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


JUDICIAL: Includes pesticides, urb & ag, bankruptcy, water law, and administrative law issues.

In POLLINATOR STEWARDSHIP COUNCIL; American Honey Producers Association; National Honey Bee Advisory Board; American Beekeeping Federation; Thomas R. Smith; Bret L. Adee; Jeffery S. Anderson, Petitioners, v. U.S. ENVIRONMENTAL PROTECTION AGENCY; Scott Pruitt, in his official capacity as administrator of the USEPA, Respondents, Dow Agrosciences LLC, Respondent-Intervenor. No. 13-72346, 2017 WL 3096105 (9th Cir. June 27, 2017), appellate court vacated the EPA’s registration of sulfoxaflor and remanded for the EPA “to obtain further studies and data regarding the effects of sulfoxaflor on bees.” Court found the EPA’s decision was based on flawed and limited data. Petitioners, commercial beekeepers and beekeeping organizations, filed an application for attorneys’ fees under the Equal Access to Justice Act (EAJA), and EPA filed opposition. The court rejected EPA’s arguments that petitioner was not eligible for fees “because Smith’s and Adee’s individual net worths exceed $2,000,000.” Court awarded attorneys’ fees in the amount of $287,850.88 in favor of petitioner.

COUNTY COUNCIL OF PRINCE GEORGE’S COUNTY, MD Sitting as the District Council v. CHANEY ENTERPRISES LIMITED PARTNERSHIP et al., No. 66, Sept. Term, 2016, 2017 WL 3205518 (Md. Ct. Spec. App. July 28, 2017) concerned whether two mining companies and a mining trade organization could seek judicial review of an amended master plan “prohibiting surface mining in certain mineral-rich areas of a county.” Court determined that the district council “failed to follow its own procedure for adopting amendments to its Master Plan” and ruled them invalid. The court also found, however, that the amendments were severable and upheld “remaining portions” of the master plan.

IN RE: TERRY PROPERTIES, LLC, Debtor. NO. 16–71449, 569 B.R. 76 (Bankr. W.D. Va. July 6, 2017) involved a chapter 12 trustee and creditors that objected to confirmation of debtor LLC’s reorganization plan. Court held that the value of real property and improvements on debtor’s farm, for purposes of evaluating feasibility of proposed Chapter 12 plan, was $2,500,000. Bankruptcy court also ruled that an “upward adjustment of 1.75% from prime interest rate of 4.0% to amortize secured debt and nine-year balloon period was not appropriate for confirmation of debtor’s proposed Chapter 12 plan.” Confirmation denied.

In David A. HERR; Pamela F. Herr, Plaintiffs–Appellants, v. UNITED STATES FOREST SERVICE; Sonny Perdue, Secretary of Agriculture; Tom Tidwell, Chief of the United States Forest Service; Kathleen Atkinson, Regional Forester for the Eastern Region of the United States Forest Service; Linda Jackson, Forest Supervisor, Ottawa National Forest; Tony Holland, District Ranger, Watersmeet–Iron River Ranger Districts, Defendants–Appellees, SWC, LLC; Timothy A. Schmidt; Friends of Sylvania; Upper Peninsula Environmental Coalition, Intervenors–Appellees, No. 16-2126, 2017 WL 3160845 (6th Cir. July 26, 2017), owners of lakefront property in wilderness area created under Michigan Wilderness Act (MWA) sued Forest Service, claiming the agency lacked authority to “promulgate regulation prohibiting use of certain electric motors on lakes in the wilderness area, and restricting all watercraft on those lakes to slow no-wake speed, and seeking to enjoin enforcement of the restrictions.” District court dismissed and plaintiffs appealed. On appeal, court found the regulation banning use of motorboats “on Michigan lake that exceeded five miles per hour violated owners’ existing littoral rights under Michigan law.” Reversed for plaintiffs.

In Timothy LABATTE, Plaintiff, v. The UNITED STATES, Defendant. No. 16–798C, 2017 WL 3205967 (Fed. Ct. July 28, 2017), plaintiff, member of a class of Native American farmers, sued to recover over $200,000 in damages, arguing the USDA breached a 2011 settlement agreement and its duty of good faith and fair dealing, “by preventing a witness from testifying and further destroying the evidence of the claims process.” Court observed that the settlement agreement stated, “[d]eterminations made under this Non–Judicial Claims Process and any other determinations are final and are not reviewable by the Claims Administrator . . . or any other party or body, judicial or otherwise.” Court concluded plaintiff “knowingly and voluntarily waived his right to judicial review,” and dismissed case.


LEGISLATIVE:

S. 1622: A bill to amend the Federal Water Pollution Control Act relating to beach monitoring, and for other purposes. Bill referred to the Senate Committee on Environment and Public Works which will consider it before sending it to the Senate floor for consideration.

On the Nomination PN365: David Bernhardt, of Virginia, to be Deputy Secretary of the Interior. Nomination Confirmed 53/43.


REGULATORY: Includes USDA, EPA, FWS, ITA and NOAA rules and notices.

AGRICULTURE DEPARTMENT: Notice USDA submitted information collection requirement(s) to OMB for review. Title: U.S. Origin Health Certificate, OMB Control Number: 0579-0020. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is approving State Implementation Plan (SIP) revisions submitted by the State of Connecticut. Details here.

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

FISH AND WILDLIFE SERVICE: Notice FWS will evaluate the impacts of the proposed issuance of an incidental take permit under the Endangered Species Act to LCRA Transmission Services Corporation, for incidental take of approximately 35 federally listed species. Details here.

INTERNATIONAL TRADE ADMINISTRATION: Notice of issuance of an amended Export Trade Certificate of Review to Florida Citrus Exports, L.C., application No. 94-5A007. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule sets the recreational management measures for Gulf of Maine cod and haddock for the remainder of the 2017 fishing year. Info here.

Notice the Pacific Fishery Management Council’s (Pacific Council) Highly Migratory Species Management Team will hold a meeting, which is open to the public. Info here.

Notice NOAA published a notice in the Federal Register to request comments to inform the review the Department of Commerce is conducting pursuant to Executive Order 13795—Implementing an America-First Offshore Energy Strategy, signed on April 28, 2017. Details here.

Notice NMFS has issued an incidental harassment authorization to the California Department of Transportation to take small numbers of six species of marine mammals, by harassment, incidental to the dismantling of the original East Span of the San Francisco-Oakland Bay Bridge in the San Francisco Bay. Details here.