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, this 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 landowner liability, renewable energy, and pesticide issues.

Swan B. MOSS, III, Individually and as Co-Administrator of the Estate of G.Y.M., Deceased and on behalf of Wrongful Death Beneficiaries of G.Y.M. Estate of G.Y.M.; Gay Cunningham Moss, Individually and as Co-Administrator of the Estate of G.Y.M., Deceased and on behalf of Wrongful Death Beneficiaries of G.Y.M. Estate of G.Y.M.; Kerri Basinger, Individually and as Administratrix on behalf of Shane Edward Basinger Estate on behalf of Jadyn Rhea Basinger Estate on behalf of Kinsley Ann Basinger Estate; Anthony Lynn Shumake, Administrator of the Estates of Robert Shumake, deceased, Wilene Shumake, deceased, and N.S., deceased, and on behalf of Wrongful Death Beneficiaries of Robert Shumake, deceased, Wilene Shumake, deceased, and N.S., deceased Estate of Robert Shumake Estate of Wilene Shumake Estate of N.S; Tara Roeder, Administratrix of the Estate of Deborah Busby Roeder, and on behalf of the wrongful death beneficiaries of Deborah Busby Roeder Estate of Deborah Busby Roeder; Natisha L. Rachal, on behalf of T.A.; Jerry Don McMaster, Individually and on behalf of the Estate of Debra Wynne McMaster and his Minor Children, A.C.M. and E.C.M. Estate of Debra Wynne McMaster on behalf of A.C.M. on behalf of E.C.M.; Christy Pugh Basinger, on behalf of K S B; Benjamin L. Pate, on behalf of B.L.; Aaron Sultz, Individually and as Special Administrator of the Estate of Eric Wayne Sultz, on behalf of The Estate of Eric Wayne Sultz, Deceased, and Statutory Wrongful Death Beneficiaries of Eric Wayne Sultz Estate of Eric Wayne Sultz; Tara Roeder, as the Administratrix of the Estate of Bruce Wayne Roeder, and on behalf of the wrongful death beneficiaries of Bruce Wayne Roeder Estate of Bruce Wayne Roeder; Amanda Baker Willis, Individually and as Administrator of the Estates of K.S., deceased, and Julie Freeman, deceased, and on behalf of the wrongful death beneficiaries of K.S. and Julie Freeman Estate of K.S. Estate of Julie Freeman; Judith N. Pate, on behalf of B.L.; Adam Jez, Individually &as Administrator of the Est of Leslie Jez, Decd, obo Est of & Wrongful Death Beneficiaries of Leslie Jez, &Adam Jez, Individually &as Administrator of the Est of KJ, Decd, obo Est & Wrongful Death Beneficiaries of KJ Estate of KJ Estate of Leslie Jez; Susan Johnson, Administrator of the Estate of Sheri Wade, Deceased, on behalf of the Estate of Sheri Wade, and on behalf of the Wrongful Death Beneficiaries of Sheri Wade Estate of Sheri Wade; Candace Smith, individually and as Administratrix on behalf of Anthony Keith Smith Estate on behalf of Joseph Paul Smith Estate on behalf of Katelynn Nicole Smith Estate; Theresa Roeder, as the Administratrix of the Estate of Esther Kay Roeder, deceased, and on behalf of the wrongful death beneficiaries of Esther Kay Roeder Estate of Esther Kay Roeder, Plaintiffs-Appellants v. UNITED STATES of America; United States of America, acting by and through the Department of Agriculture, U.S. Forest Service, also known as Department of Agriculture, also known as U.S. Forest Service, Defendants-Appellees, No. 17-1928, 895 F.3d 1091 (8th Cir. July 20, 2018), involved wrongful death claims on behalf of a number of campers that died in a flood occurring on public land managed by the United States Forest Service (FS). Beneficiaries sued under the Federal Tort Claims Act (FTCA) and their complaint was dismissed. Appellate court affirmed after finding that the fee paid by the campers for their campsite in the national forest was not an “admission fee.” The court also concluded that camping in 100-year floodplain was not an “ultra-hazardous activity.”

VICENTIN S.A.I.C. et al., Plaintiffs and Consolidated Plaintiff, v. UNITED STATES, Defendant. And National Biodiesel Board Fair Trade Coalition, Defendant-Intervenor and Consolidated Defendant-Intervenor, Slip Op. 18-90, No. 18-00009, 2018 WL 3475945 (Ct. Intl. Trade July 17, 2018) involved a dispute concerning the U.S. Department of Commerce’s final countervailing duty (CVD) determination in biodiesel from the Republic of Argentina. Here, plaintiffs argued to consolidate their cases because “these actions involve at least one common question of law related to the issue of double remedies … [and] the same Argentine Government policy.” Defendants maintained “there are no common questions of law or fact, the actions involve different administrative records, [and] there is no complete identity of parties amongst all the cases for which consolidation is sought.” Court reasoned that consolidation would be burdensome as the “challenged CVD and ADD determinations are based on separate administrative records, both containing business proprietary information.” Plaintiffs’ motion to consolidate denied.

