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


JUDICIAL: Includes NEPA, GIPSA, landowner liability, National Organic Program, and biosecurity issues.

In Navajo NATION, Plaintiff-Appellant, v. DEPARTMENT OF THE INTERIOR; Ryan Zinke *, Secretary of the Interior; United States Bureau of Reclamation; Bureau of Indian Affairs, Defendants-Appellees, State of Arizona; Central Arizona Water Conservation District; Arizona Power Authority; Salt River Project Agricultural Improvement and Power District; Salt River Valley Water Users’ Association; Imperial Irrigation District; Metropolitan Water District of Southern California; Coachella Valley Water District; State of Nevada; Colorado River Commission of Nevada; Southern Nevada Water Authority; State of Colorado, Intervenor-Defendants-Appellees, No. 14-16864, 2017 WL 5986567 (9th Cir. December 4, 2017), plaintiff sued under the National Environmental Policy Act (NEPA) challenging “surplus and shortage guidelines” used by the Department of Interior regarding plaintiff’s rights to Colorado River water. Appellate court acknowledged that “the interests upon which a NEPA plaintiff bases its standing need not be legal entitlements or substantive rights, and that an impairment as a practical matter of access to adequate water for use on one’s land can qualify.” The court concluded, however, that plaintiffs failed to provide a “reasonably probable link between this second interest in water availability and the Guidelines” at issue. Plaintiff’s NEPA claims dismissed for lack of standing.

IN RE BROILER CHICKEN ANTITRUST LITIGATION, No. 16 C 86371, 2017 WL 5574376 (N.D. Ill. November 20, 2017) concerned class action antitrust claims by broiler chicken growers against a number of defendant poultry companies allegedly “engaged in illicit anticompetitive activity in concert with others to artificially suppress grower compensation.” Growers sued under the Sherman Antitrust Act and the Packers and Stockyards Acts. Defendants moved to dismiss, arguing that the Sherman Act claims should be dismissed as “untimely because they allege production cuts that ‘occurred between five and eight years ago,’ in 2008 and 2011.” Court denied motion to dismiss “to the extent that Plaintiffs’ Sherman Act claims survive, at least one state law claim survives in every jurisdiction except for Arkansas.”

In Seth Burns, Plaintiff, v. United States of America, Defendant, No. CV-16-08033-PCT-NVW, 2017 WL 5989358 (D. Ariz. December 4, 2017) plaintiff, employee of a cell tower company, was severely injured by a boulder when moving rocks on a road (Road 557) in the Coconino National Forest and sued under the Federal Tort Claims Act (FTCA). Court observed that the FTCA “imposes liability on the United States for tort claims against federal employees in the same manner and to the same extent as a private individual would be liable to the claimant under like circumstances.” Plaintiff maintained that the Forest Service (FS) “should have closed Road 557 in anticipation of the rockslide that injured him.” Court noted that “the decision whether to close the gate on Road 557 involved an element of judgment.” The court also observed that “[c]ompeting policy considerations regarding closing Road 557 include the need for safety, access to cell and radio towers, and recreational use,” and found plaintiff’s claim “barred by the discretionary function exception to the FTCA.” Defendant’s summary judgment motion granted.

In re: Christine Grovenstein, an individual, d/b/a Seeds of Love Nursery, Respondent, OFPA Docket No. 17-0261, United States Department of Agriculture (U.S.D.A.), 2017 WL 5988038 (November 9, 2017) involved violations of the National Organic Program Regulations by respondent, owner and operator of a nursery. Respondent applied a “substance prohibited for use in organic production” to some of its blueberry crops, and was issued a notice by a USDA certifying agent. Respondent later sold her blueberries as “organic.” Here, administrative law judge ruled respondent shall “cease and desist from violating the OFPA and the USDA organic Regulations.” Respondent was also fined $500 and had her organic certification suspended.

In MARK SMITH and KATHERINE SMITH, Appellants, v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, Respondent, NO. A-1684-14T2, 2017 WL 5983199 (N.J. Super. Ct. App. Div December 1, 2017), plaintiffs appealed defendant’s grant of a Soil Remediation Action Permit to Princeton University “in connection with a soil remediation project it completed under the supervision of a Licensed State Remediation Professional (LSRP) pursuant to the Site Remediation Reform Act (SRRA).” The permit at issue provided evaluation requirements Princeton had to meet “in order to ensure that its remedial action continued to be protective of the public health.” Plaintiffs purchased property from Princeton and took issue with the contaminated condition of the property, and claimed they were improperly notified about the remediation project occurring on the property. Court considered adequacy of defendant’s notice to plaintiffs and determined “appellants were advised before the project began that more technical environmental reports describing the work to be performed would be made available to the Township.” Court also reasoned that defendant’s “notification letter provided an accurate, detailed description of the remedial project that would be undertaken,” meeting statutory requirements. Affirmed for defendants.


LEGISLATIVE:

S. 2190: A bill to amend the Agricultural Act of 2014 to remove a limitation on funding for emergency assistance for livestock, honey bees, and farm-raised fish. Bill referred to the Senate Committee on Agriculture, Nutrition, and Forestry.

S. 2185: A bill to reauthorize the Federal Land Transaction Facilitation Act. Bill referred to the Senate Committee on Energy and Natural Resources.

H.R. 4532: To create the first Tribally managed national monument. Bill referred to the House Committee on Natural Resources.

H.R. 4535: To establish limitations on the quantity of inorganic arsenic in rice and rice products under chapter IV of the Federal Food, Drug, and Cosmetic Act. Bill referred to the House Committee on Agriculture and House Committee on Energy and Commerce.

H.R. 3905: Minnesota’s Economic Rights in the Superior National Forest Act. Bill would require Congressional approval for mineral withdrawal and monument designation in National Forest System lands in the Minnesota.

H.J.Res. 123: Making further continuing appropriations for fiscal year 2018. Resolution added to the House’s schedule for the coming week.


REGULATORY: Includes AMS, FWS, NOAA and RUS rules and notices.

AGRICULTURAL MARKETING SERVICE: Notice AMS is revising the United States Standards for Grades of Carcass Beef (beef standards) to allow dentition and documentation of actual age as additional methods of classifying maturity of carcasses presented to USDA for official quality grading. Info here.

FISH AND WILDLIFE SERVICE:

Rule FWS announces 12- month findings on petitions to list four species as endangered or threatened species under the Endangered Species Act. Details here.

Notice FWS seeks comment on applications for a permit to conduct activities intended to enhance the survival of endangered or threatened species. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule creates a separate permit endorsement provision for the commercial sale of Atlantic highly migratory species (HMS) by HMS Charter/Headboat permit holders. Info here.

Rule NMFS announces a valid specified fishing agreement that allocates up to 1,000 metric tons (t) of the 2017 bigeye tuna limit for the Territory of American Samoa to identified U.S. longline fishing vessels. Info here.

Rule announcing a 90-day finding on a petition to identify the Northwest Atlantic subpopulation of the leatherback turtle (Dermochelys coriacea) as a Distinct Population Segment (DPS) and list it as threatened under the Endangered Species Act (ESA). Details here.

Notice The New England Fishery Management Council (Council) is scheduling a public meeting of its Joint Habitat Advisory Panel and Plan Development Team to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Info here.

Notice Free Atlantic Shark Identification Workshops and Protected Species Safe Handling, Release, and Identification Workshops will be held in January, February, and March of 2018. Details here.

RURAL UTILITIES SERVICE: Notice RUS administers rural utilities programs, including the Telecommunications Program. RUS announces the depreciation rates for telecommunications plant for the period ending December 31, 2016. Info here.