California and Oregon Nurseries Prevail in South Carolina Trade-Restraint Lawsuit

"If the principle of federal preemption had been undermined, then the door would swing open to a patchwork of regulation among the states and marketplace chaos would ensue" - OAN executive director John Aguirre

Salem-News.com

(SACRAMENTO) - The California Association of Nurseries and Garden Centers (CANGC) and the Oregon Association of Nurseries (OAN) successfully resolved a federal lawsuit against South Carolina today.

The two associations filed their lawsuit on March 10 challenging a regulation that disrupted shipments of plant material from California and Oregon growers.

South Carolina chose to rescind the contested regulation rather than fight in court. Shipments of nursery products are expected to resume immediately.

The suit stemmed from actions South Carolina took last year. In 2009, the South Carolina Assembly enacted a regulation that prevented California and Oregon growers from shipping plants that could be host to a plant disease known as Phytophthora ramorum (sometimes referred to as Sudden Oak Death). The regulation required nurseries in California, Oregon, and Washington to perform special inspections, provide extra documentation, and give advance notice for all shipments.

Such requirements are illegal under the federal Plant Protection Act and unconstitutional under the Supremacy Clause of the U.S. Constitution when a federal agency's valid order has been established to govern interstate shipments. The USDA Animal and Plant Health Inspection Service (APHIS) has regulated Phytophthora ramorum since 2002 in an effort to prevent its spread.

Word that South Carolina would rescind its regulation and stop enforcement was well received by the plaintiffs. "We believe strong, effective federal regulation is of paramount importance on matters related to plant pests and disease," said OAN executive director John Aguirre. "If the principle of federal preemption had been undermined, then the door would swing open to a patchwork of regulation among the states and marketplace chaos would ensue."

Robert Dolezal, CANGC's executive vice president shared Aguirre's view. "Shipping healthy plants makes good business sense and protects the environment," he said. "California is the nation's number one shipper of nursery products to other states, and we are the number one consumer of other states' plants. Our record is outstanding. It's now a matter of precedent for South Carolina to conduct its business using the same standards as the other 49 states."

In 2004, the California Association of Nursery and Garden Centers successfully sued the State of Kentucky under similar circumstances to South Carolina's actions. "We hope that South Carolina's decision to strike down its own regulation in the face of our lawsuit will send a clear message to any other states that might consider such an action," Dolezal said.

The plaintiffs were represented by attorneys Jim Lehman and Daniel D'Alberto of Nelson, Mullins, Riley & Scarborough, LLP of Columbia, South Carolina, and Neil Shapiro of the Law Offices of Neil Shapiro in Monterey, California.

For more information about Phytophthora ramorum, go to aphis.usda.gov/plant_health/plant_pest_info/pram/index.shtml.