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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
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`CENTER FOR FOOD SAFETY, et al.,
`Plaintiffs,
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`v.
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`SONNY PERDUE, et al.,
`Defendants.
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`Northern District of California
`United States District Court
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`Case No. 20-cv-01537-RS
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`
`ORDER GRANTING DEFENDANTS’
`MOTION FOR SUMMARY
`JUDGMENT; DENYING PLAINTIFFS’
`CROSS MOTION, AND DENYING
`PLAINTIFFS’ MOTION TO
`COMPLETE THE ADMINISTRATIVE
`RECORD
`I. INTRODUCTION
`This case stems from an ongoing debate about whether hydroponics, a form of soil-less
`agriculture, may be certified organic. In a rulemaking petition, Plaintiff Center for Food Safety
`(“CFS”) asked the United States Department of Agriculture (“USDA”) to prohibit the organic
`certification of hydroponic production systems. USDA declined the request. CFS now seeks
`review of the USDA’s denial letter. As set forth in detail below, Defendants’ motion for summary
`judgment is granted and Plaintiffs’ corresponding motion is denied because USDA’s denial of the
`rulemaking petition reasonably concluded the applicable statutory scheme does not exclude
`hydroponics from the organic program. Plaintiffs’ motion to complete the administrative record is
`also denied.
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`II. BACKGROUND
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`A. Statutory Background
`The Organic Foods Production Act of 1990 (“OFPA”), 7 U.S.C. §§ 6501-6524, established
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`national certification and production standards for organic produce. Designed to remedy the
`inconsistencies among varying state organic certification schemes, OFPA authorized the creation
`of the National Organic Program (“NOP”), which sets the national standards and administers the
`certification process. 7 U.S.C. § 6503. OFPA additionally created the National Organic Standards
`Board (“NOSB), a fifteen-member coalition of farmers, handlers, retailers, conservationists,
`scientists, certifiers, and consumer advocates “to assist in the development of standards for
`substances to be used in organic production and to advise the Secretary” on other aspects of
`implementation. 7 U.S.C. § 6518. USDA “shall consult” with the NOSB in developing the organic
`program. 7 U.S.C. § 6503(c).
`B. Procedural Background
`On January 16, 2019 CFS submitted to USDA a “Petition Seeking Rulemaking Excluding
`Organic Certification of Hydroponic1 Agricultural Production Systems and Products” (“Petition”).
`Administrative Record (“AR”) 4. Specifically, CFS asked USDA to (1) issue regulations
`excluding organic certification of hydroponic agricultural production, (2) amend 7 C.F.R. §
`205.105 (titled “Allowed and prohibited substances, methods, and ingredients in organic
`production and handling”) to prohibit hydroponic systems, (3) “[e]nsure that ecologically
`integrated organic production practices are maintained as a requirement for organic certification as
`defined by OFPA and its regulations[,]” and (4) revoke all existing organic certifications already
`issued to hydroponic operations. AR 4-5. About six months later, USDA denied the Petition. CFS
`filed for review of the denial on March 2, 2020.
`III. MOTION TO COMPLETE OR SUPPLEMENT THE ADMINISTRATIVE RECORD
`In reviewing an agency decision, courts apply the appropriate Administrative Procedure
`Act (“APA”) standard of review, 5 U.S.C. § 706, based on the administrative record compiled by
`the agency and submitted to the court. See Friends of the Earth v. Hintz, 800 F.2d 822, 829 (9th
`
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`1 The Petition defines “hydroponics” as “a catch-all for a diverse array of systems which
`incorporate, to some degree, containers that house plant roots in either a liquid solution or various
`solid substrates[.]” AR 8.
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`2
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`ORDER
`CASE NO. 20-cv-01537-RS
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`Cir.1986); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971). An
`agency's designation and certification of the administrative record is treated like other established
`administrative procedures, and thus entitled to a presumption of regularity. Bar MK Ranches v.
`Yuetter, 994 F.2d 735, 740 (10th Cir.1993). Accordingly, “[i]n the absence of clear evidence to the
`contrary, courts presume that [public officers] have properly discharged their official duties.”
