UNITED STATES DISTRICT COURT

The above-named plaintiffs, by and through their counsel, Michael Best & Friedrich LLP, state for their Complaint against the above-named defendants the following:

1. This is an action to declare preempted, unconstitutional, and invalid, and to enjoin enforcement of, Dane County Ordinances Ch. 80 signed into law by Dane County Executive Kathleen Falk on April 20, 2004 (the “County Ordinances” or “Ordinances”) and amendments to §§ 7.48 and 1.08(3)(a) of the City of Madison Ordinances adopted on February 3, 2004 (the “City Amendments” or “Amendments”). A copy of the County Ordinances is attached to this Complaint as Exhibit 1. A copy of the City Amendments is attached to this Complaint as Exhibit 2.

2. The challenged Ordinances and Amendments were enacted with the intent, among other things, to regulate the application, sale and display of lawn and turf fertilizer products containing more than a trace of phosphorus, including pesticide-fertilizer mixture products, subject to certain exceptions for new lawns and phosphorus deficient soil.

3. Plaintiffs contend that the challenged Ordinances and Amendments are (a) preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C. §§ 136-136y (2000); (b) preempted by State law, including Wis. Stats. Ch. 94 and implementing regulations issued by the Wisconsin Department of Agriculture, Trade and Consumer Protection; (c) violate the Commerce Clause of the U.S. Constitution, Art. I, § 8, cl. 3; (d) violate the Equal Protection provisions of the U.S. and Wisconsin Constitutions; (e) are void for vagueness and otherwise violate the Due Process Clauses of the U.S. and Wisconsin Constitutions; and (f) violate the Free Speech Clause of the U.S. and Wisconsin Constitutions.

4. Accordingly, plaintiffs seek (a) a declaration under 28 U.S.C. § 2201 that the challenged provisions are preempted under federal and Wisconsin law, improper, unconstitutional and unenforceable, (b) permanent injunctive relief preventing enforcement of the challenged provisions, (c) attorneys’ fees and costs pursuant to 42 U.S.C. § 1988, and (d) such other relief as the Court deems proper.

5. This Court has jurisdiction under 28 U.S.C. § 1331 because this action raises a federal preemption question arising under FIFRA; under § 1343 because this action asserts constitutional claims; and under § 1367 because this action raises a state preemption question so related to claims in the action within the Court’s original jurisdiction that they form part of the same case or controversy.

7. Plaintiff CropLife America, Inc. (“CropLife”) is a national not-for-profit trade association with offices at 1156 15th Street NW, Suite 400, Washington, DC 20005. CropLife’s members are engaged in the manufacture and distribution of plant science and agronomic products including pesticides, fertilizers and combination products. CropLife members’ products are sold, distributed and applied in the City of Madison and in Dane County.

8. RISE (Responsible Industry for a Sound Environment)® is an affiliate of CropLife, a national not-for-profit trade association with offices at 1156 15th Street NW, Suite 400, Washington, DC 20005. RISE represents 188 producers and suppliers of specialty pesticide and fertilizer products. RISE was established in 1991 and serves as a resource on pesticides and fertilizers providing current and accurate information on issues and research affecting this specialty industry. RISE member companies manufacture more than 90% of domestically produced specialty fertilizer for turf and gardens. These products are sold, distributed and applied in the City of Madison and in Dane County.

9. Berry Hill Farms, Inc. is a Wisconsin corporation that owns and operates America’s Best Flowers Garden Center, 4311 Vilas Hope Road, Cottage Grove, Dane County, WI 53527, a greenhouse, lawn and garden center. America’s Best Flowers Garden Center displays for retail sale and conducts retail sales of a wide variety of pesticides, fertilizers and combination products for application to lawns and gardens in the City of Madison and Dane County.

10. Wisconsin Fertilizer & Chemical Association (“WFCA”) is a not-for-profit trade association with offices located at 2317 International Lane, Suite 102, Madison, Wisconsin 53704-3154. WFCA represents more than 750 members, most of whom are engaged in the manufacture, distribution, and retail sale of fertilizers, pesticides and combination products, including phosphorus containing products for lawns and gardens in Dane County and the City of Madison.

