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 leases, climate change, labor, CWA, and international trade issues.

WESTERN RANGELAND CONSERVATION ASSOCIATION, Pearson Ranch, Yarldey Cattle Co., Runnin C Family Partnership LP, Wintch & Co. Ltd., Matthew Wood, Marilyn Wood, Platt Livestock LLC, Sage Valley Holdings, Escalante Farms, LLC, Dustin Huntington, Terril Hunt, and Mark Evans, Plaintiffs, v. Ryan ZINKE, in his official capacity as Secretary of the Interior; Michael D. Nedd, in his official capacity as acting director of the U.S. Bureau of Land Management; Edwin L. Roberson, in his official capacity as Utah State Director of the Bureau of Land Management; and Utah Bureau of Land Management, Defendants, and American Wild Horse Preservation Campaign, The Cloud Foundation, Return to Freedom, John Steele, and Lisa Friday, Defendant-Intervenors, No. 2:14-cv-00327-JNP, 2017 WL 2963433 (D. Utah July 11, 2017) involved plantiffs’ federal grazing permits (issued under the Taylor Grazing Act) allowing them to graze livestock on public rangelands. Plaintiffs argued Bureau of Land Management (BLM) “failed to perform certain ministerial duties under the Wild Free-Roaming Horses and Burros Act of 1971 (WHA),” and that BLM’s failure has “adversely impacted their ability to utilize their grazing allotments.” Plaintiffs sought to compel BLM to perform its statutory duties under Section Four of the WHA to “remove excess wild horses from both public and private lands.” Court noted that Section Four “does not prescribe any particular method or timeframe for BLM’s removal efforts from private land,” and denied plaintiffs’ injunction request.

In CLEVELAND NATIONAL FOREST FOUNDATION et al., Plaintiffs and Appellants, v. SAN DIEGO ASSOCIATION OF GOVERNMENTS et al., Defendants and Appellants; THE PEOPLE, Intervener and Appellant. CREED-21 et al., Plaintiffs and Appellants, v. SAN DIEGO ASSOCIATION OF GOVERNMENTS et al., Defendants and Appellants; THE PEOPLE, Intervener and Appellant, S223603, 2017 WL 2980146 (Cal. July 13, 2017), California’s Attorney General and some environmental groups challenged an environmental impact report (EIR) accompanying a regional development plan, claiming the EIR failed to “adequately analyze the plan’s impacts on greenhouse gas emissions and climate change.” Defendants, the regional planning agency issuing the EIR, argued it was not required under the California Environmental Quality Act (CEQA) to “use the executive order in its analysis.” Court concluded defendants did not abuse their discretion by declining to “explicitly engage in an analysis of the consistency of projected 2050 greenhouse gas emissions with the goals in the executive order.” The court noted, however, that “the analysis of greenhouse gas impacts employed by [defendants] in this case will [not] necessarily be sufficient going forward.”

In SAMUEL B. TRICKEY, Plaintiff, v. EMIL J. BROLICK, JANET HILL, JOSEPH A. LEVATO, MICHELLE J. MATHEWS-SPRADLIN, PETER W. MAY, MATTHEW PELTZ, NELSON PELTZ, TODD A. PENEGOR, PETER H. ROTHSCHILD, and ARTHUR B. WINKLEBLACK, Defendants, and THE WENDY’S COMPANY, Nominal Defendant, 16 Civ. 7789 (PAE), 2017 WL 2973983 (S.D.N.Y. July 11, 2017), a shareholder in Wendy’s (fast food company) brought a derivative action on behalf of Wendy’s against 10 of the Company’s 11 members of the Board of Directors claiming the Board “breached its fiduciary duty to the Company by declining to cause Wendy’s to join an industry alliance between farms and food retailers called the Fair Food Program (FFP).” The FFP is an “alliance among farmers, farmworkers, major restaurant chains, and retail food companies that ensures humane wages and working conditions” for farmworkers. Defendants argued plantiff’s complaint failed to plead both that plaintiff “made a pre-suit demand on Wendy’s Board that it file a breach of fiduciary duty lawsuit based on Wendy’s failure to join the FPP, or the futility of such a demand.” Court considered “demand futility” under the “Rales test,” and the “Aronson test,” and concluded plaintiff’s complaint “does not adequately plead demand futility.” Defendants’ Motion to dismiss granted.

