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


ANNOUNCEMENT: Register today for our Fifth Annual Mid-South Agricultural and Environmental Law Conference in Memphis, TN / June 7-8. CLE credit available! Additional information available here.


JUDICIAL: Includes CWA, forestry, and biosecurity issues.

In CALIFORNIA BUILDING INDUSTRY ASSOCIATION, Plaintiff and Appellant, v. STATE WATER RESOURCES CONTROL BOARD, Defendant and Respondent, S226753, 416 P.3d 53 (Cal. May 7, 2018), plaintiff sued State Water Resources Control Board over storm water program fees. Lower court ruled for Board and on appeal, State Supreme Court considered whether Board’s “adoption of the fee schedule violated constitutional restrictions on regulatory fees under article XIII A of the California Constitution.” Court determined that annual permit fees and expenses “need not be correlated for each of the program areas within Board’s current waste discharge program.” Court also found that plaintiff failed to show that storm water program fees “exceeded costs of administering permit program,” or that the Board failed to fairly allocate charges. Court ruled fee schedule was proper and affirmed lower court.

In GREATER HELLS CANYON COUNCIL, an Oregon nonprofit corporation, Plaintiff, v. Kris STEIN, District Ranger FOR the HELLS CANYON NATIONAL RECREATION AREA, WALLOWA-WHITMAN NATIONAL FOREST, in her official capacity; and United States Forest Service, an agency of the United States Department of Agriculture, Defendants, and McClaran Ranch, Inc., an Oregon Domestic Business Corporation; and Wallowa County, a political subdivision of the State of Oregon, Proposed Defendant-Intervenors, No. 2:18-cv-00054-SU, 2018 WL 2136358 (D. Or. May 9, 2018), plaintiff challenged U.S. Forest Service decision to reauthorize livestock grazing in a National Forest. Plaintiff contended the grazing “jeopardizes the Spalding’s catchfly, a federal threatened plant,” and sought an order vacating the FS’s Environmental Impact Statement (EIS). Some local ranchers held grazing permits authorizing cattle grazing, and here, moved to intervene as defendants. Court determined a ruling for the plaintiff “could substantially impact the County and Ranch,” and that if the ranchers were “not made a party to th[e] action, they [would] have no legal means to challenge” an injunction. Motion to intervene granted.

In Martino RECCHIA, Plaintiff-Appellant, v. CITY OF LOS ANGELES DEPARTMENT OF ANIMAL SERVICES, North Central Animal Care Center; Rodriguez, ACO, (Activity No. A11-031309), in her individual capacity; R. Weekley, ACO, (ID No. 0999082) in his individual capacity, Defendants-Appellees, No. 13-57002, 889 F.3d 553 (9th Cir. May 1, 2018), a bird owner sued City and animal control officers alleging warrantless seizure and euthanization of birds violated his rights under Fourth and Fourteenth Amendments. Plaintff kept twenty birds in cages on the sidewalk where he lived and officers seized the birds without a warrant. A veterinarian then euthanized the birds. Lower court granted defendants’ motion for summary judgment and bird owner appealed. Appellate court found that a genuine issue of material fact existed “as to whether exigent circumstances justified warrantless seizure of eight healthy-looking birds.” The court also determined that the officers were entitled to “discretionary immunity from state-law tort claims,” and remanded case.


REGULATORY: Includes USDA, EPA, FWS, FDA, FSIS, and NOAA rules and notices.

AGRICULTURE DEPARTMENT:

Notice USDA will submit information collection requirement(s) to OMB for review. Title: Agricultural Resource Management, Chemical Use, and Post-Harvest Chemical Use Surveys. Details here.

Notice the designations of a number of official agencies will end on prescribed dates. Details here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is approving a Louisiana State Implementation Plan (SIP) revision revising the 2008 8-hour ozone National Ambient Air Quality Standard maintenance plan for the five-parish Baton Rouge area. Info here.

Rule EPA is approving a State Implementation Plan (SIP) revision submitted by the State of Rhode Island. These revisions include regulations to update the enhanced motor vehicle inspection and maintenance (I/M) program in Rhode Island. Info here.

Rule EPA is proposing action on the ozone attainment portion of a State Implementation Plan (SIP) revision submitted by the State of Connecticut to meet the Clean Air Act (CAA) requirements for attaining the 1997 8-hour ozone national ambient air quality standard. Details here.

Rule EPA is proposing to approve a February 21, 2018, State Implementation Plan (SIP) revision submitted by the State of Maine. Info here.

Rule EPA is proposing to approve a revision to the Wisconsin State Implementation Plan (SIP) submitted by the Wisconsin Department of Natural Resources (WDNR) to EPA on November 28, 2017. Info here.

Rule EPA is proposing to approve a January 4, 2018, request by the Wisconsin Department of Natural Resources (Wisconsin) to revise its state implementation plan (SIP) for fine particulate matter. Info here.

Rule EPA is proposing to approve a request submitted by the Wisconsin Department of Natural Resources (WDNR) on May 16, 2017, to revise the Wisconsin State Implementation Plan (SIP). Details here.

FISH AND WILDLIFE SERVICE: Notice FWS announces the availability of the final supplemental environmental impact statement (SEIS) and final Montana Department of Natural Resources Amended Habitat Conservation Plan (HCP) for forest management in Montana. Details here.

FOOD AND DRUG ADMINISTRATION: Notice solicits comments on the information collection provisions of FDA’s procedures for early food safety evaluation of new non-pesticidal proteins produced by new plant varieties intended for food use, including bioengineered food plants. Info here.

FOOD SAFETY AND INSPECTION SERVICENotice FSIS is announcing the availability of and requesting comments on a guideline for businesses that slaughter livestock or process meat and meat food products on the exemptions to the inspection requirements of the Federal Meat Inspection Act. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS’ Fisheries Finance Program (FFP) provides long-term financing to the commercial fishing and aquaculture industries for fishing vessels, fisheries facilities, aquaculture facilities, and certain designated individual fishing quota (IFQ). Details here.

Rule NMFS proposes to implement annual management measures and catch limits for the northern subpopulation of Pacific sardine, for the fishing year from July 1, 2018, through June 30, 2019. Info here.

Notice NMFS published a document in the Federal Register on May 22, 2018, and the document contained outdated information and this document has been corrected and is republished in its entirety. NMFS has received a request from Washington State Department of Transportation (WSDOT) for authorization to take marine mammals incidental to the Seattle Multimodal Project at Colman Dock in Seattle, Washington. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal. Info here.