- Author: Mark Bolda
This is more than tangentially related to our current challenge of USDA – CDFA protocols related to management of the light brown apple moth (LBAM). As most of you know, a field of strawberries or caneberries found to be infested with LBAM by USDA-CDFA personnel is closed until it is confirmed to be cleared of the larval stages of this insect. During the time of closure, the grower is forced to sell his or her berries within the quarantine resulting in lower prices from a less robust market or absent that opportunity, leave it to rot, resulting a total loss. While the government isn't showing with a truck, getting shovels and taking the berries, it isn't difficult to define the LBAM regulatory actions amounting to government taking of the crop.
The Supreme Court decision was in regards to the Raisin Administrative Committee marketing order which demanded up to 47% of the plaintiff's crop in a year. This was to support prices of raisins, but the case turned around what was fair compensation for the crop taken.
The opinion of Chief Justice Roberts is telling: “The Government has a categorical duty to pay just compensation when it takes your car, just as it does when it takes your home”, in a reference to the protections afforded by the Fifth Amendment of the taking of personal property by the US government, which yes does include something like raisins.
Admittedly, the broader applications of this ruling are unclear. This case concerns a marketing order rather than a regulatory regime such as that imposed by the USDA and CDFA for control of the light brown apple moth. Indeed, the Ninth Circuit court found the raisin marketing order to be constitutional since all growers benefitted from the program from the higher prices brought about by reduced supply. This could (arguably) be the case with the LBAM Program as well, since growers outside of California would benefit by not having to deal with this insect.
Whatever the outcome for our situation here, it's encouraging to see the Constitution at work protecting our rights.