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 water law, SNAP, ESA, and NEPA issues.

HILLS AND HOLLERS, LLC, Plaintiff-Appellant, v. OHIO GATHERING COMPANY, LLC, Defendant-Appellee, No. 17 BE 0040, 2018 WL 3434590 (Ohio Ct. App. July 2, 2018) involved a right of way agreement that granted defendant a pipeline right of way and an easement. Here, plaintiff argued it is entitled to enforce a clause in the agreement which said defendant “shall be responsible for all other taxes, charges, and market enhancements charged to the flow of gas or liquids from the [named] well pad.” Plaintiff maintained the lower court “applied the merger by deed doctrine” and argued an exception to the doctrine applies, as the clause was “independent and collateral to the right of way agreement.” Appellant concludes the conveyance to Gulfport did not extinguish its right to enforce the clause as Appellant reserved the mineral rights. Court was not persuaded and concluded plaintiff’s conveyance of the property “eliminated its right to enforce the disputed clause in the right of way agreement.” Affirmed for defendant.

In Israel K. NEGASH, et al., Plaintiffs, v. UNITED STATES of America, Defendant, No. RDB-17-1954, 2018 WL 3428716 (D. Md. July 16, 2018), plaintiff operated convenience store that participated in the Supplemental Nutrition Assistance Program (SNAP) and the Food and Nutrition Service (FNS) permanently disqualified the store for “trafficking” SNAP benefits. Evidence suggested the store’s inventory “did not lend itself to the many large, suspicious transactions at issue.” Here, plaintiff appealed summary judgment ruling for defendant and argued his store’s permanent disqualification from SNAP violated his “right to Substantive Due Process under the Fifth Amendment.” Appellate court observed that “the Fourth Circuit has held that the SNAP-disqualification scheme is constitutional on substantive due-process grounds.” The court also noted that “the permanent disqualification is rationally related to the purposes of the food stamp program.” Ruling for defendant affirmed.

In HUMANE SOCIETY OF THE UNITED STATES, Animal Protection of New Mexico, Jean Ossorio, and Peter Ossorio, Plaintiffs, v. Paul M. KIENZLE, III; William Montoya; Robert Espinoza, Sr.; Ralph Ramos; Bob Ricklefs; Elizabeth Atkinson Ryan; Thomas Salopek; and Alexandra Sandoval, Defendants, No. 16-cv-0724 WJ/SMV, 2018 WL 3429924 (D.N.M. July 16, 2018), plaintiffs sought an injunction and alleged Commissioners of the New Mexico State Game Commission adopted regulations “that authorize trapping of cougars and that by so doing, will cause ‘take’ of Mexican gray wolves in violation of the Endangered Species Act (ESA). Specifically, plaintiffs argued that “it is impossible to modify cougar traps to avoid harming wolves.” Defendants countered that “measures can be taken either by use of habitat or compliance with trapping policies and regulations, to minimize any risk of harm to Mexican wolves.” The court was persuaded by evidence that no wolf has been caught in a cougar trap since the Cougar Rule has been in effect,” and concluded that the Cougar Rule “is not causing take of the Mexican gray wolf, by any definition of the word ‘take’ under the ESA statute.” Defendants’ motion for summary judgment granted.

In Shudde FATH; Save Barton Creek Association; Friends of the Wildflower Center; Carole Keeton; Frank Cloud Cooksey; Jerry Jeff Walker; Susan Walker; Doctor Laurie Dries; Save Our Springs Alliance, Incorporated; MoPac Corridor Neighbors Alliance; The Friendship Alliance of Northern Hays County, Incorporated; Clean Water Action, Plaintiffs–Appellants v. TEXAS DEPARTMENT OF TRANSPORTATION; Central Texas Regional Mobility Authority, Defendants–Appellees, No. 17-50683, 2018 WL 3433800 (5th Cir. July 17, 2018), plaintiffs challenged Texas’s plans for some highway projects in Austin. Plaintiffs claimed Texas violated the National Environmental Policy Act (NEPA) by treating three highway projects as separate projects in studying their environmental impact, instead of as a single project. They maintained the projects should have been studied regarding their “cumulative impact.” District court held Texas complied with NEPA. Appellate court observed that “[a]gencies generally should not ‘segment,’ or divide artificially a major Federal action into smaller components to escape the application of NEPA to some of its segments.” Here, Texas admitted that it did not follow this rule, but argued that “for highway projects, agencies only have to comply with the [Federal Highway Administration’s] regulation.” Appellate court agreed with this reasoning and affirmed.


REGULATORY: Includes CCC, EPA, FWS, FDA, FNS, FSIS, and NOAA rules and notices.

COMMODITY CREDIT CORPORATION: Notice CCC is announcing the availability of competitive grants to conduct a forest inventory analysis, forest management, and economic outcomes modelling, for certain currently enrolled Conservation Reserve Program (CRP) land. Details here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is approving a request submitted by the Michigan Department of Environmental Quality (MDEQ) on February 2, 2017, and supplemented on November 8, 2017, to revise the Michigan state implementation plan (SIP) for carbon monoxide (CO). Info here.

Rule that the Clean Air Act requires each State Implementation Plan (SIP) to contain adequate provisions prohibiting emissions that will have certain adverse air quality effects in other states. Details here.

FISH AND WILDLIFE SERVCE:

Notice FWS announces the availability of three draft long-range transportation plans for public review and comment. Details here.

Notice FWS announces the availability of the Draft Recovery Plan for the Southern California Distinct Population Segment of the Mountain Yellow-legged Frog (Rana muscosa) for public review and comment. Info here.

FOOD AND DRUG ADMINISTRATIONRule FDA is announcing the withdrawal, without prejudice to a future filing, of a food additive petition (FAP 2290) proposing that the food additive regulations be amended to provide for the safe use of humate, fluvic acid, and humic substances as a source of iron in animal feed. Info here.

FOOD AND NUTRITION SERVICE:

Notice announces the annual adjustments to the national average payment rates for meals and snacks served in child care centers, outside-school-hours care centers, at-risk afterschool care centers, and adult day care centers; the food service payment rates for meals and snacks served in day care homes; and the administrative reimbursement rates for sponsoring organizations of day care homes, to reflect changes in the Consumer Price Index. Info here.

Notice announces the annual adjustments to the national average payments, the amount of money the Federal Government provides States for lunches, afterschool snacks, and breakfasts served to children participating in the National School Lunch and School Breakfast Programs. Details here.

FOOD SAFETY AND INSPECTION SERVICE:

Notice FSIS is announcing its intention to collect information in the form of consumer research that will include a web- based experimental study and a behavior change study to help inform potential revisions to the current Safe Handling Instructions (SHI) label and assess whether a label revision would improve consumer food safety behaviors. Info here.

Notice FSIS is announcing its intention to collect information from food industry and academic experts on vulnerabilities and research activities related to food defense for FSIS-regulated food products. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Notice NMFS publishes notification of a 1.85 percent fee for cost recovery under the Bering Sea and Aleutian Islands Crab Rationalization Program. Details here.

Notice is hereby given that permits or permit amendments have been issued to the following entities under the Marine Mammal Protection Act (MMPA) and the Endangered Species Act (ESA), as applicable. Details here.

Notice is hereby given that John P. Wise, Sr., Ph.D., University of Louisville, Department of Pharmacology, 500 S Preston St., Suite 1319, Louisville, KY 40202 has applied in due form for a permit to receive, import, and export biological samples from marine mammals, sea turtles, and protected sharks for scientific research purposes. Info here.