`United States v. Anderson, 517 U.S. 456, 464 (1996). To meet this burden, a plaintiff must identify
`the allegedly omitted materials and “non-speculative grounds” to believe that the agency
`considered the materials in coming to its decision. Oceana, Inc. v. Pritzker, 2017 WL 2670733, at
`*2 (N.D. Cal. June 21, 2017). The presumption can also be rebutted on a showing that the agency
`applied the wrong standard in compiling the record. Id. Plaintiffs need not show bad faith or
`improper motive. People of the State of Cal. ex rel Lockyer v. U.S. Dep’t of Agric., 2006 WL
`708914, at *2 (N.D. Cal. Mar. 16, 2006).
`CFS seeks introduction of six types of non-privileged documents: (1) excerpts of
`transcripts from NOSB Board meetings in 2002, 2006, 2008, 2016, and 2017; (2) written comment
`letters to NOSB and the NOP from 2016 and 2017 on the topic of organic certification of
`hydroponic operations; (3) emails between the USDA and organic certifiers in which certifiers
`respond to a 2016 survey regarding certification of hydroponic operations; (4) an Agriculture
`Marketing Service (“AMS”), a branch of USDA, staff email chain discussing the 2016 certifier
`survey; (5) a January 2016 email from an organic certifier to the AMS; and (6) slides from a
`presentation given by the AMS to the NOP on March 23, 2016. The arguments regarding the
`propriety of including each set of documents are considered in turn.
`First, CFS complains USDA excluded every oral comment from the NOSB board meetings
`regarding the compatibility of hydroponic operations with soil-based regulations. It contends these
`comments belong in the record both because they stem from deliberations and processes described
`in the Petition and because the existing record refers to them repeatedly. USDA counters by
`admitting that while its denial letter purported to rely on “the substantial deliberation and input on
`hydroponics between 1995 and 2017 from a variety of sources, including the NOSB,” it never
`ORDER
`CASE NO. 20-cv-01537-RS
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`claimed to have reviewed every public comment. AR 1377. CFS has not provided anything other
`than narrative, speculative evidence suggesting USDA must have considered these excerpts
`because it considered other types of public input on this topic. More importantly, CFS focuses on
`the excerpts’ impact on the question of hydroponic certification at large rather than the actual
`denial of their petition.
`Second, CFS argues a variety of anti-hydroponics comment letters were improperly left
`out. It asserts USDA admitted it considered comment letters, but only included a letter in favor of
`organic certification of hydroponic systems. In particular, CFS highlights a letter from OFPA’s
`original drafter, Senator Leahy. USDA has conceded that Senator Leahy’s letter should have been
`included in the Administrative Record and has updated it accordingly. As to the other letters,
`however, USDA takes the same position as against the excerpts – it did not consider every public
`comment relating to this longstanding controversial issue. CFS has provided no evidence showing
`USDA considered each, or even many, of the comments individually in coming to the decision to
`deny CFS’s petition.
`Third, CFS argues that the survey responses should be included because USDA considered
`“deliberation and input on [hydroponics] between 1995 and 2017 from a variety of sources,
`including . . . public stakeholders[.]” AR 1377. The responses CFS seeks to include indicate some
`certifiers were willing to certify hydroponic operations. These variances, CFS argues, show how
`certification of hydroponics has resulted in inconsistent standards. That they may be subject to
`such an interpretation ultimately has no bearing on whether they were indirectly considered by
`USDA. Again, the contention that USDA must have considered these particular survey responses
`because it considered twenty-three years of “deliberation and input” from a variety of sources is
`conclusory. See AR 1377.
`Last, CFS groups together items (4) through (6) above under the heading “internal
`communications and draft documents.” Motion to Complete or Supplement Administrative Record
`(“Mot.”) at 11. It argues these communications are “essential to this Court’s understanding of
`[CFS’s] claims.” Id. Moreover, it contends the slides were viewed by staff members within USDA
`ORDER
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`responsible for administering OFPA, meaning that they were directly considered. The emails, it
`argues, demonstrate USDA’s knowledge of how organic standards were being applied. USDA is
`again correct that Plaintiffs have not met their burden in showing that the agency considered these
`materials in handing down the decision at issue, even if some USDA employee has at some point
`considered the information in the larger debate surrounding the certification of hydroponics.
`In the alternative, Plaintiffs urge supplementation of the record with these documents.
