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


JUDICIAL: includes environmental law, local food systems, leases, CAA, and international trade issues.

In GROUND ZERO CENTER FOR NON-VIOLENT ACTION, a Washington non-profit corporation; WASHINGTON PHYSICIANS FOR SOCIAL RESPONSIBILITY, a Washington non-profit corporation; GLEN MILNER, an individual, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF THE NAVY; RAYMOND E MABUS, JR., in his official capacity as Secretary of the Navy; ROGER M NATSUHARA, in his official capacity as Principal Deputy Assistant Secretary of the Navy; TERRY J. BENEDICT, Rear Admiral, in his official capacity as Director of Navy Strategic Systems Programs; PETE DAWSON, Captain, in his official capacity as Commanding Officer of Naval Base Kitsap; CHRISTINE STEVENSON, in her official capacity as Project Manager at Naval Facilities Engineering Command Northwest, Defendants-Appellees, No. 14-35086, 2017 WL 2766091 (9th Cir. June 27, 2017), plaintiff sued alleging U.S. Navy failed to comply with the National Environmental Policy Act’s (NEPA) disclosure requirements for the expansion of a TRIDENT nuclear submarine operating center. A panel determined that the Navy violated NEPA’s public disclosure requirement “by not revealing that the Safety Board withheld approval of its plan for the construction of EHW-2,” and by “withholding the non-disclosed portions of the appendices to the EIS.” The panel found these actions “harmless” and plaintiff appealed. Appellate court conclude that the Navy violated NEPA’s requirements, “but its errors were harmless with regard to meeting its basic NEPA obligations.” Summary judgment for Navy affirmed.

In STATE OF MONTANA, Plaintiff and Appellee, v. DANIEL B. MCGREGOR, Defendant and Appellant, DA 16-0554, 2017 WL 2778086 (Mont.  June 27, 2017), defendant appealed denial of his motion to dismiss charges that he harvested a cow elk without obtaining permission for hunting from a private landowner. Issue was “whether violation of the use restrictions for private property enrolled in Montana’s Block Management Program constitutes a statutory violation requiring a hunter to obtain permission of the landowner before hunting on private property.” Court reasoned that “because a person is on notice that they are subject to the rules of the Department related to the management of wildlife, it is no defense that they were ignorant of those rules or the law, or that they relied on statements from an adjoining property owner.” Denial of defendant’s motion to dismiss affirmed.

NORTH DAKOTA, EX REL. Wayne STENEHJEM, Attorney General for the State of North Dakota, Plaintiff, v. UNITED STATES of America, Defendant, Billings County, North Dakota; Golden Valley County, North Dakota; McKenzie County, North Dakota; and Slope County, North Dakota, municipal entities, Plaintiffs, v. United States of America, Defendant, No. 1:12-cv-125 (lead case), 2017 WL 2772116 (D.N.D. June 26, 2017) involved an action to quiet title. United States sought to dismiss plaintiffs’ complaints for lack of subject matter jurisdiction “because the claims are untimely under the Quiet Title Act.” Defendants argued plaintiffs had “sufficient notice of the United States’ position that North Dakota had not accepted the R.S. 2477 grant to create rights-of-way for public travel along the section lines.” Court concluded that North Dakota was on notice of the United States’ claim to “exclusive control over the thirty-three feet on either side of the section lines.” Defendant’s motion granted.

In LOUISIANA ENVIRONMENTAL ACTION NETWORK and Stephanie Anthony v. EXXON MOBIL CORP. d/b/a ExxonMobil Chemical Co., No. 16-144-SDD-RLB, 2017 WL 2773875 (M.D. La. June 26, 2017), plaintiffs sued claiming defendant violated the Clean Air Act (CAA) by emitting air pollutants in violation of its permit and by “failing to report unauthorized discharges in accordance with applicable regulations.” Plaintiffs sued under the Clean Air Act’s citizen suit provision and defendant argued plaintiffs could not meet the “injury-in-fact element without the aid of expert testimony.” Court ruled that plaintiffs’ provided sufficient evidence of injury-in-fact and noted the Fifth Circuit has held that “breathing and smelling polluted air is sufficient to demonstrate injury-in-fact and thus confer standing under the CAA.”