11. Landmark Services Cooperative (“Landmark”), 203 West Cottage Grove Road, Cottage Grove, Wisconsin, 53527, is a Wisconsin cooperative with facilities in 15 communities and 6 counties. Landmark is a large agricultural retailer that retails, wholesales and custom applies agricultural chemicals and plant food to producers in a number of counties, including Dane County. Landmark is a diversified business that also provides consumers with, among other things, lawn and garden supplies. Landmark’s Cottage Grove, Wisconsin location in Dane County displays for retail sale and conducts retail sales of a wide variety of pesticides, fertilizers and combination products for application to lawns and gardens in Dane County, the City of Madison and elsewhere.

12. Midwest Hardware Association (“MHA”) is a not-for-profit regional trade association with offices at 2801 Dixon Street, Stevens Point, Wisconsin 54481-8033. MHA has more than 645 retail hardware stores as members, a number of which are engaged in retail trade in the City of Madison and in many communities throughout Dane County, Wisconsin. MHA’s members display for retail sale and sell a wide variety of lawn and garden products including pesticides, fertilizers and combination products containing phosphorus.

13. Keyman Lawn Care, LLC (“Keyman”), 6392 Pheasant Lane, Verona, Wisconsin 53593, provides turf enhancement products and professional services to clients throughout Dane County and the City of Madison. Keyman’s services include the sale and application of lawn care products including phosphorus containing fertilizer and pesticide/fertilizer combination products.

14. Midwest Lawn Care, LLC (“Midwest Lawn Care”), 2211 Eagle Drive, Middleton, Wisconsin 53562, provides turf and lawn enhancement products and services to clients throughout Dane County and the City of Madison. Midwest Lawn Care’s services include the sale and application of lawn care products including phosphorus containing fertilizers and pesticide/fertilizer combination products.

15. Wisconsin Landscape Federation (“WLF”) is a not-for-profit trade association with offices located at 12342 West Layton Avenue, Greenfield, Wisconsin 53228. WLF’s members include professional turf managers, lawn care providers, nursery and garden retailers who provide customers with lawn, garden and turf products and services. WLF’s members sell and apply phosphorus containing fertilizers, pesticides and combination pesticide-fertilizer products to customers in the City of Madison and Dane County, Wisconsin.

16. Defendant City of Madison adopted the Amendments. The City Clerk’s office is located at Room 103, City-County Building, 210 Martin Luther King, Jr. Blvd., Madison, WI 53703.

17. Defendant Kathryn N. Vedder, MD, MPH, is the Director of Public Health for the City of Madison, and is charged under § 1.08(4), City of Madison Ordinances, with enforcement of the Amendments. Dr. Vedder’s office is located in Room 507, City-County Building, 210 Martin Luther King, Jr. Blvd., Madison, WI 53703.

18. Defendant Michael May is the City Attorney for the City of Madison, and is charged under § 3.15, City of Madison Ordinances, with enforcement of the Amendments. Attorney May’s office is located in Room 401, City-County Building, 210 Martin Luther King, Jr. Blvd., Madison, WI 53703.

19. Defendant Dane County adopted the Ordinances. The County Clerk’s office is located in Room 112, City-County Building, Madison, WI 53703.

20. Defendant Kathleen Falk is the Dane County Executive, and is charged under § 59.17(2), Wis. Stats., with enforcement of the Ordinances. Ms. Falk’s office is located in Room 421, City-County Building, 210 Martin Luther King, Jr. Blvd., Madison, WI 53703.

21. Defendant Lynn Green is the Director of the Dane County Department of Human Services, and is charged under § 80.08, Dane County Ordinances, with enforcement of the Ordinances. Ms. Green’s office is located at 1202 Northport Drive, Madison, WI 53703.

22. The City of Madison and Dane County have enacted ordinances that generally ban the sale, display and use of inorganic lawn and turf fertilizers containing more than a trace of phosphorus beginning in January 2005.

23. Phosphorus (chemical symbol “P”) is present in all living cells and is essential to all forms of life. It is present throughout the environment – in the soil, rocks, plants and animals. Found throughout the human body, it is concentrated in the teeth and bones.