`Courts may look beyond the administrative record in four scenarios: when extra-record evidence is
`necessary (1) to determine whether the agency has considered all relevant factors and explained its
`decision; (2) to determine whether the agency has relied on documents not in the record; (3) to
`explain technical terms or complex subjects; or (4) to make a showing of agency bad faith. San
`Luis & Delta-Mendota Water Auth. v. Locke, 776 F.3d 971, 992-93 (9th Cir. 2014).
`CFS couches its argument in the first and third scenarios. It contends the materials provide
`insight into OFPA’s legislative history, application of statutes and regulations, and the inconsistent
`results. It also argues that they aid in explaining complex subjects. Though the subject matter of
`this action is undoubtedly complicated, the question at issue in this motion is not one of scientific
`complexity. Even if it were, these documents do not seek to clarify the mechanics of hydroponic
`production. Furthermore, though CFS may be correct that USDA cherry-picked its records, as in
`the case of the pro-hydroponics letter, it makes no argument that the excluded records are
`necessary to USDA’s ultimate determination. While including the materials may result in a fuller
`record, CFS are not seriously contending in their actual motion for summary judgment that the
`agency did not consider all the relevant documents or factors. Because CFS can neither overcome
`the burden on completion nor show that supplementation is warranted, the motion is denied.
`IV. CROSS MOTIONS FOR SUMMARY JUDGMENT
`A. Legal Standard
`Summary judgment is proper “if the movant shows that there is no genuine dispute as to
`any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
`The purpose of summary judgment “is to isolate and dispose of factually unsupported claims or
`ORDER
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`defenses.” Celotex v. Catrett, 477 U.S. 317, 323-24 (1986). The moving party “always bears the
`initial responsibility of informing the district court of the basis for its motion, and identifying
`those portions of the pleadings and admissions on file, together with the affidavits, if any, which it
`believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323
`(internal citations and quotation marks omitted). If it meets this burden, the moving party is then
`entitled to judgment as a matter of law when the non-moving party fails to make a sufficient
`showing on an essential element of the case with respect to which it bears the burden of proof at
`trial. Celotex, 477 U.S. at 322-23.
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`To preclude the entry of summary judgment, the non-moving party must bring forth
`material facts, i.e., “facts that might affect the outcome of the suit under the governing law[.]”
`Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The opposing party “must do more
`than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec.
`Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). The trial court must “draw all justifiable
`inferences in favor of the nonmoving party, including questions of credibility and of the weight to
`be accorded particular evidence.” Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 520
`(1991).
`B. Discussion
`CFS brings this action under § 706 of the APA, which requires courts to hold unlawful
`agency actions found to be arbitrary, capricious, an abuse of discretion, in excess of statutory
`jurisdiction, or otherwise contrary to law. 5 U.S.C. § 706(2). An agency violates this standard
`when it fails to “articulate[] a rational connection between the facts found and the choice made.”
`Arizona Cattle Growers’ Ass’n v. U.S. Fish & Wildlife, Bureau of Land Mgmt., 273 F.3d 1229,
`1236 (9th Cir. 2011). It may not “rel[y] on factors which Congress has not intended it consider,
`entirely fail[] to consider an important aspect of the problem,” or “offer[] an explanation for its
`decision that runs counter to the evidence before the agency, or is so implausible that it could not
`be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n
`of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 103 S. Ct. 2856, 2867 (1983). Consequently, courts
`ORDER
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`may consider neither “reasons for agency action which were not before the agency,” Beno v.
`Shalala, 30 F.3d 1057, 1073 (9th Cir. 1994), nor “post hoc rationalizations.” Bowen v.
`Georgetown Univ. Hosp., 488 U.S. 204, 212 (1988) (internal citation omitted).
`1. Standard of Review
`The parties disagree both about what ought to be reviewed and under what standard. CFS
`urges review of whether USDA’s petition denial was reasonable under OFPA. USDA argues that
`the appropriate inquiry is whether its denial letter reasonably interpreted the Petition. Because
`USDA’s interpretation is legal rather than scientific or technical, the parties are essentially aligned
`– an evaluation of the reasonableness of USDA’s denial requires interpretation of the statute. The
`standard of review is, therefore, the threshold, and likely determinative, issue.2
`USDA emphasizes judicial review of a refusal to promulgate a rule is “extremely limited
`and highly deferential.” Massachusetts v. E.P.A, 549 U.S. 497, 528-29 (2007) (internal citations
`omitted). CFS answers with the Ninth Circuit’s reminder: “In denying a petition for rulemaking,
`an agency must, at a minimum, clearly indicate that it has considered the potential problem
`identified in the petition and provide a reasonable explanation as to why it cannot or will not
`exercise its discretion to initiate rulemaking.” Compassion Over Killing v. U.S. F.D.A., 849 F.3d
`849, 857 (9th Cir. 2017). In the same case, USDA points out, the Ninth Circuit endorsed a D.C.
