Fighting nursery groups' lawsuit 'wasn't the best use of state resources'

By MATEUSZ PERKOWSKI

Capital Press

South Carolina has abandoned regulations that hindered nursery stock shipments from the West Coast, capitulating to demands from California and Oregon nursery groups.

On April 19, South Carolina regulators withdrew regulations aimed at preventing the spread of Phytophthora ramorum, or sudden oak death, into the state, according to court documents.

The regulations, enacted in 2009, imposed additional inspection and notification requirements on nursery shipments from areas afflicted by the fungal pathogen.

The California Association of Nurseries and Garden Centers and the Oregon Association of Nurseries filed a lawsuit against South Carolina in March.

The complaint claimed that federal law preempted South Carolina's regulations, rendering them unconstitutional. Monrovia Nursery of Azusa, Calif., and Woodburn Nurseries and Azaleas of Woodburn, Ore., joined in the lawsuit.

Earlier this month, plaintiffs asked a federal judge for an injunction blocking South Carolina's regulations.

On April 19, South Carolina withdrew the regulations to "avoid unnecessary litigation and attendant litigation costs," according to court documents.

Kenneth Woodington, an attorney representing South Carolina, said the state wants to protect its plants in a way that's consistent with federal law. South Carolina isn't admitting the regulations violated federal law, but officials don't think the disagreement is worth litigating, he said.

"It just seemed like it wasn't the best use of state resources to do this," Woodington said.

By suspending enforcement of the rules, South Carolina regulators have rendered the complaint moot, effectively ending the litigation, said John Aguirre, executive director of the Oregon Association of Nurseries.

"They saw the writing on the wall and saw they didn't have a firm position," Aguirre said.

If the regulations had been revoked by a federal judge, the decision would have created a legal precedent, he said. However, that process would have been more expensive and time-consuming.

South Carolina's decision should be enough to prevent other states from adopting similar rules to the detriment of Western nursery producers, Aguirre said.

"I don't anticipate South Carolina or another state will seek to implement P. ramorum regulations that differ from the USDA's in the near future," he said. "A patchwork of regulations simply isn't tenable for growers who ship nationwide."

States are allowed to enact rules to stop the spread of plant diseases only until the USDA develops federal regulations, said Robert Dolezal, executive director of the California Association of Nurseries and Garden Centers.

The USDA's Animal and Plant Health Inspection Service began regulating P. ramorum in 2002.

"Once the federal government begins regulating a pest in interstate commerce, the states are banned from doing so," said Dolezal, noting that the group prevailed in a similar case against Kentucky in 2004.

Because California doesn't issue the phytosanitary certificates required under South Carolina's regulations, nursery growers hadn't been able to ship to that state since last year, he said.

Dolezal said nursery sales to South Carolina may again reach $3 million to $5 million a year, though the regulations may have hurt some producers' market share.

"The challenge is they've damaged some marketing relationships," he said.

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