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


ANNOUNCEMENT: Join us Wednesday, June 21, at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: “Agritourism, Zoonotic Diseases and Legal Liability.”  Details available here.


JUDICIAL: Includes CAA, ESA, water law, and CWA issues.

KAREN NAKAYAMA, and ROBERT BRIDGES, Plaintiffs, v. JENNIFER L. SANDERS, and CODY K. SANDERS, Defendants, No. 17-cv-0285-WJM-NYW, 2017 WL 2457883 (D. Colo. June 7, 2017) involved a dispute between adjacent private landowners living within an Indian Reservation in southwestern Colorado. Plaintiffs claimed defendants’ coal-fired boiler sends harmful pollutants across their property and sued under the Clean Air Act. Court noted plaintiffs’ Clean Air Act claim rests “entirely in an opacity standard promulgated by the State of Colorado.” Plaintiffs argued that if Colorado’s opacity standard did not apply on the Reservation, it would “leave broad categories of polluting activities completely unregulated and Plaintiffs without protection or remedy under the [CAA].” Court was not persuaded, finding instead that “the Clean Air Act itself does not dictate any opacity standard,” and that “the presence or absence of an opacity standard has no bearing on [plaintiffs’] ability to bring a nuisance action.”

In James GRAHAM, et al., Plaintiffs, v. SAN ANTONIO ZOOLOGICAL SOCIETY, Defendant, No. SA-15-CV-1054-XR, 2017 WL 2533531 (W.D. Tex. June 8, 2017), plaintiffs alleged a zoo violated the Endangered Species Act (ESA) “by unlawfully ‘taking’ an endangered species, which is defined to include ‘harming’ and ‘harassing’ such a species.” Plaintiffs claimed the zoo harmed and harassed an elephant (Lucky) by “keeping her alone without any Asian elephant companions,” and by “keeping her in a small enclosure which fails to meet minimum size standards set by the Association of Zoos and Aquariums (AZA).” Court allowed case to move forward on plaintiffs’ claims that defendant “is harming and harassing Lucky by providing an enclosure with an inappropriate substrate and inadequate shelter from the sun.”

In SELECT ENERGY SERVICES, LLC, a Delaware limited liability company, Plaintiff–Appellee, and Division Engineer for Water Division No. 1, Appellee Pursuant to C.A.R. 1(e), v. K-LOW, LLC, a Louisiana limited liability company, Defendant–Appellant, and Faith Tabernacle Church, Inc., a Colorado corporation, Defendant–Appellee, No. 16SA166, 394 P.3d 695 (Colo. May 15, 2017), the owner of a water pipeline across an irrigation ditch sued holder of easement regarding water rights associated with the ditch. Plaintiff sought declaratory judgment as to “whether water decree extinguished the right to divert water from the ditch.” Lower court granted owner’s motion for partial summary judgment and easement holder appealed. Supreme Court held that “water decree defining right to divert water from river allowed its holder to divert water only at pump downriver from irrigation ditch, and thus did not include right to divert water from the ditch.”

In DIXON LUMBER COMPANY, INCORPORATED, Plaintiff, v. AUSTINVILLE LIMESTONE COMPANY, INC., Defendant, No. 7:16-cv-00130, 2017 WL 2533537 (W.D. Va. June 9, 2017), plaintiff and defendant own adjacent plots of land and both bought their property from a company (G&W) which operated a zinc and lead mine on the site. Years before the parties purchased their properties, G&W dumped limestone tailings on plaintiff’s parcel. Plaintiff sought to hold defendant responsible for “environmental liabilities arising from those limestone tailings under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).” Court concluded defendant was not G&W’s “corporate successor” and granted defendant’s motion for partial summary judgment.


REGULATORY: Includes EPA, FDA, ITA and NOAA rules and notices.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is delaying the effective date of the Risk Management Program Amendments for an additional 20 months, to allow EPA to conduct a reconsideration proceeding and to consider other issues that may benefit from additional comment. Info here.

Rule EPA is finalizing action on revisions to the Imperial County Air Pollution Control Districtvportion of the California State Implementation Plan. Details here.

Rule EPA is approving a revision to a State Implementation Plan submitted by the State of New Mexico on March 14, 2014. Info here.

Rule establishes tolerances for residues of isofetamid in or on multiple commodities. Details here.

Rule establishes tolerances for residues of spirotetramat in or on multiple commodities. Info here.

FOOD AND DRUG ADMINISTRATION:

Notice solicits comments on the information collection provisions of FDA’s regulations governing batch certification of color additives manufactured for use in foods, drugs, cosmetics, or medical devices in the United States. Info here.

Notice solicits comments on the information collection provisions of our recordkeeping and records access requirements for food facilities. Details here.

INTERNATIONAL TRADE ADMINISTRATION:

Notice Commerce published the Preliminary Results of the seventh administrative review of the antidumping duty order on citric acid from China on February 8, 2017. Info here.

Notice Commerce published the Preliminary Results of the 21st administrative review of the antidumping duty order on fresh garlic from China on December 9, 2016. Info here.

Notice Commerce seeks nominations of individuals for consideration for appointment by the Secretary of Commerce to serve as members of one of the 60 District Export Councils nationwide. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS announces that the Mid-Atlantic Fishery Management Council has submitted Amendment 6 to the Tilefish Fishery Management Plan for review and approval by the Secretary of Commerce. Info here.

Notice NMFS made a preliminary determination that an Exempted Fishing Permit application from the Coonamessett Farm Foundation to conduct a scallop survey contains all of the required information and warrants further consideration. Info here.

Notice NMFS announces the renewal of two prohibited species donation permits to SeaShare, authorizing this organization to distribute Pacific salmon and Pacific halibut to economically disadvantaged individuals under the PSD program. Info here.

Notice The SEDAR 51 assessment process of Gulf of Mexico gray snapper will consist of a Data Workshop, a series of assessment webinars, and a Review Workshop. Details here.

Notice the Mid-Atlantic Fishery Management Council’s Summer Flounder, Scup, and Black Sea Bass Advisory Panel will hold a public meeting, jointly with the Atlantic States Marine Fisheries Commission’s Summer Flounder, Scup, and Black Sea Bass Advisory Panel. Details here.