`Circuit rule – “an agency’s refusal to institute rulemaking proceedings is at the high end of the
`range of levels of deference we give to agency action under our arbitrary and capricious review.”
`Id. at 854 (internal citation and quotation marks omitted). Nonetheless, the parties appear to agree
`that Massachusetts v. EPA provides the relevant standard, though they disagree about the effect of
`its application to the USDA’s petition denial.
`In Massachusetts, the Supreme Court rejected the Environmental Protection Agency’s
`(“EPA”) argument that the Clean Air Act, which provides that the EPA “shall by regulation
`prescribe . . . standards applicable to the emission of any air pollutant . . . which in [the
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`2 The parties agree USDA’s denial letter is final agency action subject to judicial review.
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`ORDER
`CASE NO. 20-cv-01537-RS
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`Administrator’s] judgment cause, or contribute to, air pollution which may reasonably be
`anticipated to endanger public health or welfare,” permitted the agency to refuse to regulate
`pollutants, even if they were deemed hazardous. See Massachusetts, 549 U.S. at 528 (emphasis
`added). Instead, the Court concluded that while the EPA was entitled to exercise judgment in
`determining which pollutants may cause or contribute to air pollution, it was required by the text
`of the Clean Air Act to regulate any pollutants designated as dangerous. Massachusetts, 549 U.S.
`at 533.
`CFS relies on Massachusetts for the proposition that this agency action is reviewable. It
`does not dispute that, as in most administrative law cases, agencies are entitled to deference.
`Rather, it posits Massachusetts is both the relevant and preferable standard because it requires
`agencies to provide reasonable explanations which conform to, and are grounded in, the statute. It
`concedes that some level of deference, be it Chevron3 or the lesser Skidmore4 standard, applies to
`judicial review of the statute if it is determined to be ambiguous. USDA seems to agree to the
`extent it relies on Compassion Over Killing, that it must provide some baseline, “reasonable
`explanation as to why it cannot or will not exercise its discretion to initiate rulemaking.” 849 F.3d
`at 857. Because USDA’s decision to deny the Petition was based on its legal interpretation of the
`statute, rather than its technical, agricultural expertise or resource allotment, Massachusetts is
`instructive.
`Nonetheless, it remains unclear exactly how to reconcile these many applicable,
`overlapping standards. It is undisputed that the arbitrary and capricious standard of § 706 roots the
`inquiry, but in the course of acknowledging that “some debate remain[ed] . . as to the rigor with
`which [courts] review an agency’s denial of a petition for rulemaking,” the Supreme Court
`decided Massachusetts and clarified that such refusals are entitled to “extremely limited and
`highly deferential” review. 549 U.S. at 527-28 (internal citation and quotation marks omitted). Its
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`3 Chevron U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837 (1984).
`4 Skidmore v. Swift & Co., 323 U.S. 134 (1944).
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`ORDER
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`requirement that an agency provide some “reasonable explanation as to why it cannot or will not
`exercise its discretion,” therefore, stems from the original § 706 assessment. Id. at 534 (emphasis
`added). Seemingly the only way to determine if an agency’s reading of the statute constitutes a
`“reasonable explanation,” is to look to the plain text and, if that provides no clear answer, to turn
`to the agency’s reading with extreme deference. Thus, when a court is tasked with reviewing an
`agency’s legal, rather than technical, interpretation of a statute, the evaluation of the proffered
`“reasonable explanation” blooms into a deferential, Chevron-esque analysis. To the extent
`USDA’s denial reasonably interpreted and responded to the Petition in a way that accords with
`OFPA, it may be not be disturbed.
`2. Analysis
`In its denial letter, USDA gave three reasons for denying CFS’s request to initiate a
`rulemaking and amend 7 U.S.C. § 6508 specially to prohibit hydroponics. First, it reiterated its
`consistent approval of the certification of hydroponic operations meeting the existing requirements
`for organic crop production. On that basis, it refused here to adopt an inconsistent standard.
