California, Oregon Nurseries Sue to Re-open South Carolina Market
19 Mar, 2010 By: Landscape Management Staff LM Direct!The California Association of Nurseries and Garden Centers (CANGC) and the Oregon Association of Nurseries (OAN) have filed a suit in U.S. District Court in Columbia, South Carolina, seeking to overturn a new regulation they claim is aimed squarely at blocking California and Oregon nursery growers from shipping their plants to South Carolina.
The USDA Animal and Plant Health Inspection Service (APHIS) maintains regulations related to Phytophthora ramorum (sometimes referred to as Sudden Oak Death) to protect forest health, landscapes, and nurseries across the country. Last year, the South Carolina Assembly passed legislation that limits California and Oregon growers from shipping to that state unless they comply with additional inspection, documentation and advance notice requirements that go beyond the federal rules.
According to South Carolina's Phytophthora Ramorum Quarantne regulation, a state Phytosanitary certificate is required for movement of any regulated article from any regulated area into South Carolina, and prior notification of movement of Phytophthora ramorum host and associated plant material is required.
"The shipper shall send by mail, facsimile or e-mail a copy of the State Phytosanitary Certificate," the regulation states. "The Certificate must list the type and quantity of plants, the address of shipper, the name and address of recipient, the date and results of last P. ramorum nursery test, and contact number(s) of the shipper and recipient. Notice must arrive at least 24 hours prior to scheduled shipment arrival. Commodities shipped in violation of the requirements or with positive test results may be returned to their point of origin or destroyed at the expense of the owner."
The suit by CANGC and OAN claims states are prohibited from taking such steps under the Supremacy Clause of the U.S. Constitution and the U.S. Plant Protection Act, which they say gives the federal government the exclusive power to protect plants sold in interstate commerce. The suit, which names the State of South Carolina and the South Carolina Department of Agriculture, challenges that state's regulation as unconstitutional.
“It is disappointing that the South Carolina Department of Agriculture, which runs programs to promote its home-state products for sale in other states as well as at home, chose to follow this path,” says Robert Dolezal, CANGC’s executive vice president.
According to the CANGC and OAN, nurseries in Oregon and California have had their shipments blocked or plants destroyed as a result of the regulation.
"California nurseries are fully complying with the federal APHIS order," Dolezal says. "Protecting our customers in other states and shipping clean plants is in the best interest of everyone in our industry."
OAN executive director John Aguirre agreed. “Nurseries take very seriously the threat of plant diseases,” he says. “Over 70% of Oregon's nursery sales are destined for buyers outside our state. Oregon growers cannot allow states to violate federal law in an effort to close their markets to our growers.”
The two associations seek injunctive relief to invalidate the regulation legislated by South Carolina.
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