In ZHEJIANG NATIVE PRODUCE & ANIMAL BY–PRODUCTS IMPORT & EXPORT GROUP CORP., Plaintiff, v. UNITED STATES, Defendant, and The American Honey Producers Association and the Sioux Honey Association, Defendant–Intervenors, Slip Op. 17–65, No. 04–00268, 2017 WL 2379668 (Ct. Intl. Trade June 1, 2017), a foreign producer challenged final results of the Department of Commerce’s administrative review of an antidumping order covering honey from China. Court of International Trade held that the evidence supported Commerce’s rejection of an Indian newspaper article describing raw honey prices, in favor of one-year older article from same paper, “when determining surrogate value for honey from non-market economy China,” and that evidence supported Commerce’s calculation of inflated raw honey price in India as “surrogate value for exporter’s honey from China.”


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

AGRICULTURE DEPARTMENT:

Notice USDA has submitted the following information collection requirement(s) to OMB for review. Title: Third Access, Participation, Eligibility and Certification Study Series (APEC III). Details here.

Notice USDA has submitted the following information collection requirement(s) to OMB for review. Title: National Research, Promotion, and Consumer Information Programs. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is taking direct final action to approve a revision to the Georgia State Implementation Plan submitted by the Georgia Department of Natural Resources, Environmental Protection Division (GA EPD), on August 30, 2010, and a portion of the SIP revision submitted on July 25, 2014. Details here.

Rule EPA is approving portions of a State Implementation Plan revision submitted by the State of Georgia, through the Georgia Department of Natural Resources’ Environmental Protection Division (GA EPD), on September 19, 2006, with a clarification submitted on November 6, 2006. Info here.

Rule EPA is taking final action to approve revisions to the Operating Permits Program for the State of Missouri submitted on March 16, 2015. Info here.

Rule EPA is approving portions of revisions to the applicable New Source Review (NSR) State Implementation Plan (SIP) for the City of Albuquerque-Bernalillo County. Details here.

FOOD AND DRUG ADMINISTRATION: Notice FDA announces the following public workshop entitled “Antimicrobial Susceptibility and Resistance: Addressing Challenges of Diagnostic Devices.” Info here.

FOOD AND NUTRITION SERVICE: Notice this collection is a revision of currently approved information collection requirements associated with initiating collection actions against households who have received an overissuance in the Supplemental Nutrition Assistance Program (SNAP). Details here.

INTERNATIONAL TRADE ADMINISTRATION: Notice of Application to Amend the Export Trade Certificate of Review Issued to California Pistachio Export Council, Application Number 03-3A008. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS proposes regulations to allow an exemption to enable vessels with Federal Limited Access General Category Individual Fishing Quota permits from the State of Maine and Commonwealth of Massachusetts to continue fishing in their respective state waters once NMFS has announced that the Federal Northern Gulf of Maine total allowable catch has been fully harvested in a given year. Info here.

Notice NMFS has received a request from the San Francisco Bay Area Water Emergency Transportation Authority (WETA) for authorization to take marine mammals incidental to construction activities as part of its Central Bay Operations and Maintenance Facility project. Info here.

Notice NMFS has issued an incidental harassment authorization (IHA) to the City of San Diego to incidentally harass, by Level B harassment only, marine mammals during construction and demolition activities associated with a public parking lot and sidewalk improvements project in La Jolla, California. Details here.

Notice NMFS received a request from the San Francisco Bay Area Water Emergency Transportation Authority (WETA) for authorization to take marine mammals incidental to construction activities as part of a ferry terminal expansion and improvements project. Info here.

PATENT AND TRADEMARK OFFICE:

Rule USPTO amends its rules regarding petitions to revive an abandoned trademark application and petitions to the Director of the USPTO (Director) regarding other trademark matters and to codify USPTO practice regarding requests for reinstatement of abandoned trademark applications and cancelled or expired trademark registrations. Info here.

Notice USPTO and its Trademark Public Advisory Committee will host a free public roundtable on fraudulent and misleading solicitations that are directed to trademark holders, to further public awareness of the problem, to provide U.S. Government officials with more information about its scope, and to facilitate a discussion among members of the public about how to address the problem. Info here.