MARY ANN SCHOENHOFER; AUTUMN L. JOHNSON; RALPH ROGERSON, Plaintiffs - Appellants,
JACKIE McCLASKEY, in her official capacity as Secretary of the Department of Agriculture of the State of Kansas, Defendant-Appellee.
from the United States District Court for the District of
Kansas (D.C. No. 6:16-CV-01023-JTM-GEB)
T. McIntyre, Law Offices of James T. McIntyre, Wichita,
Kansas, for Plaintiffs-Appellants.
Wesley Smith, Assistant Attorney General, Office of the
Attorney General Derek Schmidt, Topeka, Kansas, for
HARTZ, MATHESON, and McHUGH, Circuit Judges.
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. 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
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
(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
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. 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.
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).