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 labor, food safety, agritourism, PACA, aquaculture, and environmental issues.

In BALDEMAR BAUTISTA-CRUZ, RICARDO GUERRERO-CHAVERO, JOSE OMAR MARTINEZ-CORONEL, ENRIQUE MARTINEZ-ZEFERINO, LEOPOLDO ANTONIO ORTEGA, EFREN PICHARDO-HERNANDEZ, ANTONIO MARCELINO ROSENDO, EDGAR DAVID VELAZQUEZ-REYES, NORBERTO BAUTISTA-JUAREZ, MARIO ALBERTO ROMERO-SANTOS, JAVIER RUBIO-HERNANDEZ, ANTONIO CORONA-GOMEZ, REYNALDO SALAS-LORENZO and JUAN CARLOS MARTINEZ-PEREZ, Plaintiffs, v. D&K HARVESTING, INC., Defendant, No: 2:15-cv-725-FtM-29CM, 2017 WL 3704678 (M.D. Fla. August 1, 2017), plaintiffs, Mexican citizens brought into the United States on temporary work visas, alleged defendant violated the Fair Labor Standards Act (FLSA) regarding the temporary foreign agricultural worker program. The parties reached a settlement and issue for the court was “whether it is a ‘fair and reasonable resolution of a bona fide dispute’ of the claims raised pursuant to the FLSA.” Court approved the settlement and found it “fair and reasonable.”

Robert Hutton, Plaintiff, v. Terry McDaniel, et al., Defendants, No. CV-17-00727-PHX-JAT, 2017 WL 3704696 (D. Ariz. August 28, 2017) involved a shareholder derivative action against a snack food manufacturer wherein plaintiff claimed defendants failed to “exercise oversight” by “failing to implement an adequate system of internal controls,” and failing to “timely and meaningfully address known significant food safety hazards.” Defendants countered that plaintiff’s oversight claim is not supported by specific facts. Court noted, “Delaware courts have observed that this type of ‘failure of oversight’ theory is possibly the most difficult theory in corporation law upon which a plaintiff might hope to win a judgment.” Plaintiff cited the lack of information in corporate documents as an inference of the directors’ failure to exercise oversight, but court was not persuaded. Plaintiff granted leave to amend complaint.

RETAIL LIQUOR ASSOCIATION OF OKLAHOMA, an Oklahoma non-profit corporation; and JOSEPH P. RICHARD, an individual, Plaintiffs, v. OKLAHOMA ALCOHOLIC BEVERAGE LAWS ENFORCEMENT COMMISSION; and KEITH A. BURT, in his official capacity as Director of Oklahoma Alcoholic Beverage Laws Enforcement Commission, Defendants, No. CIV-17-49-C, 2017 WL 3687336 (W.D. Okla. August 24, 2017) involved a dispute regarding restrictions on the sale of alcohol wherein plaintiffs argued the Oklahoma statute at issue is unconstitutional “because it violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.” Under the provision at issue, “Retail Beer Licensees may sell beer with 8.99% ABW or less, Retail Wine Licensees may sell wine with 15% ABW or less, and Retail Spirits Licensees may sell spirits in any concentration.” Plaintiffs argued that “because Oklahoma has drawn the dividing line for regulation between all beverages containing more or less than 3.2% ABW in the past, any change to the division is unconstitutional.” Court concluded that “the question is not whether the change in classification is a violation of equal protection, but whether the classification presented is rationally related to a legitimate state interest.” Defendant’s motion for summary judgment granted.

JORDAN COMBS, doing business as COMBS FARMS, Plaintiff, v. SPRING CREEK PRODUCE, LLC, Defendant, No. 3:17-CV-121-HBG, 2017 WL 3687323 (E.D. Tenn. August 25, 2017) involved a Perishable Agricultural Commodities Act (PACA) dispute between a fruit grower and a reseller wherein defendant removed the case in April claiming that district court had subject matter jurisdiction. Plaintiff moved to remand the case to chancery court in May, arguing that “while the Notice of Removal asserts that the civil action arises under the Perishable Agricultural Commodities Act of 1930 (PACA), the Complaint does not reference PACA or any federal law.” Plaintiff argued that “federal preemption provides an exception to the well-pleaded complaint rule but that PACA, by its own terms, does not provide for preemption.” Defendant countered that plaintiff’s alleged damages involve the Court’s interpretation of federal claims,” and that “the Complaint alleges a violation of a PACA-imposed duty.” Court observed that plaintiff did not allege a PACA claim and sued for breach of contract, raising no “substantial federal questions.” Plaintiff’s motion to remand to chancery court granted.

