Final Brief in Support of Motion to Enforce
August 30, 2006
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
ARTHUR HARVEY,
Plaintiff,
v. Civil No. 02-216-P-H
MIKE JOHANNS,
SECRETARY OF AGRICULTURE,
Defendant.
PLAINTIFF’S REPLY IN SUPPORT OF HIS MOTION
TO ENFORCE THE JUDGMENT AND OPPOSITION IN PART
TO CROSS-MOTION FOR RELIEF FROM JUDGMENT
Plaintiff, Arthur Harvey, hereby submits this combined Reply in
Support of his Motion and Opposition in Part to USDA’s Cross-
Motion. USDA and Amici1 put forward no valid reasons that Plaintiff’
s Motion to Enforce should not be granted. Harvey does not oppose
USDA’s Motion for Relief from Judgment insofar as it seeks to relieve
USDA of the responsibility to amend its regulations to prohibit
synthetic ingredients which are on the National List in organically
produced foods. However, Harvey does oppose any relief from the
Judgment insofar as it pertains to synthetic processing aids in those
foods or to the prohibition of synthetic ingredients which are not on
the National List.2
I. THIS COURT HAS THE POWER TO ENFORCE ITS OWN JUDGMENT
The doctrine that courts have the power to enforce their own
judgments is both long-standing and essential to the judicial power,
as the First Circuit recently reaffirmed.
The doctrine of enforcement jurisdiction is a judicial creation, born
of the necessity that courts have the power to enforce their
judgments. Without this residual federal jurisdiction flowing from a
court’s original jurisdiction over the action, the judicial power would
be incomplete and entirely inadequate to the purposes for which it
was conferred by the Constitution.
Fafel v. DiPaola, 399 F.3d 403, 411 (1st Cir. 2005)(internal
quotation marks and citations omitted), citing, Riggs v. Johnson
City, 73 U.S. (6 Wall.) 166, 187, 18 L.Ed. 718 (1867). Consequently,
the jurisdiction of a Court is not exhausted by the rendition of its
judgment, but continues until that judgment shall be satisfied.
USI Properties Corp. V. MD Construction Co., 230 F.3d 489, 496
(1st Cir. 2000) (internal quotation marks and citations omitted).
Here, this Court’s Judgment, whose terms were agreed to by
Plaintiff, USDA and Amicus OTA,3 made certain declarations of law
and required USDA to take several actions. Specifically with regard
to Count 3, the Judgment declared that the USDA regulations at
7 C.F.R. §§ 205.600 and 605(b) are contrary to the OFPA and
exceed the Secretary’s rulemaking authority to the extent that they
permit the addition of synthetic ingredients and processing aids in
handling and processing of products which contain a minimum of
95% organic content and which are eligible to bear the USDA seal.
USDA was ordered to conduct notice and comment rulemaking and
to publish “final rules implementing this Order and Judgment with
regard to Count 3.” Id. at 3-4 (emphasis supplied). Thus, USDA’s
revised rules must comply with the Judgment’s substantive ruling on
Count 3.4 If they do not, USDA has not fully implemented the
Judgment, and this Court retains jurisdiction to insure compliance.5
II. THE OFPA AMENDMENTS DID NOT SUPERSEDE THIS COURT’S
JUDGMENT WITH REGARD TO SYNTHETIC PROCESSING AIDS
A. The OFPA Amendments Did Not Completely Supersede This
Court’s Judgment
As explained above, this Court’s Final Judgment required USDA
to amend its regulations to comply with the substantive rulings of
the First Circuit which were embodied in the Judgment. In order to
determine whether USDA has in fact complied with the Judgment
with respect to Count 3, the Court must determine the extent to
which the OFPA amendments of 2005 superseded its Judgment with
regard to the use of synthetic substances in organic foods. The
plain language of the amendment applies only to synthetic
ingredients, and does not override the Judgment’s explicit
application to processing aids, which was agreed to by USDA and
OTA.6 Thus, USDA has failed to implement the still-valid portion of
the Judgment requiring it to prohibit the use of synthetic processing
aids in handling.
