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, May 16th: U.S. Agriculture Trade:  Overview and Update on Current and Emerging Issues. Details available here.


JUDICIAL: Includes pesticides, CAFO, and animal welfare issues.

IN RE: DICAMBA HERBICIDES LITIGATION, Main Case 1:18–md–2820–SNLJ, Indiv. Case 1:16–cv–299–SNLJ, 2018 WL 2117633 (E.D. Mo. May 8, 2018) concerned plaintiffs’ claim defendants Monsanto and BASF conspired to create an “’ecological disaster,’ in releasing dicamba-tolerant seed with no corresponding dicamba herbicide.” Here, Monsanto moved for partial summary judgment arguing that “the viability of [p]laintiffs’ claims against Monsanto for their alleged crop damage . . . depends on [p]laintiffs’ ability to prove that a Monsanto representative directed farmers to make illegal applications of dicamba herbicides that caused damage to [p]laintiffs’ crops.” Issue for court was the “foreseeable result of third parties’ misuse of Monsanto’s product.” Court reasoned that “the fact that Monsanto did not manufacture, distribute, or sell the old dicamba herbicide that actually caused the damage is irrelevant,” and denied Monsanto’s motion.

In the Matter of the Application of Riverkeeper, Inc., CORTLAND-ONONDAGA FEDERATION of KETTLE LAKE ASSOCIATIONS, INC., SIERRA CLUB, THEODORE GORDON FLYFISHERS, INC., and WATERKEEPER ALLIANCE, INC., Petitioners/Plaintiffs, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules v. Basil Seggos, in his capacity as the Commissioner of the NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, Respondent/Defendant, 902103-17, 2018 WL 2123908 (N.Y. App. Div. April 23, 2018) concerned a challenge to a Concentrated Animal Feeding Operation (CAFO) permit issued by defendant “on the grounds that it violates the federal Clean Water Act (CWA).” Plaintiff argued the issued permit “does not mandate that CAFOs develop and implement NMPs containing enforceable site-specific effluent limitations or ‘best management practices.’” Defendants countered Natural Resources Conservation Service (NRCS) standards “are ‘not actually standards,‘ but rather ‘considerations or methodologies‘ which ‘do[ ] not establish enforceable effluent limitations.” Court disagreed with defendants and concluded instead that relevant NCRS standards “contain numerous specific and enforceable requirements, as provided for in the EPA regulations.” Court ordered defendant to issue a revised CWA compliant CAFO permit.

In Marcel DUBOIS et al. v. DEPARTMENT OF AGRICULTURE, CONSERVATION AND FORESTRY et al, Docket: Yor–17–192, 2018 WL 2111973 (Me. May 8, 2018), plaintiffs appealed an order of Department of Agriculture, Conservation and Forestry (DACF) denying their request for records under the Freedom of Access Act (FOAA). Here, Department of Environmental Protection received odor complaints regarding plaintiff’s farm and plaintiff sought records relating to its farm. Plaintiffs argued names of informants cannot be treated as confidential for FOAA purposes because DACF regulations require that “when the agency receives a complaint about a farm or farm operation, an agricultural compliance officer is required, ‘[a]s soon as practicable,’ to notify the respondent about the complaint, including the name of the complainant.” Court concluded, however, the relevant statute “does not create an exception to the informant identity privilege for informants who are subject to disclosure under some provision of law.” Court ruled DACF properly denied the FOOA request because the records containing names of informants “are not ‘public records’ as defined in FOAA.” Affirmed.

ANIMAL LEGAL DEFENSE FUND, et al., Plaintiffs, v. Lawrence WASDEN, in his official capacity as Attorney General of Idaho, Defendant, No. 1:14–cv–00104–BLW, 2018 WL 2123374 (D. Idaho May 8, 2018) involved a recent Idaho law criminalizing “interference with agricultural production” to protect its farmers. A Ninth Circuit ruling later determined “Idaho’s criminalization of misrepresentations to obtain records and secure employment are not protected speech under the First Amendment and do not violate the Equal Protection Clause.” Here, plaintiffs sought a declaration that the Idaho law at issue, as interpreted by the Ninth Circuit, “does not apply to the employment-based undercover investigations that Plaintiffs undertake.” Court noted that plaintiffs complaint failed to focus on any specific undercover investigator and that the declaration plaintiffs sought “could conceivably apply to large numbers of undercover investigators seeking employment at all sorts of ‘agricultural production facilities,’” including “grocery stores, garden nurseries, [or]restaurants that have an herb garden.” Plaintiffs’ request denied.


LEGISLATIVE:

H.R. 221: Hydrographic Services Improvement Amendments Act. Ordered to be Reported (Amended) by Unanimous Consent.

H.R. 1791: Mountains to Sound Greenway National Heritage Act. Ordered to be Reported (Amended) by Unanimous Consent.

H.R. 2591: Modernizing the Pittman-Robertson Fund for Tomorrow’s Needs Act of 2017. Ordered to be Reported (Amended) by Unanimous Consent.

H.R. 3535: Ruffey Rancheria Restoration Act of 2017. Ordered to be Reported (Amended) by the Yeas and Nays: 19 – 18.

