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


ANNOUNCEMENT: Join us this Thursday, April 20, at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: Ag Taxation & Reform 101:  What You Need to Know. Details available here.


JUDICIAL: Includes international trade, Urb & Ag, taxation, environmental, labor, and food labeling issues.

In UNITED STATES ASSOCIATION OF REPTILE KEEPERS, INC., et al., Appellees v. Ryan ZINKE, The Honorable, in his official capacity as the Secretary of the Interior and United States Fish and Wildlife Service, Appellants, Humane Society of the United States and Center for Biological Diversity, Appellees, No. 15-5199, 2017 WL 1291311 (D.D.C. April 7, 2017), reptile breeders challenged Department of Interior’s rule “prohibiting importation and interstate transportation of certain species of constricting snakes as contrary to the Lacey Act” and moved for preliminary injunction. Court noted Lacey Act “enables the Secretary of the Interior to designate certain species of animals as injurious to humans, wildlife, agriculture, horticulture, or forestry. When a species is designated as injurious, the Act prohibits any importation of the species into the United States or its possessions or territories.” Issue was whether Lacey Act prohibits shipments between the states making up “the continental United States.” Plaintiffs maintained shipment clause “has no bearing on shipments of animals from one of the 49 continental United States to another.” District court agreed with plaintiffs and “preliminarily enjoined enforcement of a Fish and Wildlife Service rule barring interstate shipments of two species of snakes deemed to be injurious.” Affirmed for plaintiffs.

In DONNA BARRETT, DIANNE BUCKBEE, ROBERT CRONE, and VIRGINIA CURCIO, Plaintiffs, v. ENTERGY NUCLEAR GENERATION COMPANY, PETER CONNOR, EDWARD CONROY, DAVID PECK, WILLIAM KEOHAN, and MICHAEL MAIN, in their capacity as Members of the Board of Appeals of the Town of Plymouth, and PAUL MCAULIFFE, in his capacity as Director of Inspectional Services and Building Commissioner for the Town of Plymouth, Defendants, NO. 13 MISC 479028 (RBF), 2017 WL 1294445 (D. Mass. April 4, 2017), defendant operates nuclear power plant generating spent nuclear fuel (SNF) stored in containers that sit in a pool of water inside the reactor building. Pool reached capacity and defendant applied for a zoning permit “for the construction of a concrete pad for an on-site independent spent fuel storage installation (ISFSI) facility.” Plaintiffs requested zoning enforcement arguing the Town should require defendant to obtain a special permit for the ISFSI project under the bylaws because it is a “new use, not accessory to the primary use of the plant as a power generating facility.” Board denied plaintiffs’ request and plaintiffs appealed, arguing board should not have issued the permit because “a special permit was required for the ISFSI project under the Bylaw since the storage of SNF outside the reactor building was a new use, not accessory to Pilgrim’s power production.” Defendant challenged the plaintiffs’ standing and court found plaintiffs “are not persons aggrieved with standing to bring the complaint and the Board’s Decision that the ISFSI project is an accessory use was not arbitrary and capricious.”

LANDOWNERS UNITED ADVOCACY FOUNDATION, INC., Plaintiff, v. BARBARA BROHL, individually and in her official capacity as Executive Director of the Colorado Department of Revenue; MARCIA WATERS, individually and in her official capacity as Director of the Colorado Department of Real Estate; and MARK WESTON, individually and in his official capacity as Commissioner (appraiser) of the Colorado Conservation Easement Oversight Commission, Defendants, No. 16-cv-00603-PAB-CBS, 2017 WL 1243064 (D. Col. March 17, 2017) involved claims for income tax credits for conservation easements. Plaintiff, a group organized to “[p]rotect landowners’ rights, the public interests, and sound conservation policies,” sued for violations of the Fourteenth Amendment right to equal protection based on claim that “Defendants have applied a different set of rules to some taxpayers than they have to others.” Plaintiff argued it had standing based on its purpose “to protect landowners who are seeking to lawfully participate in the conservation easement program.” Court observed that, “Such interests and purposes do not show injury in fact,” and that, “’[T]he ‘injury in fact’ test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured.” Suit dismissed.

In GOVERNMENT OF the PROVINCE OF MANITOBA and State of Missouri, ex rel. Chris Koster, Missouri Attorney General’s Office, Appellees v. Ryan ZINKE, Secretary, U.S. Department of the Interior, et al., Appellees, State of North Dakota, Appellant, No. 16-5203, 849 F.3d 1111 (D.D.C. March 3, 2017), a Canadian province sued Department of the Interior and Bureau of Reclamation “challenging their compliance with the National Environmental Policy Act (NEPA) in approving project to transfer water between river basins.” North Dakota intervened as defendant and district court granted plaintiff’s motion for permanent injunction prohibiting all project-related activities. North Dakota moved to modify injunction, seeking permission to begin “paper design” of proposed water-treatment plant. The District Court denied the motion and North Dakota appealed. Appellate court found district court abused its discretion in denying North Dakota’s motion to modify injunction and the Bureau’s issuance of final supplemental environmental impact statement (FSEIS) and record of decision (ROD) “constituted significant change in factual circumstances warranting modification of injunction.”

