v. EPA, 292 F.3d 895, 898 (D.C. Cir. 2000). Except in a footnote regarding ...