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, Tuesday, January 16th: “The New Deal: Understanding and Negotiating Dairy Supply Contracts.” Details available here.


JUDICIAL: Includes CWA, bankruptcy, pesticide, and food labeling issues.

In SIERRA CLUB, INC., Plaintiff, v. CON-STRUX, LLC., and MARK BRETZ, Defendants, CV 16-4960 (AYS), 2017 WL 6734184 (E.D.N.Y. December 29, 2017), plaintiff claimed defendant, a concrete and asphalt recycling company, violated the Clean water Act. Issue was whether defendant could be considered an “industrial facility within the meaning of the CWA,” and thus, “required to obtain a storm water runoff permit.” Defendants argued their facilities do nothing more than crush “clean and uncontaminated” concrete and asphalt and that “they are not engaged in industrial activity subject to the CWA’s storm water runoff regulation.”  Court found plaintiff’s application of the CWA to “all facilities engaged in any way, in the business of recycling,” too broad. Motion to dismiss granted.

In In re: John Riley O’Steen, d/b/a Riley O’Steen Dairy, Ashley Koon O’Steen, Debtors. Lafayette State Bank, Plaintiff, v. John Riley O’Steen, d/b/a Riley O’Steen Dairy, Ashley Koon O’Steen, Defendants, No. 3:14-bk-4766-PMG, Adv. No. 3:15-ap-393-PMG, 2017 WL 6729167 (Bankr. M.D. Fla. December 28, 2017), a couple of dairy farmers filed for bankruptcy and Bank claimed they were “self-liquidating” their cattle while the bankruptcy case was pending, “without informing the Bank of the cattle sales, and without accounting to the Bank for the sale proceeds.” Court concluded debtors did not transfer “the livestock and proceeds with actual fraudulent intent” or that debtors “willfully and maliciously converted the Bank’s collateral.” Discharge of debtors entered in chapter 7 bankruptcy.

In Dallas SCHOTT and Corson County Feeders, Inc., Plaintiffs and Appellants, v. SOUTH DAKOTA WHEAT GROWERS ASSOCIATION, Defendant and Appellee, 28095, 2017 WL 6616229 (S.D. December 27, 2017), plaintiff claimed defendant’s agronomist incorrectly prescribed a herbicide that plaintiff sprayed on his sunflower crop. It was determined that the herbicide “was not labeled for use on all of planitff’s sunflowers,” and 1200 acres were destroyed. Circuit court found that plaintiff “assumed the risk” of using the herbicide. Appellate court found “disputed issues of fact concerning [plaintiff’s] knowledge and appreciation of the risk.” Reversed and remanded.

In ANNE de LACOUR individually and on behalf of all others similarly situated and ANDREA WRIGHT individually and on behalf of all others similarly situated, Plaintiff, v. COLGATE-PALMOLIVE CO. and TOM’S OF MAINE INC., Defendants, No. 16-CV-8364 (RA), 2017 WL 6550690 (S.D.N.Y. December 22, 2017), plaintiffs sued alleging defendant’s use the word “natural” in advertising their deodorant and toothpaste is “false and misleading.” Plaintiffs argued defendants’ products are “unnatural because they contain ‘synthetic and highly chemically processed ingredients.’” Defendants argued court should stay the case “until the U.S. Food and Drug Administration can weigh in on the meaning of ‘natural.’” Court observed that “[i]n the nearly two years since the comments were due, the FDA has given no indication that it will issue a rule on the use of the term ‘natural’ in the food context any time in the near future.” Defendants’ motion denied.


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

AGRICULTURE DEPARTMENT:

Rule USDA is announcing that it has withdrawn certain advance notice of proposed rulemakings and proposed rules that were either published in the Federal Register more than 4 years ago without subsequent action or determined to no longer be candidates for final action. USDA is taking this action to reduce its regulatory backlog and focus its resources on higher priority actions. Info here.

Notice USDA will submit the following information collection requirement(s) to OMB for review. Title: Agricultural Labor Survey. Info here.

ENVIRONMENTAL PROTECTION AGENCY: Rule EPA is establishing by this regulation the methodology the Agency will use to determine and revise the user fees applicable to the electronic and paper manifests to be submitted to the national electronic manifest system that EPA is developing under the Hazardous Waste Electronic Manifest Establishment Act. Info here.

FISH AND WILDLIFE SERVICE:

Rule FWS proposes to remove the Foskett speckled dace from the Federal List of Endangered and Threatened Wildlife on the basis of recovery. Details here.

Rule FWS wants to list the Barrens topminnow as an endangered species under the Endangered Species Act. Info here.

FOREST SERVICE:

Rule FS is proposing to revise its National Environmental Policy Act (NEPA) procedures with the goal of increasing efficiency of environmental analysis. Details here.

Notice FS is preparing the Custer Gallatin National Forest’s revised land management plan. Details here.

INTERNATIONAL TRADE ADMINISTRATION:

Notice ITA is issuing countervailing duty (CVD) orders on biodiesel from the Republic of Argentina and Indonesia. Details here.

Notice ITA is issuing a countervailing duty order on Softwood Lumber from Canada. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is prohibiting directed fishing for Pacific cod by catcher vessels using hook-and-line gear in the Western Regulatory Area of the Gulf of Alaska (GOA). Info here.

Rule NMFS is prohibiting directed fishing for Pacific cod by vessels using jig gear in the Central Regulatory Area of the Gulf of Alaska (GOA). Details here.