USDA and Amici attempt to override the amendment’s plain
statutory language by claiming to find a congressional intent to
amend OFPA to reverse completely this Court’s ruling and “restore[]
the organic program to its pre-lawsuit status.” USDA Br. at 7;
Amicus Br. at 4-6. However, this could not have been Congress’
intent, because the amendments unquestionably did not restore the
organic program to its pre-lawsuit status.7
For example, with regard to Count 1, USDA had already
implemented the Judgment at the time the amendment was passed,
by notifying certifiers that non-organic agricultural products could
be used in organically-labeled products only if they were not
commercially available and were individually listed on the National
List.8 The Final Rule issued to comply with this Court’s Judgment
further reinforced this outcome by amending the challenged
regulation, 7 C.F.R. 205.606, to make clear that only the listed non-
organic ingredients could be used in products labeled as organic. 71
Fed. Reg. 32803, 32807 (June 7, 2006). This was exactly the relief
that Harvey had originally sought.9 The OFPA amendment impacted
this subject area only by providing authority for USDA to develop
emergency procedures for temporarily listing non-organic
agricultural products for use in organic products.10 USDA has not
done so to date.
With regard to Count 7, the amendment provided that in the 12
month period in which conventional dairy animals are converted to
organic status, they may be fed crops and forage from a dairy farm
in its third year of transition to organic. Plaintiff does not consider
this amendment controversial and supports this change. The
amendment did not override the First Circuit’s ruling that such
animals may not be fed 20% conventional feed in the first nine
months of the transition year.11 USDA’s Final Rule accordingly
provided that after June, 2007, dairy animals can not be fed only
80% organic feed during the conversion period. 71 Fed. Reg. at
32807. Again, this was exactly the relief originally sought by Harvey.
12
In sum, while the amendment addresses the same subject areas
as this litigation, it does not even approach reversing this Court’s
Judgment with respect to Counts 1 and 7. Thus, one cannot begin
with a presumption that Congress completely reversed this Court’s
Judgment with regard to Count 3, either. Rather, just as with the
other Counts, one must look at what the amendment actually says.
B. The OFPA Amendment Permits Only the Use of Synthetic
Ingredients on the National List in the Handling of Organic Products
Contrary to USDA and Amici’s claims, USDA Br. at 9-10, Amicus
Br. at 11, the amendment does not authorize the allowance of
synthetic “substances,” the term which is agreed to be the OFPA’s
all-inclusive term, encompassing ingredients, processing aids and
other substances. USDA Br. at 10. In fact, as Amici elsewhere
admit, the amendment is addressed only to synthetic ingredients.13
The amendment does only two things with regards to synthetics.
First, at § 797(a), it amends 7 U.S.C. §6510(a), which formerly
forbade any organic handler from adding any synthetic ingredient in
the processing or postharvest handling of the product. The
amendment excludes from that prohibition “any synthetic ingredient
... appearing on the National List.”14 Second, at § 797(b), the
amendment conformed the language of 7 U.S.C. § 6517 (the
National List provision) so that it no longer contains a complete
prohibition on synthetics in handling. The amendment deleted the
former provision at § 6517(c)(1)(B)(iii)), which permitted the
listing of substances for use in handling only if they were “non-
synthetic.” In addition, the amendment added “in organic
production and handling operations” to the title “Exemption for
prohibited substances” found at 7 U.S.C. § 6517(c)(1).
Presumably, this was to indicate that National List exemptions could
be applicable to handling as well as to production.
Thus, the amendment never uses the word “substance,” and the
word substance only appears near the amendatory language in the
title to § 6517(c)(1). It is not clear whether USDA and Amici argue
that it is the amendment of this title containing the word
“substance” which evidences congressional intent to authorize the
listing of any synthetic “substance” for use in handling. If so, the
title cannot bear that weight. United States v. Minker, 350 U.S. 179,
185 (1956) (“the title of a statute and the heading of a section
cannot limit the plain meaning”) (internal quotation marks and
citation omitted); 2A Norman J. Singer, Statutes and Statutory
Construction, §47.03 at 214 (6th ed. 2000) (“The descriptive
heading immediately preceding the text of a code or statutory
section does not constitute part of the statute and is not controlling
regarding its construction or interpretation).
