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


ANNOUNCEMENT: Join us this Wednesday, May 16th, for our next Agricultural & Food Law Consortium webinar: U.S. Agriculture Trade:  Overview and Update on Current and Emerging Issues. Details available here.


JUDICIAL: Includes renewable energy, biosecurity, and SNAP issues.

In ST. BERNARD PARISH GOVERNMENT, Gwendolyn Adams, Henry Adams, Cynthia Bordelon, Steven Bordelon, Steve’s Mobile Home and RV Repair, Inc., Edward Robin, Sr., Edward “Pete” Robin, Jr., Brad Robin, Robin Seafood Company, Inc., Robin Yscloskey Development #1, LLC, Robin Yscloskey Development #2, LLC, Robin Yscloskey Development #3, LLC, Robin Yscloskey Development #4, LLC, Rocco Tommaseo, Tommoso “Tommy” Tommaseo, Rocky and Carlo, Inc., Port Ship Service, Inc., and Other Owners of Real Property in St. Bernard Parish or the Lower Ninth Ward of the City of New Orleans, Plaintiffs-Cross-Appellants, v. UNITED STATES, Defendant-Appellant, 2016-2301, 2016-2373, 887 F.3d 1354 (Fed. Cir. April 20, 2018), New Orleans property owners claimed a Fifth Amendment taking and sued via the Tucker Act. They alleged the government was liable for flood damage to their properties caused by hurricanes because the government “had failed to properly maintain or modify the Mississippi River-Gulf Outlet channel and because of government construction and operation of the channel.” Fed Claims court ruled for property owners’ favor and awarded compensation. Government appealed and property owners cross-appealed, alleging that the compensation award was inadequate. Appellate court found the government’s failure to properly maintain Mississippi River-Gulf Outlet channel “could not be basis for takings liability.” The court also determined that the property  owners “failed to establish that government’s construction and operation of channel caused damage to their properties.” Reversed.

In Dorothy Spooner v. William Zamfina et al., CV176024552S, 2018 WL 2138574 (Conn. Sup Ct. April 25, 2018), plaintiff was injured while walking on a sidewalk in front of defendant’s property and was allegedly attacked by defendant’s potbellied pig. Plaintiff claimed to have contracted the E. Coli virus from the incident and sued for negligence, strict liability, and nuisance. Regarding strict liability, defendant moved to strike the claim and argued that “as a matter of law, potbellied pigs are not ‘wild animals,’” and that potbellied pigs “are often kept as pets and should be considered domesticated animals.” Plaintiff countered the pig “was maintained in unsanitary conditions that promoted the spread of the E. Coli virus, an inherently dangerous condition.” The court agrees with the plaintiff. Court agreed with plaintiff and reasoned that “[b]ecause the court cannot now conclude that the potbellied pig should be treated as a domestic animal . . . the court must reject the defendants’ argument that they cannot be held strictly liable for the plaintiff’s injuries.” Defendant’s motion to strike denied.

In Argus LEADER Media, doing business as Argus Leader, Plaintiff–Appellee v. UNITED STATES DEPARTMENT OF AGRICULTURE, Defendant, Food Marketing Institute, Intervenor Defendant–Appellant, National Grocers Association, Amicus on Behalf of Appellant(s), No. 17-1346, 2018 WL 2106623 (8th Cir. May 8, 2018), a newspaper asked the USDA for annual Supplemental Nutrition Assistance Program (SNAP) redemption totals for stores in the SNAP program. USDA refused, citing FOIA exemptions. The data at issue consisted of “yearly SNAP revenues of individual retailers for groceries sold to SNAP beneficiaries.” Lower court ruled for newspaper and a trade group representing grocery retailers intervened and appealed, arguing that releasing the data would “stigmatize some stores and cause stores to stop accepting SNAP.” Appellate court considered the nature of the data at issue and found that “[a]likelihood of commercial usefulness—without more—is not the same as a likelihood of substantial competitive harm.” Appellate court concluded trial court “did not clearly err in finding SNAP redemption data not exempt from disclosure under FOIA exemption for confidential commercial information.”


LEGISLATIVE:

S. 2811: A bill to amend the Omnibus Public Land Management Act of 2009 to reauthorize the Collaborative Forest Landscape Restoration Fund. Referred to the Senate Committee on Agriculture, Nutrition, and Forestry.

