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


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JUDICIAL: Includes CAA, CWA, water law, SNAP, and ICCTA issues.

ASHTON BELL, et al, Petitioners, v. WESTROCK CP, LLC, et al, Defendants, No. 3:17-cv-829, 2018 WL 3493077 (E.D. Va. July 20, 2018) involved a challenge under the Clean Air Act (CAA) wherein plaintiffs living near a paper mill sued the mill for nuisance and trespass. Plaintiffs alleged “large amounts of wood dust from [defendants’] property invade their land, homes, and cars.” Defendants moved to dismiss and contended the CAA preempts plaintiffs’ state tort claims. Court ruled the CAA does not preempt the state law claims, stating that “[a]lthough the CAA preempts federal common law claims and interstate pollution claims, the same cannot be said for intrastate pollution.” Defendants’ motion to dismiss denied.

PUGET SOUNDKEEPER ALLIANCE, et al., Plaintiffs, v. SCOTT PRUITT, in his official capacity as Administrator of the United States Environmental Protection Agency, et al., Defendants, NO. C15-1342-JCC, 2018 WL 3569862 (W.D. Wash. July 25, 2018) involved a challenge to a 2015 rule by the Environmental Protection Agency and the United States Army Corps of Engineers defining the “waters of the United States” within the meaning of the Clean Waters Act (CWA). Here proposed intervenors sought to intervene as defendants to uphold the rule at issue and sought to defend the “Applicability Date Rule.” Court reasoned proposed intervenors “have significant economic and litigation interests at stake,” and that a ruling vacating the Applicability Date Rule “could lead to costly compliance with regulatory requirements and impact Proposed Intervenors’ litigation of parallel proceedings in multiple jurisdictions.” Motion for permissive intervention granted.

THE KLAMATH TRIBES, Plaintiff, v. UNITED STATES BUREAU OF RECLAMATION, et al., Defendants, No. 18-cv-03078-WHO, 2018 WL 3570865 (N.D. Cal. July 25, 2018) concerned an irrigation project wherein plaintiff sought injunction to protect two endangered species of sucker fish from risk of extinction. Plaintiffs argued defendants should be required “to maintain the water in the Upper Klamath Lake . . . at elevation levels suggested in a controlling Biological Opinion.” Court addressed venue concerns and considered the evidence regarding the “health of the sucker fish” population at issue. Court was not persuaded plaintiffs “are likely to prevail on the merits or that the sucker fish will suffer irreparable harm if I do not grant the [injunction].” Court denied plaintiff’s motion after concluding “there is no doubt that granting a mandatory injunction that cuts off water to the Klamath Irrigation District will cause substantial harm to others that depend on it.”

In UNITED STATES of America, Plaintiff-Appellee, v. Leroy ROBINSON, II, Defendant-Appellant, No. 17-13510, 2018 WL 3559114 (11th Cir. July 24, 2018), defendant appealed his conviction for wire fraud relating to a scheme to defraud the Supplemental Nutrition Assistance Program (SNAP). Defendant claimed his 78-month prison sentence was “substantively unreasonable” and “disparate from . . . the owner of the SNAP-authorized retailer who received a sentence of 15 months’ imprisonment.” Court noted that his co-defendant plead guilty, while defendant took his case to a jury. The court also noted that defendant “was considered an organizer of the criminal activity, meriting an additional four-level increase.” Affirmed.

Mark GRIFFIOEN, Joyce Ludvicek, Mike Ludvicek, Sandra Skelton, and Brian Vanous, Individually and on Behalf of All Others Similarly Situated, Appellants, v. CEDAR RAPIDS AND IOWA CITY RAILWAY COMPANY, Alliant Energy Corporation, Union Pacific Railroad Company, and Union Pacific Corporation, Appellees, No. 16-1462, 2018 WL 3084011 (Iowa July 18, 2018) involved a class-action suit by landowners against a railroad after their property was damaged in a flood. Railroad argued the suit was preempted by the Federal Interstate Commerce Commission Termination Act (ICCTA). The railroad had allegedly “parked railcars laden with rocks on their bridges to weigh down the bridges in an effort to keep them from washing away during the flooding,” and the bridges collapsed. Plainitffs’ suit challenged “where and when railroads placed their railcars on their transportation lines.” Iowa Supreme Court concluded that “[i]mposing the liability . . . on the railroads would not have an ‘incidental’ effect but would, undoubtedly, affect the actions taken by these railroads and others with respect to their rail bridges in the future whenever flooding is possible.” Court affirmed judgment on the pleadings based on ICCTA preemption.


