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 CWA, local food systems, and crop insurance issues.

IN WILD FISH CONSERVANCY, Plaintiff, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants, and Cooke Aquaculture Pacfic, Defendant-Intervenor, NO. 15-CV-1731 BJR, 2018 WL 3742203 (W.D. Wash. August 7, 2018), plaintiff sued regarding the Environmental Protection Agency’s (EPA) consultation with National Marine Fisheries Service (NMFS) in 2011 regarding revisions to Washington’s water quality standards. Plaintiffs argued the agency consultation was “inadequate,” and that defendants violated the Endangered Species Act (ESA) “by failing to reinitiate consultation . . . in light of recent events related to the salmon farms.” Issue was whether defendants “met their consultation obligations . . . in their review of Washington’s sediment-related water quality standards adopted under the CWA.” Court held the EPA has “discretionary involvement and control over its approval of Washington’s sediment management standards.”  The court also concluded that should a “triggering event” occur, the agency must “reinitiate consultation.” Motion to dismiss denied.

HELPFUL HOUND, L.L.C. v. NEW ORLEANS BUILDING CORPORATION and City of New Orleans, NO. 18-3500 c/w 18-3594, 2018 WL 3743817 (E.D. La. August 7, 2018) involved a trademark dispute wherein the City of New Orleans sought a preliminary injunction to prevent defendants from using the mark “St. Roch Market” at locations “other than the food halls of the same name in New Orleans and Miami.” The court observed that the famed market “is one of the few remnants of the once-extensive network of public markets in New Orleans.” The court reasoned that based on the evidence, defendants “have appropriated a mark that the City has maintained for a century,” and that “plaintiffs have ‘lost control’ of the quality of the services associated with their mark.” Court ruled that plaintiffs satisfied requirements for a preliminary injunction.

Michael ADKINS; Mike Adkins; Brad Bevel; Russell Beakley; Brian Bevel; Darin Drury; Doug Easterling; John Ben Glover; John Chad Glover; Godsey Bros. Partnership; Ricky Harlan; Haskell Farms Partnership; Craig Rogers; Stewart Farms; Three M Farms; Greg Urbanczyk; Mike Urbanczyk; Steven Urbanczyk, Plaintiffs-Appellees v. Steven C. SILVERMAN, Director, National Appeal Division; Thomas James Vilsack, The United States Department of Agriculture; Brandon Willis, Administrator of the Risk Managment Agency and Manager of the Federal Crop Insurance Corporation, Defendants-Appellants, No. 17-10759, 2018 WL 3746811 (5th Cir. August 7, 2018) involved how to calculate farmers’ crop insurance policies after a group of Texas wheat farmers took issue with Federal Crop Insurance Corporation (FCIC) data. The court observed that per the Agricultural Act of 2014, “farmers were granted the right to exclude certain historical data from being incorporated into the calculation of their policies’ terms.” Notably, however, for insurers to determine whether data could be excluded, the FCIC “first had to compile data about the crops,” and in some cases, the agency had not gathered the data in time for the 2015 crop year. Issue on appeal was “whether farmers were permitted to exclude the historical data for the 2015 crop year, even though the FCIC had not completed its data compilation.” Court considered the “plain meaning” of the statute at issue per Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., and affirmed for plaintiffs.


LEGISLATIVE:

H.R. 6660: To encourage partnerships among public agencies and other interested persons to promote fish conservation. This bill was referred to the House Committee on Natural Resources.

H.R. 6657: To establish a separate account in the Treasury to hold deposits to be used to secure the southern border of the United States. Referred to the House Committee on Appropriations, House Committee on Education and the Workforce, and 5 other committees.


REGULATORY: Includes AMS, EPA, FWS, FNS, FS, ITA, and NOAA rules and notices.

AGRICULTURAL MARKETING SERVICE:

Notice of the upcoming meeting of the Agricultural Marketing Service (AMS) Grain Inspection Advisory Committee. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is approving a revision to the Commonwealth of Pennsylvania’s state implementation plan (SIP). Info here.

Rule establishes tolerances for residues of picoxystrobin in or on multiple commodities that are identified and discussed later in this document. E.I. DuPont De Nemours and Company requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA). Info here.

Rule EPA is proposing to approve portions of State Implementation Plan (SIP) revisions and the Title V Operating Permit Program revisions submitted on May 19, 2017, by the State of Alabama, through the Alabama Department of Environmental Management (ADEM). Details here.

Rule the Oklahoma Department of Environmental Quality (ODEQ) has submitted updated regulations for receiving delegation and approval of its program for the implementation and enforcement of certain National Emission Standards for Hazardous Air Pollutants (NESHAP) for all sources. Details here.

FISH AND WILDLIFE SERVICENotice FWS is initiating 5-year status reviews under the Endangered Species Act of 1973, as amended (Act), of six animal and five plant species. Info here.

FOOD AND NUTRITION SERVICE: Notice of a request for an extension of a current information collection for the purpose of evaluating the Fiscal Year 2015 Pilot Projects to Reduce Dependency and Increase Work Requirements and Work Effort Under the Supplemental Nutrition Assistance Program (SNAP). Details here.

FOREST SERVICE: Notice the Southern Region Recreation Resource Advisory Committee (Recreation RAC) will hold its next meeting in Asheville, North Carolina. The meeting is open to the public. Info here.

INTERNATIONAL TRADE ADMINISTRATION:

Notice ITA preliminarily finds that Ghigi 1870 S.p.A. and Pasta Zara S.p.A. made sales of subject merchandise at less than normal value during the period of review and that Industria Alimentare Colavita S.p.A. (Indalco) did not. Details here.

Notice that on August 1, 2018, the Department of Commerce published the Antidumping Duty Order on ripe olives from Spain. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Notice NMFS has issued an incidental harassment authorization to USGS. Details here.

Notice NMFS has issued an incidental harassment authorization to the Seattle Department of Transportation. Info here.