In any event, the section which the heading describes authorizes
the listing of various classes of synthetic substances in organic
production, none of which are ingredients or processing aids. Secs.
6517(c)(1)(B)(I) and (ii). Thus, the broad term “substance” in the
title applies to the provisions which follow regarding production. It
obviously is not descriptive of any provisions which follow
concerning synthetics in handling, since with the 2005 amendment’s
deletion of § 6517(c)(1)(B)(iii), there are none. Thus, the use of
the word “substance” in the title cannot be interpreted to apply to
synthetics in handling, or to make a major change in the status of
synthetics in handling under the Act.
This is especially true because a basic premise of the entire
statutory scheme is that no synthetics are to be used in either
organic production or handling, with only limited and specifically
authorized exceptions.15 One cannot interpret the 2005
amendment without reference to § 6504(1), which sets the stage
for everything which follows concerning synthetics in OFPA. That
section commands that no synthetic chemicals are to be used in
either organic production or handling, unless specifically authorized
elsewhere in the statute. Certainly, a broad new exception to that
cornerstone of the Act cannot be inferred from a word in the title to
a section which does not otherwise concern synthetics in handling.
Rather, Congress addressed synthetics in handling by amending §
6510, conferring a specific exemption for synthetic ingredients
appearing on the National List. In the context of the statutory
scheme, there is no ambiguity in the 2005 amendment, and USDA’s
interpretation is not entitled to deference under Chevron U.S.A., Inc.
v. Natural Resources Defense Council, 467 U.S. 837 (1984).
When Congress addressed synthetics in handling by amending a
section applicable solely to ingredients, it must be presumed to have
been aware of the terms of the Judgment it was purportedly
responding to, which directed USDA to revise its regulations to
prohibit synthetic ingredients and processing aids. Congress must
also be presumed to have been aware of USDA’s separate and
distinct regulatory definitions for those two categories.16 E.g.,
United States v. Ramirez-Ferrer, 82 F.3d 1131, 1137 (1st Cir. 1996)
(“Courts must presume that Congress knows of prior judicial or
executive branch interpretations of a statute when it re-enacts or
amends a statute,” citing, Lorillard v. Pons, 434 US 575, 580
(1978)). Thus, it must be presumed that when Congress amended
OFPA to permit synthetic ingredients on the National List, it intended
to permit only “ingredients” as defined in the regulations, and knew
that it was leaving intact this Court’s Judgment with regard to
processing aids. Congress could have included processing aids in its
amendments if it had chosen to do so.
Because there really is no legislative history of the 2005
amendment, this Court can only apply its plain language and the
presumption that Congress knew the legal background concerning
the terms it was using.17 The amendment has no legislative history
because it was added as a rider to an appropriations bill in the
conference committee, without hearings, discussion or debate. It
was never subject to a committee mark-up or explained in any
committee report. It was not in either of the House or the Senate
bills that were brought to conference.
This means of legislating has been said to
erode the very foundation of the democratic model of bicameral,
tripartite government by limiting responsive representation that can
only result from fully informed debate and decision-making.
S. Zellmer, “Sacrificing Legislative Integrity at the Altar of
Appropriations Riders: A Constitutional Crisis,” 21 Harv. Envtl L Rev.
457, 510 (1997). Because of the lack of review and scrutiny, such
riders are prone to containing language that does not correctly
reflect even the intent of their few proponents, inside or outside of
Congress, much less the will of Congress as a whole. However, this
possibility should not lead this Court to ignore the plain language of
the congressional enactment, or to relax the usual standards for
discerning congressional intent in favor of the wishful thinking of
USDA or Amici. In fact, these circumstances demand a stricter
standard of interpretation. The Supreme Court has held that such
riders to appropriations bills may not be interpreted to waive or
amend the underlying statute unless the intent is “clear.” Robertson
v. Seattle Audubon Soc’y, 503 US 429, 440 (1992). See also,
Auburn Housing Authority v. Martinez, 277 F.3d 138, 145 (2d Cir.
