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


ANNOUNCEMENT: Mark your calendar for the next Agricultural & Food Law Consortium webinar, Wednesday, May 2:  Water Wars in the United States Supreme Court: Why Should Agriculture Care? Details available here.


JUDICIAL: Includes international trade, landowner liability, and CAA issues.

In SUNRISE FOODS INTERNATIONAL INC., a Canadian corporation, Plaintiff, v. SONNY PERDUE, Secretary of the U.S. Department of Agriculture; et al., Defendants, No. 2:18-cv-00688-JAM-EFB, 2018 WL 1900039 (E.D. Cal.  April 20, 2018), a wholesaler of agricultural commodities ahd tis cracked corn shipment rejected under an Emergency Action Notifications (“EANs”) requiring the shipment to be re-exported or destroyed because “[t]he commodity does not meet the requirements for cracked corn” and originated in Russia, a prohibited country of origin. Plaintiff moved for a temporary restraining order “because the company would incur monetary losses,” and that its business relationships “will suffer irreparable harm if the corn is not delivered.” Court concluded “the harm described by Plaintiff “does not meet the TRO standard, i.e., the alleged harm is not immediate.” Plaintiff’s petition denied.

In Margie M. LOCKNER, Respondent, v. PIERCE COUNTY and Blair Smith, Petitioners, No. 94643-4, 2018 WL 1867300 (Wash. April 19, 2018), a bicyclist sued county for negligence after she was injured “when she fell from her bicycle on a trail maintained by the county.” County claimed recreational-use immunity and was granted summary judgment by lower court. Appellate court reversed and State Supreme Court found the county “intended to open land on which bicyclist was injured for recreational uses,” and that plaintiff “alleged she sustained unintentional injuries.” Court noted that County “operates and maintains the trail section where [plaintiff] was injured specifically for recreation,” and reversed appellate court. Summary judgment for county reinstated.

In WILDEARTH GUARDIANS, Plaintiff, v. U.S. BUREAU OF LAND MANAGEMENT, Defendant, No. 16-cv-3141-WJM-STV, 2018 WL 1905145 (D. Colo. April 23, 2018), plaintiff sued under the Administrative Procedures Act (APA) alleging Bureau of Land Management (BLM) “unlawfully determined that it had no duty to perform a ‘conformity’ analysis under the Clean Air Act (CAA)” when it auctioned some oil and gas leases in 2015. Plaintiff maintained BLM was capable of forecasting emissions, but provided “no reasonable explanation as to why indirect emissions for all oil and gas development in the [region] are reasonably foreseeable, but indirect emissions . . . are not.” BLM countered plaintiff’s numerical calculations “are fraught with problems,” and “fail to account for numerous uncertainties.” Court found plaintiff failed to show that BLM “acted arbitrarily or capriciously in determining that the information in its possession was insufficient to permit it to make a reasonable forecast of indirect emissions.”


LEGISLATIVE:

H.R. 4300: Admiral Lloyd R. ‘Joe’ Vasey Pacific War Commemorative Display Establishment Act. Passed Senate without amendment by Unanimous Consent.

S. 2325: Northern Mariana Islands U.S. Workforce Act. Passed Senate with an amendment by Voice Vote.

S. 2727: A bill to require the Administrator of the Environmental Protection Agency to establish a discretionary grant program for drinking water and wastewater infrastructure projects. Referred to the Senate Committee on Environment and Public Works.

H.R. 5584: To extend the authority of the Secretary of the Interior to carry out the Equus Beds Division of the Wichita Project. Referred to the House Committee on Natural Resources.

H.R. 5585: To extend the authorization for the Cape Cod National Seashore Advisory Commission. Referred to the House Committee on Natural Resources.


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

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is approving a revised state plan submitted by the North Dakota Department of Health for the regulation of existing commercial and industrial solid waste incineration units within the jurisdiction of the State of North Dakota. Details here.

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

Rule EPA is proposing to approve a revision to the Texas State Implementation Plan (SIP) to meet the Reasonable Further Progress requirements for the Houston- Galveston-Brazoria (HGB) moderate 2008 8-hour ozone nonattainment area. Details here.

FISH AND WILDLIFE SERVICE:

Rule FWS published a final environmental impact statement on management of resident Canada geese that documented resident Canada goose population levels “that are increasingly coming into conflict with people and causing personal and public property damage.” Info here.

Notice FWS is initiating 5-year status reviews under the Endangered Species Act of 1973, as amended, for five animal species. Details here.

Notice FWS received an application from the United States Coast Guard (USCG) for authorization to take small numbers of marine mammals by harassment incidental to the replacement of pier piles and the potable water line at USCG Station Monterey in Monterey County, California. Info here.

FOOD AND DRUG ADMINISTRATION: Rule FDA is extending the comment period for the notification of availability of a draft guidance for industry entitled “The Declaration of Added Sugars on Honey, Maple Syrup, and Certain Cranberry Products: Guidance for Industry” that appeared in the Federal Register of March 2, 2018. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS issues this temporary rule to reduce the commercial trip limit for vermilion snapper in or from the exclusive economic zone (EEZ) of the South Atlantic to 500 lb (227 kg), gutted weight, 555 lb (252 kg), round weight. Details here.

Notice NOAA invites the general public and other Federal agencies to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. Info here.