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Partlo v. Johanns

June 11, 2006

ROBERT PARTLO AND ROGER PRINGLE, PLAINTIFFS,
v.
MIKE JOHANNS, SECRETARY OF THE UNITED STATES DEPARTMENT OF AGRICULTURE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Plaintiffs Robert Partlo and Roger Pringle are certified organic farmers, with farms located in Sanilac County, Michigan, who suffered corn and soybean crop losses due to disasters in 2001. Plaintiffs bring this action against Defendants Mike Johanns, Secretary of the United States Department of Agriculture; the United States Department of Agriculture; and Bruce Weir, Executive Director of the Michigan Farm Service Agency (collectively, "Defendants"), alleging that (1) the program rules of the United States Department of Agriculture's ("USDA") 2001/2002 Crop Loss Disaster Assistance Program ("CLDAP") are contrary to law, arbitrary and capricious, and in violation of the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq., in that the rules do not permit Plaintiffs to receive a special, higher assistance rate based on their cultivation practices (in their case, organic cultivation); and (2) the program rules, by undermining the distinctions drawn in other legislation by Congress between conventional/chemical and organic farmers, reflect an animus toward organic farmers which ensures disparate treatment of organic farmers in violation of the Equal Protection Clause of the Constitution.

Currently before the Court are Plaintiffs' Motion for Summary Judgment, Defendants' Cross-Motion for Summary Judgment, Plaintiffs' Consolidated Reply Memorandum in Support of Plaintiffs' Motion for Summary Judgment and Answer to Defendants' Cross-Motion for Summary Judgment, Defendants' Reply Memorandum in Further Support of Defendants' Cross-Motion for Summary Judgment, Plaintiffs' Motion to Strike the Declaration of John Johnson or Alternatively, for Leave to File a Rebuttal Declaration, Defendants' Opposition to Plaintiffs' Motion to Strike, and Plaintiffs' Reply in Support of Plaintiffs' Motion to Strike. Upon a searching examination of the parties' filings, the attached exhibits, the relevant case law, and the entire administrative record herein, the Court shall deny Plaintiffs' Motion for Summary Judgment, grant Defendants' CrossMotion for Summary Judgment, and deny Plaintiffs' Motion to Strike.

I: BACKGROUND

A. Disaster Relief -- Statutory and Regulatory Background

1. Pre-1998 Disaster Relief Program Rules

Prior to 1998, USDA regulations under an older disaster relief statute enacted by Congress in 1995 stated, inter alia, that "separate payment rates and yields for the same nonprogram crop shall be established, in accordance with instructions issued by the Deputy Administrator, when there is supporting data from [the National Statistics Service ("NASS")] or other sources approved by CCC [the Commodity Credit Corporation]." 7 C.F.R. § 1477.6 (1995). The Secretary of the USDA ("the Secretary") during this period interpreted that regulation, in accordance with administrative instructions, to permit higher payment rates and yields for different "end uses" of the same crop. "End use means the purpose for which the harvested crop is used, such as grain, hay or seed[,]" 7 C.F.R. § 1480.3 (2005), or, as stated in a previous rule, such as, "fresh, processed, or juice[,]" 7 C.F.R. § 1477.103 (2002). Based on this interpretation, the Secretary did not distinguish between crops grown using conventional/chemical practices and crops grown using organic practices -- that is, the Secretary did not believe that growing crops organically was an "end use" in and of itself. Under this interpretation, because organically-produced apples and conventionally-produced apples have the same "end use" (i.e., being made into apple juice), a farmer who had suffered losses to a portion of his chemically-grown apples would be compensated at the same rate that a farmer who suffered similar losses to a portion of his organically-grown apples. See Decl. of John Johnson, Deputy Administrator for Farms Programs of the Farm Service Agency ("FSA") of the USDA ("Johnson Decl.") ¶ 6; Pringle v. United States, Case No. 97-CV-60342-AA, 1998 U.S. Dist. LEXIS 19378, at *16-*19 (E.D. Mich. Dec. 9, 1998).

