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, September 5th: Be In The Know:  Legal Tips for Your Ag Start-Up. Details available here.


JUDICIAL: Includes landowner liability, CAA, aquaculture, and renewable energy issues.

In FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION, Appellant, v. William DAWS, Jr., Ouida Gershon, Bill I. Hines, Regina Hines, Hershal O. Holt, Karen A. Holt, Alan E. Joiner, Monica L. Joiner, Mary B. King, Sara King, Betty Tolbert, Ricky W. Tolbert, and Jerry Varnadore, Appellees, No. 1D16-4839, 2018 WL 3911472 (N.D. Fla. August 16, 2018), the Florida Fish and Wildlife Conservation Commission (FWC) appealed a temporary injunction requiring the agency to stop deer hunters and their dogs from trespassing onto appellees’ property. Appellees alleged nuisance claims and argued the FWC is responsible for trespasses on their land by hunters because the agency “licenses and permits deer dog hunting . . . and regulates hunting by rule.” Court found that the agency was entitled to summary judgment on the nuisance claims “on sovereign immunity grounds because the FWC owed no duty to Appellees and because the authorization of deer dog hunting in the Blackwater WMA was a discretionary function of the FWC.” Reversed.

In Robert UKEILEY, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; and Andrew Wheeler,* Acting Administrator, United States Environmental Protection Agency, Respondents, No. 16-9556, 896 F.3d 1158 (10th Cir. July 24, 2018), a property owner sought review of an Environmental Protection Agency (EPA) decision certifying Colorado’s compliance with air quality standards “despite a number of dates in which the state failed to meet those standards.” Plaintiff argued EPA “abused its discretion” when it granted Colorado’s request to “exclude certain instances in which airborne dust exceeded the Standards.” Court considered the “Exceptional Events Rule” and argued the EPA’s exclusion of “high wind exceedances” violated the CAA. Court observed “the congressional definition makes a distinction between human-caused events and natural events,” and that the EPA “can only qualify a human-caused event as an exceptional event if it is unlikely to recur.” Court concluded the EPA’s interpretation of the Clean Air Act was correct and denied plaintiff’s petition for review.

OCEANA, INC., Plaintiff, v. Wilbur L. ROSS, United States Secretary of Commerce, et al.,1 Defendants, and Fisheries-Survival Fund, Defendant-Intervenor, No. 08-1881 (PLF), 2018 WL 3956444 (D.D.C. August 17, 2018) involved a challenge to a National Marine Fisheries Service (NMFS) Biological Opinion (BiOp) regarding the “operation of the Atlantic Sea Scallop Fishery and its impact on . . . loggerhead sea turtles.” The turtles are considered “threatened” under the Endangered Species Act. Defendant argued its BiOp “thoroughly explain[ed] its chosen monitoring methods” used in the report. Plaintiff, on the other hand, claimed the agency’s monitoring methods were “arbitrary and capricious” because the report failed to justify “both the dredge hour surrogate for dredge fishing takes and the five-year timetable for trawl fishing takes.” Court concluded that NMFS “did not fail to consider . . . the best available science,” and remanded seeking a revision of the Incidental Take Statement.


LEGISLATIVE:

H.R. 2606: Stigler Act Amendments of 2017. Text for status Reported by House Committee (Aug 21, 2018) is now available.

S. 3360: A bill to amend the Rural Electrification Act of 1936 to improve access to broadband telecommunications services in rural areas. Referred to the Senate Committee on Agriculture, Nutrition, and Forestry.

S. 1142: J. Bennett Johnston Waterway Hydropower Extension Act of 2018. Text for status Passed the Senate (Aug 22, 2018) is now available.

H.R. 6157: Department of Defense Appropriations Act, 2019. Passed Senate with an amendment by Yea-Nay Vote. 85 – 7. Record Vote Number: 193.

S. 3375: A bill to amend the National Trails System Act to extend the Lewis and Clark National Historic Trail.  Referred to the Senate Committee on Energy and Natural Resources.

S. 3385: A bill to reestablish the Office of Noise Abatement and Control in the Environmental Protection Agency. Referred to the Senate Committee on Environment and Public Works.

S. 3376: A bill to require the Secretary of Energy to establish an energy storage research program, a demonstration and deployment program, and a technical assistance and grant program. Referred to the Senate Committee on Energy and Natural Resources.

S. 3382: A bill to require the Director of the United States Geological Survey to perform a nationwide survey of perfluorinated compounds. Referred to the Senate Committee on Environment and Public Works.

S. 3381: A bill to encourage Federal agencies to expeditiously enter into or amend cooperative agreements with States for removal and remedial actions to address PFAS contamination in drinking, surface, and ground water. Referred to the Senate Committee on Environment and Public Works.


