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FMIA Docket No. 96-0011 & PPIA Docket No. 96-0008.
Decision and Order

RIGAUD PIERRE.

1684

PLANT QUARANTINE ACT

P.Q. Docket No. 97-0006.

Decision and Order

viii

1688

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AGRICULTURAL MARKETING AGREEMENT ACT

COURT DECISION

GLICKMAN, SECRETARY OF AGRICULTURE v. WILEMAN BROTHERS & ELLIOTT.

No. 95-1184.

Filed September 12, 1997.

SUPREME COURT OF THE UNITED STATES

The petition of Wileman Bros. & Elliott, et al. for rehearing is denied. The petition of Gerawan Farming, Inc., et al. for rehearing is denied.

56 Agric. Dec. 1045

AGRICULTURAL MARKETING AGREEMENT ACT

DEPARTMENTAL DECISIONS

In re: AUVIL FRUIT CO., HOVERHAWK, INC., and LYONS & SON, INC. 95 AMA Docket No. F&V 923-1.

Decision and Order as to Hoverhawk, Inc., and Lyons & Son, Inc., filed August 13, 1997.

Dismissal of petition — Rainier cherries — Minimum size, sugar content, maturity — Handlers only allowed 15(A) petition — Condemnation under Fifth Amendment - Secretary not arbitrary and capricious — Fifth Amendment due process Beef, apple orders inapposite — No parity price for Rainier cherries — Regulation.

The Judicial Officer affirmed Administrative Law Judge Dorothea A. Baker's [hereinafter ALJ] dismissal of the 15(A) Petition and adopted the ALJ's Initial Decision and Order as the final Decision and Order. Initially, three Petitioners sought to modify the Cherry Order (Part 923--Sweet Cherries Grown in Designated Counties in Washington, 7 C.F.R. pt. 923), insofar as that Order regulates minimum size, sugar content (Brix), and maturity for Rainier cherries. The ALJ dismissed the petition as to Petitioners Hoverhawk, Inc., and Lyons & Son, Inc., because they were not shown to be handlers. Petitioner Auvil's handler status was not challenged by Complainant, but the ALJ dismissed Auvil's Petition on the merits, as follows: (1) that the Rainier Cherry Order did not constitute an inverse condemnation of Petitioner Auvil's property contrary to the Fifth Amendment of the United States Constitution; (2) that the Secretary of Agriculture did not act in an arbitrary and capricious manner by adopting a final rule (59 Fed. Reg. 31,917) amending the Cherry Order; and (3) that the Secretary of Agriculture's actions did not violate Petitioner Auvil's substantive due process rights under the Fifth Amendment of the United States Constitution. Petitioner Auvil did not appeal to the Judicial Officer. Petitioners Hoverhawk, Inc., and Lyons & Son, Inc., appealed the ALJ's decision that they were not handlers and argued the same merits on appeal as Petitioner Auvil had argued before the ALJ. The Judicial Officer agreed with the ALJ on all issues and affirmed the ALJ's Initial Decision and Order. The Judicial Officer agreed that Petitioners Hoverhawk, Inc., and Lyons & Son, Inc., were not handlers, and that the dismissal of the Petition on the very same merits as to the handler Auvil would also apply to Hoverhawk, Inc., and Lyons & Son, Inc., should a reviewing court find them to be handlers. Respondent raised two issues on appeal with which the Judicial Officer agreed: that Petitioners' arguments to establish who is a handler based upon cases arising from marketing orders covering beef and apples are inapposite because those cases are based upon who collects and remits the assessments and not upon whether the handler ships product out of the production area as required by the Cherry Order; and the Secretary is not prohibited, under section 2 of the AMAA (7 U.S.C. § 602), from regulating Rainier cherries for the reason that the market price of Rainier cherries exceeded the parity price in the pertinent period because there is no separate parity price for Rainier cherries prepared by the Secretary apart from all sweet cherries, making such a price comparison impossible.

Sharlene A. Deskins, for Respondent.

Robert L. Parlette, Wenatchee, WA, for Petitioners.

Initial decision issued by Dorothea A. Baker, Administrative Law Judge.
Decision and Order issued by William G. Jenson, Judicial Officer.

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