2. The Seibel and Pringle Decisions

At least two sets of certified organic farmers challenged the USDA's failure to establish different disaster relief payment rates for organic farmers under the USDA's pre-1998 disaster relief rules, which resulted in a 1996 USDA administrative determination, Seibel v. Farm Service Agency, NAD Log No. 95001879W (USDA Nat'l Appeals Div., Jan. 23, 1996), and an unpublished 1998 decision by the United States District Court for the Eastern District of Michigan, Pringle v. United States, Case No. 97-CV-60342-AA, 1998 U.S. Dist. LEXIS 19378 (E.D. Mich. Dec. 9, 1998). Both challenges resulted in favorable decisions for the plaintiff farmers.

In Seibel, the FSA apparently did not use the Secretary's "end use" interpretation as a defense; rather, the FSA appears to have only argued that higher rates for organic crops were not justified because of its assertion that "[t]here are no recognized United States rules governing what is considered organically grown." Seibel, NAD Log No. 95001879W, at 3, 5. In contrast, the plaintiff farmers, located in New Mexico, contended that (1) they were certified as organic farmers by the New Mexico Organic Commodity Commission, (2) there was data on the average price rates for organic crops available for use under the disaster relief payment system, as documented by the State Committee ("STC"), and (3) there was good reason to pay organic farmers more in disaster relief, given that their crops are the result of different seed, more intensive labor, and a careful cultivation methodology. Id. at 3-4. Upon a review of the relevant arguments, the NAD sided with the plaintiff farmers, reversing the FSA's previous determination but including little explanation outside of a finding that "separate payment rates" should be established for organic farmers pursuant to 7 C.F.R. § 1477.6 because there was now "supporting data" for those distinctions. Id. at 3, 5.

In Pringle, a collection of organic farmers located in Michigan who had suffered disasters, including one of the Plaintiffs in this case, Roger Pringle, relied upon the NAD's decision in Seibel to bring a similar challenge. See Pringle, 1998 U.S. Dist. LEXIS 19378, at *21. In contrast to Seibel, the USDA relied upon the Secretary's "end use" interpretation of 7 C.F.R. § 1477.6 in its attempt to justify equivalent relief rates for both organic and conventional farmers. See id. at *16-*19. In response to this contention, the plaintiff farmers "argued that their organically grown beans were for a different 'end use' than chemically grown beans because their customers contracted for certified organic goods and were willing to pay a premium for crops so certified." Id. at *19. Relying heavily upon Seibel, the Pringle court concluded that the Secretary's refusal to differentiate between disaster relief rates for organic and conventional farmers under 7 C.F.R. § 1477.6 was arbitrary and capricious because the plaintiff farmers had demonstrated, and defendants have not disputed, that their organically grown beans demand a significantly higher price in the marketplace than chemically grown beans, and that this price reflects the fact that organically grown crops are more expensive to cultivate and have a separate customer base that is willing to pay a premium for certified organic foods.

Id. at *22. In making this determination, the Pringle court stressed that organic crops were grown for a separate, specialized market and required a certification that no chemicals were used; as such, contrary to the Secretary's interpretation, the court concluded that organic crops actually had a separate "end use" from conventional crops. See id. at *22-*23 ("Just as a fresh apple and a processed apple are treated differently for purposes of disaster payment rates, so should organic and non-organic crops."). Because organic crops had a separate "end use," the Pringle court concluded that the Secretary interpretation of his own rules was erroneous. Id.

3. The 1998 CLDAP

Following the 1998 decision by the United States District Court for the Eastern District of Michigan in Pringle, the USDA altered the parameters of its Crop Loss Disaster Assistance Program ("CLDAP").*fn1 As such, it can be said that "[t]he modern series of USDA disaster assistance programs began with the statute and program that assisted farmers for losses in the 1998 crop, or for multiyear losses in the 1998 and preceding crop years." Johnson Decl. ¶ 5; see Pub. L. No. 105-277, 112 Stat. 2681, 2681-43, at § 101(a), Division A, Title XI, § 1102 (1998); 64 Fed. Reg. 18553 (Apr. 15, 1999), codified at 7 C.F.R. § 1477 (2002). The 1998 CLDAP was part of the Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999 ("the 1999 Appropriations Act"), wherein Congress appropriated, as an emergency measure, $1.5 billion to "producers on a farm who have incurred losses in the 1998 crop due to disasters," 1999 Appropriations Act § 1102(b), 112 Stat. at 2681-43, and $200 million "to make available livestock feed assistance to livestock affected by disasters," id. § 1102, 112 Stat. at 2681-44; see also Signing Statement of President William J. Clinton, 1998 U.S.C.C.A.N. 576, 579 (noting that the act was to fund "urgent needs on an emergency basis")..

