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Marketing order lawsuit may hit high court

Published on December 24, 2010 3:01AM

Last changed on January 21, 2011 7:38AM

Contrary rulings by circuit courts more likely to draw notice of Supreme Court


Capital Press

A federal appeals court will not reconsider an earlier ruling that allowed farmers to sue the USDA over a prohibition against marketing raw almonds.

Though the underlying dispute pertains to the almond market, the case has broader implications for the ability of farmers to challenge certain USDA regulations.

In 2007, the agency enacted a rule that required almonds to be fumigated or pasteurized to prevent the spread of salmonella.

Nick Koretoff of Fresno, Calif., and several other raw almond producers challenged the rule in federal court.

The plaintiffs claimed USDA had exceeded its authority under the Agricultural Marketing Agreement Act, which allows the agency to regulate the sale of almonds and other crops through marketing orders.

By forcing domestic farmers to treat almonds, the agency had effectively stopped them from taking advantage of a niche market without imposing similar restrictions on imported nuts, according to Koretoff's complaint.

A federal judge dismissed that lawsuit in 2009, ruling that the farmers don't have the right to sue USDA over a marketing order, but that decision was overturned earlier this year by the U.S. Court of Appeals for the District of Columbia Circuit.

The USDA urged the appellate court to reconsider its opinion, arguing that it would allow farmers to sue the agency over any alleged harm caused by a marketing order -- rather than resolve the problem through the administrative process.

"In the more than 70 years since the AMAA was enacted, no court has held that producers have an apparently unqualified right to challenge marketing orders that aggrieve them," the agency said in court documents.

The appeals court rejected the request. According to Circuit Judge Brett Kavanaugh, it would be "especially odd" if the statute precluded producers from filing lawsuits, since the law was enacted to help farmers.

"To be sure, there may be cases where agricultural marketing orders do not affect producers and where producers therefore would not have standing," he said. "But this is not such a case."

The U.S. Department of Justice, which represents the federal government in litigation, had no comment on the appellate court's denial.

John Vetne, an attorney for the farmers, said he wouldn't be surprised if the USDA tried to appeal the ruling to the U.S. Supreme Court.

Several federal appeals courts have ruled that AMAA does not preclude farmers from suing the USDA, but the 9th Circuit has barred them from doing so, he said.

Such "circuit splits" are typically more likely to be heard by the nation's highest court, which considers only a limited number of cases each year, Vetne said.

"We have circuit courts going in opposite directions -- polar extremes," he said. "That's one of the most persuasive arguments to get your foot in the door at the Supreme Court."


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