2002) (“While Congress may amend or repeal a statute by means of
an appropriations bill, its intention to do so must be clear.”)
C. Application of the Plain Language of the 2005 OFPA Amendment
to Permit Synthetic Ingredients but Not Processing Aids Produces a
Rational Result
USDA and Amici nevertheless argue that the plain language of the
amendment cannot be applied because it would produce “absurd”
results. USDA Br. at 11; Amicus Br. at 10-11. This is so, they claim,
because in accordance with USDA’s regulatory definitions,
“ingredients” remain in the finished food product while “processing
aids” do not, or are present at “insignificant levels.”18 Congress’
result, however, far from being absurd, serves an important policy
purpose central to the OFPA statutory and regulatory scheme.
One of OFPA’s main thrusts is to accurately inform consumers
concerning the degree to which food is “organically produced,” and
to insure that “organically produced” has a well-defined and
consistent meaning. One of the three stated statutory purposes is
“to assure consumers that organically produced products meet a
consistent standard.” 7 U.S.C. § 6501(2). The Senate Report on
OFPA explained that the purpose of the national organic standards
was “so that farmers know the rules, so that consumers are sure to
get what they pay for, and so that national and international trade in
organic foods may prosper.19 The organic certification and labeling
scheme, intended to assure consumers that their food has met
defined standards of organic production and handling, and to inform
them concerning the organic content of various products, occupies a
major part of the statutory and regulatory scheme.20
Ingredients, but not processing aids, are disclosed on the labels
of organic (as well as conventional) foods. Thus, in allowing only
synthetic ingredients, Congress insured that consumers would be
aware of any synthetic substances used in their “organic” foods and
could make purchasing decisions accordingly. This meets the
statutory goals to assure consumers that organically produced
products meet a consistent standard, and to allow consumers to be
sure they are getting what they pay for. In contrast, if Congress
had allowed the use of synthetic processing aids in “organic” foods,
consumers could not know when they were buying foods which
were labeled “organic” but were processed with synthetic
substances. “Organic” foods would not meet a consistent standard,
because some would be processed with synthetic processing aids
and some would not, and there would be no way for the consumer
to know which was which.
The First Circuit held that the USDA regulations at § 205.600(b)
and .605(b), which permitted the use of synthetic ingredients and
processing aids in organic foods, were in violation of OFPA, i.e.,
those substances could not be permitted in organically labeled foods
at all. However, even the existing regulatory scheme, which did
permit some of these synthetics, recognized that the use of synthetic
processing aids was subject to regulation and of importance to
consumers. For example, the regulations do not permit the use of
any synthetic processing aids in the 100% organic labeling tier.21
Also, the invalidated regulation at 205.600(b) set forth six criteria
for the evaluation of “synthetic substances used as a processing aid
or adjuvant.” These included that “the substance cannot be
produced from a natural source and there are no organic
substitutes,” § 205.600(b)(1), evidencing a clear preference for
natural and organic processing aids. Finally, synthetic processing
aids were in fact reviewed by the NOSB and subject to National List
procedures.22
The regulation of synthetic processing aids also reflects another
basic principle of OFPA: the meaning of “organic” is process-
oriented, i.e., it involves how foods are grown and handled, and not
just the resulting final product.23 Therefore, for example, organic
foods may not be treated with synthetic pesticides, regardless of
whether any residues of those pesticides remain in the foods when
they reach the consumer.24 Likewise, the Act and regulations
address the use of synthetics in the handling and processing of
organic foods after they are harvested, regardless of whether
synthetic residues remain in the foods. Organic consumers may
wish to avoid foods which were processed with synthetics, seeing
them as products of a more industrial than organic-style food
processing system, even if the processing aids are not present in the
final product. Because processing aids are not disclosed on the
label, the only way to enable organic consumers to avoid them is to
prohibit synthetic processing aids altogether in the “organic”
labeling tier.