In the 1999 Appropriations Act, Congress stressed four important aspects of its delegation to the USDA. See generally McDaniels v. United States, 300 F.3d 407, 408-09 (4th Cir. 2002) (discussing the implementation of the 1998 CLDAP). First, Congress directed that the Secretary distribute the disaster relief in a "fair and equitable manner," 1999 Appropriations Act § 1101(a), 112 Stat. at 2681-42, and empowered the Secretary to determine "eligibility and payment limitation criteria," id. § 1101(b)(3), 112 Stat. at 2681-42. See also id. § 1102(a), 112 Stat. at 2681-44 ("The Secretary shall administer a program under which emergency financial assistance is made available to producers on a farm who have incurred losses associated with crops due to disasters (as determined by the Secretary).") (emphasis added). Second, to "implement" the 1999 Appropriations Act, Congress instructed the Secretary and the CCC, "as appropriate," to issue "such regulations as are necessary" "[a]s soon as practicable after the date of enactment." Id. § 1133(a), 112 Stat. at 2681-47. Third, Congress directed that the regulations be promulgated "without regard to the notice and comment provisions of section 553 of title 5, United States Code [the Administrative Procedure Act]," the Statement of Policy of Secretary of Agriculture, effective July 24, 1971 (36 Fed. Reg. 13804), relating to notices of proposed rulemaking and public participation in rulemaking, and the Paperwork Reduction Act. Id. § 1133(a), 112 Stat. at 2681-47 (internal subdivision omitted). Fourth, and finally, Congress provided that any such regulations take effect immediately under 5 U.S.C. § 808, before congressional review is undertaken pursuant to 5 U.S.C. § 801. Id. § 1133(b), 112 Stat. at 2681-47.

In accordance with Congress' instructions, the USDA issued regulations for the implementation of the 1998 Single-year and Multi-year Crop Loss Disaster Assistance Program and Emergency Livestock Assistance. See 7 C.F.R. §§ 1477, 1439. Under the Secretary's rules for the 1998 CLDAP, a slight but significant change/clarification was put in place:

Separate payment rates and yields for the same crop may be established according to instructions issued by the Deputy Administrator, when there is supporting data from NASS or other sources approved by CCC that show there is a significant difference in yield or value based on a distinct and separate end use of the crop. In spite of differences in yield or values, separate rates or yields shall not be established for crops with different cultural practices, such as organically or hydroponically grown. 7 C.F.R. § 1477.202(d) (2002) (emphasis added).*fn2 "Cultural practices" refers not to the culture of society but, rather, to cultivation: "cultural practices are practices used in cultivation of agricultural products," including organic cultivation. Johnson Decl. ¶ 9; see also 7 C.F.R. § 718.2 (using "cultural practices" in definition of "skip-row or strip-crop" cultivation methods); id. § 783.6(a)(2) (in the context of the Tree Assistance Program, discussing "[s]ite preparation and debris handling within normal cultural practices for the type of individual stand being re-established and necessary to ensure successful plant survival").

As such, under the 1998 CLDAP, which made no reference to prior programs, and the Secretary's 1998 CLDAP rules, disaster assistance payments do not vary depending on the cultivation practices employed; rather, farmers who use special cultivation practices, such as organic farming, are treated the same as all other farmers for the purposes of relief. For example, an organic farmer cannot obtain a higher payment rate because his products fetch a higher market price based on their organic cultivation; however, the organic farmer (like any other farmer) could obtain J. at 4, 10. In contrast, Defendants refer to the additional language as the "cultural practices clarification." See, e.g., Defs.' Cross-Mot. for Summ. J. at 17. Each "label" is essentially pejorative (in favor of the proponent). Rather than engage in a Hobson's choice between two unappealing alternatives, the Court shall instead refer to the post-1998 change as "the 1998 revision." additional assistance if he showed that, e.g., the apples he intended to be sold as fresh were damaged by a disaster and, therefore, could only be sold for a different end use (such as juice) with a lower price as determined by the USDA's Risk Management Agency ("RMA").