24. The source of phosphorus in most inorganic lawn fertilizers is phosphate rock, which is mined from the earth’s crust. Manufacturers must provide a minimum guarantee of available plant nutrient expressed in terms of available phosphate (P₂O₅) or phosphorus, if it is claimed on the label.

25. Labels typically have three numbers displayed prominently, for example a typical lawn fertilizer [28-3-4] would contain 28% nitrogen (N), 3% available phosphate (P₂O₅) and 4% soluble potash (K₂O) by weight.

a. to apply within the City any lawn and turf fertilizer that contains more than a trace of phosphorus or other compound containing phosphorus, such as phosphate (Amendments § 7.48(3));[1]

b. to apply or deposit any fertilizer (with or without phosphorus) on an impervious surface, and requires such an application to be immediately contained and either legally applied to turf or any other lawful site, or returned to the original or other appropriate container (Amendments § 7.48(4));

c. to apply lawn and turf fertilizer “when the ground is frozen or when conditions exist which promote or create runoff” (Amendments § 7.48(5));

d. “to display or distribute for retail sale lawn and turf fertilizer containing more than a trace of phosphorus,” including “the fertilizer content of a product that combines fertilizer with a pesticide,” but this prohibition applies only “when the retail sale is to a resident of the City of Madison” (Amendments § 7.48(6)).

27. The City Amendments allow application of lawn and turf fertilizer that contains more than a trace of phosphorus if a soil test “indicates that the levels of available phosphorus in the soil is insufficient to support healthy turf growth,” or during the first growing season of new seed or sod. Amendments § 7.48(7). Anyone applying a phosphorus-containing lawn and turf fertilizer pursuant to these exceptions “shall water such lawn and turf fertilizer into the soil where it is immobilized and generally protected from loss by runoff.” Amendments § 7.48(7)(b).

28. The City Amendments allow retail sale or distribution when the customer states to the retailer or distributor that one of the two exceptions described in the preceding paragraph applies.

29. The City Amendments specifically include “weed and feed” products, which combine fertilizer with an herbicide, and other types of pesticide/fertilizer combination products (e.g., a mixture of an insecticide and a fertilizer). Amendments § 7.48(6). Pesticide/fertilizer combination products are regulated by FIFRA and Wisconsin law as pesticides. See 7 U.S.C. § 136(u); 40 C.F.R. § 152.8(a); Wis. Stats. §§ 94.67(25), (25m); Wis. Admin. Code § ATCP 30.01(7).

30. The County Ordinances apply in all areas of Dane County and permit cities in Dane County to adopt ordinances that include standards at least as restrictive as those of the County. § 80.03, Ordinances.

a. to apply within Dane County any lawn fertilizer labeled as containing more than 0% phosphorus or other compound containing phosphorus, such as phosphate (Ordinances § 80.05(1));

c. to apply fertilizer to any impervious surface, and to immediately contain and either legally apply such fertilizer to turf or place it in an appropriate container (Ordinances § 80.05(3));

d. to sell or offer for sale any lawn fertilizer within Dane County that is labeled as containing more than 0% phosphorus or other compound containing phosphorus (Ordinances § 80.07(1));

32. The Ordinances provide that the prohibitions on selling, offering for sale and using phosphorus-containing fertilizer do not apply to new lawn areas or turf in their first growing season, turf or lawn areas that soil tests performed within the past three years by a state-certified soil testing laboratory confirm are below phosphorus levels established by the University of Wisconsin Extension Service, or agricultural uses. § 80.06, Ordinances.

33. The Ordinances do not specifically include “weed and feed” products, which combine fertilizer with an herbicide, but it is the apparent intent of the Ordinances to include those products in the Ordinance bans. Weed and feed products are regulated by Wisconsin and federal law as pesticides. See, Wis. Stats. §§ 94.67(25), (25m); Wis. Admin. Code § ATCP 30.01(7); 7 U.S.C. § 136, et seq.

34. While banning inorganic fertilizer containing phosphorus, County Ordinances allow the use, at any time, of organic fertilizers containing phosphorus, such as Milorganite^®(6-2-0), a fertilizer made by the Milwaukee Metropolitan Sewerage District from municipal waste. County Ordinances, § 80.06(4).

