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


ANNOUNCEMENT: 

Join us Wednesday, July 25th, at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: Compliance with DOL and Immigration Laws and Regulations for Agricultural Businesses. 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 EPA, CWA, landowner liability, and environmental issues.

CITY OF TAUNTON, MASSACHUSETTS, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent, No. 16-2280, 2018 WL 3342108 (1st Cir. July 9, 2018) involved a challenge to the Environmental Protection Agency’s (EPA) decision to impose a limit, via a National Pollutant Discharge Elimination System (NPDES) permit,  on the amount of nitrogen that a wastewater facility could discharge. City offered a number of procedural and substantive challenges, but ultimately, the court reasoned the “EPA’s detailed explanation of how it calculated the permit’s nitrogen limit . . . reveals, that limit falls within the ‘zone of reasonableness,’ and so we do not see fit to second-guess it.” EPA’s permit decision affirmed.

UNITED STATES of America, Plaintiff-Appellee, v. Gregory OBENDORF, Defendant-Appellant, No. 16-30188, 2018 WL 3341033 (9th Cir. July 9, 2018) involved an Idaho farmer convicted of illegally baiting ducks in violation of the Migratory Bird Treaty Act (MBTA). Farmer claimed he was not baiting ducks and argued that he was “simply farming his land.” Here, farmer appealed ruling because at trial, court did not allow him to cross-examine government witnesses about the “propriety of his farming practices.” Appellate court noted that defendant “was charged with unlawful baiting, not unlawful hunting,” and concluded Migratory Bird Treaty Act regulations “do not create a regulatory exception to the MBTA’s ban on unlawful baiting.” Defendant’s conviction affirmed.

In Shane Reasner, Appellant, v. Ross Goldsmith, et al., Respondents, A17-1989, 2018 WL 3340462 (Minn. Ct. App. July 9, 2018), plaintiff appealed dismissal of his negligence claims for injuries sustained when his car collided with defendants’ cow on a public highway. On appeal, plaintiff argued “genuine issues of material fact exist with respect to his claims.” Appellate court observed that “the evidence here is sufficient to ‘permit reasonable persons to draw different conclusions’ about where the cattle were located on the night of the accident and whether they were properly enclosed.” Reversed for plaintiff.

AMERICAN RIVERS and Alabama Rivers Alliance, Petitioners v. FEDERAL ENERGY REGULATORY COMMISSION and United States Secretary of the Interior, Respondents, Alabama Power Company, Intervenor, No. 16-1195, Consolidated with 16-1336, 2018 WL 3320870 (D.C. July 6, 2018) concerned the Federal Energy Regulatory Commission’s grant of a 30-year license to the Alabama Power Company to continue power generation on a portion of a river. Notably, a review documented that the project “would cause a 100% take of multiple endangered mussels, a large loss of indigenous fish, and perilously low dissolved oxygen levels for substantial periods of time.” Despite this review, the Commission concluded that licensing the generation project “would have no substantial impact on either the River’s ecological condition or endangered species.” Court considered evidence of damage to the environment and concluded that “[b]ecause the Commission’s environmental review and a biological opinion it relied on were unreasoned and unsupported by substantial evidence, the Commission’s issuance of the license was arbitrary and capricious.” Court dismissed petition for review.


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

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is taking final action to approve, as a revision of the California state implementation plan (SIP), the State’s request to redesignate the Chico nonattainment area to attainment for the 2006 24-hour fine particulate matter National Ambient Air Quality Standard. Details here.

Rule corrects an error in the language of a final rule pertaining to Environmental Protection Agency (EPA)’s approval of the revised motor vehicle emissions budgets for the Charleston, Huntington, Parkersburg, Weirton, and Wheeling 8-hour ozone maintenance areas. Info here.

FISH AND WILDLIFE SERVICE: Notice FWS is proposing a new information collection. Title: Pre-Acquisition Tracking System, Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Notice NOAA invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. Details here.

Notice NOAA announces its intention to prepare a programmatic environmental impact statement (PEIS) in accordance with the National Environmental Policy Act of 1969 (NEPA) for its Coral Reef Conservation Program. Details here.

Notice NMFS has considered public comments for revisions of the 2017 marine mammal stock assessment reports. Info here.

Notice NMFS has issued an incidental harassment authorization (IHA) to Kitsap Transit, to incidentally take, by Level A and B harassment, marine mammals during construction activities associated with the Annapolis Passenger Ferry Dock Project in Puget Sound, Washington. Info here.