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


JUDICIAL: Includes CWA, environmental, leases, SNAP, USB, and CAFO issues. 

In SIERRA CLUB, Plaintiff, v. VIRGINIA ELECTRIC AND POWER COMPANY d/b/a Dominion Virginia Power, Defendant, No. 2:15–CV–112, 2017 WL 1095039 (E.D. Va. March 23, 2017), plaintiff sued claiming violations of the Clean Water Act (CWA). The alleged violations stemmed from discharges of arsenic from defendant’s Chesapeake Energy Center (CEC) into nearby surface waters. Plaintiff argued that although defendant has two discharge permits for wastewater from the CEC site, neither “authorizes the utility to release discharges into groundwater.” Court found defendant’s “discharge through groundwater” violates the CWA, but ceded to Virginia Department of Environmental Quality in ruling defendant’s conduct “does not merit the assessment of civil penalties.”

SIERRA CLUB et al., Plaintiffs and Appellants, v. COUNTY OF SAN BENITO et al., Defendants and Respondents; PANOCHE VALLEY SOLAR, LLC et al., Real Parties in Interest and Respondents, H042915, 2017 WL 1076373 (C.D. Cal. March 22, 2017) concerned a challenge to a solar project under the California Environmental Quality Act (CEQA). In 2010, respondents, County, granted a conditional use permit for a solar project to defendants (PVS) and the County also certified an environmental impact report for the same project. In 2014, defendants sought to modify the conditional use permit and the County approved a revised use permit and certified the Final Supplemental Environmental Impact Report (SEIR). Appellants, Sierra Club, filed a writ of mandate challenging the Final SEIR. Court dismissed plaintiff’s argument noting, “Substantial record evidence supports the County’s finding that the use of use replacement wells will reduce water resource impacts to a less than significant level.” The trial court ruling affirmed.

In WINNEMEN WINTU TRIBE, et al., Plaintiffs, v. UNITED STATES FOREST SERVICE, Defendant, No. 2:09-cv-01072-KJM-KJN, 2017 WL 1093902 (E.D. Cal. March 23, 2017), plaintiffs moved for summary judgment claiming damage to a historical site after the United States Forest Service (USFS) issued a cattle grazing permit to a third party. Court observed the National Historic Preservation Act (NHPA) provides that “a federal agency shall take into account the effect of the issuance of a license, such as the cattle grazing permit at issue in this case, on any historic property.” Court found no evidence that plaintiffs “requested consulting party status from the USFS,” and, “Having found the Tribe is not a consulting party by right, there is no evidence the USFS violated the NHPA.” Court noted that USFS “took into account the effects of issuance of the cattle grazing permit on the [historical] site,” and granted summary judgment for defendant.

In SKY GROCERY, LLC, Plaintiff, v. UNITED STATES DEPARTMENT OF AGRICULTURE—FOOD AND NUTRITION SERVICE, Defendant, No. 3: 15-cv-1082(JBA), 2017 WL 1054484 (D. Conn. March 20, 2017), a convenience store sued the Food and Nutrition Service (FNS) challenging the store’s permanent disqualification from participation in the Supplemental Nutrition Assistance Program (SNAP). FNS claimed plaintiff had engaged in “trafficking” and exchanged SNAP benefits for cash. Court observed that, “EBT transaction reports may provide sufficient circumstantial evidence of trafficking.” Court was persuaded by FNS argument that it “found no evidence that the combo specials Plaintiff uses to explain the high dollar value transactions were actually advertised,” and determined plaintiff failed to negate the FNS claims. Summary judgment for defendant granted.

In Ronald ROBBINS et al., Plaintiffs, v. NEW YORK CORN & SOYBEAN GROWERS ASSOCIATION, INC., Defendant, 7:15-cv-973(GLS/ATB), 2017 WL 1066672 (N.D.N.Y. March 21, 2017), plaintiffs sued claiming violations of the Freedom of Information Act (FOIA) and the Soybean Promotion, Research, and Consumer Information Act. Plaintiff had resigned from defendant’s board because of possible conflicts of interest and later sought “emails, correspondence, board meeting minutes, and notices sent to its board members” via a FOIA request. Plaintiffs argued FOIA disclosure requirements apply to defendant because it has statutory power under the Soybean Act. Court found that defendant “lacks sufficient federal supervision and control to be subject to FOIA disclosure,” and that “federal funding alone is insufficient to attach federal agency status. In dismissing plaintiffs’ FOIA claim, the court determined that “the level of involvement by [United Soybean Board] or the Department of Agriculture does not confer federal agency status on NYCSGA.”