In 26 CROWN ASSOCIATES, LLC, et al., Plaintiffs, v. GREATER NEW HAVEN REGIONAL WATER POLLUTION CONTROL AUTHORITY, et al., Defendants, No. 3:15-cv-1439 (JAM), 2017 WL 2960506 (D. Conn. July 11, 2017), property owners sued defendants under the Clean Water Act for sewer system failures that created “continuing and chronic backflows of sewage into the basement of their property, . . . and to releases of untreated sewage directly into the Long Island Sound.”  Court considered whether the alleged specific injuries “allow for a cause of action under the federal Clean Water Act.” Court concluded there was no Clean Water Act violation by defendants, reasoning that “ground water itself is not navigable, and so the act of polluting ground water does not of itself violate the Clean Water Act.”

SOLARWORLD AMERICAS, INC. AND GOAL ZERO, LLC, Plaintiff and Consolidated Plaintiff, v. UNITED STATES, Defendant, and YINGLI GREEN ENERGY HOLDING CO., LTD. ET AL., Defendant-Intervenors and Consolidated Defendant-Intervenor, No. 15-00231, Slip Op. 17-75, 2017 WL 2972171 (Ct. Intl. Trade June 28, 2017) involved an international trade dispute challenging the U.S. Department of Commerce’s (Commerce) determination in the first administrative review of the antidumping duty (ADD) order covering crystalline silicon photovoltaic cells from China. Plaintiff challenged Commerce’s “application of the China-wide rate of 249.96 percent” to ERA Solar Co., an exporter of merchandise imported by plaintiff. Plaintiff challenged the assignment of an ADD rate based on adverse facts, arguing that “Commerce improperly imputes non-cooperation to ERA Solar without record evidence.” Court sustained Commerce’s application of the China-wide AFA rate of 249.96 percent to ERA Solar “as supported by substantial evidence and in accordance with law.”


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

ANIMAL AND PLANT HEALTH INSPECTION SERVICE:

Notice APHIS will request a revision to and extension of approval of an information collection associated with the regulations for blood and tissue collection and recordkeeping at slaughtering, rendering, and approved livestock marketing establishments and facilities to enhance animal disease surveillance. Details here.

Notice APHIS will request approval of a new information collection associated with changes we are making to the National Poultry Improvement Plan Program Standards pertaining to the compartmentalization of primary poultry breeding establishments and approval of compartment components such as farms, feedmills, hatcheries, and egg depots. Details here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA approves a State Implementation Plan revision submitted by the State of Maine Department of Environmental Protection. Details here.

Rule EPA is approving a State Implementation Plan revision dated August 30, 2016, submitted by the Commonwealth of Puerto Rico to the EPA. Details here.

Rule establishing tolerances for residues of difenoconazole in or on cottonseed subgroup 20C; rice, grain; and rice, wild, grain. Info here.

Rule proposing to approve State Implementation Plan revisions submitted by the State of Utah on August 20, 2013, and on June 29, 2017. Info here.

Rule proposing to grant a petition submitted by Samsung Austin Semiconductor (Samsung) to exclude (or delist) the sludge generated from the electroplating process from the lists of hazardous wastes. Details here.

FISH AND WILDLIFE SERVICE: Notice FWS is initiating a 5-year status review of the Aleutian shield fern under the Endangered Species Act. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is adjusting the commercial aggregated large coastal shark and hammerhead shark management group retention limit for directed shark limited access permit holders in the Atlantic region from 3 LCS other than sandbar sharks per vessel per trip to 36 LCS other than sandbar sharks per vessel per trip. Info here.

Notice requesting extension of a currently approved information collection regarding the National Oceanic and Atmospheric Administration’s Southwest Fisheries Science Center operation of a billfish tagging program. Info here.

Notice the Assistant Regional Administrator for Sustainable Fisheries, Greater Atlantic Region, NMFS, has made a preliminary determination that an Exempted Fishing Permit application submitted by the Cape Cod Commercial Fishermen’s Alliance contains all of the required information and warrants further consideration. Details here.