297 F.Supp.2d 334 (2004) | Cited 1 time | D. Maine | January 7, 2004


The United States Magistrate Judge filed with the court on October 10,2003, with copies to the parties, her Recommended Decision on CrossMotions for Summary Judgment. Both parties filed objections to theRecommended Decision on November 10, 2003.1 I have reviewed andconsidered the Recommended Decision, together with the entire record; Ihave made a de novo determination of all matters adjudicated by theRecommended Decision; and, with regard to Counts One through Eight of theComplaint, I concur with the recommendations of the United StatesMagistrate Judge for the reasons set forth in her Recommended Decision,and determine that no further proceeding is necessary.Page 2For the reasons that follow, I reject the Magistrate Judge's resolutionof Count Nine.

In Count Nine of his Complaint, Arthur Harvey contends that theSecretary failed to implement a provision in the Federal Organic FoodsProduction Act of 1990 ("OFPA"), 7 U.S.C. § 6501-6522 (1999). Thespecific provision is section 6513(f)(4), which provides that an organicplan for the harvesting of wild crops must include, among other things,"provisions that no prohibited substances will be applied by theproducer." The regulation that Harvey claims fails to implement thissection is 7 C.F.R. § 205.207 (2003). Section 205.207 does notaddress organic plans, however; it provides the standards for wild cropharvesting. The regulation dealing with the content of organic plans is7 C.F.R. § 205.201. It provides, in part, that an organic productionplan for agricultural products must contain "[a] description of themanagement practices and physical barriers established . . . to preventcontact of organic production and handling operations and products withprohibited substances." By requiring that organic plans contain assurancesthat prohibited substances will not be applied, 7 C.F.R. § 205.201implements section 6513(f)(4) of the statute.

Harvey urges a different reading of 7 U.S.C. § 6513(f)(4) andargues that it operates to "carry forward" the requirement that noprohibited substances be applied to the land. He maintains that theprovision prevents producers fromPage 3rotating wild crop lands in and out of organic status. But there simplyis nothing in the statute to support this reading of the provision.

In her Recommended Decision sending the regulation back to theSecretary, the Magistrate Judge focuses on the statute's use of the word"area." The geographic breadth of the prohibition was never argued,however, and so is not before the court. I therefore reject theMagistrate Judge's recommendation regarding Count Nine of the Complaint.

It is therefore ORDERED that the Recommended Decision of the MagistrateJudge is hereby ADOPTED IN PART and REJECTED IN PART. The plaintiff'smotion for summary judgment is DENIED and the defendant's motion forsummary judgment is GRANTED.


1. The plaintiff also filed a motion to narrow the scope of CountsThree and Five of the Complaint on December 8, 2003. (Docket Item 54).The defendant responded that she had "no objection to Plaintiffwithdrawing . . . any of his claims." (Docket Item 55). Accordingly, theplaintiff's motion is GRANTED.

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