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 aquaculture, labor, agritourism, and environmental issues.

In Keith Guindon, et al., Plaintiffs, v. Penny Sue Pritzker, in her official capacity as Secretary of the United States Department of Commerce; National Oceanic and Atmospheric Administration; and National Marine Fisheries Service, Defendants, NO. 1:15–cv–02256–BJR, 2017 WL 875775 (D.D. C. March 3, 2017), a collection of commercial fisherman sued under the Magnuson–Stevens Fishery Conservation and Management Act (MSA), the National Environmental Policy Act (NEPA), and the Administrative Procedure Act (APA). Issue concerned an amendment to the Reef Fish Fishery Management Plan (Reef Fish FMP). Plaintiffs argued amendment at issue does not promote conservation because it does not encourage a “rational, more easily managed use” of the resource. Defendants argued the amendment “promotes conservation because adoption and implementation of the 20 percent buffer will improve ‘management certainty’ within the recreational sector.” Court found defendants failed to show the “proposed allocation meets the ‘fair and equitable’ requirement of MSA National Standard Four,” and determined that “it is reasonable for Defendants to pursue a new allocation for the red snapper stock.” Plaintiffs granted summary judgment for MSA claim pursuant.

In Jesus Contreras, Plaintiff, v. Mi Tierra Mercado Y Carniceria, et al., Defendants, No. 16-cv-07207-BLF, 2017 WL 876427 (N.D. Cal. March 6, 2017), plaintiff, an employee at a supermarket, was injured making sausage with a Hobart-model machine. Plaintiff named his employer (supermarket) as a defendant claiming his boss altered the machine which contributed to his injury. Maker of the machine (ITW) sought removal to federal court and argued the supermarket’s citizenship should be ignored for purposes of “jurisdictional inquiry” because it is a “sham defendant.” Defendant (ITW) claimed that “because the power press exception to the California’s workers’ compensation exclusivity rule does not apply, [plaintiff] must pursue any and all claims against Mi Tierra pursuant to the workers’ compensation system.” Court reasoned that “the procedural posture here requires Defendants to prove that there is absolutely no possibility that Contreras could establish a cause of action against Mi Tierra in state court.” Court declined to conclude the Hobart machine was a “power press” and granted Plaintiff’s motion to remand.

ESSEX, ss. LEE B. THOMPSON, ELAINE HATFIELD-THOMPSON, LOUIS J. OTTAVIANO and VILMA B. OTTAVIANO, Plaintiffs v. LISA WHITE, THAYER WHITE, AND DANIELLE ONDRICK, Defendants and Third-Party Plaintiffs, and MANOCHEHR GORDBEGLI, STEVEN D. OTTAVIANO, TIMOTHY J. KACHEL, and JESSICA WELCH, Third-Party Defendants, 06 MISC 327234 (KFS) 2017 WL 875120 (Mass. App. Ct. March 2, 2017) involved a contempt action wherein defendants used trails within a subdivision for horseback riding and recreation. At issue was defendants’ “access to and use of” a trail, one of the easements created by a homeowners’ association. Court considered whether defendants’ continued use of the trail was in contempt of a prior court order that attempted to establish the specific boundaries of the easement in question. Court noted that, “A finding of contempt requires “clear and convincing evidence of disobedience of a clear and unequivocal command.” Court acknowledged that lower court “struggled to accurately convey its orders to the parties and required further clarification from the parties as to the issues presented,” and dismissed plaintiffs’ complaint for contempt.

In Western Watersheds Project, Wildearth Guardians, Center for Biological Diversity, and Prairie Hills Audubon Society, Plaintiffs, v. Janice Schneider, Assistant Secretary of Interior; Bureau of Land Management; and U.S. Forest Service, Defendants, No. 1:16-CV-83-BLW, 2017 WL 874568 (D. Idaho March 3, 2017), environmental groups challenged Environmental Impacts Statements (EISs) governing land in ten western states. Plaintiffs argued Bureau of Land Management (BLM) and Forest Service (FS) “artificially minimized the harms to sage grouse by segmenting their analysis into 15 sub-regions without conducting any range-wide evaluation.” BLM moved to sever and transfer plaintiffs’ claims in states where litigation was filed, arguing that litigating the claims in Idaho would expose the agency to conflicting decisions. Court determined that “plaintiffs here are making unique overarching claims that are not made elsewhere,” and denied defendants’ motion to sever and transfer.


LEGISLATIVE: A recent summary of pending state agricultural legislation is available here


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

AGRICULTURAL MARKETING SERVICE: Notice AMS will request an extension for and revision to a currently approved information collection for Pistachios Grown in California, Arizona, and New Mexico. Info here.

ENVIRONMENTAL PROTECTION AGENCY: Rule issued concerning EPA’s addition of natural gas processing facilities to the Toxics Release Inventory. Details here.

NATIONAL INSTITUTE OF FOOD AND AGRICULTURE: Notice NIFA will request approval to establish a new information collection and record keeping requirement for the National 4-H Conference. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule announcing reapportionment of 34,000 metric tons of Pacific whiting from the tribal allocation to the non-tribal commercial fishery sectors via automatic action on September 15, 2016. Details here.

Notice announcing receipt of an application for an exempted fishing permit from the South Carolina Aquarium. Details here.

Notice of a meeting of the Sanctuary System Business Advisory Council. Info here.

Notice NMFS received an application from the National Park Service at Glacier Bay National Park for an Incidental Harassment Authorization to take marine mammals, by harassment. Info here.