35. When the ban was passed, the Dane County Board inserted the exception for organic fertilizers to allow Milorganite^® (6-2-0) and locally-produced organic fertilizers to be displayed, sold and used.

36. Upon information and belief, the City Amendments will be interpreted and enforced to allow sale and use of organic fertilizers containing phosphorus. As indicated in an October 31, 2003 Report of the City of Madison Engineer (the “City Engineer’s Report”) presented to the Mayor and the Common Council on November 18, 2003, “[i]t is not the City’s intention to limit disposal options to only ‘non-city’ lands for the biosolids generated within and from the City. Therefore, the Madison Metropolitan Sewage District should be allowed to apply its new, biosolid-derived, organic product within city limits.” This new locally-produced product will contain more than a trace of phosphorus and therefore has the potential to impact water quality.

37. Excess phosphorus is a major contributor to algae blooms in Madison area lakes. Urban sources include soil erosion, air-born material (such as dust and pollen), organic material (notably decaying leaves), and animal wastes. Advocates of the ban note that lawns are only a minor source of phosphorus runoff into lakes. City Engineer’s Report.

38. Research at the University of Wisconsin O.J. Noer Turfgrass Research Center confirms that poorly kept, unfertilized lawns contribute 40 percent more phosphorus to runoff than fertilized, well-maintained lawns. This is because phosphorus binds to soil – and soil runoff carries phosphorus with it. A healthy, well-kept, properly fertilized lawn filters rainwater and holds soil in place, preventing runoff – and phosphorus pollution.

39. The highest amount of phosphorus runoff measured by University of Wisconsin researchers during the growing season on a fertilized lawn was 1.76 ounces per acre, which equals two-tenths of an ounce for an average 5,000 square-foot lawn. Dog waste contributes 18 ounces of phosphorus runoff per year into water sources, 91 times more than phosphorus from a fertilized lawn. The waste from one adult goose contributes 13.76 ounces of phosphorus runoff per year or 68 times more than a typical lawn. A lawn-sized patch of Eurasian watermilfoil, an aquatic weed found in Madison lakes, releases 2,000 times more phosphorus in a year than the average lawn.

40. Eurasian watermilfoil reproduces by fragmentation; a mechanical harvester creates thousands of fragments, many of which are not captured and some of these fragments take root, which expands the size of the problem. Dane County has been operating mechanical harvesters for more than 40 years. Instead of modifying this practice, however, the City and the County have chosen instead to ban phosphorus-containing products used for nonagricultural purposes.

41. Under the most positive assumptions by advocates of the ban, eliminating phosphorus lawn fertilizers will have no effect on Madison area lakes for at least 20 years and that claim is strongly disputed by others. According to the City Engineer’s Report, “the implementation of this ordinance may have little or no impact on Madison’s lakes.”

42. The County Ordinances provide for violations to be enforced by the Environmental Health Section of the Public Health Division, Department of Human Resources. A person who improperly applies phosphorus-containing products at his or her residence is subject to a forfeiture of $25 per violation. Other persons who improperly apply phosphorus-containing products, and all of those who display, sell or offer those products for sale in violation of the Ordinances, are subject to forfeitures ranging from $50 to $300.

43. The City Amendments provide for forfeitures for any person who violates the Amendments of between $25 and $300.

44. According to the City Engineer’s Report, “vigorous and effective enforcement of this ordinance is not likely and may not even be possible.”

45. Section 893.80, Wis. Stats., states that no action may be brought or maintained against a county or city, or its officials, unless a notice of claim is served and disallowed.

46. A proper notice of claim was properly served on the Dane County Clerk and on defendants Falk and Green by plaintiffs on June 2, 2004.

47. A proper notice of claim was properly served on the City of Madison Clerk and on defendants Vedder and May by plaintiffs on June 2, 2004.

48. The claims were both disallowed as of October 2, 2004 under § 893.80(1g), Wis. Stats., and to the extent § 893.80, Wis. Stats., is applicable this action is timely filed.

