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IDAHO POTATO COM'N v. M & M PRODUCE FARMS & SALES

January 22, 1999

IDAHO POTATO COMMISSION, PLAINTIFF,
v.
M & M PRODUCE FARMS & SALES D/B/A M & M PRODUCE, M & M PACKAGING, INC., MATTHEW ROGOWSKI, MARK ROGOWSKI, JOHN DOE NO. 1. THROUGH DOE JOHN NO. 100., DEFENDANTS. HAPCO FARMS, INC., PLAINTIFF, V. IDAHO POTATO COMMISSION, DEFENDANT. IDAHO POTATO COMMISSION, PLAINTIFF, V. MAJESTIC PRODUCE CORP., MAJESTIC PRODUCE TRUCKING CORP., CHRISTINE RICHARDSON, RITA STRUMPH, JOSEPH STRUMPH, GEORGE RICHARDSON, JOHN DOE NO. 1. THROUGH JOHN DOE NO. 100, DEFENDANTS. G & T TERMINAL PACKAGING CO., INC., INTERVENOR, V. IDAHO POTATO COMMISSION, DEFENDANT.



The opinion of the court was delivered by: Brieant, District Judge.

MEMORANDUM & ORDER

Presently before the Court in these consolidated cases is the motion of the Idaho Potato Commission (the "IPC") (doc. no. 122), brought pursuant to Fed.R.Civ.P. 12(b)(1)(3) and (6), to dismiss the counterclaims of M & M Produce Farms et al., ("M & M") and Majestic Produce Corp. et al., ("Majestic") on grounds of, inter alia, Eleventh Amendment Sovereign Immunity. Also before the Court are the motions of the IPC, brought on similar grounds, pursuant to Fed.R.Civ.P. 12(b)(1)(3) and (6), to dismiss the complaint of the intervenor, G & T Terminal Packaging Co., Inc. ("G & T") (doc. no. 124) and the second amended complaint of Hapco Farms, Inc. ("Hapco") (doc. no. 126). These motions were heard and fully submitted on November 20, 1998.

The Court also addresses at this time Hapco's (doc. no. 106) and M & M's (doc. no. 108) motions to reargue this Court's Memorandum and Order dated August, 26, 1998 denying Hapco's, M & M's, and Majestic's (collectively the "Packer Parties" or the "Packers"*fn1), motion for partial summary judgment. While some familiarity of the reader with the substantial record in this case must be assumed,*fn2 facts necessary to place the Court's ruling in its proper context will be provided.

Background

    "We're serious but not solemn about potatoes here.
  The potato has lots of eyes, but no mouth. That's
  where I come in."
      — E. Thomas Hughes, founder of the Potato Museum,
    Washington D.C.

As Mr. Hughes has taken steps to immortalize the potato, this Court finds itself in the precarious position of protecting the potato's good name. Solanum tuberosum, the potato, is one of the main food crops of the world. The edible part of the plant is a tuber (i.e., the swollen end of an underground stem). The potato, commonly referred to as common potato, white potato or Irish potato, is botanically unrelated to the sweet potato or the yam, with which it is often confused, but is related to the tomato and the tobacco plant, all of which belong to the nightshade family.

The potato's origin can be traced back some 1,800 years to the Peruvian-Bolivian Andes. When the Spanish Conquerors reached South America in the early 1500s, they found the Incas growing potatoes. The Spaniards called them batata because they resembled the sweet potatoes grown in the West Indies. The English changed this to "potato." The potato arrived in Europe at the end of the 16th century, aboard Spanish treasure ships. It was grown without fanfare in Spain, and carried by monks to Italy and then across the Alps to Northern Europe. By the end of the 17th century the potato had become a major crop in Ireland.

Antoine-Augustin Parmentier, a French scientist, promoted the potato in 18th century France. As a prisoner of war in Germany he was well fed on potatoes. He recognized their nutritional value and devised schemes to encourage that potatoes be grown and consumed. Parmentier dispelled the superstitious fears of French peasants that potatoes caused leprosy and fevers, and between 1773 and 1789 wrote books and pamphlets urging potato cultivation. As homage, potato soup in France became known as Potage Parmentier.

Once established, the potato became the staple food of the poor of Europe. Vincent Van Gogh's "The Potato Eaters" (1885) depicts a Dutch coal mining family sharing a meal of potatoes and coffee. Van Gogh did several versions of this painting, which remains a famous masterpiece. Van Gogh is not the only artist to incorporate the potato into art. The French artist, Jean Francois Millet's painting "The Angelus" (1859), the original of which is in the Louvre in Paris, shows a farm couple pausing for the evening prayer over their harvest of potatoes.

As early as 1621, the potato came to Virginia, from England by way of Bermuda. According to the United States Department of Agriculture (USDA), potatoes have now become the most important vegetable crop in the United States, providing 15 percent of vegetable producers annual cash receipts. In the late 19th century, potato production was centered in New York, Pennsylvania and Ohio. As the population moved west, so did potato production. Michigan and Wisconsin became major producers in the early 1900's, but New York remained the leading state until Maine took over in the mid-1920's. Rail transportation and the refrigerated rail-car helped Idaho, California, and Colorado compete in eastern U.S. markets during the 1930's and 1940's. However, Maine remained the leading producer until the late 1950's when the rising popularity of processed (especially frozen) potatoes placed the state of Idaho in the lead with its Russet Burbank variety.

The Russet Burbank was originated in 1914 by Lou Sweet, a potato grower in the western slope area of Colorado who later became the President of the Potato Association of America in 1920. Mr. Sweet selected a mutation of the Burbank potato named after Luther Burbank, a pioneer in selective improvement of seeds and plants. According to the Potato Association of America, the Russet Burbank variety is the standard for excellent baking and processing quality. Additionally, the variety gained value based on its somewhat better resistance to a number of potato tuber diseases. As a result, the Russet Burbank is now the leading variety of the more than 500 different potatoes grown in the United States.

With the average American consuming 137.9 pounds of potatoes a year as recently as 1995, potatoes rank second (behind wheat) in importance to U.S. growers among crops grown primarily for food use (as opposed to livestock feed or for vegetable oil production). According to the USDA, Idaho, Washington, and Oregon currently produce over half of the U.S. crop, with much of this crop processed (mostly into frozen french fries). The USDA lists potatoes as the leading vegetable crop with a farm value of between $2 and $3 billion dollars and reports that the state of Idaho remains at the top of this significant industry.

These consolidated cases represent a legal challenge to the power of the Idaho Potato Commission and the entire Idaho potato industry; the outcome and effect of which is clearly no small potatoes.

The Idaho Potato Commission

(1) Registration number 631,499 (the '499), first registered on
  July 24, 1956, applies to the following stylized certification
  mark when used in connection with potatoes:
  The '499 certifies the "regional origin" of goods
  that are so marked.
(2) Registration number 802,418 (the '418), first registered on
  January 11, 1966, applies to the following certification mark
  when used in connection with potatoes:

IDAHO

  The '418 certifies that "goods so marked are grown in
  the State of Idaho."
(3) Registration number 943,815 (the '815), first registered on
  September 26, 1972, applies to the following stylized
  certification mark when used in connection with potatoes:
  The '815 certifies "that goods so marked are grown in
  the state of Idaho."
(4) Registration number 1,223,007 (the '007), first registered on
  January 4, 1983, applies to the following stylized
  certification mark when used in connection with potatoes:
  The '007 certifies "that goods so marked were grown
  in the State of Idaho."
(5) Registration number 1,735,559 (the '559), first registered on
  November 24, 1992, applies to the use of the ...

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