Alto Dairy v. Veneman

United States Court of Appeals for the Seventh Circuit · 2003 · Administrative Law

Administrative LawJudicial ReviewNotice-and-Comment RulemakingStandingAdministrative Procedure Act5 U.S.C. § 7025 U.S.C. § 701(a)(1)5 U.S.C. § 553(b)

Facts

The Department of Agriculture amended the Mideast milk marketing order to prevent distant supply plants from counting local shipments by associated Mideast farmers toward the 30 percent shipment requirement, thereby curtailing paper pooling that had allowed Wisconsin producers to access the higher Mideast blended price. The plaintiffs, dairy farmers located mainly in Wisconsin, claimed the amendment harmed them economically by limiting their access to that higher price. In this appeal, they argued only that the amendment was adopted without adequate notice in the rulemaking proceeding. The Department argued both that producers lacked a right to judicial review and that the notice was sufficient.

Issue

Whether milk producers adversely affected by a milk marketing order may obtain judicial review under the Administrative Procedure Act despite the Agricultural Marketing Agreement Act's express review provision for handlers only, and whether the Department gave adequate notice of the rule ultimately adopted. More specifically, the question on the merits was whether the final anti-paper-pooling amendment was adopted without notice sufficient to permit meaningful participation.

Rule

Under the APA, persons adversely affected or aggrieved by agency action may seek judicial review unless the governing statute precludes review, and statutory silence does not clearly preclude review. In notice-and-comment rulemaking, notice is adequate if it apprises interested parties of the issues to be addressed with sufficient clarity and specificity to allow meaningful and informed participation; an agency need not provide a new round of notice merely because the final rule is not identical to the initially proposed text.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

The Department of Agricultural Markets issued a regional berry-pricing order that reduced payments to growers in Idaho who had previously qualified for a higher Pacific Northwest blended rate. The governing statute expressly gives packers a right to petition the Secretary and then seek judicial review, but says nothing about growers. Several Idaho growers sue in federal court under the APA, alleging economic injury from the order.

Should the court likely allow the growers to seek judicial review?

Explanation. The majority held that injured producers fall within APA § 702 as persons adversely affected or aggrieved, and that a statute's express review route for handlers does not, by silence alone, clearly preclude producer suits under § 701(a)(1). Economic injury to the producers is enough to bring them within the APA, absent clear statutory preclusion.