A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions to: camarigg at uark.edu


ANNOUNCEMENT: Join us Wednesday, March 15, at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: “Digesting the FSMA Animal Food Rule.” Details available here.


JUDICIAL: Includes NEPA, land use, crop insurance, and SNAP issues.

In The PROTECT OUR COMMUNITIES FOUNDATION, et al., Plaintiffs, v.  Michael BLACK, Director, Bureau of Indian Affairs, et al., Defendants, No.: 14cv2261 JLS (JMA), 2017 WL 882278 (S.D. Cal. March 6, 2017), plaintiffs argued Bureau of Indian Affairs (BIA) violated the National Environmental Policy Act (NEPA) and the Eagle Act by approving a lease to a company to construct wind turbines. Plaintiffs and defendants moved for summary judgment regarding whether BIA “acted arbitrarily and capriciously and contrary to NEPA and its implementing regulations” in approving the lease. Court noted that BIA “permissibly relied on the 2011 Environmental Impact Statement (EIS), which it helped prepare and the considered risk to golden eagles,” when considering the lease. Court concluded BIA “validly exercised its discretion in approving Tule Phase II,” and granted  Defendants’ motion for summary judgment.

In Sandra DIESEL, Petitioner, v. JACKSON COUNTY, Respondent, Land Use Board of Appeals 2016039, A163267, 2017 WL 920353 (Or. Ct. App. March 8, 2017), petitioner sought review of an order by the Land Use Board of Appeals (LUBA) affirming two county ordinances detailing the types of land on which marijuana cultivation is allowed. Petitioner argued LUBA erred when it concluded that the ordinances’ prohibition of marijuana production on lands zoned “rural residential” was consistent with the county’s comprehensive plan, and that the ordinances’ prohibition of marijuana production on rural residential lands is a “reasonable regulation” of marijuana cultivation. Court observed it can “reverse or remand a LUBA order only if it is ‘unlawful in substance or procedure,’ ‘unconstitutional,’ or ‘not supported by substantial evidence in the whole record as to facts found’ by LUBA.” After careful consideration of the applicable statutes, court found LUBA made no “mistaken interpretation of the applicable law,” and affirmed Board’s decision.

In DANUTA LOBECK, Plaintiff – Appellant v. TINA M. LICATINO; TINAD, L.L.C., doing business as Gabourel Insurance Agency, also known as Gabourel Insurance Agency, Incorporated; FIDELITY NATIONAL PROPERTY AND CASUALTY INSURANCE COMPANY, INCORPORATED; FIDELITY NATIONAL INSURANCE SERVICES, L.L.C., Defendants – Appellees, No. 16-40967, 2017 WL 923387 (5th Cir. March 7, 2017), plaintiff appealed district court’s grant of summary judgment to defendant arguing she reasonably relied on defendant’s misrepresentations that her property was insurable. Plaintiff rented property that, “Unbeknownst to her . . . was located in the Coastal Barrier Resources System (CBRS) and was ineligible for federally funded flood insurance.” Court observed plaintiff was insured by the federal government through the NFIP and that defendants acted as government agents. The court, citing Federal Crop Insurance Co. v. Merrill, 332 U.S. 380, 384-85 (1947), declared, “those who deal with the Government are expected to know the law and may not rely on the conduct of government agents contrary to the law.” Court ruled plaintiff had “constructive knowledge” that her property is located in the CBRS and affirmed district court.

In Yvette PERRY v. STATE of Louisiana, Department of Children and Family Services, et al, 16–857, 2017 WL 914459 (La. Ct. App. March 8, 2017), plaintiff’s Supplemental Nutrition Assistance Program (SNAP) benefits were terminated by the Louisiana Department of Children and Family Services (DCFS) for three months because she did not reactivate her Helping Individuals Reach Employment (HIRE) account online. Administrative court found plaintiff failed to comply with DCFS’s work registration requirements and affirmed closure of her SNAP case. Plaintiff appealed, but admitted “she knew she was required to register and failed to do so by the deadline.” Court reasoned that, “DCFS’s extremely de minimus requirement that one login to a website in order to keep receiving benefits is the most trivial of burdens placed on SNAP recipients,” and affirmed trial court’s denial of SNAP benefits.


LEGISLATIVE:  A recent summary of food-related state legislation is available here


REGULATORY: Includes EPA, FWS, NOAA and RUS rules and notices.

ENVIRONMENTAL PROTECTION AGENCY:

Rule establishing time-limited tolerances for residues of flupyradifurone in or on sweet sorghum, forage and sorghum, syrup resulting from use of flupyradifurone in accordance with the terms of crisis exemptions issued under FIFRA. Details here.

Rule establishing a time-limited tolerance for residues of oxytetracycline in or on fruit, citrus, group 10-10. Info here.

FISH AND WILDLIFE SERVICE: Notice FWS announces availability of a draft environmental assessment in accordance with NEPA for the CITES Export Program for native furbearer species. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is opening directed fishing for sablefish with fixed gear managed under the Individual Fishing Quota Program and the Community Development Quota Program. Details here.

Rule that the North Pacific Fishery Management Council submitted Amendment 114 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area and Amendment 104 to the Fishery Management Plan for Groundfish of the Gulf of Alaska. Details here.

Notice NOAA seeks comment on proposed information collections. Title: Reporting of Sea Turtle Entanglement in Fishing Gear or Marine Debris. Info here.

RURAL UTILITIES SERVICE:

Notice invites comments on an information collection for which RUS will request approval from OMB. Title: 7 CFR part 1777, Section 306C, Water and Waste Disposal (WWD) Loans and Grants. Info here.

Notice invites comments on an information collection for which RUS will request approval from OMB. Title: 7 CFR part 1744, subpart B, Lien Accommodations and Subordination Policy. Info here.