Hein Hettinga v. Thomas Vilsack

MEMORANDUM

Hein and Ellen Hettinga (“the Hettingas”) d/b/a Sarah Farms appeal the adverse grant of summary judgment in their action challenging the Secretary of the U.S. Department of Agriculture’s (“USDA”) interpretation of the 2006 amended Arizona-Las Vegas Milk Marketing Order (“Amended Order”) as applied to them and seeking refund of $324,211.60 in assessments paid for the month of April 2006. We affirm.

The USDA’s interpretation of its own regulation is entitled to substantial deference and must be given controlling weight “unless an ‘alternative reading is compelled by the regulation’s plain language or by other indications of the agency’s intent at the time of the regulation’s promulgation.’” Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 , 114 S.Ct. 2381 , 129 L.Ed.2d 405 (1994) (quoting Gardebring v. Jenkins, 485 U.S. 415, 430 , 108 S.Ct. 1306 , 99 L.Ed.2d 515 (1988)); see Auer v. Robbins, 519 U.S. 452, 461 , 117 S.Ct. 905 , 137 L.Ed.2d 79 (1997); Miller v. Cal. Speedway Corp., 536 F.3d 1020, 1028 (9th Cir.2008).

Here, the agency’s interpretation of the Amended Order is contradicted by neither its plain language nor other evidence of regulatory intent. The…