United States District Court, W.D. Wisconsin
THE CORNUCOPIA INSTITUTE, DOMINIC MARCHESE, and REBECCA GOODMAN, Plaintiffs,
UNITED STATES DEPARTMENT OF AGRICULTURE and TOM VILSACK, Defendants.
OPINION AND ORDER
WILLIAM M. CONLEY District Judge.
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.
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'
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.) 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 ¶¶
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.
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.
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).
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).
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).
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).
Defendants' Alleged Conduct
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.
The Beck and Swaffar Appointments
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.
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 ¶ 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 ...