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


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

CHESAPEAKE BAY FOUNDATION, INC., et al. v. K. HOVNANIAN’S FOUR SEASONS AT KENT ISLAND, LLC, et al., No. 1705, 2017 WL 5629679 (Md. Ct. Spec. App. November 22, 2017) involved a dispute over an approved “tidal wetlands license.” Developers proposed project bordered tributaries of the Chesapeake Bay and they sought a State tidal wetlands license as required from Maryland Board of Public Works. Lower court ruled for defendants (developers) and issue on appeal was whether the Board had the “information required by law to grant the License,” and whether the Board provided for “sufficient public participation.” Plaintiffs specifically argued that “without County approval of ‘complete stormwater management plans,’ the Board lacked the necessary information to grant the license.” Court concluded that “there is no law or regulation that requires an applicant for a State tidal wetlands license to secure final approval by the County of complete stormwater management plans in advance of the Board issuing the tidal wetlands license.” Court also found no evidence the Board lacked any information to issue the license. Affirmed for defendants.

SIERRA CLUB, PETITIONER v. UNITED STATES DEPARTMENT OF ENERGY, RESPONDENT, AMERICAN PETROLEUM INSTITUTE AND DOMINION COVE POINT LNG, LP, INTERVENORS, SIERRA CLUB, PETITIONER v. UNITED STATES DEPARTMENT OF ENERGY, RESPONDENT, AMERICAN PETROLEUM INSTITUTE AND SABINE PASS LIQUEFACTION, LLC, INTERVENORS, SIERRA CLUB, PETITIONER v. UNITED STATES DEPARTMENT OF ENERGY, RESPONDENT, AMERICAN PETROLEUM INSTITUTE, ET AL., INTERVENORS, No. 16-1186, No. 16-1252, No. 16-1253, 2017 WL 5664743 (D.C. November 1, 2017) involved three cases challenging Department of Energy’s (DOE) authorization of liquefied natural gas (LNG) exports from three facilities. Sierra Club argued DOE erroneously relied on an Environmental Assessment instead of an Environmental Impact Statement and that additional facts prove DOE “should have provided more localized analysis.” Appellate court found the DOE’s conclusions were “neither arbitrary nor capricious.” Petitions for review denied.

In GERAWAN FARMING, INC., Petitioner, v. AGRICULTURAL LABOR RELATIONS BOARD, Respondent; UNITED FARM WORKERS OF AMERICA, Real Party in Interest, S227243, 2017 WL 5662395 (Cal. November 27, 2017), United Farm Workers of America (UFW) filed mediation request (per the Agricultural Labor Relations Act (ALRA) with the Labor Relations Board after failing to reach a collective bargaining agreement with petitioner (Gerawan). Mediator submitted fixed contractual terms and Board adopted. Issue on appeal was the ALRA’s “mandatory mediation and conciliation” (MMC) provisions. Petitioner sought review of Board’s order and argued the mediation “statutory scheme” was unconstitutional. Appellate court found “the MMC statute on its face violates equal protection principles” and that it “improperly delegated legislative authority.” State Supreme Court, however, concluded that the MMC statute “neither violates equal protection nor unconstitutionally delegates legislative power.” Critically, the Court also declared that employers “may not refuse to bargain with unions — whether during the ordinary bargaining process or during MMC — on the basis that the union has abandoned its representative status.”

UNITED STATES of America, Plaintiff–Appellee, v. Joseph David ROBERTSON, Defendant–Appellant, No. 16-30178, 2017 WL 5662532 (9th Cir. November 27, 2017) involved alleged violations of the Clean Water Act (CWA) after defendant constructed some ponds on National Forest System Lands and discharged dredged and fill material into surrounding wetlands. Defendant did not get permits to build the ponds or to “discharge dredged material into waters of the United States.” He was found guilty of CWA violations and appealed. Appellate court, citing Justice Kennedy, observed that “only wetlands with a significant nexus to a navigable-in-fact waterway are covered by the Act.” Defendant countered that “a ‘significant nexus’ exists only when a wetland would be polluting an otherwise clean water.” Appellate court disagreed, however, and stated that, “Whether a wetland or non-navigable water has a significant nexus to a traditionally navigable water has nothing to do with whether the traditionally navigable water is healthy.” Court found no abuse of discretion by district court and affirmed.


REGULATORY: Includes APHIS, FDA, and NOAA rules and notices. 

ANIMAL AND PLANT HEATLH INSPECTION SERVICE: Rule amending the regulations to allow the importation of fresh mango fruit from Vietnam into the continental United States. Details here.

FOOD AND DRUG ADMINISTRATION: Notice FDA has submitted a proposed collection of information to OMB for review and clearance. Title: Recordkeeping and Reporting Requirements for Human Food and Cosmetics Manufactured From, Processed With, or Otherwise Containing Material From Cattle—21 CFR 189.5 and 700.27. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS apportions amounts of the non-specified reserve to the initial total allowable catch (ITAC) of Aleutian Islands (AI) Greenland turbot, AI “other rockfish,” Bering Sea (BS) sablefish, Bering Sea and Aleutian Islands (BSAI) Alaska plaice, BSAI northern rockfish, BSAI “other flatfish,” BSAI shortraker rockfish, BSAI sculpin, BSAI skates, and Central and Western Aleutian Islands (CAI/WAI) blackspotted/rougheye rockfish in the BSAI management area. Info here.

Notice the New England Fishery Management Council’s Scientific and Statistical Committee will hold a webinar to review the 2017 Plan B Operational Assessment for Atlantic Halibut. Details here.

Notice the Pacific Fishery Management Council’s (Pacific Council) Ad hoc Ecosystem Workgroup (EWG) will hold a meeting via webinar to discuss the work associated with the Climate Change and Communities Initiative. Details here.