LEGISLATIVE:

H.R. 1220: To establish the Adams Memorial Commission to carry out the provisions of Public Law 107-62. This bill’s text for status Passed the House (Jul 23, 2018) is now available.

S. 612: Udall Park Land Exchange Completion Act. This bill’s text for status Reported by Senate Committee (Jul 23, 2018) is now available.

H.R. 1547: Udall Park Land Exchange Completion Act. This bill’s text for status Reported by Senate Committee (Jul 23, 2018) is now available.

H.R. 2630: La Paz County Land Conveyance Act. This bill’s text for status Passed the House (Jul 23, 2018) is now available.

H.R. 3045: Eastern Legacy Extension Act. This bill’s text for status Passed the House (Jul 23, 2018) is now available.

H.R. 5613: To designate the Quindaro Townsite in Kansas City, Kansas, as a National Commemorative Site. This bill’s text for status Reported by House Committee (Jul 23, 2018) is now available.

H.R. 5875: To amend the Pittman-Robertson Wildlife Restoration Act and the Dingell-Johnson Federal Aid in Sport Fish Restoration Act, to provide parity for United States territories and the District of Columbia. This bill’s text for status Passed the House (Jul 23, 2018) is now available.

H.R. 5979: Mill Springs Battlefield National Monument Act. This bill’s text for status Reported by House Committee (Jul 23, 2018) is now available.

S. 2278: State Offices of Rural Health Reauthorization Act of 2018. Passed Senate with an amendment by Unanimous Consent.

H.R. 5956: Northern Mariana Islands U.S. Workforce Act of 2018. Signed by President.

H.R. 6500: To expand the availability of programs of the Department of Agriculture to veteran farmers and ranchers. Referred to the House Committee on Agriculture which will consider it before sending it to the House floor for consideration.

H.R. 6492: To designate certain lands in the State of Colorado as components of the National Wilderness Preservation System. This bill was referred to the House Committee on Natural Resources.

H.R. 6487: To provide for greater consultation between the Federal government and the governing bodies of land grant-merceds and acequias in New Mexico. Referred to the House Committee on Natural Resources.

H.R. 6484: To provide for the designation of the Devil’s Staircase Wilderness Area in the State of Oregon, to designate segments of Wasson and Franklin Creeks in the State of Oregon as wild or recreation rivers. Referred to the House Committee on Natural Resources.

S. 756: SOS Act of 2017. This bill’s text for status Passed the House with an Amendment (Jul 25, 2018) is now available.

H.R. 4645: East Rosebud Wild and Scenic Rivers Act. Passed Senate without amendment by Unanimous Consent.

S. 2278: State Offices of Rural Health Reauthorization Act of 2018. This bill’s text for status Referred to House Committee (Jul 25, 2018) is now available.

S. 3268: A bill to amend the Richard B. Russell National School Lunch Act to establish a permanent, nationwide summer electronic benefits transfer for children program. Bill referred to the Senate Committee on Agriculture, Nutrition, and Forestry which will consider it before sending it to the Senate floor for consideration.

S. 3262: A bill to provide the option of discharging certain unsecured financial obligations of self-governing territories of the United States. Referred to the Senate Committee on Energy and Natural Resources.

H.R. 6522: To establish the Santa Cruz Valley National Heritage Area. Referred to the House Committee on Natural Resources which will consider it before sending it to the House floor for consideration.


REGULATORY: Includes ARS, APHIS, EPA, FDA, FNS, FS, NIFA, NOAA, and RUS rules and notices.

AGRICULTURAL RESEARCH SERVICE: Notice the U.S. Department of Agriculture, Forest Service, intends to grant to Domtar Paper Company, LLC of Fort Mill, South Carolina, an exclusive license to U.S. Patent No. 9,540,244, “METHODS FOR SYNTHESIZING GRAPHENE FROM A LIGNIN SOURCE”, issued on January 10, 2017. Info here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE:

Notice announces the Animal and Plant Health Inspection Service’s intention to request a revision to and extension of approval of an information collection associated with the Emergency Management Response System. Details here.