49. Plaintiffs reassert and reallege the preceding paragraphs as if fully set forth herein.

50. FIFRA, which is administered by the United States Environmental Protection Agency (EPA), is the comprehensive federal regulatory statute governing registration, labeling, and use of pesticides. The statute defines “pesticide” as “any substance . . . intended for preventing, destroying, repelling, or mitigating any pest.” 7 U.S.C. § 136(u). Fertilizer/pesticide combination products are regulated by EPA as pesticides pursuant to FIFRA, and are subject to all FIFRA registration and labeling requirements. 40 C.F.R. § 152.8(a).

51. The Wisconsin Plant Industry Statute defines “pesticide” in a manner similar to FIFRA. Wis. Stats. § 94.67(25). The Wisconsin Department of Agriculture’s implementing regulations explicitly indicate that the definition of “pesticide” set forth in Wis. Stats. § 94.67(25) “includes a pesticide-fertilizer mixture.” Wis. Admin. Code ATCP § 30.01(7).

52. Labeling is the principal means by which EPA ensures that all necessary warnings, precautionary measures, directions for use, and other information are communicated directly to the individuals who apply or use a pesticide. FIFRA defines the term “labeling” to mean “all labels and all other written, printed, or graphic matter – (A) accompanying the pesticide . . . at any time; or (B) to which reference is made on the label or in the literature accompanying the pesticide.” 7 U.S.C. § 136(p)(2). A pesticide’s labeling must contain warnings, precautionary statements, and directions for use which “are necessary for effecting the [product’s] purpose [and] adequate to protect health and the environment.” Id. §§ 136(q)(1)(F), (G). “Environment . . . includes water, air, land, and all plants and man . . . and the interrelationships which exist among these.” Id. § 136(j).

53. FIFRA makes it “unlawful for any person . . . to use any registered pesticide in a manner inconsistent with its labeling.” Id. § 136j(a)(2)(G).

54. FIFRA provides that “[a] State may regulate the sale of use of any federally registered pesticide . . . in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by [FIFRA].” Id. § 136v(a). In the following subsection, entitled “Uniformity,” FIFRA further provides, however, that a “State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under [FIFRA].” Id. § 136v(b). The term “State” for purposes of §§ 136v(a) & (b) encompasses local governments. See Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 608, 615 (1991) (holding that § 136v(a) does not expressly preempt local governments from regulating pesticide sale or use, and that a particular Town of Casey, Wisconsin ordinance, which required a town permit for certain types of pesticide applications, did not conflict with FIFRA).

55. The City Amendments incorporate by reference the definition of “fertilizer” set forth in Wis. Stats. § 94.64(1)(e). Amendments § 7.48(2). The definition of fertilizer set forth in Wis. Stats. § 94.64(1)(e) encompasses “mixed fertilizers,” a term which is separately defined as “a fertilizer containing any combination or mixture of . . . a fertilizer material and any other substance.” Wis. Stats. § 94.64(1)(L). The City Amendments specifically indicate that they encompass a “product that combines fertilizer with a pesticide.” Amendments § 7.48(6).

56. The City Amendments require anyone applying a phosphorus-containing lawn and turf fertilizer, including a pesticide/fertilizer combination product, under the exceptions set forth in Amendments § 7.48(7) “shall water such lawn and turf fertilizer into the soil where it is immobilized and generally protected from loss by runoff.” Amendments § 7.48(7)(b). To ensure pesticidal efficacy, however, the nationally uniform, EPA-regulated FIFRA labeling for many such lawn and turf pesticide/fertilizer combination products, including those sold and or used in the City of Madison, expressly prohibit watering lawns for a period of 1-2 days following application of the product. Examples of such labeling, with the relevant prohibition highlighted, are attached to this Complaint as Exhibit 3.

57. Section 136v(b) of FIFRA expressly preempts the City Amendments because they would impose a requirement for pesticide labeling (i.e., a requirement to water lawns immediately following application of a pesticide/fertilizer combination product) which is “in addition to or different from” the labeling requirements imposed by EPA pursuant to FIFRA for such products. 7 U.S.C. § 136v(b).