Geraldine ADOLPH and Barth Adolph, Plaintiffs and Appellants, v. GRANT COUNTY BOARD OF ADJUSTMENT and Dustin Nelson, Defendants and Appellees, 27884, 2017 WL 840592 (S.D. March 1, 2017) involved an appeal of an approved application for a conditional-use permit to construct a concentrated animal-feeding operation (CAFO). Plaintiffs argued the CAFO violates county zoning ordinances by contributing to pollution and that the Board’s decision was illegal. Court observed the CAFO application at issue addressed several aspects of possible pollution and noted that “whether the application itself addressed runoff is not dispositive of the question whether the Board’s decision was legal.” Court found that Board met its statutory obligations and acted within its authority, but “erroneously believed that past environmental violations of a prospective applicant are never relevant in considering whether to approve an application.” Case remanded.


REGULATORY: Includes USDA, APHIS, FS,  ITA, NOAA, and RUS rules and notices.

AGRICULTURE DEPARTMENT:

Notice USDA has submitted information collection requirement(s) to OMB for review. Title: Supplemental Nutrition Assistance Program: State Issuance and Participation Estimates—Forms FNS-388 and FNS-388A only Recordkeeping Burden Estimates. Info here.

Notice USDA has submitted information collection requirement(s) to OMB for review. Title: Commercial Transportation of Equines to Slaughter. Details here.

Notice USDA has submitted information collection requirement(s) to OMB for review. Title: Plum Pox Compensation. Info here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE:

Notice APHIS will request a revision to an information collection associated with animal disease traceability. Details here.

Notice APHIS will request a revision to an information collection associated with regulations for the importation of beef and ovine meat from Uruguay and beef from Argentina and Brazil. Info here.

Notice APHIS will request a revision to an information collection associated with the regulations for the importation of clementines, mandarins, and tangerines from Chile into the United States. Details here.

Notice APHIS will request a revision to an information collection associated with the regulations for the importation of jackfruit, pineapple, and starfruit from Malaysia into the continental United States. Details here.

Notice APHIS will request an extension of approval of an information collection associated with the regulations for the importation of live swine, pork, and pork products from regions free of classical swine fever in Brazil, Chile, and Mexico. Info here.

Notice APHIS will request a revision to an information collection associated with the swine health protection program. Info here.

FOREST SERVICE: Notice of intent to prepare an environmental impact statement for approval of a mining plan of operations for the Pinto Valley Mine, notice of public scoping, and request for scoping comments. Info here.

INTERNATIONAL TRADE ADMINISTRATION:

Notice of application for an Export Trade Certificate of Review for ADM Rice, Inc. and ADM Export Co., Application No. 17-00001. Info here.

Notice of application to amend the Export Trade Certificate of Review issued to California Almond Export Association, LLC (“CAEA”), Application No. 99-11A05. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS announces that the length of the recreational season for black sea bass in the exclusive economic zone of the South Atlantic will extend throughout the 2017-2018 fishing year. Info here.

Rule NMFS issues regulations to govern the incidental taking of marine mammals incidental to space vehicle and missile launch operations at the Pacific Spaceport Complex Alaska on Kodiak Island, Alaska, over five years. Details here.

Rule NMFS proposes regulations to implement Amendment 114 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area. Details here.

Rule NMFS issues this proposed rule for the 2017 Pacific whiting fishery under the authority of the Pacific Coast Groundfish Fishery Management Plan. Details here.

Rule NMFS announces that the Mid-Atlantic Fishery Management Council has submitted its Unmanaged Forage Omnibus Amendment to the Secretary of Commerce for review. Info here.

Notice NMFS has made a preliminary determination that an Exempted Fishing Permit application submitted by the Northeast Fisheries Science Center contains all of the required information and warrants further consideration. Details here.

RURAL UTILITIES SERVICE:

Notice RUS invites comments on an information collection for which the Agency intends to request approval from OMB. Title: 7 CFR 1753, Telecommunications System Construction Policies and Procedures. Details here.

Notice RUS invites comments on an information collection for which approval from the Office of Management and Budget (OMB) will be requested. Title: Technical Assistance Programs. Info here.