Given that Congress explicitly exempted the 1998 CLDAP from the notice and comment provisions of the APA, the Statement of Policy of Secretary of Agriculture, effective July 24, 1971 (36 Fed. Reg. 13804), relating to notices of proposed rulemaking and public participation in rulemaking, and the Paperwork Reduction Act, see 1999 Appropriations Act § 1133(a), 112 Stat. at 2681-47 (internal subdivision omitted), the USDA admittedly did not develop much of a record at the time of the enactment regarding the 1998 revision. See Defs.' Cross-Mot. for Summ. J. at 25-29; but see 64 Fed. Reg. at 18553-54 (Apr. 15, 1999), codified at 7 C.F.R. § 1477 (2002) ("Because funding for the program is limited . . . ."; "The Secretary has been given a wide discretion in the implementing of the 1999 Act and these rules will be consistent with the existing Federal policies and with the understanding of the desire of Congress to attempt to alleviate the shortcomings in the current programs. These rules will, in addition, allow relief to made available quickly, and effectively, within the limits of the funding available for this program.").

However, in the December 12, 2005 Declaration submitted in this litigation by John Johnson, who has served as Deputy Administrator of the FSA of the USDA since 2002, wherein he has been "the principal FSA employee charged by the FSA Administrator with the operation of USDA disaster programs," Johnson Decl. ¶ 1, Johnson contends, post-hoc, that "[t]he Secretary's decision not to pay special rates for special cultivation practices" was based on a consideration of four factors:

A. Speed is a critical factor in disaster assistance programs, as Congress has made clear. See Pub. L. No. 105-277, 112 Stat. 2681-47, at § 1133 of Section 101(a) of Division A (directing the Secretary to provide disaster assistance "as soon as practicable"). But verifying disaster assistance payments based on a farmer's asserted use of particular cultivation methods would require increased individualized determinations and verification, adding greatly to the program's administrative burden and slowing it down while sapping disproportionate resources. In the 1998 program, those resources came from a limited, lump-sum appropriation.

B. It would also have been extremely difficult to determine what crops were, indeed, produced with a particular cultivation method. For example, there were no federal organic standards in place for the 1998 crop year; it was and is, therefore, unclear what qualified as an organic crop at that time. Moreover, since USDA's organic producer certification program regulations did not become effective until 2001, and were not fully implemented until October 21, 2002, there was no way to independently verify whether producers used particular cultivation methods in 1998. See 65 Fed. Reg. 80548 (December 21, 2000) (codified at 7 C.F.R. Part 205).

C. While the national program was designed to be implemented quickly, per Congressional direction, there was no reliable price and yield data for organic crops in 1998 on which the FSA could have based fair, reliable grants of disaster assistance.

D. The Secretary designed the program to treat all producers fairly and equally, regardless of their cultural practices, because it was intended simply to provide basic, emergency benefits to farmers whose crops were damaged due to disaster. Unlike certain other USDA programs, the disaster program was not intended to regulate producers' behavior or to encourage certain cultural practices over others, even if the market rewards those practices. Thus, a poorly skilled apple farmer using conventional cultivation methods who loses a crop of fresh apples is paid the same as a neighboring farmer who is more highly skilled and produces a better crop of fresh apples that would fetch a higher market price. By the same token, a third adjacent farmer who may receive a higher market price for his fresh apples based on his cultivation methods is also paid that same, basic price.

Id. ¶ 11.

4. The 1999 CLDAP

Under the 1999 crop year program, Pub. L. No. 106-78, 113 Stat. 1135, 1175, Title VIII § 801 (1999), Congress directed the Secretary to administer the 1999 program in the same manner as the 1998 CLDAP. Id. § 801(b) ("The Secretary shall make [disaster] assistance available under this section in the same manner as provided under section 1102 of the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 1999"); see also 65 Fed. Reg. 7942 (Feb. 16, 2000), codified at 7 C.F.R. § 1478 (2002).

5. The 2000 CLDAP

Congress, through the 2000 crop year disaster assistance program, also directed the Secretary to continue administering the program according to the parameters set out in the 1998 CLDAP. See Pub. L. No. 106-387, 114 Stat. 1549, 1549A-55, Title VII § 815(b)(1) (2000) ("the Secretary shall make assistance available under this section in the same manner as provided under" the 1998 CLDAP); see also 66 Fed. Reg. 15976 (Mar. 21, 2001), codified at 7 C.F.R. § 1480 (2002).