REGULATORY: Includes AMS, ARS, APHIS, EPA, FWS, FAS, FS, ITA, NIFA, NOAA, and NRCS rules and notices.

AGRICULTURAL MARKETING SERVICE:

Rule implements a recommendation from the Colorado Potato Administrative Committee to increase the assessment rate established for Area No. 2 for the 2018-2019 and subsequent fiscal periods. Info here.

Rule would implement a recommendation from the Texas Valley Citrus Committee to decrease the assessment rate established for the 2018-19 and subsequent fiscal periods. Details here.

AGRICULTURAL RESEARCH SERVICE: Notice announces ARS permission to collect information from North Dakota landowners in nine counties, to gain their perspective on their grasslands in the Northern Great Plains. Info here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE:

Notice advising the public of our determination that canola designated as event B0050-027, which has been genetically engineered to accumulate the long chain omega-3 fatty acid known as docosahexaenoic acid in seed, is no longer considered a regulated article under our regulations governing the introduction of certain genetically engineered organisms. Info here.

Notice APHIS will request a revision to and extension of approval of an information collection associated with the use of contract pilots and aircraft in Plant Protection and Quarantine domestic, emergency, and biological control programs. Details here.

Notice APHIS will request a revision to and extension of approval of an information collection associated with the regulations for the importation of small lots of seeds into the United States without phytosanitary certificates. Info here.

Notice APHIS will request a revision to and extension of approval of an information collection associated with the National Poultry Improvement Plan. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is promulgating significant new use rules (SNURs) under the Toxic Substances Control Act (TSCA) for 19 chemical substances which were the subject of premanufacture notices. Details here.

Rule EPA is promulgating significant new use rules (SNURs) under the Toxic Substances Control Act (TSCA) for 10 chemical substances which were the subject of premanufacture notices (PMNs). Details here.

Rule EPA is proposing to delete various local rules from the California State Implementation Plan (SIP) that were approved in error. Info here.

Rule EPA is proposing to approve a state implementation plan (SIP) revision submitted by the State of Maryland. Info here.

Rule EPA will affirm proposing to affirm an October 2017 SIP approval and FIP promulgation. Details here.

Rule EPA is proposing significant new use rules (SNURs) under the Toxic Substances Control Act (TSCA) for 10 chemical substances which were the subject of premanufacture notices. Details here.

Rule EPA is proposing significant new use rules (SNURs) under the Toxic Substances Control Act (TSCA) for 19 chemical substances which were the subject of premanufacture notices. Info here.

FISH AND WILDLIFE SERVICE:

Notice the North American Wetlands Conservation Council will meet to select North American Wetlands Conservation Act (NAWCA) grant proposals for recommendation to the Migratory Bird Conservation Commission. Details here.

Rule prescribes special migratory bird hunting regulations for certain Tribes on Federal Indian reservations, off- reservation trust lands, and ceded lands. Info here.

FOREIGN AGRICULTURAL SERVICE:

Notice publishes the document “Articles Subject to: Appendix 1, Historical Licenses; Appendix 2 Non-historical Licenses; and Appendix 3 and 4, Designated Importers Licenses for Quota Year 2018.” Info here.

Notice of a fee of $300 to be charged for the 2019 tariff-rate quota (TRQ) year for each license issued to a person or firm by the Department of Agriculture authorizing the importation of certain dairy articles, which are subject to tariff-rate quotas set forth in the Harmonized Tariff Schedule (HTS) of the United States. Info here.

FOREST SERVICE: Notice El Yunque National Forest, located in Puerto Rico, has prepared a Final Environmental Impact Statement (FEIS), a Revised Land Management Plan and a Draft Record of Decision (ROD). Info here.

INTERNATIONAL TRADE ADMINISTRATION: Notice Commerce preliminarily finds that termination of the suspended antidumping duty investigation on fresh tomatoes from Mexico would be likely to lead to continuation or recurrence of dumping at the levels indicated in the “Preliminary Results of Review” section of this notice. Info here.

NATIONAL AGRICULTURAL STATISTICS SERVICENotice NASS will request revision and extension of a currently approved information collection to comply with a mandate in the 2014 Farm Bill. Info here.

NATIONAL INSTITUTE OF FOOD AND AGRICULTURE: Notice USDA National Institute of Food and Agriculture announces its stakeholder listening initiative “NIFA Listens: Investing in Science to Transform Lives.” Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATIONRule NMFS implements an accountability measure (AM) for Atlantic migratory group (Atlantic) cobia that are sold (commercial) and harvested from the exclusive economic zone (EEZ) of the Atlantic. Details here.

NATURAL RESOURCES CONSERVATION SERVICE: Notice NRCS will issue a series of revised conservation practice standards in the NHCP. Info here.