A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions HERE.


ANNOUNCEMENT: Join us Wednesday, April 18th at 12 noon (ET) for a FREE webinar: Examining the Landscape of Agricultural Certainty Programs in the United States. Details available here.


JUDICIAL: Includes landowner liability and climate change issues.

In FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION, Appellant, v. William DAWS, Jr., Ouida Gershon, Bill I. Hines, Regina Hines, Hershal O. Holt, Karen A. Holt, Alan E. Joiner, Monica L. Joiner, Mary B. King, Sara King, Betty Tolbert, Ricky W. Tolbert, and Jerry Varnadore, Appellees, No. 1D16–4839, 2018 WL 1720973 (S.D. Fla. April 10, 2018), Florida Fish and Wildlife Conservation Commission (FWC) appealed a temporary injunction order requiring it to stop deer hunters and their dogs from trespassing onto Appellees’ private property. Appellees argued FWC’s decision to allow deer dog hunting on state-owned land directly led to the trespasses on their privately-owned land by hunters and their dogs. Appellees claimed the “trespasses were so serious that they rose to the level of an inverse condemnation because Appellees were deprived of their right to exclude people from their private property.” FWC countered that it owed no duty to Appellees to prevent trespasses their decision to authorize deer dog hunting “was a discretionary decision, not subject to challenge in the courts.” Court considered whether plaintiff owed a “duty of care” regarding trespassers on appellees land and concluded the agency’s actions “constitute discretionary acts and the doctrine of sovereign immunity bars Appellees’ nuisance claims against the FWC.” Reversed and entry of summary judgment ordered for plaintiff.

SIERRA CLUB, et al., Petitioners v. ENVIRONMENTAL PROTECTION AGENCY and E. Scott Pruitt, Administrator, U.S. Environmental Protection Agency, Respondents, American Chemistry Council, et al., Intervenors, No. 16-1021, 884 F.3d 1185 (D.D.C. March 16, 2018) concerned the Environmental Protection Agency’s (EPA) issuance of rules under the Clean Air Act (CAA) governing emissions of pollutants from industrial boilers. Plaintiffs challenged the agency’s “startup and shutdown work practice standards,” alleging such standards give boiler operators “unlawful leeway to pollute.” Court found that the CAA was not violated by rule permitting startup and shutdown work practice standards that “reasonably approximate what best-performing boilers could achieve.” Court also ruled that the agency “could retain shorter, but more stringent, standard with numeric time limits for startup and shutdown” as an alternative compliance option.


LEGISLATIVE:

S. 1870: SURVIVE Act. Text for status Reported by Senate Committee (Apr 9, 2018) is now available.

S. 2634: A bill to free States to spend gas taxes on their transportation priorities. Text is now available.

S. 35: Black Hills National Cemetery Boundary Expansion Act. Text for status Reported by House Committee (Apr 10, 2018) is now available.

S. 2641: A bill to amend the Richard B. Russell National School Lunch Act to improve the requirement to purchase domestic commodities or products. Referred to the Senate Committee on Agriculture, Nutrition, and Forestry.

H.R. 5450: To increase the access of small farmers in Puerto Rico to Federal agriculture programs. Referred to the House Committee on Agriculture and House Committee on Natural Resources.

H.R. 5449: To amend the Farm Security and Rural Investment Act of 2002 to support a smart agriculture industry technology roadmap. Referred to the House Committee on Agriculture.

S. 2643: A bill to clarify the effect of certain final rules and determinations of the Environmental Protection Agency relating to greenhouse gas emissions standards for light-duty vehicles. Referred to the Senate Committee on Environment and Public Works.

H.R. 5448: To amend the Food, Agriculture, Conservation, and Trade Act of 1990 to provide eligibility under the assistive technology program for farmers with disabilities to veterans with disabilities and their families. Referred to the House Committee on Agriculture.

H.R. 5462: To amend the Agricultural Act of 2014 to provide support for dairy producers. Referred to the House Committee on Agriculture which will consider it before sending it to the House floor for consideration.


REGULATORY: Includes USDA, APHIS, EPA, FWS, FDA, and NOAA rules and notices.

AGRICULTURE DEPARTMENT:

Notice USDA has submitted information collection requirement(s) to Office of Management and Budget (OMB) for review. Title: High Energy Cost Grants Rural Communities. Info here.

Notice USDA has submitted information collection requirement(s) to Office of Management and Budget (OMB) for review. Title: Long Term Contracting. Info here.

Notice the Office of Trade and Foreign Agricultural Affairs (TFAA), U.S. Department of Agriculture (USDA), is sponsoring a public meeting on May 31, 2018. Details here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE: Rule APHIS will amend the regulations regarding the branding of bovines imported into the United States from Mexico. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is approving a revision to the Alaska regional haze State Implementation Plan, submitted by the State of Alaska on March 10, 2016. Info here.

Rule EPA is approving the regional haze progress report under the Clean Air Act (CAA) as a revision to the Illinois state implementation plan. Details here.

Rule establishes tolerances for residues of clethodim in or on multiple commodities which are identified and discussed later in this document. Info here.

FISH AND WILDLIFE SERVICE:

Rule FWS will list the island marble butterfly as an endangered species and designate critical habitat under the Endangered Species Act. Info here.

Rule FWS will remove the Kirtland’s warbler from the Federal List of Endangered and Threatened Wildlife (List) due to recovery. Details here.

FOOD AND DRUG ADMINISTRATION:

Notice FDA is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review. Title: Food Allergen Labeling and Reporting. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is prohibiting retention of sablefish by vessels using trawl gear and not participating in the cooperative fishery of the Rockfish Program in the Central Regulatory Area of the Gulf of Alaska (GOA). Details here.

Rule NMFS announces the adjustment of the commercial per-trip possession limit in the skate wing fishery for the remainder of the 2017 fishing year, through April 30, 2018, based on a revised landings projection. Info here.

Rule NMFS proposes small-mesh multispecies specifications for fishing years 2018-2020 and corrects a regulatory error from a previous rulemaking action. Details here.

Notice the Assistant Regional Administrator for Sustainable Fisheries, Greater Atlantic Region, NMFS, has made a preliminary determination that an Exempted Fishing Permit application contains all of the required information and warrant further consideration. Info here.

Notice NMFS has received a request from the California Department of Transportation for authorization to take marine mammals during the dismantling and reuse of the original East Span of the San Francisco-Oakland Bay Bridge in the San Francisco Bay. Details here.