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, August 15th: Commercial Shellfish Aquaculture Permitting under Nationwide Permit 48. Details available here.

REGISTER NOW for our upcoming Ag Technology & the Law conference, August 15 and 16 in Little Rock, Arkansas. Details here.


JUDICIAL: Includes forestry, food safety, ESA, and landowner liability issues.

John MCGUINNESS; Diane Eller; Jess V. Clampitt, Jr.; Ronnie Clampitt; Earlene Von Der Osten; Stephen Zucker; Nancy Mosteller; John Makar; Aurelia Stone, Plaintiffs-Appellants, and Robert Von Der Osten, Plaintiff, v. UNITED STATES FOREST SERVICE, Defendant-Appellee, No. 16-2406, 2018 WL 3599996 (4th Cir. July 26, 2018) concerned a dispute involving the development of five acres of National Forest for a shooting range. United States Forest Service (FS) authorized the development and residents of a nearby county opposed the project. Plaintiffs sued under the National Environmental Policy Act (NEPA), “seeking declaratory and injunctive relief.” Lower court granted summary judgment for FS. Appellate court affirmed “[b]ecause the Forest Service’s decision to approve the shooting range was not arbitrary or capricious.”

In KATHLEEN NICHOLSON and JOHN NICHOLSON, husband and wife, Plaintiffs-Appellants, v. BLOOMIN BRANDS, INC. and OUTBACK STEAKHOUSE, Defendants-Respondents, NO. A-3739-16T1, 2018 WL 3614355 (N.J. Super. Ct. App. Div July 30, 2018), plaintiff allegedly contract salmonella after a meal at Outback Steakhouse and sued for negligence and violations of the New Jersey Food and Drug Act. On appeal, plaintiff argued trial court failed to properly consider their experts’ opinions. Appellate court concluded plaintiff’s liability expert “failed to analyze and expressly rule out the other foods [plaintiff] consumed during the incubation period to eliminate other potential sources of Salmonella.” The court also noted the expert could not identify “the specific Outback food, employee, sanitation or cleaning practice that caused [plaintiff’s] Salmonella infection.” Affirmed for defendant.

CASCADIA WILDLANDS, The Center for Biological Diversity, and Audubon Society of Portland, Plaintiffs, v. SCOTT TIMBER CO., Roseburg Resources Co., and Rlc Industries Co., Defendants, No. 6:16-cv-01710-AA, 2018 WL 3614202 (D. Or. July 27, 2018) concerned an Endangered Species Act (ESA) citizen suit wherein plaintiffs sough to enjoin logging companies from logging land occupied by marbled murrelets and sea birds — “threatened species under the ESA.” Defendants argued plaintiffs lacked standing to bring suit. Court reasoned that plaintiffs have standing “to prevent injury to their aesthetic and scientific interests in marbled murrelets.” The court was also persuaded by plaintiffs’ “evidence of causation and redressability” regarding the murrelets. Motion to dismiss denied.

WONDER RANCH, LLC, Plaintiff-counter-defendant-Appellant, v. UNITED STATES of America and United States Department of Agriculture, acting through the U.S. Forest Service, and Melany Glossa, in her capacity as Supervisor of the Beaverhead-Deerlodge National Forest, Defendants-counter-claimants-Appellees, No. 16-36071, 2018 WL 3153123 (9th Cir. June 28, 2018) concerned the United States Forest Service’s (FS) Statement of Interest claiming an easement over land adjacent to plaintiff’s property. Plaintiff claimed “exclusive ownership and control” of the land at issue and FS counterclaimed for a “public prescriptive easement.” Lower court ruled for FS and on appeal, plaintiff argued FS did not establish “open and notorious” use of the parcel in question. Appellate court considered evidence of visitor maps of the area and concluded “regular and substantial presence of Forest Service personnel and recreational users on the Trail provided ‘actual knowledge of the claimed right.’” Affirmed for Forest Service.


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

ANIMAL AND PLANT HEALTH INSPECTION SERVICE: Notice APHIS is making available for public comment a draft plant pest risk assessment and draft environmental assessment (EA) for cotton designated as event TAM66274, which has been genetically engineered for ultra-low gossypol levels in the cottonseed. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is removing regulatory provisions associated with the administrative reporting exemption under the Comprehensive Environmental Response, Compensation and Liability Act and under the Emergency Planning and Community Right-to-Know Act. Info here.

Rule EPA is approving elements of a State Implementation Plan (SIP) submission from Connecticut regarding the infrastructure requirements of the Clean Air Act. Details here.

Rule EPA is approving a State Implementation Plan (SIP) revision submitted by the State of Vermont. Info here.

Rule EPA is finalizing an approval to a revision to the Wisconsin State Implementation Plan (SIP) submitted by the Wisconsin Department of Natural Resources (WDNR) to EPA on November 28, 2017. Details here.

Rule EPA is promulgating significant new use rules (SNURs) under the Toxic Substances Control Act (TSCA) for 145 chemical substances which were the subject of premanufacture notices. Info here.

Rule amends the exemption from the requirement of a tolerance for residues of titanium dioxide when used as an inert ingredient in pesticide formulations applied to growing crops to allow for use as a carrier. Info here.

Rule EPA is proposing significant new use rules under the Toxic Substances Control Act for 145 chemical substances which were the subject of premanufacture notices. Info here.

FOREST SERVICE: Notice FS advises the public of a 14-day extension to the public scoping period on the supplemental notice of intent to prepare an environmental impact statement for the amendments to land management plans for greater sage- grouse conservation. Details here.

INTERNATIONAL TRADE ADMINISTRATION:

Notice Commerce is issuing a countervailing duty (CVD) order on ripe olives from Spain. Details here.

Notice Commerce is issuing an antidumping duty order on ripe olives from Spain. Info here.

Notice ITA received an application to amend the Export Trade Certificate of Review held by Ginseng Board of Wisconsin, Inc. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS adjusts the North and South Atlantic swordfish baseline quotas for 2018 based on available underharvest from the 2017 adjusted U.S. quotas. Info here.

Rule NMFS is prohibiting directed fishing for Pacific ocean perch in the Western Aleutian district (WAI) of the Bering Sea and Aleutian Islands management area (BSAI) by vessels participating in the BSAI trawl limited access fishery. Info here.

Rule NMFS proposes to make administrative revisions to the renewal process for Federal vessel permits, licenses, and endorsements, and dealer permits in the NMFS Southeast Region. Info here.

Rule NMFS’s Office of Protected Resources (OPR) has received a request from NMFS’s Alaska Fisheries Science Center (AFSC) for authorization to take marine mammals incidental to fisheries research conducted in multiple specified geographical regions. Details here.

Notice NMFS has made a preliminary determination that an adjustment to increase the total weight of monkfish allowed to be harvested. Details here.