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 bankruptcy, landowner liability, and ESA issues.

In IN RE: SOYNUT BUTTER COMPANY, Debtor, No: 17 B 14970, 2018 WL 3689549 (Bankr. N.D. Ill. August 1, 2018), debtor was sued by consumers that ate “contaminated SoyNut products.” Chapter 7 Trustee sought to resolve all tort claims with a global settlement that “channels the proceeds from commercial liability policies issued by insurers into a fund for distribution to the injured parties, and enjoins any further claims under the policies.” Distributors and vendors of SoyNut products objected, claiming the settlement bars them “from seeking any relief for claims covered by the policy.” The court weighed the details of the proposed settlement and concluded that without “clear evidence indicating the policy limits are indeed exhausted by the settlement amount, the court cannot find that non-bankruptcy law supports the entry of such a broad injunction.” Proposed injunction denied.

BENJAMIN CAINE RIDDLE, APPELLANT V. RONALD JOE SMITH, GREGORY JOHN GANSS, ANGELA G. GANSS, AND ALFRED W. GANSS, JR., APPELLEES, No. 07-18-00016-CV, 2018 WL 3677821 (Tex. App. August 2, 2018) involved an adverse possession dispute wherein appellant had apparently lost title to the land in question and then proceeded to clear the land. He was sued for trespass, lost, and appealed. Issue for appellate court was “whether or not grazing alone on the disputed acreage would support a finding of adverse possession if the subject land is or is not enclosed.” Appellate court observed that “[f]encing of land may be considered as visible appropriation of the enclosed property.” However, the court also noted that “merely grazing of land incidentally enclosed by a fence erected by others does not support adverse possession.” Appellate court reversed the grant of ownership interest by appellees in the parcel at issue.

In SIERRA CLUB; Virginia Wilderness Committee, Petitioners, v. UNITED STATES DEPARTMENT OF THE INTERIOR; National Park Service, an agency of the U.S. Department of the Interior; Ryan Zinke, in his official capacity as Secretary of the Department of the Interior; Michael T. Reynolds, in his official capacity as Deputy Director, Operations, Exercising the Authority of Director; Stan Austin, in his official capacity as Southeast Regional Director, Responsible Official, Respondents, Atlantic Coast Pipeline, LLC, Intervenor. Defenders of Wildlife; Sierra Club; Virginia Wilderness Committee, Petitioners, v. United States Department of the Interior; Fish and Wildlife Service, an agency of the U.S. Department of the Interior; Ryan Zinke, in his official capacity as Secretary of the Department of the Interior; Greg Sheehan, in his official capacity as Principal Deputy Director; Cindy Schulz, in her official capacity as Field Supervisor, Virginia Ecological Services, Responsible Official, Respondents, Atlantic Coast Pipeline, LLC, Intervenor, No. 18-1082, No. 18-1083, 2018 WL 3717067 (4th Cir. August 6, 2018), plaintiffs challenged agency permits for the Atlantic Coast Pipeline (ACP). Plaintiffs took issue with the “take limit” set by the Fish and Wildlife Service (FWS) for five species, per the Endangered Species Act (ESA). Court was not persuaded by the data provided by FWS and noted that “the statute does not foreclose FWS or an applicant from developing additional data.” Court was also not persuaded by the FWS argument that the agency lacked sufficient time to establish a “numerical limit.” The court ultimately concluded that the agencies involved “set vague and unenforceable limits.” Court found the agency decisions “arbitrary and capricious” and vacated the permits.


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

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is approving portions of the revisions to the Arkansas State Implementation Plan (SIP) submitted by the Arkansas Department of Environmental Quality (ADEQ) on March 24, 2017. Info here.

Rule establishes tolerances for residues of spinetoram in or on tea, dried and tea, instant. Info here.

Rule EPA is proposing to approve a revision to the South Coast Air Quality Management District (SCAQMD) portion of the California State Implementation Plan (SIP). Details here.

Rule EPA is proposing to approve portions of a state implementation plan (SIP) revision submittal from the State of Delaware. Info here.

Rule EPA is proposing to approve the requests from the State of Maryland (Maryland) and the Commonwealth of Virginia (Virginia) to redesignate to attainment their respective portions of the Washington, DC-MD-VA nonattainment area for the 2008 8-hour ozone national ambient air quality standard. Info here.

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

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

Rule EPA is proposing action on a revision to the South Coast Air Quality Management District portion of the California State Implementation Plan (SIP). Details here.

FISH AND WILDLIFE SERVICENotice FWS is initiating 5-year reviews under the Endangered Species Act, as amended (ESA), for 19 northeastern species. Details here.

FOOD SAFETY AND INSPECTION SERVICE: Notice informs the public of the sanitary and phytosanitary standard-setting activities of the Codex Alimentarius Commission (Codex), in accordance with section 491 of the Trade Agreements Act of 1979, as amended, and the Uruguay Round Agreements Act. Info here.

FOREST SERVICE: Notice FS will prepare an Environmental Impact Statement (EIS) for the South Revillagigedo Integrated Resource Project (South Revilla IRP) which proposes to harvest timber, restore watershed function, enhance or restore fish and wildlife habitat, and develop recreation opportunities using an integrated approach in the Shelter Cove, Shoal Cove, and Thorne Arm areas within the Ketchikan Misty Fjords Ranger District, Tongass National Forest. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS announces that the Western Pacific Fishery Management Council (Council) proposes to amend the Fishery Ecosystem Plans (FEP) for American Samoa, the Mariana Archipelago, and Hawaii. Info here.

Rule NMFS proposes a 2018 limit of 2,000 metric tons (t) of longline-caught bigeye tuna for each U.S. Pacific territory (American Samoa, Guam, and the Commonwealth of the Northern Mariana Islands (CNMI)). Details here.

Notice Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information. Title: List of Gear by Fisheries and Fishery Management Council. Info here.

Notice Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information. Title: Report of Whaling Operations. Details here.

Notice Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information. Title: Seafood Inspection and Certification Requirements. Details here.

Notice NMFS is soliciting nominations to the Advisory Committee to the U.S. Section to the International Commission for the Conservation of Atlantic Tunas (ICCAT) as established by the Atlantic Tunas Convention Act (ATCA). Info here.

Notice NMFS has issued an Incidental Harassment Authorization (IHA) to Virginia Electric and Power Company. Details here.