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


ANNOUNCEMENT: This is the last Ag & Food Law Update post this week. The Update returns Monday, November 27.


JUDICIAL: Includes environmental, CWA, and urb & ag issues. 

EARTH ISLAND INSTITUTE and SEQUOIA FORESTKEEPER, Plaintiffs, v. KEVIN ELLIOTT, in his official capacity as Forest Supervisor of the Sequoia National Forest, et al., Defendants, 1:17-cv-01320-LJO-MJS, 2017 WL 5526572 (E.D. Cal. November 17, 2017) concerned a Forest Service (USFS) “fire salvage restoration project” to treat a strip of land along an area of roadways affected by a major fire. Plaintiffs sought a preliminary injunction in order to protect the existing Pacific fisher species population, and argued USFS provided no supplemental analysis regarding the fisher population. Court noted the key issue “is whether the commercial logging activities proposed here fit into a categorical exclusion (CE) for ‘[r]epair and maintenance of roads, trails, and landline boundaries.’” USFS argued it is entitled to “broad deference” when interpreting its own regulations and that “in promulgating the salvage CE, the USFS did not restrict the scope of other CEs.” Court concluded plaintiffs did not provide enough persuasive evidence and denied their motion for a preliminary injunction.

WEST VIRGINIA DEPARTMENT OF TRANSPORTATION, DIVISION OF HIGHWAYS, A PUBLIC CORPORATION, Petitioner Below, Petitioner v. CDS FAMILY TRUST, LLC, A DELAWARE LIMITED LIABILITY COMPANY, Respondent Below, Respondent, No. 16-1163, 2017 WL 5559256 (W. Va. November 14, 2017) concerned a condemnation proceeding involving a 772-acre tract of land (including some wetlands) where “the highest and best use of the wetlands was determined to be the development of a wetlands mitigation bank.” Central issue was the admissibility of expert testimony “valuing wetland property for the purpose of just compensation.” Here, the expert testimony valued the land based on the “market price of mitigation credits that could be developed from the land,” versus the fair market value of the land. Upon analysis, the court concluded that the market price of mitigation credits produced from the property “cannot be the sole basis for measuring the land’s value in determining just compensation.” Reversed and remanded.

In WATERMAN FAMILY LIMITED PARTNERSHIP, et al. v. Kathleen B. BOOMER, et al, No. 18, 2017 WL 555985 (Md. Ct. Spec. App. November 20, 2017), plaintiff asked Town to annex farm land owned by plaintiff and to rezone the annexed land for purposes of a development. The Town acceded to those requests. Town sought County approval of the new zoning classification and nearby property owners objected to the new zoning. County initially approved the zoning and then a newly installed Board of County Commissioners rescinded the approval. Plaintiff sued and issue was whether a county could rescind its approval of a municipality’s rezoning of annexed land. Court of Special Appeals ruled County could rescind its approval and plaintiff appealed. Appellate court observed that the governing body of a local government has the right to reconsider its actions and ordinances, and adopt a measure or ordinance that has previously been defeated or rescind one that has been previously adopted before the rights of third parties have vested.” Affirmed for defendant.

In CLEVELAND NATIONAL FOREST FOUNDATION et al., Plaintiffs and Appellants, v. SAN DIEGO ASSOCIATION OF GOVERNMENTS et al., Defendants and Appellants; The People, Intervenor and Appellant. Creed-21 et al., Plaintiffs and Appellants, v. San Diego Association of Governments et al., Defendants and Appellants; The People, Intervenor and Appellant. D063288, 2017 WL 5494582 (Cal. Ct. App. November 16, 2017), plaintiffs sought a writ of mandate challenging defendant’s certification of an environmental impact report (EIR). Plaintiffs alleged the EIR violated the California Environmental Quality Act (CEQA) “by failing to adequately analyze and mitigate the transportation plan’s impacts from particulate matter pollution.” Defendant claimed the case is moot because the EIR and the transportation plan were “superseded by more recent versions.” Plaintiffs argued the EIR was not superseded and that the EIR’s analytical errors “are capable of repetition and could evade review because [defendant] must update the transportation plan every four years.” Appellate court sided with plaintiffs after determining “there is no evidence indicating the EIR at issue in this case has been decertified and can no longer be relied upon for the current version or future versions of the transportation plan.”


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

AGRICULTURE DEPARTMENT: Notice USDA has submitted information collection requirement(s) to OMB for review. Title: CCC’s Export Credit Guarantee Program (GSM-102). Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is withdrawing the September 25, 2017, direct final rule that would have approved changes to the Georgia State Implementation Plan (SIP) to revise the Emission Reduction Credits (ERC) regulation. Details here.

Rule EPA is withdrawing the October 3, 2017 direct final rule that approved a state implementation plan (SIP) revision submitted by the State of Maryland to add the 2011 base year inventory for the Baltimore, Maryland moderate nonattainment area for the 2008 8-hour ozone national ambient air quality standard (NAAQS) into Maryland’s SIP. Details here.

Rule EPA is withdrawing the September 29, 2017 direct final rule (DFR) that approved a revision to the Maryland state implementation plan (SIP). Info here.

Rule EPA and the Department of the Army are proposing to add an applicability date to the “Clean Water Rule: Definition of `Waters of the United States’” (the “2015 Rule”) to two years from the date of final action on this proposal. Details here.

FISH AND WILDLIFE SERVICE:

Rule FWS will review and potentially revise the regulations concerning enhancement-of-survival permits issued under the Endangered Species Act, associated with Candidate Conservation Agreements with Assurances. Info here.

Notice FWS will review and potentially revise the Candidate Conservation Agreements with Assurances policy under the Endangered Species Act of 1973. Info here.

FOOD AND DRUG ADMINISTRATION: Rule FDA is announcing the availability of a guidance for industry entitled “Sanitary Transportation of Human and Animal Food: What You Need to Know About the FDA Regulation—Small Entity Compliance Guide.” Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule establishes the 2018 opening date for all Atlantic shark fisheries, including the fisheries in the Gulf of Mexico and Caribbean. Info here.

Rule NMFS is transferring 25.6 metric tons (mt) of Atlantic bluefin tuna (BFT) quota from the Harpoon category to the General category for the remainder of the 2017 fishing year. Info here.

Rule NOAA expanded the boundaries of Gulf of the Farallones National Marine Sanctuary (now renamed Greater Farallones National Marine Sanctuary or GFNMS) and Cordell Bank National Marine Sanctuary. Details here.

Rule withdraws approval of the 2017 and 2018 Northeast Fishery Sector IX operations plan. Details here.

Rule NMFS will implement Amendment 16 of the Coastal Pelagic Species (CPS) Fishery Management Plan. Info here.

Rule NMFS considers allowing the United States Coast Guard to carry out certain otherwise prohibited activities within waters of Greater Farallones National Marine Sanctuary and Cordell Bank National Marine Sanctuary approximately 3 nautical miles (nm) from the shore, in the areas of the sanctuaries that were expanded in 2015. Details here.

Notice permits were issued to entities under the Marine Mammal Protection Act (MMPA) and the Endangered Species Act (ESA). Info here.

Notice NMFS has issued an incidental harassment authorization (IHA) to Venoco LLC (Venoco) to incidentally harass, by Level B harassment only, marine mammals during construction activities associated with a fender pile replacement project in Carpinteria, California. Details here.