D. Amici’s Additional Arguments Do Not Justify Denial of Plaintiff’s
Motion to Enforce or Aid the Court’s Consideration of the Issues
Amici make additional arguments which are not championed by
the government. None of them advance valid reasons for denying
the Motion to Enforce, and all ignore the fact that Amicus OTA
agreed to the terms of a Judgment which explicitly covered both
ingredients and processing aids, and which invalidated the
regulation containing the criteria for permitting synthetic processing
aids. § 205.600(b).
1. Amici’s claim that the OFPA amendment “restored the role of the
National Organic Standards Board” is pure obfuscation.
Amici claim that they, and the 2005 OFPA amendment, are the
champions of the NOSB, the citizen advisory board with authority to
analyze and recommend all substances for inclusion on the National
List. Amici claim that the First Circuit’s decision “narrowed” the role
of the NOSB in “choosing the approved materials via the citizen
advisory board,” and that the OFPA amendment restored that role.
Amicus Br. at 7. In fact, the First Circuit’s decision had no bearing
whatsoever on the role of the NOSB, a role which Plaintiff fully
supports. The First Circuit merely declared that OFPA did not permit
synthetic substances to be listed for use in handling. The NOSB
never had a role in approving substances for the National List which
are forbidden by statute. Granting Harvey’s Motion would not
reduce the NOSB role in analyzing and recommending any
substances permitted by OFPA to be included on the National List.25
2. Amici’s argument that Plaintiff failed to exhaust administrative
remedies has already been rejected in this litigation.
USDA argued below that Harvey had failed to exhaust his
administrative remedies because he did not avail himself of the
opportunity to petition to delete particular synthetic substances from
the National List.26 Harvey responded that he was not challenging
individual substances on the list, but the lack of statutory authority
to list any synthetics for use in handling.27 This Court did not
accept USDA’s argument, and reached the merits of Harvey’s claim.
The Court of Appeals not only reached the merits but granted relief
on the claim. This is the law of the case, and Amici may not
challenge it now.
The relief Plaintiff seeks in no way supersedes or interferes with
the ongoing sunset review of substances on the National List, or
with the procedures to petition to add or remove particular
substances from the List. It goes only to what types of synthetic
substances may be on the List consistent with this Court’s order and
the OFPA statute, as amended. Likewise, contrary to Amici’s
implication,28 granting the relief sought by Harvey would not
involve this Court in any ongoing supervision of which substances
are added to or taken off the National List.29
E. USDA Has Failed to Implement this Court’s Judgment with
Regard to Synthetic Processing Aids and Should Be Ordered to
Amend Its Regulations to Comply
In sum, USDA has failed to publish final rules which implement
the Judgment’s declaration that 7 C.F.R. 205.600(b) and 205.605
(b) are contrary to the OFPA and exceed the Secretary’s rulemaking
authority. Docket No. 88 at 3. USDA must amend § 205.605(b) to
delete from the National List any synthetics for use as processing
aids; and no synthetics used as processing aids may be added to the
List in the future. The regulation at 205.600(b) is invalid in its
current form because it provides criteria for inclusion on the National
List for “any synthetic substance used as a processing aid or
adjuvant.” It must be amended or deleted in order to comply with
this Court’s order to prohibit the use of synthetic processing aids in
organically labeled products.
Harvey does not object to the grant of USDA’s Cross Motion for
Relief from Judgment to the extent of relieving USDA of the
obligation to amend its regulations to prohibit the use of National
List synthetic ingredients in “organic” foods. However, it should be
denied insofar as it seeks to relieve USDA of the obligation to
prohibit synthetic processing aids in those foods, or the obligation
to prohibit synthetic ingredients which are not on the National List.