6. The 2001/2002 CLDAP

Under the 2001/2002 crop years disaster program, Congress instructed the Secretary to make disaster assistance available in the same manner as he did under the 2000 crop year program. See Pub. L. No. 108-7, 117 Stat. 11, 538, Division N § 202(b)(2) (2003). Congress also again authorized the Secretary to promulgate implementing regulations, and exempted those regulations from, inter alia, APA notice and comment requirements. Id. § 217; see also Fed. Reg. 37936 (June 26, 2003), codified at 7 C.F.R. § 1480 (2004).

However, under the 2001/2002 CLDAP, a farmer could be paid for losses in one of those crop years, but not both: even if a farmer had suffered disaster-related and otherwise eligible losses in both crop years, he could only receive assistance for losses in one year and, therefore, was forced to choose. Id. § 202. To be eligible for assistance, a disaster must have prevented the producer from planting the crop, caused the producer to sustain a loss in excess of 35 percent of the expected production of the crop, or caused a loss of product quality in excess of 20 percent of the expected value of a crop. 7 C.F.R. § 1480.11(a). The producer had to apply to the FSA for assistance before January 30, 2004. Id. § 1480.5.

Payments for losses with respect to a "yield-based" crop, such as corn or soybeans, were calculated by multiplying the payment rate established for the crop by CCC and the loss (in excess of 35%) as determined by CCC. Id. § 1480.12(a)(1). The payment rate for the 2001 or 2002 crop year was 50 percent of the maximum established by the USDA RMA price for insured crops (i.e., those crops where the producer actually bought insurance), 50 percent of the State average price for non-insurable crops (i.e., those crops -- regardless of cultivation method -- for which no RMA insurance could be obtained), and 45 percent for the maximum established RMA price for uninsured crops (crops for which the producer could have obtained RMA coverage, but did not). Id. § 1480.12(b). Up to three separate payment rates and yield for the same crop could have been established by the USDA when there was supporting data from NASS or other sources, approved by CCC, that indicated that there was a significant difference in yield or value based on distinct and separate end uses of the crop. Id. § 1480.12(d). This meant that, for example, for apples, there could be separate rates for a "fresh apple" end use or an "apple juice" end use, but the same rates would apply to an organic apple used for juice and a conventional apple used for juice since juice is the end use of both apples. Id.

7. The 2003, 2004, and 2005 CLDAP

In the disaster assistance program for the crop years 2003, 2004, and 2005, see Pub. L. No. 108-324, 118 Stat. 1220, 1232, Division B § 101(a) (2004), Congress -- as it had previously -- directed the Secretary to make disaster assistance for the enumerated crop years available in the same manner as he did under the 2000 crop year program. Id. § 101(a)(3); see also 70 Fed. Reg. 15725-01 (Mar. 29, 2005), codified at 7 C.F.R. § 1479.

B. Other Agricultural Assistance Programs

Congress has enacted various other, non-emergency agricultural assistance programs in recent years. Two are worth noting for the purposes of this dispute. Under the 1996 Farm Bill, Pub. L. No. 104-127, 110 Stat. 888 (1996), Congress allowed producers on farms with a history of production of certain crops (i.e., "program crops," which are crops for which the FSA runs long-term support programs) to receive Production Flexibility Contract ("PFC") payments, regardless of whether the producers were currently growing the crop. Those who did grow the relevant crops could also obtain assistance by way of support "Marketing Loans" at a set, national average loan price. 7 U.S.C. § 7231. The farmer could choose to forfeit the crop to the government and keep the loan amount. If the market price for the crop was less than the loan rate, the farmer could repay the loan at a rate lower than the loan rate. Id. §§ 7234, 7235 (1996). Marketing Loans were available for both soybeans and corn in 2001. See 7 C.F.R. § 1421 (2002). However, the PFC payment rates and marketing loan rates under the 1996 Farm Bill were the same for a specific crop, e.g., for all corn and all soybeans, regardless of the cultural practices used to produce them. Accordingly, under the 1996 Farm Bill, there was no special recognition of particular cultivation practices, including organic farming.

In the Farm Security and Rural Investment Act of 2002, Pub. L. No. 107-171, 116 Stat. 134 (2002) ("the 2002 Farm Bill"), Congress authorized the Direct and Counter-cyclical Payment Program ("DCP") for crop years 2002 through 2007. The DCP made available Direct Payments ("DPs") and Counter-cyclical Payments ("CPs") for farms with a program crop production history. See generally 7 U.S.C. § 7901 et seq. The DP is based upon a calculation that takes the farm's production history, yield, and the statutorily-set payment rate into account. Id. § 7913(c); see also id. § 7914(d) (calculation of CPs). Marketing loans also remain available. Id. §§ 7931, 7935.

