Summary of a Recent
Judicial
Development in
International Trade
Importation of Orchids from Taiwan Held Lawful
Emilie H. LeibovitchNational AgLaw Center Graduate Assistant
In Hawai'i Orchid Growers Association v. United States Department of Agriculture, 436 F. Supp. 2d 45 (D.D.C. 2006), the United States District Court for the District of Columbia held that the Animal and Plant Health Inspection Service (APHIS) and the U.S. Department of the Interior's Fish and Wildlife Service (FWS)'s decision to allow the importation of Phalaenopsis orchids from Taiwan was not arbitrary and capricious.
APHIS amended the Quarantine 37 regulations, which are designed to protect the United States' plant resources from foreign pests, by "add[ing] orchids of the genus Phalaenopsis from Taiwan to the list of plants that could be imported in an approved growing medium, subject to specified growing, inspection, and certification requirements." Hawai'i Orchid Growers Ass'n, 436 F. Supp. 2d at 48. The FWS concurred with APHIS' conclusion that "the importation of Phalaenopsis species orchids from Taiwan in approved growing media [would] not adversely affect federally listed or proposed endangered or threatened species or their habitats." Id. at 49.
Hawaii Orchid Growers Association (Hawaii Orchid), a non-profit organization for professional orchid growers in Hawaii, claimed that the rule violated the Endangered Species Act (ESA) by arguing: (1) APHIS reached an arbitrary and capricious decision when it failed to inform FWS about information regarding potential thrips infestations of the orchids; (2) APHIS failed to take into account a previous analysis of Hawaii's unique ecology in the consultation process; and (3) FWS reached an arbitrary and capricious decision when it concurred with APHIS's determination without considering whether alien species could enter the United States through entry of suitable breeding habitats. See id. at 50. After finding that Hawaii Orchid had standing to sue, the district court dismissed plaintiff's arguments and granted defendant's motion for summary judgment. See id. at 52-55.
The court rejected plaintiff's argument that APHIS failed to provide FWS with information regarding potential thrips infestations given the fact that the issue of Phalaenopsis plants being infected with thrips was raised several times in various reports and recommendations, thereby making APHIS' decision to import the orchids neither arbitrary nor capricious. See id. at 52-53. The court also found that even though APHIS had recognized in the past that Hawaii had a unique ecology that required the exclusion of certain exotic ant species, plaintiff did not show how this past determination involved a situation similar to the one at issue here. See id. at 53-54.
Finally, the court dismissed plaintiff's third argument on the ground that once again, plaintiffs did not show FWS failed to properly assess whether alien species could enter the United States through entry of suitable breeding habitats. See id. at 54. FWS examined various reports regarding the potential risk that pests might be imported in the growing medium, and FWS and APHIS both made the decision to allow importation of the plant. See id. Having considered the information that was available, FWS did not reach an arbitrary and capricious decision. See id.
The case was decided on June 29, 2006; this summary was posted Feb. 7, 2006.