III. USDA’S FOOD CONTACT SUBSTANCES POLICY IS IN DIRECT
CONFLICT WITH THIS COURT’S JUDGMENT AND WITH OFPA
USDA is also in violation of this Court’s Judgment and of OFPA,
as amended, in maintaining its 2002 Policy Statement with regard to
Food Contact Substances (“FCS”).30 This Policy Statement permits
the use of hundreds of synthetic substances in organic handling,
many of which are processing aids and ingredients, without review
by the NOSB or inclusion on the National List. It does so based
upon their placement on a (continually expanding) FDA list of
substances which are approved for use in conventional food
production. (FDA Food Contact Substances List, hereinafter “FCS
List”).31 This Policy is in violation of this Court’s Judgment, as
modified by the OFPA amendment, insofar as it permits the use of
synthetic processing aids and ingredients in organic foods.32 As
explained above, the OFPA amendment did not reach synthetic
processing aids, and thus the Court’s Judgment remains in effect as
to them. The amendment also only superseded the Court’s
Judgment on synthetic ingredients with respect to such ingredients
“appearing on the National List.”33 Clearly, USDA cannot,
consistent with this Court’s Judgment, permit the use of synthetic
processing aids, or synthetic ingredients not appearing on the
National List, in its regulations. All the more, it cannot do so means
of by a Policy Statement which has not been subject to notice and
comment or recommendation by the NOSB.34
USDA and Amici make several attempts to obscure this basic fact.
First, they mischaracterize Harvey’s claim on this issue. USDA claims
that:
Mr. Harvey seeks to invalidate the Secretary’s policy allowing the use
of substances that are not present in and have no technical effect on
organic food but just incidentally contact organic food because they
are a constituent of utensils, containers, conduits, vessels, packaging
and machinery used in food processing.
USDA Br. at 2-3. USDA claims that the agency has set the threshold
for review under the National List procedures at “substances that
merely come into contact with organic food but do not have any
technical effect on it.” Id. at 15. Amici argue that although the
regulatory scheme requires the review of “processing aids,” it stops
at substances which “merely touch food products” such as
“materials used in trucks, food processing equipment, farm
implements and any other material that merely contacts an
agricultural commodity.” Amicus Br. at 15-16.
This is clearly an attempt to reduce Harvey’s argument to the
absurd, but it is not based on the reality of Harvey’s claim. Harvey’s
motion is directed only at processing aids and ingredients on the
FCS List, and not at materials used in utensils, food processing
machinery, trucks or farm implements. While USDA admits that
OFPA does regulate food contact substances which are used in
packaging materials and containers,35 and Harvey believes that
several items on the FCS List violate these and other provisions of
OFPA, his challenge is limited to enforcing this Court’s Judgment,
which is applicable only to ingredients and processing aids.
USDA claims that Harvey’s attempt to challenge the use of
substances which merely incidentally contact organic foods “exceeds
the bounds of the earlier litigation, the First Circuit’s decision, and
this Court’s Consent Final Judgment and Order.” USDA Br. at 2-3.
The converse is true: because Harvey does not attempt to challenge
the FCS Policy Statement as it applies to such incidental substances
not encompassed by this litigation, but only with regard to
ingredients and processing aids explicitly covered by this Court’s
Judgment, Harvey’s challenge is ripe for review.36
Harvey does not claim that all substances on the FCS List must be
prohibited in organic handling, or that USDA cannot rely upon FDA’s
findings concerning the safety of food contact substances which are
not processing aids or ingredients or otherwise forbidden by OFPA,
and which have no technical effect on organic food. Rather, Harvey
contends that USDA cannot, as it has, simply sweep the entire,
continually expanding, FDA list into compliance. That list is intended
for conventional foods, and does not take the requirements of OFPA
and its implementing regulations into consideration.37 USDA, with
the aid of the NOSB, must review the List to determine which
individual substances must be removed because they: 1) cannot be
used in organic handling because they violate this Court’s Judgment
with regard to synthetic processing aids or because they violate
other provisions of OFPA or the USDA regulations; 2) are
ingredients which must be analyzed and recommended by the NOSB
and subject to National List procedures; or 3) have a technical effect
on the food and therefore do not comply with USDA’s stated policy
concerning the FCS List. USDA Br. at 15.38
USDA also contends that Harvey’s claim concerning the FCS
Policy is not ripe for review because he did not raise it in his
Complaint and because the First Circuit did not address it in its
opinion. USDA Br. at 15-17. However, the issue is not when the
FCS Policy Statement was addressed in the litigation, but whether its
existence violates this Court’s Judgment. USDA cannot evade the
commands of the Judgment by allowing synthetic processing aids
and synthetic ingredients which are not on the National List by
means of a Policy Statement instead of by regulation. As Harvey
pointed out in the Motion to Enforce, some of the very same
substances listed in the invalidated regulation are on the FCS List.
