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


ANNOUNCEMENT: Mark your calendar for the next Agricultural & Food Law Consortium webinar, Wednesday, March 21st: 2018 Farm Bill Outlook. Details available here.


JUDICIAL: Includes CWA, landowner liability, National Organic Program, and international trade issues.

In CALIFORNIA ENVIRONMENTAL PROTECTION ASSOCIATION, Plaintiff, v. SONOMA SOIL BUILDERS, LLC, et al., Defendants, No. 15-cv-04880-KAW, 2018 WL 1242252 (N.D. Cal. March 9, 2018), plaintiff filed citizen suit under the Clean Water Act (CWA) and sought to add two new defendants to the proceedings. Proposed new defendant (SoCo) had ceased operations at the location at issue and argued adding them to the complaint “would be futile because a citizen suit cannot be brought where the polluting activity has already ceased.” Court observed that citizens “may seek civil penalties only in a suit brought to enjoin or otherwise abate an ongoing violation.” Here, the court concluded that “a case brought against SoCo at this juncture would be based solely on past violations, and . . . ‘private plaintiffs … may not sue to assess penalties for wholly past violations.’” Plaintiff’s request denied.

In DEANNA L. PERKINSON, Plaintiff-Appellant, v. SARAH COURSON, Defendant-Appellee, NO. 4-17-0364, 2018 IL App (4th) 170364 (Ill. Ct. App. March 12, 2018), plaintiff, an Illinois resident, was injured by defendant’s horse on a public trail in Missouri and alleged a violation of the Illinois Animal Control Act. Trial court determined Missouri law controlled the case and plaintiff appealed, arguing the Animal Control Act “is more significant within the context of injuries by animals than the purpose of the Missouri Equine Liability Act.” Appellate court observed that “both Missouri and Illinois have acknowledged that special circumstances exist with respect to horses and equine-related activities,” and that “[b]oth states have a policy of promoting equine activities and limiting liability associated with those activities.” Court found that Missouri law applied and affirmed trial court ruling.

In The CORNUCOPIA INSTITUTE, Dominic Marchese, and Rebecca Goodman, Plaintiffs–Appellants, v. UNITED STATES DEPARTMENT OF AGRICULTURE and Sonny Perdue, Secretary of Agriculture, Defendants–Appellees, No. 17-2422, 2018 WL 1250474 (7th Cir. March 12, 2018), an organic farming group sued USDA challenging “appointment of purportedly unqualified candidates” to the National Organic Standards Board. District court dismissed their complaint and plaintiffs appealed. Appellate court affirmed, ruling plaintiffs lacked standing to challenge Secretary’s decision as they were unable to demonstrate “personal” injury. Affirmed.

In UNITED STATES‚ Plaintiff‚ v. RUPARI FOOD SERVICES‚ INC.‚ Defendant, Slip Op. 18-20, 2018 WL 1245560 (Ct. Intl. Trade March 9, 2018), government alleged defendant falsely claimed “five seized entries of frozen Chinese crawfish tail meat . . . subject to an antidumping duty order‚ originated in Thailand.” Government sought judgment for civil penalties in the amount of $2‚ 784‚636.18‚ “the alleged domestic value of the merchandise whose entry was attempted.” Court recognized that defendant knew “that the crawfish tail meat that it was purchasing . . .  originated in China” and eventually, the firm declared bankruptcy. Court granted government’s motion for default judgment‚ “insofar as it seeks fixation of a penalty amount rather than enforcement of that penalty.”


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

AGRICULTURAL MARKETING SERVICE:

Rule revises the eligibility requirements for producer representatives on the Honey Packers and Importers Board and prescribes late payment and interest charges on past due assessments under the AMS regulation regarding a national research and promotion program for honey and honey products. Info here.

Rule implementing a recommendation from the Administrative Committee for Pistachios to decrease the assessment rate established for the 2017-18 and subsequent production years and administrative revisions to the subpart headings to bring the language into conformance with the Office of Federal Register requirements. Info here.

AGRICULTURE DEPARTMENT:

Rule amends USDA civil monetary penalty regulations by making inflation adjustments as mandated by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. Info here.

Notice USDA has submitted the following information collection requirement(s) to OMB for review. Title: 7 CFR 1901-E, Civil Rights Compliance Requirements. Info here.

Notice USDA has submitted the following information collection requirement(s) to OMB for review. Title: Study of Third-Party Processor (TPP) Services, Fees, and Business Practices. Info here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE: Rule APHIS is amending the regulations to clarify that the expiration date of a serial or subserial of a veterinary biologic should be computed from the date of the initiation of the first potency test. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

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

Rule EPA is proposing amendments to the National Emission Standards for Hazardous Air Pollutants for Leather Finishing Operations to address the results of the residual risk and technology review that the EPA is required to conduct in accordance with section 112 of the Clean Air Act. Details here.

FISH AND WILDLIFE SERVICE:

Rule announcing the availability of a draft post-delisting monitoring (PDM) plan for the black-capped vireo. Details here.

Notice FWS announces a public meeting of the Sport Fishing and Boating Partnership Council. Details here.

INTERNATIONAL TRADE ADMINISTRATION: Notice Commerce is issuing a final no shipments determination in the final results of the antidumping duty administrative review on utility scale wind towers (wind towers) from the Socialist Republic of Vietnam (Vietnam) because Commerce continues to find that CS Wind Group did not have any shipments of subject merchandise by CS Wind Group during the period of review. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is prohibiting directed fishing for pollock in Statistical Area 610 in the Gulf of Alaska (GOA). Details here.

Rule NMFS is prohibiting directed fishing for pollock in Statistical Area 630 in the Gulf of Alaska (GOA). Info here.

Rule NMFS announces that the State of North Carolina is transferring a portion of its 2018 commercial summer flounder quota to the Commonwealth of Massachusetts. Info here.

Rule NMFS is issuing regulations under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (MSA) to implement a March 2017 recommendation by the Pacific Fishery Management Council to amend the Fishery Management Plan for U.S. West Coast Fisheries for Highly Migratory Species. Details here.

Rule that the South Atlantic Fishery Management Council and Gulf of Mexico (Gulf) Fishery Management Council have submitted the For-hire Reporting Amendment for review, approval, and implementation by NMFS. Info here.