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 environmental, international trade, ESA, and water law issues.

In TDY HOLDINGS, LLC; TDY Industries, LLC, Plaintiffs–Appellants v. UNITED STATES of America; United States Department of Defense; Ashton B. Carter, in his official capacity as Secretary of Defense, Defendants–Appellees,  No. 15-56483, 2018 WL 1414914 (9th Cir. March 20, 2018), aeronautical manufacturer sued government under Comprehensive Environmental Response Compensation and Liability Act (CERCLA), seeking “contribution for government’s equitable share of costs to clean up environmental contamination at plant site.”  Lower court ruled for government and charged all cleanup costs to operator. Appellate court acknowledged that a district court has “broad discretion in allocating environmental contamination cleanup costs among potentially responsible parties under CERCLA.” However, the court also reasoned that the parties’ “prior course of dealings concerning cleanup costs from the same site constitutes a relevant factor in the allocation analysis in a CERCLA action.” Court ultimately determined that the district court “erred in allocating 100% of cost to clean up environmental contamination to operator of plant,” and reversed.

Center for Biological Diversity, Plaintiff, v. United States Fish and Wildlife Service, Defendant, No. CV-16-00527-TUC-BGM, 2018 WL 1586648 (D. Ariz. March 30, 2018) involved a Freedom of Information Act (FOIA) request concerning the Law Enforcement Management Information System (LEMIS) database used by the Fish and Wildlife Service’s (USFWS) Office of Law Enforcement to “record, process and store investigations, intelligence, import and export data, and other programmatic data.” A number of private companies objected to plaintiff’s FOIA request, citing potential damage to their business by competitors upon the release of import/export information. Court reasoned that “[i]f there were a true likelihood of substantial competitive injury, at least one instance of harm would have been documented based on the years of unredacted LEMIS data release.” Court found USFWS did not meet “its burden of showing a potential of substantial competitive harm,” and denied defendant’s request for summary judgment.

Center for Biological Diversity, et al., Plaintiffs, v. Sally Jewell, et al., Defendants. Safari Club International, et al. Plaintiffs, v. Sally Jewell, et al., Defendants, No. CV-16-00094-TUC-JGZ, 2018 WL 1586651 (D. Ariz. March 31, 2018) concerned publication of a Fish and Wildlife Service (FWS) rule detailing procedures for the “release, dispersal, and management of the only existing wil d population of Mexican gray wolves in the United States.” Plaintiffs claimed FWS violated the Endangered Species Act and the National Environmental Policy Act (NEPA). Court observed that the FWS rule “authorizes lethal and non-lethal take in response to unacceptable impacts to wild ungulate herds.” Court considered relevant statutes and scientific evidence and determined the FWS rule “only provides for the survival of the species in the short term,” and that “by failing to provide for the population’s genetic health, FWS has actively imperiled the long-term viability of the species in the wild.” Plaintiff’s motion for summary judgment granted in part.

Texas v. New Mexico and ColoradoNo. 141, Orig., 583 U. S. ____ (2018), concerns a dispute over the Rio Grande Compact. Per US Supreme Court’s Orders in Pending Cases, A. Gregory Grimsal, Esq., of New Orleans, Louisiana, was discharged as Special Master in this case. Michael J. Melloy, of Cedar Rapids, Iowa, was appointed Special Master “with authority to fix the time and conditions for the filing of additional pleadings, to direct subsequent proceedings, to summon witnesses, to issue subpoenas, and to take such evidence as may be introduced and such as he may deem it necessary to call for.” Additional details here.


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

AGRICULTURE DEPARTMENT:

Notice USDA will submit the following information collection requirement(s) to OMB for review and clearance. Title: Cranberries Grown in Multiple States. Details here.

Notice AMS is asking for comments on the quality of services provided by this Delegated State: Virginia Department of Agriculture and Consumer Services. Info here.

ENVIRONMENTAL PROTECTION AGENCY: Rule EPA is updating the materials that are incorporated by reference (IBR) into the South Carolina state implementation plan (SIP). Details here.

FISH AND WILDLIFE SERVICE:

Notice Meritage Homes of Florida, Inc., is requesting a 5-year ITP for take of the sand skink, which is federally listed as a threatened species. Info here.

Notice FWS announces availability of a Draft Environmental Impact Statement/Environmental Impact Report (DEIS/EIR) for Phase 2 of the South Bay Salt Pond Restoration Project at the Eden Landing Ecological Reserve in Alameda County, California. Info here.

FOOD AND DRUG ADMINISTRATIONRule FDA is amending the animal drug regulations to reflect application-related actions for new animal drug applications and abbreviated new animal drug applications during October, November, and December 2017. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION: Rule NMFS is prohibiting directed fishing for Pacific cod by catcher vessels using trawl gear in the Bering Sea and Aleutian Islands management area (BSAI). Details here.

NATURAL RESOURCES CONSERVATION SERVICE: Notice the Deepwater Horizon Federal and State natural resource trustee agencies for the Alabama Trustee Implementation Group (Alabama TIG) have prepared a draft Restoration Plan II/Environmental Assessment. Details here.