58. FIFRA also preempts the City Amendments under the doctrine of implied conflict preemption. Under that doctrine, state (including local) law is preempted where it is “a physical impossibility” to comply with both. Wisconsin Public Intervenor v. Mortier, 501 U.S. at 597 (quoting Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963)). The City Amendments are preempted because it would be a physical impossibility to comply both with the federal law (i.e., the EPA labeling prohibition against watering for a period of 1-2 days) and the local law (i.e., the City requirement to water lawns immediately following application). The City Amendments also are preempted under the doctrine of implied conflict preemption because they “stand[ ] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress” in enacting FIFRA. Id. (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). More specifically, the City Amendments would conflict with FIFRA by subjecting homeowners or other individuals to monetary penalties under the Amendments (§ 7.48.9) for complying with the EPA-regulated labeling prohibition against watering. The City Amendments also would conflict with FIFRA by compelling homeowners or other individuals to commit an unlawful act under FIFRA (i.e., applying a pesticide in a manner inconsistent with its labeling), and subjecting them to criminal and/or civil penalties for doing so. 7 U.S.C. § 136j(a)(2)(G), 136l.

59. The County Ordinances permit cities in Dane County, such as the City of Madison, to adopt ordinances that include standards as least as restrictive as those of the County. § 80.03, Ordinances. As a result, the County Ordinances implicitly incorporate the restriction set forth in § 7.48(7)(b) of the City Amendments regarding immediate watering of phosphorus-containing lawn and turf fertilizers, including, pesticide/fertilizer combination products, which fall under the exceptions set forth in § 7.48(7) (and which correspond to § 80.06 of the County Ordinances). Therefore, FIFRA preempts the County Ordinances for the same reasons that FIFRA preempts the City Amendments.

60. Plaintiffs reassert and reallege the preceding paragraphs as if fully set forth herein.

61. Both the City Amendments and the County Ordinances seek to ban display, use and sale of phosphorus-containing “fertilizers” as that term is defined in Wis. Stats. § 94.64(1)(e). State statutes define “fertilizers” to include “mixed fertilizers,” and those in turn include a fertilizer material combined with any other substance. Wis. Stats. § 94.64(1)(L). If the “other substance” with which a fertilizer material is combined is a pesticide, then the combination product becomes and is regulated as a “pesticide.” Wis. Stats. § 94.67(25); Wis. Admin. Code § ATCAP 30.01(7).

62. State statutes and rules expressly prohibit a city or county from prohibiting the use of or otherwise regulating pesticides, with certain exceptions not applicable to the City Amendments or the County Ordinances. Wis. Stats. § 94.701.

63. Because they are specifically prohibited and preempted by state law and administrative rules, the City Amendments and the County Ordinances must be declared invalid and their enforcement enjoined.

64. Plaintiffs reassert and reallege the preceding paragraphs as if fully set forth herein.

65. The County Ordinances specifically provide an exception from the phosphorus ban for organic fertilizers containing phosphorus. § 80.06(4), Ordinances. This exception was intended to favor, and does in fact favor, the use of organic fertilizer produced locally within Wisconsin by the Milwaukee Metropolitan Sewerage District (Milorganite^®) and the organic soil amendment containing phosphorus that the Madison Metropolitan Sewerage District plans to produce next year.

66. This exception violates the Commerce Clause of the U.S. Constitution because it was intended to favor, and does in fact favor, locally-produced organic fertilizers and to discriminate against interstate commerce in inorganic fertilizers containing more than a trace of phosphorus.

67. The County Ordinances violate the Commerce Clause by actually discriminating against interstate commerce in inorganic fertilizers containing more than a trace of phosphorus.

68. The County Ordinances violate the Commerce Clause by banning the display, sale and use of products manufactured primarily by out-of-state producers to and by residents of Dane County.

69. The County Ordinances violate the Commerce Clause because they will almost certainly cause locally-produced organic fertilizers to constitute a larger share, and non-Wisconsin-produced inorganic fertilizers containing more than a trace of phosphorus to constitute a smaller share, of total sales in the market of lawn and turf fertilizer in Dane County.

70. The County Ordinances violate the Commerce Clause because the burden they impose on interstate commerce in inorganic fertilizers containing more than a trace of phosphorus substantially outweighs whatever legitimate local benefits (if any) that the scheme may provide.

