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


ANNOUNCEMENT: Join us this Friday, June 9, in Memphis, Tennessee, for the 4th Annual Mid-South Agricultural and Environmental Law Conference. Details here.


JUDICIAL: Includes environmental law, international trade, nutrition programs, landowner liability, SNAP, animal ID, and food labeling issues.

FRIENDS OF the CLEARWATER, Plaintiff, v. Cheryl F. PROBERT, in her official capacity as Nez Perce-Clearwater Forest Supervisor; United States Forest Service, an agency of the U.S. Department of Agriculture, Defendants, and Idaho Association of Counties, an Idaho Non-Profit Corporation; and Idaho Governor C.L. “Butch” Otter; Defendants-Intervenors, No.3:16-cv-00485-REB, 2017 WL 2367048(D. Idaho May 31, 2017) involved a road project intended to protect private homes from wildfires in a remote area of Idaho. Plaintiff sought to enjoin the project and stop work on an Inventoried Roadless Area (IRA) because “such activities allegedly will cause irreparable harm to potential wilderness values by developing the area with an irregular shelterwood cut and a road.” Court acknowledged “fuel-reduction activities will impact the existing natural landscape,” but stressed the project was “critical to the Orogrande community and to the safety of persons living adjacent to and using the national forest in that region.” Court also found the Forest Service’s approval of the project “complied with applicable environmental laws and regulations,” and refused to issue preliminary injunction.

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, No. 04-00268, Op. 17-65, 2017 WL 2379668 (Ct. Intl. Trade June 1, 2017) concerned administrative review of an antidumping duty order on honey from China. Plaintiff disputed the Department of Commerce’s determination of the “normal value of honey exported to the United States during the period covered by the review.” Plaintiff maintained the agency “unreasonably failed to use the best available information on the record to calculate the surrogate value of [plaintiff’s] raw honey input.” Plaintiff also disputed Commerce’s adjustment of the raw honey price “to account for inflation during the covered period,” while the government claimed the results were reasonable. Court observed that, “Given the absence of any other reliable data on the record regarding the observed price increases, Commerce reasonably determined that the . . . pricing data was the best information available for the limited purpose of accounting for those increases,” and upheld the Department’s findings.

GERBER PRODUCTS COMPANY, Plaintiff, v. Sonny PERDUE, et al., Defendants, No. 16–cv–01696, 2017 WL 2345697 (D.D.C. May 30, 2017) involved a contract to supply infant formula under the federal Special Supplemental Nutrition Program for Women, Infants, and Children (WIC). Virginia Department of Health (VDH) issued a notice of Intent to Award a contract for the supply of infant formula to plaintiff and plaintiff’s competitor challenged the award, claiming that VDH evaluated competing bids “using the wrong data.” VDH consulted with USDA officials, who agreed that state officials had relied on incomplete data. VDH re-opened the bid process and then awarded the contract to plaintiff’s competitor. Plaintiff filed suit claiming USDA gave VDH advice “that was at odds with the agency’s positions in other state procurements and directed VDH to rescind the Intent to Award and re-open the bid process.” Plaintiff sought order requiring the USDA “to clarify and consistently apply guidance on required data to be included in State WIC solicitations” and “to cease providing inconsistent or disparate direction or advice regarding data requirements for State WIC infant formula procurements.” Court ruled plaintiff lacked standing and failed to challenge a final agency action under the Administrative Procedure Act (APA). Defendants’ motion to dismiss granted.

SPENCER JAMES LUDMAN, Appellee/Cross-Appellant, v. DAVENPORT ASSUMPTION HIGH SCHOOL, Appellant/Cross-Appellee, No. 15-1191, 2017 WL 2390645 (Iowa June 2, 2017) involved a high school baseball player that sued his high school after a foul ball hit him while he was standing in an unprotected part of the visitor’s dugout at the high school’s baseball field. High school appealed after being found guilty of negligence and appellate court found district court abused its discretion in not allowing the high school to present “evidence of custom.” Court reasoned that plaintiff “by his knowledge and experience, knew what the custom as to the design of the visitor’s dugout was throughout the conference. This made him qualified to testify. Although one school only had one opening in the front of its visitor’s dugout and another school had side entrances, we find the testimony was sufficient for the jury to consider if [defendant] was not negligent due to the custom of the community.” Critically, court determined that, “It is still up to the jury to weigh the evidence of custom against the other evidence in the record.” Reversed and remanded for new trial.

