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Cornucopia Institute v. United States Department of Agriculture

United States District Court, W.D. Wisconsin

May 23, 2017



          WILLIAM M. CONLEY District Judge.

         Plaintiffs The Cornucopia Institute, Dominic Marchese and Rebecca Goodman filed this action seeks a declaratory judgment that defendants United States Department of Agriculture (“USDA” or “the Department”) and Tom Vilsack, in his capacity as the Department's Secretary, violated the Organic Foods Production Act of 1990, the Administrative Procedure Act, and the Federal Advisory Committee Act. Specifically, plaintiffs claim that defendants violated each of these statutes in appointing two members to the National Organic Standards Board (“NOSB”). Plaintiffs further seek injunctive relief in the form of an order (1) vacating those appointments and (2) removing certain substances from the Board's “National List” of prohibited organic substances and permitted synthetic substances for purposes of labeling a food “organic, ” each of which plaintiffs claim would have been removed under a previous procedural rule.

         In response, defendants have moved to dismiss all claims for lack of subject matter jurisdiction on the grounds that plaintiffs lack standing. Alternatively, defendants ask the court to dismiss all claims for failure to state a claim upon which relief can be granted, on the grounds that plaintiffs' claims are nonjusticiable. Because plaintiffs lack standing to sue, the court will grant defendants' motion.


         A. The Parties

         The Cornucopia Institute is “a public interest organization that engages in research and education on agriculture and food issues” and “focuses on assessing the integrity of organic food and agriculture.” (Am. Compl. (dkt. # 17) ¶ 33.)[1] Cornucopia consists of a board in charge of directing the organization's policy and “thousands of members, ” including “certified organic farmers, former members of the NOSB, and conservationists.” (Id. at ¶¶ 34, 35.)

         Plaintiff Dominic Marchese is a member of Cornucopia and a certified organic farmer from Farmdale, Ohio. Marchese applied to be a member of the NOSB in 1992, 2009 and 2011, but was not selected. Plaintiff Rebecca Goodman is a certified organic farmer from Wonewoc, Wisconsin. Goodman also applied for an appointment to the NOSB in 2014, but was not selected.

         Defendant USDA is a federal agency headquartered in Washington, D.C., responsible for, among many other things, administering the National Organic Production Program, including appointments to its Board. Defendant Tom Vilsack was the Secretary of Agriculture, responsible for the operations of the USDA, until his resignation in January 2017. Michael Young is the current Acting Secretary of Agriculture. Given the court's decision to dismiss this case, there is no need to substitute Young for Vilsack.

         B. Statutory Background

         The Organic Foods Production Act of 1990 (“OFPA”) provides that the Secretary of Agriculture “shall establish a National Organic Standards Board (in accordance with the Federal Advisory Committee Act) . . . to assist in the development of standards for substances to be used in organic production and to advise the Secretary on any other aspects of the implementation of this chapter.” 7 U.S.C. § 6518(a). The OFPA requires that the NOSB be composed of 15 members, and it also specifies that set numbers of its membership will come from certain groups of individuals. Id. § 6518(b). In particular, it requires that: four members are “individuals who own or operate an organic farming operation”; two are “individuals who own or operate an organic handling business”; one is an individual who operates a retail establishment with significant trade in organics; three are conservationists; three members represent “public interest or consumer groups”; one is a scientific expert in certain relevant fields; and one is an organic certifying agent. 7 U.S.C. § 6518(b)(1)-(7).

         Among its duties, the NOSB develops the National List of Allowed and Prohibited Substances (“National List”). 7 U.S.C. § 6518(k)(2). The National List identifies certain synthetic substances that may be used in organic production and certain natural substances that are prohibited for use in organic production. If adopted by the Secretary, the NOSB's recommendations for the National List will determine what substances can be used in production of food that is labeled “organic” under the USDA organic program. See 7 U.S.C. § 6517(a), (e).

         The Federal Advisory Committee Act (“FACA”) requires that federal advisory committees be “fairly balanced in terms of the points of view represented and the functions to be performed[.]” 5 U.S.C. App. 2 § 5(b)(2). Moreover, any legislation establishing a federal advisory committee must “contain appropriate provisions to assure that the advice and recommendation of the advisory committee will not be inappropriately influenced by the appointing authority or by any special interest[.]” Id. § 5(b)(3).

         The Administrative Procedure Act (“APA”) grants judicial review of agency action to persons “suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of the relevant statute[.]” 5 U.S.C. § 702. More specifically, APA § 704 provides that “final agency action for which there is no other adequate remedy in a court [is] subject to judicial review.” 5 U.S.C. § 704. Finally, APA § 706 grants courts power to set aside agency actions that are “arbitrary, capricious, or otherwise not in accordance with law[.]” 5 U.S.C. § 706(2)(A).

         C. Defendants' Alleged Conduct

         Plaintiffs' claims arise from two, separate courses of conduct by defendants that plaintiffs allege violated these statutory requirements and resulted in harm to plaintiffs: (1) the appointments of two individuals, Carmela Beck and Ashley Swaffar, to the NOSB, both of whom plaintiffs allege are unqualified; and (2) certain changes to NOSB procedures.

         1. The Beck and Swaffar Appointments

         For the term beginning January 2012, USDA appointed Beck to a position on the NOSB reserved for an individual who “own[s] or operate[s] an organic farming operation” under OFPA § 6518(b)(1). Beck works as the National Organic Program Supervisor and Organic Certification Grower Liaison for Driscoll's, a “conventional and organic berry producer.” (Am. Compl. (dkt. #17) ¶ 80.) Plaintiffs contend that this position is insufficient to qualify Beck as an owner or operator of an organic farming operation. In her position on the NOSB, Beck has allegedly voted 177 times to retain a substance on the National List when the other “farmer members” have voted to remove it. (Id. at ¶ 82.) Plaintiffs claim that: Beck's voting record demonstrates that her interests do not align with the interests of organic farmers; and Beck was appointed to the NOSB in a year in which plaintiff Marchese applied for a position and was denied.

         In 2014, USDA appointed Swaffar to another of the NOSB open seats reserved for individuals who own or operate an organic farming operation. Swaffar previously worked for Arkansas Egg Company, a “conventional and organic egg production company, ” where she had a variety of responsibilities including financial planning, product development, industry relations and compliance. (Id. at ΒΆ 86.) She now works for Vital Farms, a company that contracts with farmers and markets conventional and organic eggs. Like Beck, Swaffar has allegedly voted 165 to retain a substance on the National List when the other farmer members voted to remove it. As with Beck, plaintiffs claim that Swaffar's experience does not qualify her as an owner or operator of an organic farming ...

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