                                                                          FILED
                            NOT FOR PUBLICATION                            APR 21 2011

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



HEIN HETTINGA, DBA Sarah Farms;                  No. 10-15140
ELLEN HETTINGA, DBA Sarah Farms,
                                                 D.C. No. 2:09-cv-00204-JWS
              Plaintiffs - Appellants,

  v.                                             MEMORANDUM *

THOMAS J. VILSACK, in his capacity as
Secretary of the United States Department
of Agriculture,

              Defendant - Appellee.



                    Appeal from the United States District Court
                             for the District of Arizona
                    John W. Sedwick, District Judge, Presiding

                             Submitted April 14, 2011 **
                                Pasadena, California

Before: REINHARDT, HAWKINS, and GOULD, Circuit Judges.

       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.

         *
           This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
          The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
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 (1994) (quoting Gardebring v. Jenkins, 485 U.S. 415, 430

(1988)); see Auer v. Robbins, 519 U.S. 452, 461 (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 Hettingas did

not lose their producer-handler exemption status in April 2006 due to failure to meet

one of the five “designation requirements” or fulfillment of one of the three

“cancellation conditions,” and therefore the Amended Order’s new cancellation

provision, providing for a one-month enforcement grace period, does not, on its face,

apply. See 7 C.F.R. § 1131.10(a), (c). Rather, USDA claims the Hettingas were

immediately and automatically disqualified from producer-handler exemption status

for the month of April 2006 because they exceeded the monthly three-million pound


                                         2
sales cap. See id. § 1131.10 pmbl. Reading the regulation as a whole, we cannot say

the agency’s interpretation of its own regulation is unreasonable. See Or. Paralyzed

Veterans of Am. v. Regal Cinemas, Inc., 339 F.3d 1126, 1131 (9th Cir. 2003).

      AFFIRMED.




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