In TWIN GROCERY, Plaintiff, v. Robert T. DEEGAN, et al., Defendants, No. 16-6151, 2017 WL 2362410 (E.D. Pa. May 31, 2017), plaintiff contested administrative decision disqualifying his grocery store from participating in the Supplemental Nutrition Assistance Program (SNAP). Plaintiff also maintained the decision violated his due process rights. Plaintiff was disqualified for violating provisions of the SNAP program, but argued a former employee made “an honest mistake for WIC over-payments in an amount totaling less than $30.” Court acknowledged plaintiff’s property interest in continued participation in SNAP, but noted there are “strong governmental interests in reducing food stamp abuse and in administering the program for the primary beneficiaries, namely, the SNAP recipients.” Court ruled plaintiff was given “sufficient notice and an opportunity to be heard twice before the final decision to deny a CMP” was made and granted summary judgment for defendants.

NORTH AMERICAN DEER REGISTRY, INC. v. DNA SOLUTIONS, INC., No. 4:17-CV-00062, 2017 WL 2402579 (E.D. Tex. June 2, 2017) concerned a dispute regarding the deer breeding industry’s registration systems. Per a contract between plaintiff and defendant involving a national deer breeding registry, plaintiff retained ownership of biological materials and  data, while defendant retained ownership of computing code it created to operate the registry. After a dispute arose regarding proprietary information, plaintiff sued alleging unfair competition under the Lanham Act. Court considered elements of a Lanham Act violation and concluded defendant “misappropriated” plaintiff’s trade secrets and granted plaintiff’s motion for preliminary injunction.

In Debbie KROMMENHOCK, et al., Plaintiffs, v. POST FOODS, LLC, Defendant, No. 16-cv-04958-WHO, 2017 WL 2378029 (N.D.Cal. June 1, 2017), plaintiffs filed class action on behalf of consumers who purchased defendant’s “high-sugar” cereals, claiming the products’ labels “contain health and wellness claims that are false and misleading due to the cereals’ high added sugar content.” Defendant moved to dismiss arguing plaintiffs’ claims “are expressly preempted because plaintiffs seek to impose three labeling requirements that are not identical to those recently promulgated by the FDA in its final rule on added sugar.” With respect to preemption issue, the court noted, “Plaintiffs’ claims that defendant’s use of health and wellness claims on its labels make those labels false and misleading because consumption of levels of added sugar in defendant’s products is unhealthy are not preempted claims.” Court concluded, “Preemption does not apply to most of plaintiffs’ claims.”


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

AGRICULTURAL MARKETING SERVICE: Notice USDA announces its call for nominations to fill one upcoming vacancy for an individual with expertise in areas of environmental protection and resource conservation. Details here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is proposing to approve: Negative declarations for commercial and industrial solid waste incinerators for the State of Connecticut, the State of New Hampshire, the State of Rhode Island, and the State of Vermont; negative declarations for hospital/medical/infectious waste incinerators for the State of Rhode Island; and revisions to the state plan for existing large and small municipal waste combustors for the State of New Hampshire. Info here.

Rule EPA proposes to postpone certain compliance dates in the effluent limitations guidelines and standards for the steam electric point source category under the Clean Water Act, published in the Federal Register on November 3, 2015. Details here.

Notice that on January 9, 2017, EPA published a draft notice of the rationale for granting petitions to add n-propyl bromide to the list of hazardous air pollutants contained in section 112(b)(1) of the Clean Air Act. EPA is extending the comment period on the draft notice until October 1, 2017. Info here.

Notice identifies the Federal facilities not previously listed on the Federal Agency Hazardous Waste Compliance Docket and also identifies Federal facilities reported to EPA since the last update on October 24, 2016. Info here.

Notice Virginia is revising its approved Public Water System Supervision Program. Info here.

INTERNATIONAL TRADE ADMINISTRATION: Notice Commerce rescinds administrative review of the antidumping duty order on mushrooms from India for the period of February 1, 2016 through January 31, 2017. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Notice NMFS has received five requests for authorization to take marine mammals incidental to conducting geophysical survey activity in the Atlantic Ocean. Info here.

Notice NMFS has received a request from the California Department of Transportation for an incidental take authorization 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. Details here.

Notice NOAA seeks comment on proposed and/or continuing information collections concerning the Alaska Vessel Monitoring System Program. Info here.