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


ANNOUNCEMENT: JUST 2 DAYS AWAY!! Register for the Fifth Annual Mid-South Agricultural and Environmental Law Conference in Memphis, TN / June 8. CLE credit available! Additional information available here.


JUDICIAL: Includes crop insurance and cooperatives issues.

SUNRISE COOPERATIVE, INC., an Ohio cooperative association, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF AGRICULTURE; Risk Management Agency, an agency of the United States Department of Agriculture; Federal Crop Insurance Corporation, an agency and body corporate of the United States Department of Agriculture, Defendants-Appellees, No. 17-3807, 2018 WL 2470940 (6th Cir. June 4, 2018) involved an agricultural cooperative that paid “patronage” to members that bought crop insurance. The cooperative alleged violations by the Risk Management Agency (RMA) of the Administrative Procedure Act (APA) and sought a ruling that its merger with a third party “did not impact its eligibility to pay patronage.” Lower court ruled Congress “had not spoken directly to whether a grandfathered cooperative is ‘an entity that was approved by the Corporation to make [premium-rebate] payments’ following its merger with a non-grandfathered cooperative.” Court found the statute at issue “ambiguous” and “accorded Chevron deference to the RMA’s interpretation.” Appellate court, on the other hand, observed that “Congress spoke clearly in the 2008 Farm Bill when it said ‘an entity that was approved’ to provide rebates to its members may continue to do so ‘in a manner consistent with the payment plan approved.’” Court found RMA “imposed additional eligibility requirements on approved entities that are unmoored from the statute,” and reversed.

IN RE: PROCESSED EGG PRODUCTS ANTITRUST LITIGATION This Document Applies to: All Direct Purchaser Actions, MULTIDISTRICT LITIGATION No. 08-md-2002, 2018 WL 2465169 (E.D. Pa. June 1, 2018) involved antitrust litigation wherein United States Egg Marketers (USEM) sold eggs overseas “for less than the prices eggs demanded domestically, while sharing the losses pro rata amongst members.” Plaintiffs alleged this “dumping” scheme raised prices domestically and here, court considered the meaning of the word “value.” Defendants urged the court to look to the market price in determining the price a good demands. Plaintiffs countered “the most reliable indicator for the price a good demands is the price a buyer pays for the good itself.” Court ruled “the value of the goods handled by non-members must be calculated by the price that USEM paid to purchase the eggs domestically.” Motion for directed verdict denied.


REGULATORY: Includes EPA, FWS, FS, NIFA, and NOAA rules and notices.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is taking final action to approve a revision to the Butte County Air Quality Management District portion of the California State Implementation Plan (SIP). Info here.

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

FISH AND WILDLIFE SERVICE:

Notice FWS seeks comment on applications to conduct certain activities with endangered species. Info here.

Notice FWS received two applications from Pacific Gas and Electric Company for two 20-year incidental take permits under the Endangered Species Act of 1973. Details here.

FOREST SERVICE:

Notice the USDA Forest Service, Rogue River-Siskiyou National Forest published in the Federal Register on May 11, 2018 a Notice of Intent to prepare an Environmental Impact Statement for the Stella Landscape Restoration Project. Info here.

Notice the USDA Forest Service, Wallowa-Whitman National Forest, announces the availability of the Draft Record of Decision for the Boardman to Hemingway Transmission Line Project for public review. Info here.

Notice the Southern Region Recreation Resource Advisory Committee will meet in Atlanta, Georgia. Details here.

NATIONAL INSTITUTE OF FOOD AND AGRICULTURENotice NIFA will revise a currently approved information collection, 0524-0039 entitled, “NIFA Application Kit.” Details here.

NATIONAL OCEANIC AND AMTOSPHERIC ADMINISTRATION:

Notice NMFS proposes regulations to implement Amendment 116 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area. Details here.

Notice the Mid-Atlantic Fishery Management Council announces its intent to prepare, in cooperation with NMFS and the Atlantic States Marine Fisheries Commission, an amendment to the Fishery Management Plan for Bluefish. Info here.

Notice NMFS has determined that 14 exempted fishing permit (EFP) applications warrant further consideration and is requesting public comment on the applications. Info here.