`Second, it refused to give effect to the NOSB’s April 2010 recommendation to prohibit organic
`classification for hydroponics because the recommendation “did not provide sufficient details to
`support moving forward with guidance or rulemaking” and conflicted with 1995 NOSB
`recommendations on the same question. AR 1376. Third, NOP disagreed that the various OFPA
`provisions mentioning or imposing soil requirements “require that all organic production occur in
`a soil-based environment.” AR 1377. Only production systems using soil must adhere to such
`requirements. Moreover, USDA believes that hydroponic systems may be capable of the resource
`cycling and improvement of ecological balance OFPA requires and thus need not be categorically
`prohibited.
`To be sold under the organic label, products (1) shall be “produced and handled without
`the use of synthetic chemicals[;]” (2) shall “not be produced on land to which any prohibited
`substances, including synthetic chemicals, have been applied during the 3 years immediately
`preceding the harvest of agricultural products;” and (3) shall “be produced and handled in
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`ORDER
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`compliance with an organic plan agreed to by the producer and handler of such product and the
`certifying agent.” 7 U.S.C. § 6504.
`Section 6513 provides structure to the organic plan requirement. Subsection (a) directs a
`producer or handler to submit an organic plan to a certifying agent and, if applicable, the State
`organic certification program. A certifying agent then will “determine if such plan meets the
`requirements of the programs.” 7 U.S.C. § 6513(a). Subsections (b) through (d) and subsection (f)
`list types of organic plans. Subsection (b) is entitled “Crop production farm plan.” Subsection (c)
`is entitled “Livestock plan;” (d) is “Mixed crop livestock production;” (f) pertains to
`“Management of wild crops.” Subsections (e) and (g) do not refer to specific types of organic
`plans. They are entitled “Handling plan” and “Limitation on content of plan,” respectively.
`Subsection (g) reads: “An organic plan shall not include any production or handling practices that
`are inconsistent with this chapter.”
`Under subsection (b), “Crop production farm plan,” subsection (1) is entitled “Soil
`fertility” and provides: “An organic plan shall contain provisions designed to foster soil fertility,
`primarily through the management of the organic content of the soil through proper tillage, crop
`rotation, and manuring.” Subsection (2) to subsection (b) pertains to manuring. It requires an
`organic plan to “contain terms and conditions that regulate the application of manure to crops[,]”
`and further restricts the application of raw manure.
`In addition to imposing requirements, OFPA clearly delineates unacceptable, inorganic
`methods in 7 U.S.C. § 6508, titled “Prohibited crop production practices and materials.” First,
`subsection (a), titled “Seed, seedlings and planting practices,” disallows farms from applying
`materials or engaging in practices on seeds or seedlings that are contrary to the applicable organic
`certification program. Next, subsection (b) prohibits the application of synthetic or commercially
`blended fertilizers containing prohibited substances to soil. Producers also may not use
`phosphorus, lime, potash or any other material inconsistent with the applicable organic
`certification program as a source of nitrogen in soil. Subsection (c) prohibits the use of natural
`poisons, plastic mulches or “transplants” treated with synthetic materials in crop management.
`ORDER
`CASE NO. 20-cv-01537-RS
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`While § 6508 lists prohibited practices and materials, 7 U.S.C. § 6512 embraces any “production
`or handling practice . . . not prohibited or otherwise restricted under this chapter,” unless it would
`be inconsistent with the organic program.
`USDA promulgated regulations to effectuate OFPA’s objectives and define its scope.
`“Organic production” is defined as “[a] production system that is managed in accordance with the
`Act and regulations in this part to respond to site-specific conditions by integrating cultural,
`biological, and mechanical practices that foster cycling of resources, promote ecological balance,
`and conserve biodiversity.” 7 C.F.R. § 205.2. Any “producer or handler of a production or
`handling operation” who intends to seek organic certification “must comply with the applicable
`provisions” laid out in Subpart C, a section of regulations titled “Organic Production and Handling
`Requirements.” 7 C.F.R. § 205.200. Section 205.200 further requires “[p]roduction practices
`implemented in accordance with this subpart must maintain or improve the natural resources of the
`operation, including soil and water quality.”
