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


JUDICIAL: Includes administrative law, animal welfare, urb & ag, and ESA issues.

In UNITED STATES OF AMERICA, Plaintiff, v. JAMES A. PRATT, CONNIE L. PRATT-SCHMIDT aka CONNIE L. PRATT, HOPKINS MORTGAGE FUND, LLC, and DUSTIN KUKLA, Defendants, No. 4:16-cv-00108-DCN, 2017 WL 4341850 (D. Idaho September 29, 2017), Farm Service Agency (FSA) sought to foreclose on real estate mortgages and security agreements. FSA submitted loan documents indicating exact amount owed, including interest. Issue was whether defendant was “currently in default for not timely paying taxes and whether he has made all annual payments on the loan.” Plaintiff argued loan documentation inferred that “repayment of the loan was contingent upon [defendant] receiving an USDA operating loan.” Court not persuaded and granted FSA’s motion for summary judgment.

In ANIMAL LEGAL DEFENSE FUND, INC., et al., Appellants v. Sonny PERDUE, Secretary, United States Department of Agriculture and Robert Gibbens, Western Regional Director, Animal and Plant Health Inspection Service, United States Department of Agriculture, Appellees, No. 16-5073, 2017 WL 4320804 (D.D.C. September 29, 2017), plaintiffs claimed United States Department of Agriculture’s (USDA) renewal of zoo operators’ license to exhibit animals was “arbitrary and capricious” and violated the Administrative Procedure Act (APA). Plaintiffs alleged agency knew “operators were not in compliance with USDA Secretary’s regulations governing minimum animal housing and care standards.” Court observed that USDA’s decision to renew the license to exhibit animals without inspecting the zoo “was not inconsistent with requirements of statute authorizing the Secretary to administer licenses for animal dealers and exhibitors.” However, appellate court “could not evaluate whether renewal was arbitrary and capricious.” Remanded to USDA for explanation.

JOHN P. BOERSCHIG Plaintiff – Appellant v. TRANS-PECOS PIPELINE, L.L.C. Defendant- Appellee, No. 16-50931, 2017 WL 4367151 (5th Cir. October 3, 2017) concerned a Texas law allowing a natural gas utility to condemn land for “public use.” Defendant started a condemnation proceeding to obtain a permanent right-of-way and easement on plaintiff’s ranch. Plaintiff argued that by ceding condemnation power to a private company, Texas eminent domain law “offends due process.” Court observed that plaintiff’s argument “principally relies on the private nondelegation doctrine, and issue was “whether a federal court should enjoin the ongoing state condemnation process.” The court reasoned that “[t]he existence of a standard like the one Texas has for exercising eminent domain has prevented courts from finding that a delegation to private parties involves the unfettered discretion that violates due process.” Court concluded that plaintiff’s “due process challenge faces long odds” and denied his request for a preliminary injunction.

CENTER FOR BIOLOGICAL DIVERSITY, Plaintiff, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Defendant, No. 16–175 (BAH), 2017 WL 4326381 (D.D.C. September 28, 2017) involved two FOIA requests concerning EPA’s determination a pesticide product would have “no effect” on species protected under the Endangered Species Act (ESA). Plaintiff argued the EPA’s record search was “inadequate.” Court observed that “[t]he FOIA requester bears the burden, then, of overcoming the presumption of good faith afforded to agency declarations by “rais[ing] substantial doubt . . . that the search was adequate.” Upon review, the court found that the EPA’s descriptions of its searches for “responsive records” failed to show “beyond material doubt that its search[es] w[ere] reasonably calculated to uncover all relevant documents.” Court concluded that the EPA must “conduct a supplemental search, disclose any non-exempt materials, and, if it continues to withhold any materials, submit a supplemental declaration and Vaughn Index that sufficiently justifies these withholdings.”


LEGISLATIVE:

S. 396: A bill to make technical amendments to certain marine fish conservation statutes. Passed Senate without amendment by Voice Vote.

H.R. 289: GO Act. This bill’s text for status Passed the House and is now available.

