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


JUDICIAL: Includes forestry, landowner liability, crop insurance, and ESA issues.

In OREGON NATURAL DESERT ASSOCIATION et al., Plaintiffs, v. UNITED STATES FOREST SERVICE, et al., Defendants, and JEFF HUSSEY, et al., Intervenor-Defendants, No. 3:03-cv-0213-PK, 2018 WL 1811467 (D. Or. April 16, 2018), plaintiffs claimed Forest Service (FS) violated the National forest Management Act (NFMA) by issuing grazing permits “without evaluating and describing how the authorized grazing is consistent with” narrative Forest Plan standards. Magistrate judge denied plaintiffs’ motion for summary judgment and appellate court examined data sets used by FS. Court concluded the agency used “habitat indicator data to evaluate conditions of the bull trout habitat annually prior to issuing permits and AOIs, and PacFish/InFish Effectiveness Monitoring Program (PIBO) data to measure general trends.” Court agreed with Forest Service’s “reasoned determination[s] in an area involving a high level of technical expertise,” and affirmed lower court ruling.

The University of Texas at Austin, Appellant v. April Garner, Appellee, NO. 03-17-00199-CV, 2018 WL 1833530 (Tex. App. April 18, 2018) involved a personal injury suit wherein plaintiff was struck and injured by a truck on a street on University of Texas property. Plaintiff sued for negligence under the Texas Tort Claims Act and lower court ruled for plaintiff. On appeal, defendant argued plaintiff was a “recreational user” trespasser per Texas’ Recreational Use Statute (RUS), applicable to governmental entities. Defendant maintained it was immune from suit without “a showing of gross negligence, malicious intent, or bad faith.” Appellate court concluded the RUS did not apply as “it is plain that [defendant] did not open up [area in question] to the public for recreational purposes,” and that “it may not be fairly said that it invited the usage of [University property] by the public for recreational purposes.” Affirmed.

In GREGORY ACKERMAN, Plaintiff, v. UNITED STATES DEPARTMENT OF AGRICULTURE, et al Defendant, No. 17-cv-11779, 2018 WL 1858165 (E.D. Mich. April 18, 2018), a group of dry bean farmers from three states that purchased Dry Bean Revenue Endorsement (DRBE) crop insurance sought an order requiring defendants “to pay indemnity to plaintiffs.” Plaintiffs sued both Federal Defendants and Insurance Defendants. Insurance Defendants argued plaintiffs lacked Article III standing to bring the suit as they failed to allege that “Defendant Insurers caused them to suffer an actual concrete and particularized injury.” Court, however, observed that the “[p]laintiffs’ alleged injury regarding the Insurers is their refusal to indemnify them. That decision was made by the Insurers, and so is directly traceable to the Insurers.” The court further reasoned that plaintiffs’ breach of contract claim  “ will turn on whether the Federal Defendants violated the law in determining the harvest price.” Court found for plaintiffs regarding Article III standing.

National Wildlife Federation v. National Marine Fisheries Service, 886 F.3d 803, 2018 WL 1571429 (9th Cir. April 2, 2018) concerned a challenge by environmental groups to the National Marine Fisheries Service’s (NMFS) Endangered Species Act (ESA) biological opinion regarding salmonid species in Federal Columbia River Power System (FCRPS). Lower court found that NMFS violated ESA and plaintiffs moved for injunctive relief addressing the violations, while defendants appealed. Appellate court affirmed in part, concluding that “showing an extinction-level threat to a listed species is not required before an injunction can issue under the ESA.” Further analysis of this case is available here.


LEGISLATIVE:

H.R. 146: Eastern Band of Cherokee Historic Lands Reacquisition Act. Text for status Referred to Senate Committee (Apr 17, 2018) is now available.

H.R. 3607: To authorize the Secretary of the Interior to establish fees for medical services provided in units of the National Park System. Text for status Referred to Senate Committee (Apr 17, 2018) is now available.

H.R. 3961: Kissimmee River Wild and Scenic River Study Act of 2018. Text for status Referred to Senate Committee (Apr 17, 2018) is now available.

H.R. 4609: West Fork Fire Station Act of 2017. Text for status Referred to Senate Committee (Apr 17, 2018) is now available.


REGULATORY: Includes  AID, AMS, APHIS, EPA, NOAA, and RBCS rules and notices.

AGENCY FOR INTERNATIONAL DEVELOPMENT: Rule published on January 19, 2017, federal departments and agencies made revisions to the Federal Policy for the Protection of Human Subjects (hereafter the “2018 Requirements”). The Consumer Product Safety Commission (CPSC) adopted the same regulatory changes in a separate final rule published on September 18, 2017. Info here.

AGRICULTURAL MARKETING SERVICERule would implement a recommendation from the Almond Board of California to revise the adjusted kernel weight computation currently prescribed under the Marketing Order for almonds grown in California. In addition, this action would allow adjustments to the calculated percentages for foreign material, excess moisture, or inedible kernels so that the sum of the percentages for the specified measurements would equal 100 percent. Info here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE:

Rule proposing to amend the fruits and vegetables regulations to allow the importation of fresh cape gooseberry fruit from Ecuador into the continental United States. Info here.

Rule proposing to amend the regulations that allow the importation of peppers from the Republic of Korea to increase the mesh size of the screening over vent openings from 0.6 mm to 1.6 mm, and to require the use of colored sticky traps as an additional measure for pest monitoring. Details here.

Notice APHIS will request a revision to and extension of approval of an information collection associated with the regulations for the importation of clementines from Spain. Info here.

Notice APHIS will request a revision to and extension of approval of an information collection associated with the regulations for the importation of fresh pitaya fruit from Central America into the continental United States. Details here.

Notice APHIS will request a revision to and extension of approval of an information collection associated with the regulations for the importation of longan from Taiwan. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule establishes an exemption from the requirement of a tolerance for residues of Bacillus licheniformis strain FMCH001 in or on all food commodities when used in accordance with label directions and good agricultural practices. Info here.

Rule establishes an exemption from the requirement of a tolerance for residues of Bacillus subtilis strain FMCH002 in or on all food commodities when used in accordance with label directions and good agricultural practices. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Notice Commerce will submit to the Office of Management and Budget (OMB) for clearance a proposal for collection of information. Title: West Coast Region Groundfish Trawl Fishery Monitoring and Catch Accounting Program. Details here.

Notice the South Atlantic Fishery Management Council will hold a series of public hearings pertaining to Vision Blueprint Regulatory Amendments 26 and 27 to the Snapper Grouper Fishery Management Plan for the South Atlantic Region. Details here.

RURAL BUSINESS-COOPERATIVE SERVICE: Notice announces the solicitation of applications for up to $5 Million of available funding under the Repowering Assistance Program to encourage the use of renewable biomass as a replacement fuel source for fossil fuels used to provide process heat or power in the operation of eligible biorefineries. Info here.