Similar to the 1996 Farm Bill, the DP and CP rates and the marketing loan rates are the same for a specific crop, e.g., for all corn and all soybeans, regardless of the cultural practices used to produce them. Accordingly, under the 2002 Farm Bill, there is no special recognition of special cultivation practices -- including organic farming -- in its award of DPs, CPs, and marketing loans. However, the 2002 Farm Bill does contain several initiatives by Congress that reveal a distinction between organic production methods and conventional/chemical methods in other areas. See, e.g., id. § 7218 (Organic Agriculture Research & Extension Initiative), § 7407 (Organic Production & Market Initiatives), § 7408 (International Organic Research Collaboration), § 7409 (Report on Producers & Handlers of Organic Agricultural Products), § 10606 (National Organic Certification Cost-Share Program), § 10607 (Exemption of Certified Products from Assessments).

C. The Organic Foods Production Act and National Organic Program

While not an assistance program, also indirectly relevant to this dispute is the Organic Foods Products Act, 7 U.S.C. §§ 6501-6522 ("OFPA"), enacted by Congress in 1990. The purpose of OFPA is "(1) to establish national standards governing the marketing of certain agricultural products as organically produced products; (2) to assure consumers that organically produced products meet a consistent standard; and (3) to facilitate interstate commerce in fresh and processed food that is organically produced." Id. § 6501. The Senate Report accompanying OFPA noted that a "lack of consistent standards for production" had resulted in a plethora of conflicting standards and a "confusing array of private and State labels." S. Rep. 101-357, 1990 U.S.C.C.A.N. 4656, 4943 (July 6, 1990). For the purpose of creating uniform national standards for organic foods, OFPA establishes a national certification program for the producers and handlers of organic products, and also establishes standards for the labeling of organic products. See 7 U.S.C. §§ 6503(a), 6504, 6505(a)(1)(A). In order to be labeled "organic," "an agricultural product must be produced and handled without the use of synthetic substances [not appearing on the National List], and in accordance with an organic plan agreed to by an accredited certifying agent and the producer and handler of the product." Harvey v. Veneman, 396 F.3d 28, 32 (1st Cir. 2005) (citing 7 U.S.C. §§ 6504, 6505). Only products meeting these requirements may be labeled as "organic" and bear the USDA organic seal. See 7 U.S.C. § 6505(a).

OFPA also authorized the Secretary to promulgate regulations "to carry out" the Act. 7 U.S.C. § 6521. OFPA further explicates the standards for acceptable organic production practices and certifiable organic plans, id. §§ 6506-6513, and the development of a list of acceptable and prohibited substances, id. § 6517; in addition, OFPA orders the establishment of a National Organic Standards Board to advise and make recommendations to the Secretary. Id. § 6518. Under the OFPA, the Secretary has promulgated the National Organic Program ("NOP") providing for, inter alia, certification of organic products. The final rule establishing the NOP was published on December 21, 2000, and became effective on October 21, 2002 -- well over ten (10) years after Congress actually passed the OFPA. See 65 Fed. Reg. 80548 (Dec. 21, 2000) (codified at 7 C.F.R. § 205). The final rule contains detailed standards for certification, pursuant to which a producer or handler may label its final product according to a four-tiered scheme as "100% organic," "organic," "made with organic [ingredients]," or "organic [ingredients]," depending on the percentage of organic contents. See 7 C.F.R. §§ 205.300-305. All products in the first three categories must identify the certifying agent and may bear the mark of an agent, although only the products in the first two categories may bear the USDA organic seal. Id. A certifying agent must certify any applicant who meets the requirements of the NOP -- that is, the agent cannot impose additional standards for the use of its certifying mark. See id. § 205.501(b)(2); see also Harvey, 396 F.3d at 44-45 (upholding these regulations).

Unlike the CLDAPs and other assistance programs described supra, neither the OFPA nor the NOP creates emergency or other financial support for agricultural producers. Rather, by themselves, the OFPA and NOP simply establish a certification program for organic products. Indeed, the OFPA and NOP do not guarantee minimum prices for organic products, nor do they require any special payments to producers based ...


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