H.R. 4032: Gila River Indian Community Federal Rights-of-Way, Easements and Boundary Clarification Act. Ordered to be Reported (Amended) by Unanimous Consent.

H.R. 4506: Jobs for Tribes Act. Ordered to be Reported (Amended) by Unanimous Consent.

H.R. 4689: To authorize early repayment of obligations to the Bureau of Reclamation within the Northport Irrigation District in the State of Nebraska. Ordered to be Reported by Unanimous Consent.

H.R. 4910: Veterans Cemetery Benefit Correction Act. Text for status Placed on Calendar in the Senate (May 8, 2018) is now available.

H.R. 5317: To repeal section 2141 of the Revised Statutes to remove the prohibition on certain alcohol manufacturing on Indian lands. Ordered to be Reported by Unanimous Consent.

H.R. 4: FAA Reauthorization Act of 2018. Text for status Placed on Calendar in the Senate (May 8, 2018) is now available.

H.R. 5655: Camp Nelson Heritage National Monument Act. Ordered to be Reported by Unanimous Consent.

H.R. 4645: East Rosebud Wild and Scenic Rivers Act. Text for status Reported by House Committee (May 9, 2018) is now available.


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

AGRICULTURAL MARKETING SERVICE:

Rule amends the Florida Federal milk marketing order (FMMO) to adopt a temporary assessment on Class I milk. Info here.

Rule amends Marketing Order No. 984, which regulates the handling of walnuts grown in California. Details here.

Rule would implement a recommendation from the Cherry Industry Administrative Board (Board) to establish free and restricted percentages for the 2017-18 crop year under the Marketing Order for tart cherries grown in the states of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin. Details here.

Notice the Farm Security and Rural Investment Act of 2002 requires the Secretary of Agriculture (Secretary) to establish a Peanut Standards Board (Board) for the purpose of advising the Secretary on quality and handling standards for domestically produced and imported peanuts. Info here.

AGRICULTURE DEPARTMENT:

Notice USDA has submitted information collection requirement(s) to OMB for review. Title: Common or Usual Name for Raw Meat and Poultry Products Containing Added Solutions. Info here.

Notice USDA has submitted a Generic Information Collection Request (Generic ICR): “Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery” to OMB for approval under the Paperwork Reduction Act (PRA). Info here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE:

Notice APHIS will request a revision to and extension of approval of an information collection associated with the regulations for the protection of endangered species of terrestrial plants and for procedures related to the forfeiture of plants or other property. Details here.

Notice APHIS will request a revision to and extension of approval of an information collection associated with the regulations for the importation of mangoes from Australia. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is taking final action to approve portions of State Implementation Plan (SIP) revisions submitted by the Commonwealth of Kentucky, through the Kentucky Division for Air Quality, on December 21, 2016, and August 29, 2017, on behalf of the Louisville Metro Air Pollution Control District. Details here.

Rule EPA is determining that 60 days is insufficient time to complete the technical and other analyses and public notice-and-comment process required for our review of a petition dated March 12, 2018, submitted by the state of New York pursuant to section 126(b) of the Clean Air Act. Info here.

Rule the Idaho Department of Environmental Quality (IDEQ) submitted a redesignation request and limited maintenance plan (LMP) for particulate matter with an aerodynamic diameter less than or equal to ten micrometers for the PM National Ambient Air Quality Standard developed for the Pinehurst Nonattainment Area and Pinehurst PM Expansion Nonattainment Area. Info here.

FISH AND WILDLIFE SERVICE: Rule FWS reclassies Kuenzler hedgehog cactus from endangered to threatened on the Federal List of Endangered and Threatened Plants under the authority of the Endangered Species Act. Info here.

FOREST SERVICE:

Notice FS is seeking comments from all interested individuals and organizations on the currently approved information collection, Commercial Use of the Woodsy Owl Symbol. Info here.

Notice the Rogue River-Siskiyou National Forest, High Cascade Ranger District, is providing notice that it will prepare an Environmental Impact Statement (EIS) for the Stella Landscape Restoration Project (Project), which would implement multiple landscape restoration actions on National Forest System lands within an approximately 64,000-acre project planning area. Info here.

Notice the Superior National Forest is issuing this notice to advise the public that an environmental impact statement (EIS) will no longer be prepared for the Application for Withdrawal Project. Details here.

NATIONAL INSTITUTE OF FOOD AND AGRICULTURERule amends NIFA regulations for the purpose of implementing the statutory amendments applicable to the National Institute of Food and Agriculture’s (NIFA) matching requirements for Federal agricultural research and extension capacity (formula) funds for 1890 land-grant institutions. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is adjusting the Atlantic bluefin tuna (BFT) General category daily retention limit from the default limit of one large medium or giant BFT to three large medium or giant BFT for June 1 through August 31, 2018. Details here.

Rule closes the Hawaii shallow-set pelagic longline fishery in compliance with an order of the U.S. District Court for the District of Hawaii. Info here.

Notice Commerce invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. Info here.

Notice NMFS has received a request from the Ketchikan Dock Company (KDC) for authorization to take marine mammals incidental to the Ketchikan Berth IV expansion project in Ketchikan, Alaska. Info here.