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Schoenhofer v. McClaskey

United States Court of Appeals, Tenth Circuit

July 3, 2017

MARY ANN SCHOENHOFER; AUTUMN L. JOHNSON; RALPH ROGERSON, Plaintiffs - Appellants,
v.
JACKIE McCLASKEY, in her official capacity as Secretary of the Department of Agriculture of the State of Kansas, Defendant-Appellee.

         Appeal from the United States District Court for the District of Kansas (D.C. No. 6:16-CV-01023-JTM-GEB)

          James T. McIntyre, Law Offices of James T. McIntyre, Wichita, Kansas, for Plaintiffs-Appellants.

          John Wesley Smith, Assistant Attorney General, Office of the Attorney General Derek Schmidt, Topeka, Kansas, for Defendant-Appellee.

          Before HARTZ, MATHESON, and McHUGH, Circuit Judges.

          HARTZ, Circuit Judge.

         Plaintiff Ralph Rogerson, a licensed pest-control applicator in Kansas, challenges a regulation of the Kansas Department of Agriculture, Kan. Admin. Regs. § 4-13-26 (2003), on the ground that it requires excessive pesticide treatment in preconstruction applications.[1] He filed suit for declaratory and injunctive relief against the Secretary of the Department, claiming that the regulation (1) is preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. §§ 136-136y, because it conflicts with pesticide labels approved by the Environmental Protection Agency (EPA), and (2) is preempted by the Sherman Antitrust Act, 15 U.S.C. § 1, because it limits consumer choice and competition through retail price maintenance. The United States District Court for the District of Kansas rejected both claims, and Plaintiff appeals. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. The Kansas regulation is neither expressly nor impliedly preempted by FIFRA. And Plaintiff has conceded the absence of an essential element of his Sherman Act claim.

         I. DISCUSSION

         The Kansas regulation requires both horizontal and vertical application of termite pesticides in preconstruction areas. It states in full:

In addition to the requirements of the label, each preconstruction application of pesticide for the control of termites shall consist of establishing both horizontal and vertical chemical barriers, as specified in this regulation.
(a)Horizontal chemical barriers shall be established in areas intended to be covered, including the soil beneath slab floors and porches, footing trenches for monolithic slabs, and the soil beneath stairs.
(b)Vertical chemical barriers shall be established in the soil around the base of foundations, plumbing fixtures, foundation walls, support piers, and voids in masonry, and any other critical areas where structural components extend below grade.

Kan. Admin. Regs. § 4-13-26 (emphasis added). According to Plaintiff, however, pesticide labels approved by the EPA under FIFRA do not require both horizontal and vertical application, nor do they require application to as many areas as the regulation requires. For example, as Plaintiff put it, an approved "label for I Maxx Pro [a pesticide used by Plaintiff] . . . gives the applicator discretion to . . . conduct either vertical or horizontal or both treatments, " and "states that only construction objects such as pipes which penetrate the slab need treatment." Aplt. Br. at 13-14.[2] Also, he points out that the label, in accordance with the command of 40 C.F.R. § 156.10(i)(2)(ii), states: "It is a violation of Federal law to use this product in a manner inconsistent with its labeling." Pls.' Resp. to Def.'s Mot. to Dismiss at Ex. 3, Aplt. App. at 71. He complains that the Kansas regulation (1) endangers humans and the environment because it requires unnecessary use of dangerous pesticides, and (2) stifles competition by requiring all applicators to apply too much pesticide when some applicators could reduce their prices by applying only necessary pesticide.

         Plaintiff raises two legal challenges to the regulation. Under FIFRA he contends that the regulation is preempted by federally approved labels for pesticides because it imposes stricter use requirements on pesticide applicators. And under the Sherman Antitrust Act he contends that the regulation is preempted because it is a covert price regulation that forces consumers to pay for unnecessary treatments and prohibits applicators from competing against each other (since all are required to offer the same unnecessary services).

         A. ...


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