`
`CFS focuses on the ways OFPA accentuates, by its terms and structure, the centrality of
`soil to the organic label. Those engaged in crop production “shall,” by the terms of 7 U.S.C. §
`6513(b)(1), provide to certifiers an organic plan “contain[ing] provisions designed to foster soil
`fertility.” It follows, CFS argues, that any crop production system that cannot promote soil
`fertility, by virtue of having no soil to manage, cannot be certified as in compliance with an
`organic plan, as required by 7 U.S.C. § 6504. Other OFPA provisions contain the word “may,”
`which is permissive, rather than “shall,” which is mandatory. See, e.g., 7 U.S.C. § 6507(a) (“The
`governing State official may prepare and submit a plan . . .). The inclusion of “may” in other
`provisions supports the argument that Congress intended the management of soil fertility to be
`obligatory. Because “shall usually connotes a requirement,” CFS contends that USDA’s
`interpretation, as set forth both in its denial letter and by regulation in 7 C.F.R. § 205.200, of the
`soil fertility requirements as applying only to soil-based operations is contrary to the plain
`meaning of 7 U.S.C. § 6513(b)(1). See Kingdomware Techs., Inc. v. United States, 136 S. Ct.
`1969, 1977 (2016) (emphasis added) (internal quotation marks omitted). That section 6512
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`ORDER
`CASE NO. 20-cv-01537-RS
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`Northern District of California
`United States District Court
`
`

`

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`permits any “production or handling practice” not prohibited does not belie this reading, CFS
`argues. Such a practice must not be “inconsistent with the applicable organic certification
`program.” 7 U.S.C. § 6512. Lastly, CFS maintains that §§ 6505, 6506, and 6517 articulate the
`narrow circumstances in which products or practices may be exempted from OFPA compliance.
`Under the canon of statutory interpretation expressio unius est exclusio alterius (the expression of
`one thing implies the exclusion of another), the failure to mention any exemptions from the
`organic crop production plans demonstrates Congressional intent to preclude such exemptions.
`Read together, these features of OFPA compel a categorial ban of hydroponic systems.
`
`At the outset, USDA responds that Congress failed to “directly [speak] to the precise
`question at issue:” Does OFPA compel the prohibition of hydroponic systems?, so “the question
`for the court is whether the agency’s answer is based on a permissible construction of the statute.”
`City of Arlington v. F.C.C., 569 U.S. 290, 296 (2013) (citing Chevron, 467 U.S. at 842-43).
`Though the Petition asserted that OFPA compels the categorical bar of hydroponic systems,
`neither hydroponic systems nor methods are directly or indirectly mentioned or considered. OFPA
`therefore does not speak directly to the issue and cannot compel any action related to hydroponics.
`Under that rubric, USDA’s interpretation, as set forth in its regulations at 7 C.F.R. § 205.200, that
`soil fertility provisions apply only to production systems using soil is necessarily a permissible
`reading.
`USDA alternatively contends that traditional tools of statutory interpretation suggest that
`Congress did not intend to prohibit the certification of soil-less agricultural systems. In its view, §
`6513 provides a non-exhaustive list of what must be included in some of the most common
`organic plans, organized on a site-specific basis. It observes that while some subsections of § 6513
`reiterate their titles and thereby confine the application of those requirements to the relevant types
`of production systems, subsection (b), which pertains to crop production, does not. See, e.g., 7
`U.S.C. § 6513(c) (bearing the title “Livestock plan,” and providing “An organic livestock plan
`shall contain. . .”); 7 U.S.C. § 6513(f) (bearing the title “Management of wild crops,” and
`explaining “[a]n organic plan for the harvesting of wild crops shall . . .”). Applying subsection
`ORDER
`CASE NO. 20-cv-01537-RS
`
`12
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`Northern District of California
`United States District Court
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`(b)’s soil fertility requirements to all organic plans, however, would be nonsensical – it would
`require handling operations, at subsection (e), which only receive and process agricultural goods,
`to be soil-based. Because handlers rarely deal with soil, application of subsection (b)(1) to
`handlers might exclude all handlers from certification, meaning that organic agricultural products
`could never be distributed to consumers. This strained result, argues USDA, requires a finding that
`§ 6513(b)(1) is, at the very least, ambiguous.
`USDA accuses CFS of mischaracterizing the structure and import of § 6513. In the
`absence of any language indicating resistance to so