In OCEANA, INC., Plaintiff, v. Wilbur ROSS, Jr., in his official capacity as Secretary of the United States Department of Commerce, et al., Defendants, No. 1:15–cv–01220–ESH, 2017 WL 3669610 (D.D.C. August 24, 2017), plaintiff argued that the National Marine Fisheries Service adoption of its Standardized Bycatch Reporting Methodology used for collecting data on fish violates the Magnuson–Stevens Act (MSA), the National Environmental Policy Act (NEPA), and the Administrative Procedure Act (APA). Court found that plaintiff “failed to point to any superior evidence that NMFS failed to consider,” and that the agency’s methodology  was “adequately justified.” The court alos noted that NMFS “did not ignore reasonably foreseeable environmental impacts when it prepared the environmental assessment.” Defendants’ motion for summary judgment granted.

In CENTER FOR BIOLOGICAL DIVERSITY, Plaintiff, v. UNITED STATES BUREAU OF LAND MANAGEMENT, et al., Defendants. WHITE PINE COUNTY, et al., Plaintiffs, v. UNITED STATES BUREAU OF LAND MANAGEMENT, et al., Defendants, No. 2:14-cv-00226-APG-VCF, Case No. 2:14-cv-00228-APG-VCF, 2017 WL 3667700 (D. Nev. August 23, 2017), plaintiffs claimed Bureau of Land Management (BLM) violated several environmental statutes in approving a water-redistribution pipeline. Court considered whether BLM “gathered enough information about the project’s impacts and used a reasonable, transparent process for determining whether the project should be approved.” Court noted that BLM used a “sophisticated groundwater model” to project how much habitat would be lost due to the pipeline, but did not explain how it would mitigate losses to habitat. Per the court, “This omission violated the National Environmental Protection Act’s requirement for BLM’s Environmental Impact Statement to at least discuss whether and how the project will comply with other environmental rules.” Case remanded back to BLM.


LEGISLATIVE:

H.R. 1547: Udall Park Land Exchange Completion Act. Bill’s text for status Reported by House Committee (Aug 29, 2017) is now available.

H.R. 2075: Crooked River Ranch Fire Protection Act. Bill’s text for status Reported by House Committee (Aug 29, 2017) is now available.

H.R. 2371: Western Area Power Administration Transparency Act. Bill’s text for status Reported by House Committee (Aug 29, 2017) is now available.


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

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is updating the materials that are incorporated by reference (IBR) into the Georgia state implementation plan. Info here.

Rule EPA is approving several changes that modify the Louisville Metro Air Pollution Control District’s air quality regulations as incorporated into the SIP. Info here.

Rule EPA is proposing to approve a revision to the Illinois state implementation plan to amend requirements applicable to certain coal-fired electric generating units. Details here.

Rule EPA is proposing to approve elements of a state implementation plan (SIP) submission from Indiana regarding the infrastructure requirements of section 110 of the Clean Air Act for the 2012 fine particulate matter (PM2.5) National Ambient Air Quality Standards. Info here.

Rule EPA is proposing to approve a revision to the Nevada State Implementation Plan. Info here.

FISH AND WILDLIFE SERVICE:

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

Notice FWS is proposing to renew an information collection. Title: Alaska Guide Service Evaluation. Info here.

Notice FWS is proposing to renew an information collection. Title: Hunting and Fishing Application Forms and Activity Reports for National Wildlife Refuges. Details here.

FOOD AND DRUG ADMINISTRATIONRule FDA announces the availability of another draft chapter of a multichapter guidance for industry entitled “Hazard Analysis and Risk-Based Preventive Controls for Human Food: Guidance for Industry.” Info here.

FOOD SAFETY AND INSPECTION SERVICE:

Notice FSIS will request a renewal of the approved information collection regarding accreditation of laboratories, transactions, and exemptions. Details here.

Notice FSIS will request a renewal of the approved information collection regarding its Web-based Public Health Information System. Info here.

Notice FSIS will request a revision of the approved information collection related to the Salmonella Initiative Program. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule the Atlantic bluefin tuna General category is currently closed and will reopen on September 1, 2017. Info here.

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

Rule NMFS proposes a 2017 limit of 2,000 metric tons (mt) of longline-caught bigeye tuna for each U.S. Pacific territory. Info here.

RURAL UTILITIES SERVICE: Notice RUS seeks comments on an information collection for which the Agency intends to request approval from the Office of Management and Budget (OMB). Details here.