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


ANNOUNCEMENT:

Mark your calendar for the next Agricultural & Food Law Consortium webinar, Wednesday, June 20th: Cottage Food Laws: Adequately Addressing Food Safety and Economic Opportunity? 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 WOTUS, landowner liability, and animal welfare issues.

In STATE OF GEORGIA, et al., Plaintiffs, v. SCOTT PRUITT, et al., Defendants, No. 2:15-cv-79, 2018 WL 2766877 (S.D. Ga. June 8, 2018), plaintiffs, a collection of states, sued administrators of the United States Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (Army Corps), claiming the agencies issued a final rule (WOTUS Rule) and that the Rule violated the Clean Water Act (CWA), the Administrative Procedure Act (APA), and the Commerce Clause. Here, plaintiffs sought an injunction and the court observed that “[t]he WOTUS Rule allows the Agencies to regulate waters that do not bear any effect on the ‘chemical, physical, and biological integrity’ of any navigable-in-fact water.” Court concluded plaintiffs “clearly met the burden of persuasion on each of the four factors entitling them to a preliminary injunction.”

Paul F. SHOEN; and Ruth Robertson, individually, Appellants, v. MADDI’S FRESIAN RANCH, LLC, a Nevada limited liability company; Maddi’s Ranch, LLC, a Nevada limited liability company; Ruth L. Page; and Gregory V. Walsh, Respondents, No. 72093, 2018 WL 2373919 (Nev. May 21, 2018) involved an easement dispute wherein defendants permitted neighbors to walk their dogs on property benefitted by two roadway easements across neighboring land owned by plaintffs. Both parties acknowledged that “pedestrians regularly accessed the roadway easements,” but plaintffs sued regarding the use of the easements for walking dogs as pet owners refused to clean up after the dogs. Court observed that “[p] Pedestrian use, such as walking a dog across the roadway easements, is reasonable and does not exceed the extent of use expressly allowed by the easements.” Ruling for defendants affirmed.

PEOPLE FOR the ETHICAL TREATMENT OF ANIMALS, INC.; Animal Legal Defense Fund; Center for Food Safety; Food & Water Watch; Farm Sanctuary; Government Accountability Project; American Society for the Prevention of Cruelty To Animals; Farm Forward, Plaintiffs-Appellants, v. Attorney General Joshua STEIN, Attorney General of the State of North Carolina; Carol L. Folt, in her official capacity as Chancellor of the University of North Carolina-Chapel Hill, Defendants-Appellees. Alan Chen; Erwin Chemerinsky; Eric Fink; Justin Pidot; John F. Preis; Alexander A. Reinert; The Reporters Committee for Freedom of the Press; American Society of News Editors; Associated Press Media Editors; Association of Alternative Newsmedia; Association of American Publishers, Inc.; Brechner Center for Freedom of Information; The Charlotte Observer; First Amendment Coalition; Freedom of the Press Foundation; Gatehouse Media, LLC; Inter American Press Association; International Documentary Association; Investigative Reporting Program at UC Berkeley; Investigative Reporting Workshop At American University; Meredith Corporation, d/b/a WHNS-TV (Greenville, SC); MPA—The Association of Magazine Media; National Press Photographers Association; The News & Observer; Pen America; Radio Television Digital News Association; Reporters Without Borders; Sinclair Broadcast Group, Inc.; Society of Professional Journalists; Student Press Law Center; Tully Center for Free Speech; WTVD Television, LLC, Amici Supporting Appellants, No. 17-1669, 2018 WL 2714684 (4th Cir. June 5, 2018) involved the North Carolina Property Protection Act, wherein plaintiffs engaged uncovering acts of animal cruelty alleged the Act “interferes with their plans to conduct undercover investigations of government facilities in North Carolina for the purpose of gathering evidence of unethical and illegal animal practices and to disseminate this information to the public.” Plaintiffs wanted Act declared unconstitutional, but defendants argued plaintiffs’ injuries were “too speculative to confer standing.” District court dismissed and on appeal, plaintiffs claimed “the primary purpose of the Act . . . is to punish private special-interest organizations like PETA and ALDF, who plant investigators in public and private facilities to collect and share information.” Appellate court agreed with plaintiffs and noted the Act “appears by its terms to prohibit Plaintiffs’ planned activities and to subject them to civil liability, including severe exemplary damages.” Reversed and remanded.


LEGISLATIVE:

S. 3045: A bill to amend title 31, United States Code, to establish a safe harbor with respect to keep open letters. Referred to the Senate Committee on Banking, Housing, and Urban Affairs.

S. 3042: A bill to provide for the reform and continuation of agricultural and other programs of the Department of Agriculture through fiscal year 2023. Referred to the Senate Committee on Agriculture, Nutrition, and Forestry.

S. 3046: A bill to allow the Secretary of Agriculture to enter into self-determination contracts with Indian Tribes and Tribal organizations to carry out supplemental nutrition assistance programs. Referred to the Senate Committee on Indian Affairs which will consider it before sending it to the Senate floor for consideration.


REGULATORY: Includes FNS and NOAA rules and notices.

FOOD AND NUTRITION SERVICE:

Notice seeks comment on this proposed information collection. This collection is a revision of the currently approved collection for the Child Nutrition Program Operations Study-II (CN-OPS II) [OMB Control Number 0584-0607]. The purpose of the revision is to update the survey instruments for school year (SY) 2018-19 to include topics of current interest. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is prohibiting directed fishing for Pacific cod by vessels using jig gear in the Central Regulatory Area of the Gulf of Alaska (GOA). Info here.

Notice the SEDAR 60 assessment of the South Atlantic stock of Red Porgy will consist of a series of webinars and an in-person workshop. Details here.

Notice the New England Fishery Management Council (Council) is scheduling a public meeting of its Fishery Data for Stock Assessment Working Group to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Info here.

Notice the Pacific Fishery Management Council’s adhoc Sablefish Management and Trawl Allocation Attainment Committee will hold a meeting. Info here.

Notice that permits or permit amendments have been issued to the following entities under the Marine Mammal Protection Act and the Endangered Species Act. Details here.

Notice NMFS has issued an incidental harassment authorization (IHA) to Chevron to incidentally take, by Level A and/or Level B harassment, seven species of marine mammals during the Long Wharf Maintenance and Efficiency Project (WMEP) in San Francisco Bay, California. Info here.