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


ANNOUNCEMENT: Join us Wednesday, September 6, at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: “Water Law Update.” Details available here.


JUDICIAL: Includes ESA, SNAP, and marketing order issues.

In CENTER FOR BIOLOGICAL DIVERSITY; Maricopa Audubon Society, Plaintiffs-Appellants, v. Ryan ZINKE, in his official capacity as Secretary of the U.S. Dept. of the Interior; Greg Sheehan, in his official capacity as Acting Director, U.S. Fish and Wildlife Service, Defendants-Appellees, No. 14-17513, 2017 WL 3687443 (9th Cir. August 28, 2017), plaintiffs challenged Fish and Wildlife Service (FWS) decision that the desert eagle is not a distinct population segment (DPS) eligible for listing under the Endangered Species Act (ESA). FWS and National Marine Fisheries Service have promulgated a policy statement to guide determinations whether a particular population segment qualifies as “distinct.” To qualify as distinct, the DPS must be both “discrete and significant.” Court noted the criteria for determining whether a population segment is “significant.” On appeal, plaintiff argued FWS “improperly ignored the desert eagle’s status as a peripheral population, and that FWS failed to evaluate the significance of climate change.” Appellate court disagreed and affirmed for defendant.

In UNITED STATES OF AMERICA, Plaintiff, v. LYLE STEED JEFFS, Defendant, No. 2:16-CR-82 TS, 2017 WL 3635190 (D. Utah August 23, 2017), defendant was charged with violating parts of the Supplemental Nutrition Assistance Program (SNAP) by directing people to “divert their SNAP benefits directly without the exchange of food products and by directing members to donate food items purchased with SNAP benefits.” Government asked for jury instruction stating that “SNAP benefits must be used only by the authorized household to purchase eligible food for that household and that any other use of SNAP benefits, including the donation of benefits, is not authorized.” Court concluded that “donation of SNAP benefits without the exchange of food products is prohibited by statute and regulations. SNAP benefits may only be used by the household to purchase eligible food for the household.” The court noted, however, “there is no statute or regulation that would prohibit the donation of food items obtained through the use of SNAP benefits.” Government’s motion for jury instructions granted in part.

GERALD CARLIN, JOHN RAHM, PAUL ROZWADOWSKI and DIANA WOLFE, individually and on behalf of themselves and all others similarly situated, Plaintiffs, v. DAIRYAMERICA, INC., and CALIFORNIA DAIRIES, INC., Defendants, NO. 1:09-CV-00430 AWI EPG, 2017 WL 3671860 (E.D. Cal. August 25, 2017) involved a motion to amend a consolidated class action complaint on behalf of a class of dairy farmers. Plaintiffs claimed to have two “smoking gun” declarations from former employees of defendant (DairyAmerica) justifying further amendment. Plaintiffs claimed defendants conspired to “misreport forward pricing sales to the USDA for the purpose of reducing payments to dairy farmers . . . injuring farmers outside of California.” Court granted plaintiffs leave to amend USDA claims to include additional allegations against Defendants of misreporting, including “reporting artificially depressed figures . . .  misreporting Skimmed Milk sales . . . and delaying the reporting of figures.”


REGULATORY: Includes USDA, EPA, FWS, ITA and NOAA rules and notices.

AGRICULTURE DEPARTMENT: Notice USDA has submitted the following information collection requirement(s) to OMB for review. Title: Importation of Animals and Poultry, Animal and Poultry Products, Certain Animal Embryos, Semen, and Zoological Animals. Details here.

ENVIRONMENTAL PROTECTION AGENCY: Rule EPA is proposing to approve an October 15, 2015 State Implementation Plan (SIP) revision submitted by the State of Rhode Island. Info here.

FISH AND WILDLIFE SERVICE:

Rule correct a formatting error to properly reflect current application fees for eagle permits in the CFR and also remove two entries in the fee table pertaining to permits that no longer exist. Details here.

Notice FWS seeks comment on applications to conduct certain activities with endangered and threatened species. Info here.

INTERNATIONAL TRADE ADMINISTRATION:

Notice ITA has developed, in consultation with the Secretary of Agriculture, information on subsidies, as defined in section 702(h) of the Act, being provided either directly or indirectly by foreign governments on articles of cheese subject to an in-quota rate of duty. Info here.

Notice that on July 12, 2017, ITA initiated a countervailing duty investigation on ripe olives from Spain. Currently, the preliminary determination is due no later than September 15, 2017. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

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

Rule the Gulf of Mexico Fishery Management Council has submitted Amendment 46 to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP), for review, approval, and implementation by NMFS. Info here.

Notice the Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance a proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35). Title: Greater Atlantic Observers Providers’ Requirements. Info here.

Notice of a request for an extension and revision of a currently approved information collection under the Office of Management and Budget’s (OMB) Control Number 0648-0551, Southeast Region IFQ (individual fishing quota) Programs. Details here.

Notice the Draft PEA is available for public review and comment for 30 days after posting. It can be accessed at http://www.ndbc.noaa.gov/​pea/​ndbc_​draft_​pea.pdf. Info here.

Notice NMFS has received a request from the Federal Aviation Administration (FAA) for authorization to take marine mammals incidental to construction activities as part of its Biorka Island Dock Replacement Project. Info here.

Notice NMFS has issued an incidental harassment authorization to the San Francisco Water Emergency Transportation Authority (WETA) to incidentally harass, by Level A and Level B harassment, marine mammals during in-water construction activities associated with the Central Bay Operations and Maintenance Facility Project in Alameda, CA. Details here.