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


ANNOUNCEMENT: Join us Wednesday, July 19, at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: “The Basics of Water Law and Its Relationship to Agriculture.” Details available here.


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

ANIMAL LEGAL DEFENSE FUND, PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, and AMY MEYER, Plaintiffs, v. GARY R. HERBERT, in his official capacity as Governor of Utah, and SEAN D. REYES, in his official capacity as Attorney General of Utah, Defendants, No. 2:13-cv-00679-RJS, 2017 WL 2912423 (D. Utah July 7, 2017) concerned Utah’s “ag-gag” law targeting undercover investigations at ag operations. The law criminalize both lying to get into an agricultural operation and filming once inside. Plaintiffs argued the law violates their First Amendment rights and defendant countered “some or all plaintiffs lack standing to sue, and even if some have standing, the Act is constitutional.” The court concluded Utah Code § 76-6-112 is “unconstitutional.”

Rose Mary KNICK, Appellant v. TOWNSHIP OF SCOTT; Carl S. Ferraro, Individually and in his Official Capacity as Scott Township Code Enforcement Officer, No. 16-3587, 2017 WL 2872871 (3rd Cir. July 6, 2017) concerned an ordinance authorizing officials to enter upon any property within a township “to determine the existence and location of any cemetery.” The ordinance also compels property owners “to hold their private cemeteries open to the public during daylight hours.” Plaintiff argued the ordinance authorizes “unrestrained searches of private property” in violation of the Fourth Amendment and that it “takes private property without just compensation” in violation of the Fifth Amendment. Court stated that, “The Township’s ordinance is extraordinary and constitutionally suspect,” but concluded plaintiff’s Fourth Amendment rights were not violated and that her Fifth Amendment claims “are not ripe until she has sought and been denied just compensation using Pennsylvania’s inverse-condemnation procedures.”

In TULKOFF FOOD PRODUCTS, INC., Plaintiff, v. WM. E. MARTIN AND SONS CO., INC., Defendant, No. ELH-17-350, 2017 WL 2909250 (D. Md. July 7, 2017), plaintiff sued alleging breach of an agreement under which defendant sold thirty-six “full container loads” (FCL) of Chinese garlic to plaintiff to be delivered on a particular schedule. Plaintiff claimed defendant failed to deliver nine of the 36 FCLs and that it incurred more than $564,000 in “direct, consequential, and incidental damages.” Defendant moved to dismiss for lack of personal jurisdiction. Court analyzed Maryland’s long-arm statute and due process requirements and concluded plaintiff met “the requisite prima facie showing of personal jurisdiction” over defendant.

AMERICAN PETROLEUM INSTITUTE, Petitioner v. ENVIRONMENTAL PROTECTION AGENCY, Respondent American Chemistry Council, et al., Intervenors, No. 09-1038, 2017 WL 2883867 (D.C. July 7, 2017) involved the EPA’s attempt to define the term “solid waste” under the Resource Conservation and Recovery Act (RCRA). In 2015, EPA issued a final rule governing when certain hazardous materials qualify as “discarded” and subject to the agency’s regulatory authority. Petitioners argued portions of the rule are “unlawful and arbitrary and capricious.” Petitioners claimed both the EPA’s “legitimacy test” and the “Verified Recycler Exclusion” exceed the agency’s RCRA authority. Court granted petition for review of Factor 4 of the EPA’s legitimacy test.


REGULATORY: Includes FWS, FDA, FS, NOAA, and OAO rules and notices.

FISH AND WILDLIFE SERVICE:

Notice seeking comment on applications for permits to conduct activities intended for scientific purposes that promote recovery or to enhance the propagation or survival of endangered species. Info here.

Notice FWS issued permits to conduct certain activities with endangered species, marine mammals, or both. Details here.

FOOD AND DRUG ADMINISTRATION: Notice is withdrawing approval of two new animal drug applications. Info here.

FOREST SERVICE: Notice Forest Service is seeking comments from all interested individuals and organizations on the extension of a currently approved information collection, Disposal of Mineral Materials. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule approves and implements regulations submitted by the New England and Mid-Atlantic Fishery Management Councils in Framework Adjustment 10 to the Monkfish Fishery Management Plan. Details here.

Notice requesting extension of a currently approved information collection. The For-Hire Telephone Survey is conducted for the National Marine Fisheries Service to estimate fishing effort and catch on for-hire vessels. Details here.

Notice requesting extension of a current information collection. Regulations at 50 CFR 648.8 and § 697.8 require that owners of vessels over 25 ft in registered length that have Federal permits to fish in the Greater Atlantic Region display the vessel’s name and official number. Details here.

Notice requesting extension of a current information collection. Regulations at 50 CFR 660.704 require that all commercial fishing vessels with permits issued under authority of the National Marine Fishery Service’s Fishery Management Plan for United States West Coast Highly Migratory Species Fisheries display the vessel’s official number. Info here.

OFFICE OF ADVOCACY AND OUTREACH: Notice announces the availability of funds and solicits applications from community-based and non-profit organizations, institutions of higher education, and Tribal entities to compete for financial assistance through the Outreach and Assistance for Socially Disadvantaged Farmers and Ranchers and Veteran Farmers and Ranchers Program. Details here.