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


ANNOUNCEMENT: Join us Wednesday, August 16, at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: “Using LLCs in Agriculture: Beyond Liability Protection.” Details available here.


JUDICIAL: Includes taxation, admin law, labor, and environmental issues.

MARK A. RUTKOSKE, SR., Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent, FELIX RUTKOSKE, JR. AND KAREN E. RUTKOSKE, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent, Nos. 16300-14, 16301-14, 149 T.C. No. 6 (Tax August 7, 2017) involved a limited liability company (peitioners) that conveyed a conservation easement restricting rights on some property to a public charity. Petitioners reported the “bargain element of the transaction” as a noncash charitable contribution and classified themselves as “qualified farmers” on their tax returns. Court observed that, “A qualified farmer, defined as a taxpayer whose gross income from the trade or business of farming . . . is greater than 50% of his/her total gross income for the year, may deduct the value of a qualified conservation contribution of up to 100% of his/her contribution base for the year of contribution.” Court held that petitioners are not qualified farmers and that, “Neither the sale of the property nor the sale of development rights attached thereto constitutes an activity that is included in the trade or business of farming.”

In AMERICAN WILD HORSE PRESERVATION CAMPAIGN, et al., Appellants v. Sonny PERDUE, Secretary, U.S. Department of Agriculture, et al., Appellees, No. 15-5332, 2017 WL 3318750 (D.D.C. August 4, 2017), horse preservationists challenged Forest Service’s (FS) management plan for wild horse territory (WHT). They argued the agency’s “adjusted territory’s borders and population threshold” determination was arbitrary and capricious. District court found that any reference to “single, contiguous territory” by the Forest Service was “mere administrative error” and ruled for agency. Reversing in part, the appellate court held FS’s decision to eliminate middle section of the territory was arbitrary and capricious, in that FS “failed to acknowledge and adequately explain its change in policy regarding management of wild horses in that section as part of single, contiguous protected WHT.”

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, and IRAQ ABADE, et al., Plaintiffs-Intervenors, and MARYAN ABDULLE, et al., Plaintiffs-Intervenors, v. JBS USA, LLC, d/b/a JBS Swift & Company, Defendant, No. 10-cv-02103-PAB-KLM, 2017 WL 3334648 (D. Colo. August 4, 2017) involved an employment discrimination case involving a beef processing plant, wherein EEOC claimed defendant “failed to reasonably accommodate its Muslim employees’ requests for prayer breaks.” Issue concerned the destruction of documents and defendant argued the requested “Down Time Reports” were unnecessary. Plaintiff argued the information in the reports included the reason for stoppages, “which can be correlated with the calendar of Muslim prayer times to determine if the stoppages correlate with prayer times.” Court found EEOC was prejudiced by defendant’s “spoliation of evidence.”

MARIA MONTANO, Plaintiff, v. ALLEN HARIM FOODS, LLC, Defendant, No. 15-392-LPS-CJB, 2017 WL 3328360 (D. Del. August 4, 2017) involved labor issues at a poultry processing plant wherein plaintiff claimed her paycheck was “short . . . because it did not account for donning and doffing time.” Plaintiff claimed defendant breached the employment contract by failing to pay for “all compensable time under the FLSA.” Court recognized that Defendant (like its predecessor) “never compensated its employees for donning and doffing of protective gear,” and has “negotiated two CBAs with the union since its acquisition of the processing plant and . . . both CBAs have been silent as to whether time spent donning and doffing protective gear is compensable.” Summary judgment granted for defendant on plaintiff’s “donning and doffing” claim.

In CLEVELAND NATIONAL FOREST FOUNDATION et al., Plaintiffs and Appellants, v. SAN DIEGO ASSOCIATION OF GOVERNMENTS et al., Defendants and Appellants; The People, Intervener and Appellant. CREED-21 et al., Plaintiffs and Appellants, v. San Diego Association of Governments et al., Defendants and Appellants; The People, Intervener and Appellant, S223603, 397 P.3d 989 (Cal. July 13, 2017), plaintiffs petitioned for writ of mandate challenging certification of an environmental impact report (EIR) issued under the California Environmental Quality Act (CEQA) for a regional transportation plan. Superior court granted the petition in part. On appeal, Supreme Court reversed, holding that the EIR was not required to “explicitly address Governor’s executive order, which set overall greenhouse gas emissions reduction targets, as a measure of significance or adopt the target as a goal.”


