Summary of a Recent
Judicial Development in
Administrative Law

APHIS Not Required To Identify Level of
Risk to Prevent Plant Infestation

Craig Raysor
National AgLaw Center Graduate Assistant

In Cactus Corner, LLC. v. United States Dep't of Agric., 450 F.3d 428 (9th Cir. 2006), the Ninth Circuit affirmed a grant of summary judgment for the agency by determining that the Secretary was not required to quantify a permissible level of risk or conduct a risk analysis prior to issuing a final rule, and the final rule promulgated was supported by factual determinations.

Following a suspension on importation of Spanish clementines due to the discovery of Mediterranean fruit fly (medfly) larvae on a shipment, the USDA issued a rule permitting the importation of Spanish clementines pursuant to certain conditions,. Id. at 430. The rule was promulgated under the the Plant Protection Act, which allows the Secretary of Agriculture to prohibit or restrict the importation of certain plants to prevent the introduction of plant pests into the United States. Id. at 431. Following notice and comment rulemaking, the final rule (1) mandated the use of a revised cold treatment protocol, since a study performed by the Office of Risk Assessment and Cost-Benefit Analysis ("ORACBA"), a branch of USDA that ensures major regulations proposed by USDA are based on sound scientific and economic analysis, determined the former method was ineffective, and (2) required the Spanish government to take aggressive steps to reduce the medfly population. Id. at 431-32. Plaintiffs, domestic fruit growers and packers in California, seeking to halt importation of Spanish clementines filed suit claiming the final rule violated the Administrative Procedure Act ("APA") by not defining a permissible level of risk, and claimed that the agency's factual determinations were not supported by the record. Id. at 432-33.

The Ninth Circuit held that the APHIS was not required to quantify a permissible level of risk or to conduct a risk assessment prior to issuing a final rule. Id. at 433-34 (citing Ranchers Cattleman Action Legal Fund v. United States Dep't of Agric., 415 F.3d 1078, 1097 (9th Cir. 2005) applying same rule to Animal Health Protection Act. The Circuit Court also held the final rule was supported by the factual determinations underlying the final rule. Id. at 436. The court concluded that the APHIS was within its discretion to use an alternative method to calculate a value regarding infestation risks, addressed the plaintiffs' specific concerns regarding variable infestation rates in the promulgation of the final rule, and the ORACBA study had a "high degree of confidence" in its suggestion that the former method of cold treatment was ineffective. See id. at 434-36. The Court found that the agency action was not arbitrary and capricious and grant of summary judgment in favor of the agency was appropriate. Id. at 436.

The case was decided on June 8, 2006; this summary was posted Feb. 26, 2006.