S. 2809: A bill to establish the San Rafael Swell Western Heritage and Historic Mining National Conservation Area in the State of Utah, to designate wilderness areas in the State, to provide for certain land conveyances. Referred to the Senate Committee on Energy and Natural Resources.

H.R. 3: To rescind certain budget authority proposed to be rescinded in special messages transmitted to the Congress by the President on May 8, 2018, in accordance with title X of the Congressional Budget and Impoundment Control Act 1974. Referred to the House Committee on Appropriations.

H.R. 5738: To amend the Social Security Act, the Food and Nutrition Act of 2008, and the Low-Income Home Energy Assistance Act of 1981 to require that the value of child’s savings accounts be disregarded for the purpose of determining eligibility. Referred to the House Committee on Agriculture, House Committee on Education and the Workforce, and 2 other committees.

H.R. 5727: To establish the San Rafael Swell Western Heritage and Historic Mining National Conservation Area in the State of Utah, to designate wilderness areas in the State, to provide for certain land conveyances. Referred to the House Committee on Natural Resources which will consider it before sending it to the House floor for consideration.

H.R. 5740: To amend the Food and Nutrition Act of 2008 to permit the State agency to disclose personal identifying information of a household member to a law enforcement officer who provides such member’s household electronic benefit transfer card number. Referred to the House Committee on Agriculture.

H.R. 5744: To prohibit surface occupancy for purposes of mineral leasing or development on certain land located in Plata County, Colorado. Referred to the House Committee on Natural Resources.

H.R. 5721: To direct the Secretary of Agriculture to transfer certain National Forest System land in the State of New Mexico. Referred to the House Committee on Natural Resources.


REGULATORY: Includes AMS, ARS, USDA, EPA, NOAA and rules and notices. 

AGRICULTURAL MARKETING SERVICE:

Rule terminates a rulemaking proceeding that proposed to establish a national research and promotion program for certified organic products under authority of the Commodity Promotion, Research and Information Act of 1996. Info here.

Notice AMS is announcing the 2018 rates it will charge for voluntary grading, inspection, certification, auditing, and laboratory services for a variety of agricultural commodities including meat and poultry, fruits and vegetables, eggs, dairy products, and cotton and tobacco. Details here.

AGRICULTURAL RESEARCH SERVICENotice ARS seeks comments on the intent of the USNA to renew an information collection that expires August 31, 2018. Info here.

AGRICULTURE DEPARTMENT:

Rule amends the existing delegations of authority by adding and modifying certain delegations, as explained in the Supplementary Information section below. In addition, it repeals regulations governing meetings of the Commodity Credit Corporation Board of Directors. Info here.

Notice USDA will submit the following information collection requirement(s) to OMB for review. Title: Regulations for the Inspection of Eggs. Details here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is approving a revision to the State of Maryland’s state implementation plan. Info here.

Rule EPA is approving portions of three Texas State Implementation Plan submittals pertaining to CAA requirements to prohibit emissions which will significantly contribute to nonattainment or interfere with maintenance of the 1997 and 2006 fine particulate matter National Ambient Air Quality Standards in other states. Details here.

Rule EPA is proposing to grant a request by the State of California to reclassify the Eastern Kern County nonattainment area from “Moderate” to “Serious” for the 2008 ozone national ambient air quality standards. Info here.

Rule EPA is proposing to approve State Implementation Plan revisions submitted by the State of North Dakota on January 28, 2013, and November 11, 2016. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMNISTRATION:

Rule NMFS hereby issues regulations to implement management measures described in Amendment 47 to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP), as prepared by the Gulf of Mexico Fishery Management Council. Info here.

Notice the Gulf of Mexico Fishery Management Council will hold a two day meeting of its Standing and Reef Fish Scientific and Statistical Committees (SSC). Details here.

Notice the New England Fishery Management Council (Council) is scheduling a public meeting of its Whiting Advisory Panel and Plan Development Team to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Info here.

Notice the New England Fishery Management Council (Council) is scheduling a public meeting of its Whiting Advisory Panel and Plan Development Team to consider actions affecting New England fisheries in the exclusive economic zone. Details here.

Notice that the Stewardship Division, Office for Coastal Management, National Ocean Service, National Oceanic and Atmospheric Administration, U.S. Department of Commerce approves the revised Management Plan for Jobos Bay, Puerto Rico National Estuarine Research Reserve Management Plan. Info here.

RURAL BUSINESS-COOPERATIVE SERVICENotice RBCS will request a revision for a currently approved information collection in support of the Business and Industry (B&I) Loan Program. Info here.