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

AGRICULTURE DEPARTMENT: Notice USDA submitted information collection requirement(s) to OMB for review. Title: Interagency Generic Clearance for Federal Land Management Agencies Collaborative Visitor Feedback Surveys on Recreation and Transportation Related Programs and Systems. Details here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE: Notice APHIS is adding the Republic of Malta to the lists of regions considered to be free of swine vesicular disease (SVD), African swine fever (ASF), foot-and-mouth disease (FMD), and rinderpest, and to the list of regions considered free or low risk for classical swine fever (CSF), subject to conditions in the regulations governing the importation of certain animals and animal products into the United States. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule that on July 9, 2012, Alaska submitted a plan to address the infrastructure requirements for the lead (Pb) NAAQS promulgated on October 15, 2008. EPA is approving the plan as meeting Clean Air Act (CAA) requirements. Info here.

Rule EPA is approving a revision to the District of Columbia state implementation plan (SIP) submitted by the District of Columbia (the District) through the District of Columbia Department of Energy and Environment. Info here.

Rule EPA is approving a portion of the State Implementation Plan (SIP) submission addressing a portion of the Clean Air Act (CAA or Act) infrastructure requirements for the 2010 1-hour nitrogen dioxide (NO2) national ambient air quality standard. Info here.

Rule EPA is announcing approval of two revisions to the State Implementation Plan (SIP) for ozone submitted by the State of New Jersey. Info here.

Rule EPA is taking direct final action to approve revisions to the Commonwealth of Pennsylvania state implementation plan. Details here.

Rule EPA is taking direct final action to approve changes to the South Carolina State Implementation Plan (SIP) to revise New Source Review (NSR) regulations. Info here.

Rule EPA is announcing that it is withdrawing the 1-year extension of the deadline for promulgating initial area designations for the ozone national ambient air quality standards that were promulgated in October 2015. Details here.

Rule Delaware has applied to EPA for final authorization of revisions to its hazardous waste program under the Resource Conservation and Recovery Act. Info here.

FISH AND WILDLIFE SERVICE:

Rule FWS will increase the hunting activities available at nine National Wildlife Refuges (NWR), open one NWR to sport fishing for the first time, and add pertinent refuge-specific regulations for other NWRs that pertain to migratory game bird hunting, upland game hunting, big game hunting, and sport fishing for the 2017-2018 season. Info here.

Rule FWS announces a 6-month extension of the final determination of whether to add the Texas hornshell, a freshwater mussel species from New Mexico, Texas, and Mexico, to the List of Endangered and Threatened Wildlife. Details here.

FOOD AND DRUG ADMINISTRATION: Notice FDA is announcing the availability of a guidance for industry entitled “Extension of Certain Tobacco Product Compliance Deadlines Related to the Final Deeming Rule.” Info here.

FOOD SAFETY AND INSPECTION SERVICE: Notice FSIS is announcing an educational meeting to discuss the enforcement and implementation of the Final Rule, “Mandatory Inspection of Fish of the Order Siluriformes and Products Derived from Such Fish.” Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule announcing the reduction of the commercial per-trip possession limit for northern red hake for the remainder of the 2017 fishing year. Details here.

Notice NMFS Southeast Region, in collaboration with the South Atlantic Fishery Management Council (Council), is preparing an EA in accordance with the National Environmental Policy Act (NEPA) for Amendment 43 to the Fishery Management Plan (FMP) for the Snapper-Grouper Fishery of the South Atlantic Region. Info here.

Notice the Zoological Society of San Diego [Douglas Myers, Responsible Party], P.O. Box 120551, San Diego, CA 92112, has applied for an amendment to Scientific Research Permit No. 16609. Info here.

Notice NMFS has received a request from Washington State Department of Transportation (WSDOT) for authorization to take marine mammals incidental to US 101/Chehalis River Bridge-Scour Repair in Washington State. Details here.