Motion to Enforce at 3-4. This Court’s Judgment cannot be fully
implemented if some of the substances or types of substances which
were declared to be listed in violation of OFPA may continued to be
used via the FCS List. Even if Harvey had never raised the FCS
Policy in this litigation at all, which is not the case, USDA could not
permit the use of synthetics prohibited by Court’s Judgment by
means of the FCS List.
Moreover, it is ironic that USDA would attempt to support its
claim with the fact that the Court of Appeals did not explicitly
address the FCS Policy, when USDA represented to that Court that
the Policy Statement was not a reviewable final agency action but “a
document that was posted on the National Organic Program’s
website for discussion. . . . It is part of an ongoing deliberation
about how the Act and the Rule operate.”39 It is likely that the First
Circuit did not address the issue because it believed that the Policy
was only posted for discussion and was not actually being
implemented.
However, the Policy Statement has been on the USDA website
continuously since 2002, and though nothing with regard to it has
changed since USDA made its representation to the Court of
Appeals, USDA’s current brief clearly admits that it is an operational
action of the Secretary. USDA states that the Policy
authoriz[ed] the use of Food and Drug Administration (FDA)
classified food contact substances. . . . In doing so, the Secretary
established a threshold below which substances did not have to go
through National List procedures in order to be used in organic
processing and handling.
USDA Br. at 15. USDA should not be permitted to use the likely
result of its misrepresentation to the Court of Appeals to bolster its
argument here.
In sum, the this Court should order USDA to revoke or revise its
FCS Policy Statement 1) to remove any authorization for the use in
organic handling of synthetic ingredients which are not on the
National List and 2) to remove any authorization for the use of
synthetic processing aids and other substances which contravene
the requirements of the OFPA for organic handling.
CONCLUSION
For the foregoing reasons, Plaintiff’s Motion to Enforce the
Judgment should be granted in accordance with the proposed order
submitted therewith. Defendant’s Motion for Relief from Judgment
should be granted to the extent that it would relieve USDA of the
responsibility to amend its regulations to prohibit in organically
labeled foods synthetic ingredients which are on the National List.
Defendant’s Motion should be denied to the extent that it would
relieve USDA from the responsibility to amend its regulations to
prohibit the use of synthetic processing
aids in organic foods, or relieve USDA from the from the
responsibility to prohibit synthetic ingredients which are not on the
National List.
Respectfully submitted,
_____________________________________
_________________________
Martica S. Douglas – Bar No. 558 Paula Dinerstein
DOUGLAS, DENHAM, BUCCINA & ERNST Public Employees
for Environmental
103 Exchange Street Responsibility
P.O. Box 7108 2000 P St., N.W., Suite
240
Portland, Maine 04112-7108 Washington,
DC 20036
(207) 774-1486 (202)265-7337
Attorneys for Plaintiff, Arthur Harvey
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
ARTHUR HARVEY,
Plaintiff,
Civil Action No. 02-216-P-H
MIKE JOHANNS,
SECRETARY OF AGRICULTURE,
Defendant.
CERTIFICATE OF SERVICE
I hereby certify that I caused the foregoing Plaintiff’s Reply in
Support of His Motion to Enforce the Judgment and Opposition in
Part to Cross-Motion for Relief from Judgment to be served by first
class mail this 30th day of August, 2006 on:
Paula D Silsby
United States Attorney
Halsey B. Frank
Assistant U.S. Attorney
P.O. Box 9718
Portland, ME 04104-5018
Richard L. O’Meara
Murray, Plumb & Murray
P.O. Box 9785
Portland, ME 04101-5085
William J. Friedman
Covington & Burling
1201 Pennsylvania Ave., N.W.
Washington, D.C. 20004
______________________________
Martica S. Douglas, Esq., Bar No. 558
DOUGLAS, DENHAM, BUCCINA & ERNST
