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


JUDICIAL: Includes urb & ag, environmental, food labeling, CWA, and pesticide issues.

CITY OF SIDNEY, OHIO, PLAINTIFF-APPELLEE, v. SPRING CREEK CORPORATION, ET AL., DEFENDANTS-APPELLANTS, And MIAMI CONSERVANCY DISTRICT, ET AL. DEFENDANTS-APPELLEES, NO. 17-17-07, 2017 WL 5989073 (Ohio Ct. App. December 4, 2017) involved a dispute over two parcels of land sitting above an aquifer. Plaintiff and defendant executed a conservation easement and issue for court was whether a particular easement “is held for the purpose of retaining land ‘predominantly in [its] natural, scenic, open, or wooded condition.’” Defendants argued that “Ohio’s public policy favors conservation easements over the use of eminent domain.” Court disagreed and noted that “the easement provides that two mining and mineral extraction methods may be used” to clear the land and remove topsoil. Court concluded that the “terms of the easement make clear that it is not intended to preserve the Property predominantly in its natural condition.” Affirmed for plaintiff.

In STATE OF MISSOURI, Respondent, v. MARK SHANKLIN, Appellant, No. SC 96008, 2017 WL 6011959 (Mo. December 5, 2017), defendant appealed his conviction of “producing more than five grams of marijuana, possession of more than five grams of marijuana with intent to distribute, and possession of drug paraphernalia.” Defendant argued the Missouri Constitution protects “the right of farmers and ranchers to engage in farming and ranching practices.” Court observed that the relevant statue “protects the right to engage in lawful farming and ranching practices. It does not create a new constitutional right to engage in the illegal drug trade.” Conviction upheld.

In WESTERN WATERSHEDS PROJECT and Wildearth Guardians, Plaintiffs, v. U.S. FOREST SERVICE, Defendant, No. 1:17-CV-434-CWD, 2017 WL 5571574 (D. Idaho November 20, 2017), plaintiff filed motion to “enjoin grazing of domestic sheep on [allotments] in the . . . National Forest.” Plaintiffs argued the sheep pose a “grave risk to the nearby South Beaverhead bighorn sheep population,” and that authorizing the grazing is “inconsistent with the direction set forth in the 1997 Revised Forest Plan . . . and thus is also a violation of NFMA.” FS  argued it is in compliance with the Forest Plan “because it has acted to limit domestic sheep grazing within the Forest and within the allotments at issue.” Motion for preliminary injunction granted after court determined that “there is a likelihood of irreparable harm if the grazing proceeds, that the balance of harm clearly tips in favor of the Plaintiffs, and that an injunction is in the public interest.”

In Polly PODPESKAR, individually on behalf of herself and all others similarly situated, Plaintiff, v. DANNON COMPANY, INC., Defendant, 16-cv-8478 (KBF), 2017 WL 6001845 (S.D.N.Y. December 3, 2017), plaintiff claimed defendant’s use of the word “natural” on its yogurt labels is deceptive because “the cows that produced the milk that produced the yogurt, may, at some point, have eaten feed made from corn that was genetically modified.” Court noted that defendant did not present its yogurt products as “GMO-free.” Court granted defendant’s motion to dismiss after concluding “[t]here is no legal support for the idea that a cow that eats GMO feed or is subjected to hormones or various animal husbandry practices produces “unnatural” products.”

In FRIENDS OF RESPONSIBLE AGRICULTURE, Respondent, Callaway Farrowing, LLC, Appellant, v. Buddy BENNETT, et al., Respondents, WD 80350, 2017 WL 6001216 (Mo. Ct. App. December 5, 2017), a water commission granted appellant an operating permit for a concentrated animal feeding operation (CAFO). Circuit court then granted respondent’s writ of mandamus request revoking the permit. Appellate court considered the language of Missouri’s Clean Water Law and determined that respondent “confuses the finality of the Commission’s decision for purposes of judicial review, with the legal correctness of the decision.” Appellate court concluded respondent could have, per statute, petitioned for “judicial review of the Commission’s permit decision.” Writ of mandamus reversed.

