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 FOIA, finance & credit, CWA, and climate change issues.

In William J. BUSH Plaintiff-Appellant v. RISK MANAGEMENT AGENCY, USDA/RMA; United States Department of Agriculture Defendants-Appellees, No. 17-3295, 2018 WL 3154349 (8th Cir. June 26, 2018), plaintiff appealed grant of summary judgment to USDA’s Risk Management Agency regarding plaintiff’s Freedom of Information Act (FOIA) action. Plaintiff sought information on “soybean and corn yields, aggregated by section, for four Iowa townships.” Court observed that in FOIA cases, grant of summary judgment is appropriate where “the agency proves that is has fully discharged its obligations under FOIA, after the underlying facts and inferences to be drawn from them are construed in the light most favorable to the FOIA requester.” Affirmed.

In UNITED STATES OF AMERICA, Plaintiff, v. WENDY HUDSON GIDDENS, SETH HUDSON GIDDENS, JEREMY L. HUDSON, and JOSHUA L. HUDSON, Defendants, NO. 7:16-CV-7-FL, 2018 WL 3352646 (E.D.N.C. July 9, 2018), Farm Service Agency (FSA) sought judgment for defendants’ alleged default on six operating loans. FSA claimed defendants “applied for FSA loans claiming to farm as individuals conducting their own separate farming operations,” received Farm Program loans, and are therefore indebted to the FSA.” Court observed that FSA’s claim that the defendants are in default on the six FSA loans “is analyzed as a breach of contract claim.” Court reasoned the parties “formed a legally binding contract when defendants signed the promissory notes,” and that defendants breached the contract “when they failed to fully pay the loans.” Summary judgment for plaintiff granted.

In OHIO VALLEY ENVIRONMENTAL COALITION, INC.; Sierra Club; West Virginia Highlands Conservancy, Inc.; West Virginia Rivers Coalition, Plaintiffs–Appellees, v. Scott PRUITT, Administrator, United States Environmental Protection Agency; Cecil Rodrigues, Acting Regional Administrator, United States Environmental Protection Agency, Region III, Defendants–Appellants, No. 17-1430, 893 F.3d 225 (4TH Cir. June 20, 2018), environmental groups sued Environmental Protection Agency (EPA) under the Clean Water Act (CWA) claiming the agency “failed to perform nondiscretionary duty to promulgate pollutant limits for biologically impaired waters in West Virginia.” District court found that the EPA’s duty “had been triggered by West Virginia constructively submitting no total maximum daily loads (TMDLs) for the waters,” and ruled for plaintiffs. Appellate court reversed the decision after concluding that although the plaintiffs had requisite standing, West Virginia “had not constructively refused to submit TMDLs.”

In SIERRA CLUB, Petitioner and Appellant, v. COUNTY OF KERN et al., Defendants and Respondents, F071133, 2018 WL 3360567 (Cal. Ct. App. July 10, 2018), County approved a future development plan and certified a related program environmental impact report (EIR) prepared pursuant to the California Environmental Quality Act (CEQA). Environmental group argued EIR violated CEQA by, among other reasons, “inadequately mitigating impacts to agricultural resources.” Appellate court found that with respect to the conversion of farmland to nonagricultural uses, “CEQA does not require a greater amount of farmland be placed under an agricultural conservation easement . . . than the amount of farmland converted to nonagricultural use.” Reversed and remanded for issuance of a writ of mandate “directing County to take action correcting the CEQA violation.”


H.R. 5895: Energy and Water, Legislative Branch, and Military Construction and Veterans Affairs Appropriations Act, 2019. Passed in the House and the Senate, but the Senate made changes and sent it back to the House on June 25, 2018.


REGULATORY: Includes AMS, EPA, and FDA rules and notices.

AGRICULTURAL MARKETING SERVICE:

Rule implements a recommendation to establish handler diversion and reporting requirements under the marketing order for cranberries grown in the production area. Info here.

Notice that the comment period on the proposed rule to amend the Mango Promotion, Research, and Information Order to include frozen mangos is reopened and extended. Details here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is taking final action to approve a revision to the Yolo-Solano Air Quality Management District portion of the California State Implementation Plan (SIP). Details here.

Rule EPA is approving a state implementation plan (SIP) revision submitted by the State of Delaware. Info here.

Rule provides supplemental notice for the Environmental Protection Agency (EPA) and the Department of the Army to clarify, supplement and seek additional comment on an earlier proposal, published on July 27, 2017, to repeal the 2015 Rule Defining Waters of the United States, which amended portions of the Code of Federal Regulations (CFR). Details here.

FOOD AND DRUG ADMINISTRATION: Rule FDA proposes to revise the type size labeling requirements for front of package (FOP) calorie declarations for packaged food sold from glass front vending machines. Details here.