A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions to: camarigg at uark.edu


JUDICIAL: Includes CWA, SNAP, insecticide, and zoning issues.

In Friends of Maha ‘Ulepu, Inc., a Hawai’i non-profit corporation, Plaintiff, v. Hawai’i Dairy Farms, LLC, a Delaware Limited Liability Company; Ulupono Initiative, LLC; a Delaware Limited Liability Company; Maha’ulepu Farms, LLC; a Delaware Limited Liability Company, Defendants, CIVIL 15-00205 LEK-BMK, 2016 WL 7031286 (D. Haw. Dec. 1, 2016), plaintiff claimed defendants’ proposed dairy farm violates the Clean Water Act (CWA). Plaintiff alleged defendants’ proposed dairy farm has created “unauthorized discharge of construction pollutants into waters of the United States” and that defendant failed to obtain permits for storm water discharges. Defendant moved for summary judgment to dismiss. Court observed that, “To establish a violation of the [Clean Water] Act’s NPDES requirements, a plaintiff must prove that defendants (1) discharged, i.e., added (2) a pollutant (3) to navigable waters (4) from (5) a point source.” Significantly, the court also noted, “The federal regulations distinguish between NPDES permits for concentrated animal feeding operations (‘CAFO’) and storm water discharges.” Court found plaintiff identified storm water runoff “from a point source that was discharged to navigable waters.” Defendants’ motion for summary judgment denied.

In Alhalemi, Inc., Plaintiff, v. Roberts United States of America, et al., Defendants, CASE NO: 16-11684, 2016 WL 7013005 (E.D.Mich. Dec. 1, 2016), USDA found plaintiff trafficked in Supplemental Nutrition Assistance Program (SNAP) benefits and disqualified plaintiff as an authorized retailer. Plaintiff claimed USDA’s actions violated the Administrative Procedure Act (APA). Court noted that “review under the APA is unavailable when ‘statutes preclude judicial review’ or ‘agency action is committed to agency discretion by law,’” and, “Statutes preclude review where ‘Congress has provided special and adequate review procedures.’” Court concluded, “If the Court finds [plaintiff] engaged in SNAP trafficking, the Act precludes review of the penalty.” Defendants’ motion to dismiss granted.

Stephanie RUSH, et al., Appellants, v. The WESTWOOD VILLAGE PARTNERSHIP, et al., Respondents, and Jerry Plummer, et al., Appellants, v. Riverside Apartments of St. Cloud Limited Partnership, et al., Respondents, Nos. A16–0249, A16–0250, 2016 WL 7041950 (Minn. Ct. App. Dec. 5, 2016) involved a landlord-tenant dispute after landlord attempted to control bedbug infestations using insecticide. Court considered whether a landlord “breaches the covenant of reasonable repair by requiring a residential tenant to cooperate with pest eradication efforts.” Court concluded law does not compel a landlord to “bear the costs of the tenant’s personal property damaged by pest eradication” and does not require a landlord to pay for a tenant’s “preferred repair method.” District court’s denial of rent-escrow actions affirmed.

In CLAYLAND FARM ENTERPRISES, LLC, Plaintiff – Appellant, v. TALBOT COUNTY, MARYLAND; TALBOT COUNTY PLANNING & ZONING COMMISSION; TALBOT COUNTY DEPARTMENT OF PUBLIC WORKS ADVISORY BOARD; THOMAS HUGHES, in his individual and official capacity; MICHAEL SULLIVAN, in his individual and official capacity; JOHN WOLFE, in his individual and official capacity; JACK FISCHER, in his individual and official capacity; MARYLAND DEPARTMENT OF PLANNING, Defendants – Appellees, No. 15-1755, 2016 WL 7030627 (4th Cir. Dec. 2, 2016), plaintiff, a 106-acre property, was zoned as a “Village Center” and challenged county moratorium preventing landowners from “seeking or obtaining approval to subdivide their property.” Plaintiff asserted federal claims against defendant for violations of their Fifth and Fourteenth Amendment rights, alleging a “regulatory takings claim that the moratorium is facially unconstitutional.” District dismissed for lack of ripeness. Appellate court found plaintiff “suffered concrete and certain injury as soon as the moratoriums were enacted,” and further reasoned that although defendant “may enact future zoning or planning ordinances that affect [plaintiff’s] ability to develop its property does not call into question the finality of the three ordinances that currently restrict Clayland Farm.” Court found plaintiff’s challenge “ripe” and reversed district court’s dismissal.


LEGISLATIVE:

S. 3028: Daniel J. Evans Olympic National Park Wilderness Act. Bill added to House schedule for coming week.

S. 3395: Prescribed Burn Approval Act of 2016. Bill added to House schedule for coming week.

H.R. 4680: National Park Service Centennial Act. Bill added to House schedule for coming week.

H.R. 6401: Northern Mariana Islands Economic Expansion Act. Bill added to the House’s schedule for coming week.


REGULATORY: Includes USDA, AMS, APHIS, FWS, GIPSA, ITA, and NOAA rules and notices.

AGRICULTURE DEPARTMENT:

Rule amends the Dairy Tariff-Rate Quota Import Licensing Program to clarify that for the purposes of the Dairy Tariff-Rate Quota Import Licensing Program, U.S. Customs and Border Protection import entries submitted electronically and on paper are acceptable. Details here.

Notice announces the Office of Homeland Security and Emergency Coordination’s will request an extension for a currently approved information collection for the USDA Personal Identity Verification Request for Credential, the USDA Homeland Security Presidential Directive 12 program. Info here.

AGRICULTURAL MARKETING SERVICE:

Rule would change reporting requirements for Irish potatoes, tomatoes, and onions regulated under § 608(e) of the Agricultural Marketing Agreement Act of 1937 by requiring importers of those regulated commodities that have been certified by a designated governmental inspection service other than the Federal or Federal-State Inspection Service as meeting 8e requirements to provide the inspection certificate number and a copy of the certificate to AMS. Info here.

Notice announcing a draft guidance document intended for use by accredited certifying agents and certified handling operations. Details here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE:

Notice APHIS will request an extension of approval of an information collection associated with the export of animal products from the United States. Details here.

Notice APHIS will request a reinstatement of an information collection associated with regulations for privately owned quarantine facilities for ruminants. Details here.

FISH AND WILDLIFE SERVICE: Notice FWS developed a draft revised marine mammal stock assessment report for the southern sea otter stock in the State of California. Details here.

GRAIN INSPECTION, PACKERS AND STOCKYARDS ADMINISTRATION: Notice GIPSA seeks nominations for individuals to serve on the USDA Grain Inspection Advisory Committee. Details here.

INTERNATIONAL TRADE ADMINISTRATION:

Notice ITA is conducting a new shipper review covering the period of review of December 1, 2014, through November 30, 2015. Products covered by this order are natural honey, artificial honey containing more than 50 percent natural honey by weight, preparations of natural honey containing more than 50 percent natural honey by weight and flavored honey. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS announces that the 2016 commercial Atlantic bluefish quota allocated to the State of New York has been harvested. Info here.

Rule NMFS announces 16 inseason actions in the ocean salmon fisheries. Details here.

Rule NMFS proposes 2017 and 2018 harvest specifications, apportionments, and prohibited species catch allowances for the groundfish fisheries of the Bering Sea and Aleutian Islands management area. Details here.

Rule NMFS proposes 2017 and 2018 harvest specifications, apportionments, and Pacific halibut prohibited species catch limits for the groundfish fishery of the Gulf of Alaska. Details here.

Rule the New England Fishery Management Council has submitted Amendment 18 to the Northeast Multispecies Fishery Management Plan. Info here.