ADOLFO HERNANDEZ, ROGELIO FLORES-ESCOBAR, FRANCISCO SILVA-GARCIA, MARTIN PEREZ-MEDEL, GUSTAVO ARELLANO-OLMOS, LUIS LEON-SALINAS, and MANUEL MORALES, Plaintiffs, v. RAY DOMENICO FARMS, INC., GREGORY L. DOMENICO, and THERESA M. DOMENICO, Defendants, No. 16-cv-1929-WJM-CBS, 2017 WL 1364696 (D. Col. April 14, 2017) involved agricultural workers suing under the Colorado Wage Claim Act (CWCA). Plaintiffs sought all unpaid wages going back to the beginning of their employment with Defendants in 1992, not possible under the Fair Labor Standards Act (FLSA). Issue was if an employee is fired in Colorado, does the Colorado Wage Claim Act (CWCA) “authorize that employee to sue for all past-due wages owed regardless of how long ago those wages should have been paid, and regardless of whether the statute of limitations has run on the cause of action that the employee normally would bring to recover those wages?” Court observed this issue “tends to evade Colorado state-court review indefinitely, given that CWCA claims are nearly always brought in the same lawsuit as a claim under the FLSA.” Court certified the question to the Colorado Supreme Court.

In VITAMIN HEALTH, INC., Plaintiff-Appellant, v. HARTFORD CASUALTY INSURANCE CO., Defendant-Appellee, No. 16-1724, 2017 WL 1325263 (6th Cir. April 11, 2017), plaintiff, a pharmaceutical company, appealed a denial of coverage under defendant’s insurance policy. In an underlying action, Bausch & Lomb alleged plaintiff “made false and misleading statements” about its own products. Plaintiff sought order declaring defendant “was required to indemnify Vitamin Health for any judgment resulting from Bausch & Lomb’s false advertising claim.” District court found defendant “neither had a duty to defend nor a duty to indemnify Vitamin Health,” and appellate court affirmed.


REGULATORY: Includes AMS, EPA, FDA, FS, ITA, and NOAA rules and notices.

AGRICULTURAL MARKETING SERVICE: Notice AMS will request approval for an extension of and revision to an information collection for USDA Farmers Market Application. Details here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule establishing tolerances for residues of pyriofenone in or on the caneberry subgroup, the bushberry subgroup, the small fruit vine climbing subgroup, the low growing berry subgroup except cranberry and cucurbit vegetables. Info here.

Rule establishing tolerances for residues of pyroxasulfone in or on multiple commodities. Details here.

Rule establishing a temporary exemption from the requirement of a tolerance for residues of the Bacillus thuringiensis mCry51Aa2 protein in or on the food and feed commodities of cotton. Details here.

FOOD AND DRUG ADMINISTRATION:

Rule FDA announces that the Canadian Oilseed Processors Association has filed a petition proposing that the food additive regulations be amended to provide for the safe use of spent bleaching clay as a flow agent in canola meal for all livestock and poultry species. Info here.

Notice FDA announces that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review. Title: Tracking Network for PETNet, LivestockNet, and SampleNet. Info here.

FOREST SERVICE:

Notice of intent to start the assessment phase for The Browns Canyon National Monument Management Plan. Details here.

Notice the Forest Resource Coordinating Committee (Committee) will meet in Washington, DC. Info here.

Notice the Lake Tahoe Basin Federal Advisory Committee will meet in South Lake Tahoe, California. Info here.

Notice the Sitka Resource Advisory Committee (RAC) will meet in Sitka, Alaska. Details here.

INTERNATIONAL TRADE ADMINISTRATION: Notice that on January 30, 2017, the Department of Commerce published the preliminary results of the administrative review of the antidumping duty order on citric acid and certain citrate salts from Canada. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is prohibiting directed fishing for species that comprise the deep-water species fishery by vessels using trawl gear in the Gulf of Alaska. Details here.

Rule NESDIS adds a new service/product to the NESDIS FY 2017 schedule of fees for the sale of its data, information, and related products and services to users. Details here.

Notice Department of Commerce will submit to OMB for clearance a proposal for collection of information. Title: Large Pelagic Fishing Survey. Details here.