SYNGENTA CROP PROTECTION, LLC, Plaintiff, v. WILLOWOOD, LLC, WILLOWOOD USA, LLC, WILLOWOOD AZOXYSTROBIN, LLC and WILLOWOOD LIMITED, Defendants, 1:15-CV-274, 2017 WL 6001818 (M.D.N.C. December 4, 2017) involved a patent infringement suit filed by Syngenta that concluded in September 2017. Here, Syngenta wanted to seal some trial exhibits and parts of the trial transcript, arguing that they “contain confidential business information.” Court observed that “[o]pen courts promote the integrity of the judiciary, increase public understanding of the court system, and assure the public that proceedings and the resulting verdicts are fair.” Court considered the exhibits and testimony sought to be sealed by Syngenta and found that “the information . . . is crucial to understanding the trial, and Syngenta has not established that its private interest outweighs the public interest in open courts.” The court, however, considered “additional confidential information that was never mentioned during the trial but is in evidence,” and found that with respect to that information, “non-disclosure will not interfere with public understanding.”


LEGISLATIVE:

S. 2194: A bill to remove a limitation on a prohibition relating to permits for discharges incidental to normal operation of vessels. Bill referred to the Senate Committee on Environment and Public Works.

H.R. 2897: To authorize the Mayor of the District of Columbia and the Director of the National Park Service to enter into cooperative management agreements for the operation, maintenance, and management of units of the National Park System. This bill’s text for status Reported by House Committee (Dec 5, 2017) is now available.

H.R. 3979: Keep America’s Refuges Operational Act. This bill’s text for status Reported by House Committee (Dec 5, 2017) is now available.

MEETING: The Committee on Natural Resources has scheduled a markup beginning on Tuesday, December 12, 2017 at 5:00 p.m. (Location: LHOB 1324).

MEETING: Senate Committee on Agriculture, Nutrition, and Forestry. Hearings to examine safeguarding American agriculture in a globalized world. December 13, 2017 at 9:30 a.m. (Location: SR-328A).


REGULATORY: Includes EPA, FS, ITA, and NOAA rules and notices. 

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is approving revisions to the Texas State Implementation Plan (SIP) Emissions Banking and Trading Programs submitted on October 10, 2017. Details here.

Rule EPA is withdrawing the October 16, 2017 direct final rule that approved a state implementation plan (SIP) revision submitted by the Commonwealth of Virginia to incorporate by reference the most recent federal ambient air quality standard for ozone into Virginia’s SIP. Info here.

Rule EPA is proposing to approve the Indiana regional haze progress report under the Clean Air Act as a revision to the Indiana State Implementation Plan (SIP). Derails here.

Rule EPA is proposing to approve elements of the State Implementation Plan (SIP) submission from Ohio regarding the infrastructure requirements of section 110 of the Clean Air Act (CAA) for the 2012 annual fine particulate matter (PM<INF>2.5</INF>) National Ambient Air Quality Standard. Info here.

FOREST SERVICE: Notice to extend the public scoping period for the Ragged Ruby Project for two proposed forest plan amendments. Details here.

INTERNATIONAL TRADE ADMINISTRATION:

Notice ITA is conducting the 22nd administrative review of the antidumping duty order on fresh garlic from the People’s Republic of China (PRC) and two concurrent new shipper reviews. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is proposing regulations under the Tuna Conventions Act to revise trip limits on the commercial catch of Pacific bluefin tuna applicable to 2018. Info here.

Notice that the Sauk-Suiattle Indian Tribe, Swinomish Indian Tribal Community, Upper Skagit Indian Tribe, and the Skagit River System Cooperative and the Washington Department of Fish and Wildlife have jointly submitted a steelhead fishery resource management plan (RMP) to NMFS pursuant to the limitation on take prohibitions for actions conducted under Limit 6 of the 4(d) Rule for salmon and steelhead promulgated under the Endangered Species Act. Info here.

Notice that Kerri Smith, University of Texas at El Paso, 500 West University Ave., El Paso, Texas 79968, has applied in due form for a permit to receive, import and export marine mammal specimens for scientific research. Info here.