A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions HERE.
ANNOUNCEMENT: Join us Wednesday, September 20, at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: “Tackling the Challenge of Invasive Species to Reduce Impacts to Agriculture.” Details available here.
JUDICIAL: Includes commodity programs, labor, and CAFO issues.
In ROBERT ONEAL BEAN, Plaintiff, v. SONNY PERDUE, Secretary, United States Department of Agriculture,1 Defendant, No.: 17-0140 (RC) 2017 WL 4005603 (D.D.C. September 11, 2017), plaintiff sued United States Department of Agriculture (USDA) claiming the agency denied him loan servicing and foreclosed on land he had purchased. Plaintiff claimed USDA violated the Administrative Procedure Act (APA) and the Agricultural, Rural Development, Food and Drug Administration and Related Agencies Appropriations Act. Per plaintiff’s APA claim, the court reasoned that “[i]f the USDA can demonstrate that it was adhering to the relevant statutes and regulations concerning loan servicing when it denied Mr. Bean, then its decision was neither arbitrary nor capricious.” Court found it a “reasonable inference” that plaintiff did not receive loan servicing materials and that “denying him loan servicing for failure to submit a timely application would not be in accordance with the USDA’s regulations and may very well have been arbitrary and capricious.” Defendant’s motion to dismiss granted in part.
Francisca RAMIREZ, Plaintiff, v. BENITO VALLEY FARMS, LLC, Defendant, No. 16-CV-04708-LHK, 2017 WL 3670794 (N.D. Cal. August 25, 2017) involved a settlement agreement wherein plaintiff, a seasonal agricultural worker, had accused defendant of providing substandard living conditions and had withheld pay. Court considered the substance of the settlement agreement per the Private Attorney General Act (PAGA), “in light of the PAGA requirement that the award not be ‘unjust, arbitrary and oppressive, or confiscatory.’” Court found the settlement “fair and reasonable” and granted plaintiff’s motion for settlement approval.
In The DOLSEN COMPANIES, a Washington Corporation, et al., Plaintiffs, v. BEDIVERE INSURANCE COMPANY, f/k/a OneBeacon, et al., Defendants, NO. 1:16–CV–3141–TOR, 2017 WL 3996440 (E.D. Wash. September 11, 2017), plaintiff ran a concentrated animal farm operation (CAFO) and gallons of liquid manure from the farm’s holding ponds leaked into the water system. Plaintiff attempted to get its insurance company to pay for damages resulting from the leakage. Insurance company argued its duty to “defend and indemnify” was not triggered because the “absolute pollution exclusions contained in the respective policies exclude the asserted loss from coverage.” Court considered the relevant language of the policy and noted that, “[a]n insurer has no duty to defend ‘if the alleged claims are clearly outside the policy’s coverage.’” Court concluded that “because non-coverage was clear, Defendants did not have a duty to defend Plaintiffs in the underlying litigation.”
S. 1787: A bill to reauthorize the National Geologic Mapping Act of 1992. Bill referred to the Senate Committee on Energy and Natural Resources.
S. 1794: A bill to prohibit the Environmental Protection Agency from proposing, finalizing, or disseminating regulations or assessments based upon science that is not transparent or reproducible. Bill referred to the Senate Committee on Environment and Public Works which will consider it before sending it to the Senate floor for consideration.
S. 1799: A bill to amend the Energy Policy Act of 2005 to facilitate the commercialization of energy and related technologies developed at Department of Energy facilities with promising commercial potential. Bill referred to the Senate Committee on Energy and Natural Resources and Senate Committee on Energy and Natural Resources: Subcommittee on Energy.
H.R. 2582: Confirming State Land Grants for Education Act. Bill’s text for status Reported by House Committee (Sep 12, 2017) is now available.
H.R. 3749: To amend the Food and Nutrition Act of 2008 to provide for a standard medical expense deduction under the supplemental nutrition assistance program, and for other purposes. Bill referred to the House Committee on Agriculture, House Committee on Education and the Workforce.
MEETING: Senate Committee on Agriculture, Nutrition, and Forestry Meeting. Hearings to examine the nominations of Stephen Censky, of Missouri, to be Deputy Secretary, and Ted McKinney, of Indiana, to be Under Secretary for Trade and Foreign Agricultural Affairs, both of the Department of Agriculture. September 19, 2017 9:30 a.m. (Location: SH-216).
MEETING: Senate Committee on Energy and Natural Resources: Subcommittee on National Parks Meeting. Hearings to examine encouraging the next generation to visit National Parks. September 27, 2017 2 p.m. (Location: SD-366).
REGULATORY: Includes APHIS, EPA, FWS, FDA, NIST, NOAA, and USPTO rules and notices.
ANIMAL AND PLANT HEALTH INSPECTION SERVICE: Rule amending the regulations governing the importation of plants for planting to add orchid plants of the genera Phalaenopsis and Cymbidium from the Republic of Korea to the list of plants that may be imported into the continental United States in an approved growing medium, subject to specified growing, inspection, and certification requirements. Info here.
ENVIRONMENTAL PROTCTION AGENCY:
Rule EPA is taking final action to approve revisions to the South Coast Air Quality Management District portion of the California State Implementation Plan. Info here.
Rule EPA is taking direct final action approving a State Implementation Plan (SIP) revision submitted by the State of Montana. Info here.
Rule that during a review of Arkansas’ regulations, EPA identified State-initiated changes to its hazardous waste program under the Resource Conservation and Recovery Act. Details here.
Rule EPA is proposing action on a revision to the Bay Area Air Quality Management District portion of the California State Implementation Plan. Details here.
Rule EPA is proposing to conditionally approve a State Implementation Plan submitted by the State of New York for purposes of implementing Reasonably Available Control Technology for the 2008 8-hour ozone National Ambient Air Quality Standard. Details here.
Rule EPA is proposing to approve portions of the fine particulate matter (PM2.5) State Implementation Plan (SIP) and related rule revisions submitted by the State of Utah. Info here.
FISH AND WILDLIFE SERVICE: Notice invite the public to comment on applications for permits to conduct activities intended to enhance the propagation or survival of endangered species. Info here.
FOOD AND DRUG ADMINISTRATION: Rule FDA is announcing that Arcadia Biosciences, Inc. has filed a petition proposing that the food additive regulations be amended to provide for the safe use of gamma-linolenic acid safflower oil as a source of omega-6 fatty acids in dry food for adult cats in the maintenance life stage. Info here.
NATIONAL INSTITUTE OF STANDARDS AND TECHNOLOGY: Notice the National Advisory Committee on Windstorm Impact Reduction will hold an open meeting continuing the work of the Committee via video conference on Monday, September 25, 2017, from 9:00 a.m. to 10:00 a.m. Eastern Time. Info here.
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:
Rule NMFS adjusts the 2017 Winter II commercial scup quota and per trip Federal landing limit. Info here.
Rule NMFS announces seven inseason actions in the ocean salmon fisheries. Info here.
Notice NMFS is conducting a survey to improve its ability to predict changes the number of fishing trips anticipated with changes in economic conditions or fishing regulations. Info here.
Notice NMFS received an application from Barney M. Davis L.P. for an incidental take permit, pursuant to the Endangered Species Act of 1973, as amended, for Barney M. Davis Power Station in Corpus Christi, TX. Info here.
PATENT AND TRADEMARK OFFICE: Notice USPTO will host a roundtable discussion at its headquarters in Alexandria, Virginia, on October 18, 2017, on addressing intellectual property infringements at trade shows. Info here.