H.R. 1547: Udall Park Land Exchange Completion Act. This bill’s text for status Passed the House and is now available.

H.R. 2316: Cooperative Management of Mineral Rights Act of 2017. This bill’s text for status Passed the House and is now available.

H.R. 3913: To amend the Surface Mining Control and Reclamation Act of 1977 to transfer certain funds to the 1974 United Mine Workers of America Pension Plan. Bill referred to the House Committee on Natural Resources and House Committee on Ways and Means.

H.R. 3916: To amend the Endangered Species Act of 1973 to vest in the Secretary of the Interior functions under that Act with respect to species of fish that spawn in fresh or estuarine waters and migrate to ocean waters. Bill referred to the House Committee on Natural Resources.

H.R. 3914: To remove the limitation imposed as a result of receiving funding under the Land and Water Conservation Fund on the conversion of Lake Afton Park in Sedgwick County, Kansas, to a use other than public outdoor recreation. Bill referred to the House Committee on Natural Resources.

H.R. 2883: Promoting Cross-Border Energy Infrastructure Act. Bill replaces the Presidential Permit process, established through executive order, with a uniform and transparent process to authorize the construction, connection, operation, and maintenance of international border-crossing facilities for the import and export of oil and natural gas and the transmission of electricity.


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

AGRICULTURAL MARKETING SERVICE: Rule withdraws a proposed rule to change the reporting of export certificate information under regulations issued pursuant to the Export Apple Act and the Export Grape and Plum Act. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is approving revisions to the State Implementation Plan (SIP), Operating Permits Program, and 112(l) program submitted on July 14, 2014, by the State of Nebraska. Info here.

Rule EPA is taking direct final action to approve revisions to the State Implementation Plan (SIP) submitted by the state of Nebraska on November 14, 2011. Details here.

Rule EPA is taking final action to approve State Implementation Plan (SIP) revisions submitted by the State of Utah on August 20, 2013, and on June 29, 2017. Details here.

Rule EPA is taking final action to approve State Implementation Plan (SIP) revisions submitted by the State of Utah on August 20, 2013, and on June 29, 2017. Details here.

Rule EPA is proposing to approve the second 10-year maintenance plan for the San Manuel area in Arizona for the 1971 National Ambient Air Quality Standards (NAAQS or “standards”) for sulfur dioxide (SO2). Info here.

Rule EPA is proposing to approve State Implementation Plan (SIP) revisions, which Illinois submitted to EPA on March 2, 2016, and supplemented on August 8, 2016 and May 4, 2017, for attaining the 2010 1-hour sulfur dioxide (SO2) national ambient air quality standard (NAAQS) for the Lemont and Pekin areas. Info here.

Rule EPA is proposing to approve the State Implementation Plan (SIP) revision submitted by the state of Nebraska on November 14, 2011. Info here.

Rule EPA is proposing approval of revisions to the State Implementation Plan (SIP) submitted by the State of Texas through the Texas Commission on Environmental Quality (TCEQ) on July 10, 2015. Info here.

Rule Arizona has applied to the EPA for final authorization of changes to its hazardous waste program under the Resource Conservation and Recovery Act. Details here.

FISH AND WILDLIFE SERVICE: Notice FWS announces 12-month findings on petitions to list 25 species as endangered or threatened species under the Endangered Species Act of 1973. Details here.

FOOD AND DRUG ADMINISTRATION:

Notice FDA is announcing the availability of a guidance for industry #236 entitled “Clarification of FDA and EPA Jurisdiction Over Mosquito-Related Products.” Info here.

Notice FDA is announcing a forthcoming public meeting entitled “Animal Drug User Fee Act.” Info here.

Notice FDA is announcing the forthcoming public meeting entitled “Animal Generic Drug User Fee Act.” Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION: Rule NMFS is exchanging unused flathead sole and rock sole Community Development Quota (CDQ) for yellowfin sole CDQ acceptable biological catch (ABC) reserves in the Bering Sea and Aleutian Islands management area. Info here.