71. Both the City Amendments and the County Ordinances burden interstate commerce by effectively banning phosphorus-containing mixed and other inorganic fertilizer products in the City of Madison and Dane County. This ban is excessive in relation to the putative local benefits because the ban will have little or no effect on water quality and there are other, less burdensome alternatives available to the City and the County to enhance local water quality.

72. The enactment, implementation, and enforcement of the County Ordinances and the City Amendments deprives and will continue to deprive plaintiffs of rights secured by the Constitution and laws of the United States, in violation of 42 U.S.C. § 1983.

73. Plaintiffs reassert and reallege the preceding paragraphs as if fully set forth herein.

74. Under the Fourteenth Amendment of the U.S. Constitution and Art. 1, § 1 of the Wisconsin Constitution, all persons similarly situated must be treated alike.

75. Ordinances that make irrational and arbitrary classifications violate the equal protection clauses of the Wisconsin and U.S. Constitutions.

76. The County Ordinances, while banning inorganic phosphorus-containing fertilizers, do not ban organic phosphorus-containing fertilizers. There is no rational basis for this distinction.

77. The foregoing provisions and others violate the equal protection provisions of the Wisconsin and U.S. Constitutions, and they must be declared invalid and their enforcement enjoined.

78. Plaintiffs reassert and reallege the preceding paragraphs as if fully set forth herein.

79. The void for vagueness doctrine rests on the basic principle of due process that a law is unconstitutional if its prohibitions are not clearly defined.

80. The City Amendments imply but are not clear about the scope of the ban – whether it is a complete ban or applies only to application on “turf.” § 7.48(3), City Amendments.

81. The City Amendments prohibit applying lawn and turf fertilizer when the ground is frozen “or when conditions exist which promote or create runoff,” without defining such conditions. § 7.48(5), City Amendments.

82. The City Amendments ban “display” and distribution of phosphorus-containing fertilizer, but only “when the retail sale is to a resident of the City of Madison.” § 7.48(6), City Amendments. The City Amendments fail to explain how a retail establishment can legally create a display for only non-city residents.

83. The City Amendments allow phosphorus-containing fertilizer to be applied if a soil test “indicates that the levels of available phosphorus in the soil is insufficient to support healthy turf growth,” and contain no definition of what is “insufficient” nor any reference to soil fertility guidelines. § 7.48(7), City Amendments.

84. The foregoing provisions and others fail to provide fair warning as to what conduct will subject a person to liability, and are therefore void for vagueness.

85. The foregoing provisions and others fail to contain explicit and ascertainable standards for those who enforce them so as to prevent arbitrary and discriminatory enforcement, and are therefore void for vagueness.

86. Because the foregoing and other provisions are unconstitutionally vague in violation of the due process clause, they must be declared invalid and their enforcement enjoined.

87. Plaintiffs reassert and reallege the preceding paragraphs as if fully set forth herein.

88. Freedom of speech secured by the First Amendment is secured by the Fourteenth Amendment against abridgement by a state and its subdivisions. U.S. Const., Amends. 1, 14.

89. Both the City Amendments and the County Ordinances prohibit display of phosphorus-containing fertilizers, even though such products may still be sold in both jurisdictions.

90. The County Ordinances require that as of May 1, 2004, “a sign containing the regulations set forth in this ordinance and the effects of phosphorus on Dane County’s waters must be prominently displayed where lawn fertilizers are sold.” § 80.07(3), Ordinances.

91. The Madison Amendments ban “display” of fertilizer “when the retail sale is to a resident of the City of Madison.”

92. The foregoing provisions and others violate the First Amendment of the U.S. Constitution as applied by the Fourteenth Amendment, and they must be declared invalid and their enforcement enjoined.

WHEREFORE, for the foregoing reasons, plaintiffs respectfully request that the Court:

a. Declare that the challenged Amendments and Ordinances are preempted by FIFRA and State law and are null, void, invalid, unconstitutional, and unenforceable;

b. Permanently enjoin defendants from implementing or enforcing the Amendments and the Ordinances;

c. Award plaintiffs their attorneys’ fees and the costs of this action pursuant to 42 U.S.C. § 1988; and,

[1] While the Amendments do not limit this blanket prohibition to application of fertilizer to “turf,” which is generally defined in § 7.48(2) as a nonagricultural grasses, that is likely the intent of the drafters.