Notice announces the Animal and Plant Health Inspection Service’s intention to request a revision to and extension of approval of an information collection associated with the regulations for the importation of apples from China. Info here.

Notice announces the Animal and Plant Health Inspection Service’s intention to request a revision to and extension of approval of an information collection associated with the regulations for the importation of papayas from Peru into the continental United States. Details here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA Region 8 announces the deletion of the Davenport and Flagstaff Smelters Superfund Site (Site) located in Sandy City, Salt Lake County, Utah, from the National Priorities List (NPL). Details here.

Rule EPA Region 6 is publishing a direct final Notice of Deletion of the Old Esco Manufacturing, Superfund Site (Site), located in Greenville, Texas, from the National Priorities List (NPL). Info here.

Rule EPA Region 5 is publishing a direct final Notice of Partial Deletion of the Former Process Area (FPA) portion of the Peters Cartridge Factory Superfund Site in Kings Mills, Ohio from the National Priorities List (NPL). Details here.

Rule EPA Region 6 is issuing a Notice of Intent to Delete the Old Esco Manufacturing Superfund Site (Site) located in Greenville, Texas, from the National Priorities List (NPL) and requests public comments on this proposed action. Info here.

Rule EPA is establishing initial air quality designations for the eight counties in the San Antonio-New Braunfels, Texas Core Based Statistical Area for the 2015 primary and secondary national ambient air quality standards for ozone. Info here.

Rule finalizes the residual risk and technology review (RTR) conducted for the Portland Cement Manufacturing Industry source category regulated under national emission standards for hazardous air pollutants. Details here.

Rule establishes tolerances for residues of florasulam in or on teff forage, teff grain, teff hay, and teff straw. Interregional Research Project Number 4 (IR-4) requested these tolerances under the Federal Food, Drug, and Cosmetic Act. Info here.

FOOD AND DRUG ADMINISTRATION: Notice FDA is announcing the fiscal year (FY) 2019 fee rates for certain domestic and foreign facility reinspections, failures to comply with a recall order, and importer reinspections that are authorized by the Federal Food, Drug, and Cosmetic Act. Info here.

FOOD AND NUTRITION SERVICENotice announces the national average value of donated foods or, where applicable, cash in lieu of donated foods, to be provided in school year 2019 (July 1, 2018, through June 30, 2019) for each lunch served by schools participating in the National School Lunch Program (NSLP), and for each lunch and supper served by institutions participating in the Child and Adult Care Food Program (CACFP). Info here.

FOREST SERVICE: Notice the Idaho Panhandle National Forests is proposing to charge new fees at one day-use boat launch for $5 per vehicle. Details here.

NATIONAL INSTITUTE OF FOOD AND AGRICULTURE: Notice announces the National Institute of Food and Agriculture’s (NIFA’s) intention to request an extension for a currently approved information collection (OMB No. 0524-0026) for Form NIFA-666, “Organizational Information.” Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS closes the northern area Angling category fishery for large medium and giant Atlantic bluefin tuna (BFT). Info here.

Rule NMFS’ Office of Protected Resources (OPR), upon request of NMFS’ Northwest Fisheries Science Center (NWFSC), hereby issues regulations to govern the unintentional taking of marine mammals incidental to fisheries research conducted in the Pacific Ocean over the course of five years. Info here.

Rule NMFS is proposing to amend the 2006 Consolidated Atlantic Highly Migratory Species (HMS) Fishery Management Plan (FMP) based on the results of the 2017 stock assessment and a subsequent binding recommendation by the International Commission for the Conservation of Atlantic Tunas (ICCAT) for North Atlantic shortfin mako sharks. Info here.

Rule NMFS announces that the Mid-Atlantic Fishery Management Council has submitted Amendment 20 to the Atlantic Mackerel, Squid, and Butterfish Fishery Management Plan to the Secretary of Commerce for review and approval. Details here.

RURAL UTILITIES SERVICE: Notice the Rural Utilities Service (RUS), an agency of the United States Department of Agriculture, invites comment on the implementation of certain provisions of its pilot broadband program (e-Connectivity Pilot) established on March 23, 2018, in the Consolidated Appropriations Act of 2018. Info here.