In LEAGUE OF UNITED LATIN AMERICAN CITIZENS; Pesticide Action Network North America; Natural Resources Defense Council; California Rural Legal Assistance Foundation; Farmworkers Association of Florida; Farmworker Justice GreenLatinos; Labor Council for Latin American Advancement; Learning Disabilities Association of America; National Hispanic Medical Association; Pineros y Campesinos Unidos Del Noroeste; United Farm Workers, Petitioners, State of New York; State of Maryland; State of Vermont; State of Washington; Commonwealth of Massachusetts; District of Columbia; State of California; State of Hawaii, Intervenors, v. Andrew WHEELER, Acting Administrator of the U.S. Environmental Protection Agency; and U.S. Environmental Protection Agency, Respondents, No. 17-71636, 2018 WL 3763531 (9th Cir. August 9, 2018), plaintiffs sought review of an Environmental Protection Agency (EPA) Order denying a 2007 petition to revoke “’tolerances’. . . for the use of chlorpyrifos on food products.” Plaintiffs claimed the EPA “does not have the authority to maintain the tolerances for chlorpyrifos under the Federal Food, Drug, and Cosmetic Act (FFDCA).” EPA countered that because the agency failed to respond to plaintiffs’ earlier “properly-filed administrative objections” to a 2017 Order, the court has no jurisdiction “to adjudicate whether the EPA exceeded its statutory authority in refusing to ban use of chlorpyrifos on food products.” Critically, the EPA did not address the 2017 Order on its merits. Court reasoned that “obtaining a response to objections before seeking review by this Court is a claim-processing rule that does not restrict federal jurisdiction.” Court vacated EPA’s 2017 Order maintaining chlorpyrifos and remanded case to the agency.


LEGISLATIVE:

H.R. 5597: Desert Tortoise Habitat Conservation Plan Expansion Act, Washington County, Utah. Text for status Reported by House Committee (Aug 10, 2018) is now available.

H.R. 6146: Cottonwood Land Exchange Act of 2018. This bill’s text for status Reported by House Committee (Aug 10, 2018) is now available.

H.R. 6666: To authorize the Secretary of the Interior to grant to States and local governments easements and rights-of-way over Federal land within Gateway National Recreation Area for construction, operation, and maintenance of projects. Referred to the House Committee on Natural Resources which will consider it before sending it to the House floor for consideration.

H.R. 6665: To amend the Outer Continental Shelf Lands Act to apply to territories of the United States, to establish offshore wind lease sale requirements, to provide dedicated funding for coral reef conservation. Referred to the House Committee on Natural Resources.

H.R. 6668: To amend the Endangered Species Act of 1973 to remove freshwater mussels from the list of endangered and threatened species. Referred to the House Committee on Natural Resources which will consider it before sending it to the House floor for consideration.


REGULATORY: Includes AMS, EPA, FWS, NOAA, and NTIA rules and notices. 

AGRICULTURAL MARKETING SERVICE:

Rule AMS proposes to revise the U.S. Standards for Grades of Canned Lima Beans, U.S. Standards for Grades of Canned Mushrooms, U.S. Standards for Grades of Pickles, and U.S. Standards for Grades of Green Olives. Details here.

Notice AMS will request approval from Office of Management and Budget (OMB) for an extension of and revision to the currently approved information collection “Application for Plant Variety Protection Certification and Objective Description of Variety.” Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is approving the ozone attainment demonstration portion of a State Implementation Plan (SIP) revision submitted by the State of Connecticut to meet the Clean Air Act (CAA) requirements for attaining the 1997 8-hour ozone national ambient air quality standard. Info here.

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

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

Rule EPA is proposing to approve elements of a State Implementation Plan (SIP) submission from Maine that addresses the infrastructure requirements of the Clean Air Act for the 2012 fine particle National Ambient Air Quality Standard. Details here.

Rule EPA is proposing to approve elements of the State Implementation Plan (SIP) submission from Minnesota regarding the infrastructure requirements of section 110 of the Clean Air Act National Ambient Air Quality Standard. Info here.

Rule Georgia has applied to the Environmental Protection Agency (EPA) for final authorization of changes to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA), as amended. Info here.

FISH AND WILDLIFE SERVICE:

Rule FWS determine threatened species status under the Endangered Species Act for the hyacinth macaw. Details here.

Rule FWS is reopening the public comment period on our June 28, 2018, proposed rule to replace the existing regulations governing the nonessential experimental population designation of the red wolf (Canis rufus) under section 10(j) of the Endangered Species Act. Info here.

Notice FWS received an application for an incidental take permit (ITP) under the Endangered Species Act. Residential Development Corporation is requesting a 2-year ITP for take of the Florida scrub-jay. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATIONNotice the New England Fishery Management Council (Council) is scheduling a public meeting of its Habitat Committee to consider actions affecting New England fisheries in the exclusive economic zone. Details here.

NATIONAL TELECOMMUNICATIONS AND INFORMATION ADMINISTRATION: Notice the First Responder Network Authority (FirstNet Authority) is (1) withdrawing its Notice of Intent to Prepare Supplemental Programmatic Environmental Impact Statements (SPEISs) and Conduct Scoping for the Nationwide Public Safety Broadband Network (NPSBN), and (2) amending five (5) records of decision to remove the references to the FirstNet Authority’s intent to prepare the SPEISs. Info here.