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

JUDICIAL: Includes renewable energy, nutrition programs, food labeling, urb & ag, and environmental issues.

In UNITED STATES of America, Plaintiff, v. OSAGE WIND, LLC; Enel Kansas, LLC; Enel Green Power North America, Inc., Defendants-Appellees. Osage Minerals Council, Movant to Intervene-Appellant, Nos. 15-5121 & 16-5022, 2017 WL 4109940 (10^th Cir. September 18, 2017), the government sued company that was building a wind farm on Indian land. Plaintiff alleged the company’s “excavation of soil, sand, and rock to place cement foundations to support wind turbines constituted ‘mining’ that required a federally-approved mineral lease.” Lower court granted summary judgment to wind company and Indian tribe sought to intervene on appeal. Appellate court ruled that the Indian tribe was entitled to appeal and their claim was not precluded under doctrine of res judicata. The court also declared that the definition of “mining” in regulation requiring mineral leases on Indian land “is not limited to commercial extraction of minerals, but also includes acting upon the minerals to exploit the minerals themselves.” Reversed and remanded.

LUUL YIKALO TIKABO, et al., Plaintiffs, v. UNITED STATES OF AMERICA, Defendant, H-16-2197, 2017 WL 4112306 (S.D. Tex. September 18, 2017) involved an appeal by plaintiff of a ruling by the Food and Nutrition Service (FNS) disqualifying plaintiff from the Supplemental Nutrition Assistance Program (SNAP) for “illegal food stamp trafficking.” On appeal, plaintiff attacked defendants’ evidence by claiming “no ‘nexus’ exists between trafficking violations and the United States’ transaction data.” Plaintiff argued defendant “failed to provide a sufficient explanation about how FNS uses transaction data to inform its disqualification decision-making process.” Appellate court disagreed and found defendant met its burden and granted motion for summary judgment.

In SYNDI TRACTON, on behalf of herself, all others similarly situated, and the general public, Plaintiff, v. VIVA LABS, INC., Defendant, No.: 16-cv-2772-BTM-KSC, 2017 WL 4125053 (S.D. Cal. September 18, 2017), plaintiff filed class action against Defendant for marketing its Organic Extra Virgin Coconut Oil as “both inherently healthy and a healthy alternative to butter, despite that the Coconut Oil’s total fat and saturated fat content make it unhealthy, and a less healthy alternative.” Plaintiff alleged violations of the California Unfair Competition Law (UCL), the False Advertising Law (FAL), and the Consumer Legal Remedies Act (CLRA). Defendant argued plaintiff’s UCL, FAL, and CLRA claims should be dismissed “because she fails to plausibly allege that a reasonable consumer is likely to be deceived by the alleged false advertising.” Court observed that “[u]nder the UCL, FAL, and CLRA, deceptive labeling claims are evaluated by the ‘reasonable consumer’ test—whether a reasonable consumer would ‘likely be deceived.’” Court denied defendant’s motion to dismiss, reasoning that “notwithstanding the ingredient panel, the statements on the label coupled with the Amazon product page, at the very least, create an issue of fact as to whether a reasonable consumer would likely be deceived by such statements.”

In Justin T. MOORE, Appellant v. LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT; Community Trust Bank, f/k/a Heritage Community Bank; Central Bank & Trust Co.; and First Security Bank, Inc., Appellees, NO. 2016-CA-000187-MR, 2017 WL 4078842 (Ky. Ct. App. September 15, 2017), plaintiff appealed ruling that defendant could condemn a portion of his property, “creating a permanent easement for the construction of a large box culvert and drainage system.” Plaintiff argued defendant planned use of the property exceeds the need “for a right to enter his land to perform repairs and maintenance.” Court noted that defendant’s ability to condemn the property is “carefully circumscribed by the constitutional restrictions that the taking be for ‘public use’ and that the condemnee receive ‘just compensation.’” Court found defendant’s planned use of the subject property “is much greater than that associated with an easement, and declared that for defendant ”to take less than a fee simple interest in the property is arbitrary and in excess of LFUCG’s authority under the Eminent Domain Act.” Reversed.

In SEQUOIA FORESTKEEPER, Plaintiff v. ERIC LA PRICE, in his official capacity as District Ranger for the Western Divide Ranger District of the Sequoia National Forest, et al., Defendants, and SIERRA FOREST PRODUCTS, a California Corporation, Intervenor-Defendant, NO. 1:16-CV-0759 AWI JLT, 2017 WL 4127871 (E.D. Cal. September 15, 2017), plaintiff sued regarding defendant’s commercial logging activities in the core habitat for the Pacific Fisher mammalian species. Plaintiff claimed Forest Service “has failed to adequately analyze the impacts of the planned logging practices on the Fisher.” Defendants countered that their Supplemental Information Report (SIR) was sufficient and that the project “would have only minimal, short-term effects on individual Fishers, if any, and will ensure that habitat in the area can better withstand drought, fires, and insects in the future.” Court found defendant did not act “ arbitrarily and capriciously in regards to the forest plan” and granted defendant’s motion for summary judgment.

LEGISLATIVE:

S. 1844: A bill to provide for coordination by the Federal Energy Regulatory Commission of the process for reviewing certain natural gas projects under the jurisdiction of the Commission. Bill was referred to the Senate Committee on Energy and Natural Resources which will consider it before sending it to the Senate floor for consideration.

S. 1839: A bill to amend the Agricultural Trade Act of 1978 to extend and expand the market access program and the foreign market development cooperator program. Bill referred to the Senate Committee on Agriculture, Nutrition, and Forestry which will consider it before sending it to the Senate floor for consideration.

S. 1833: A bill to modify requirements applicable to locatable minerals on public domain land. Bill was referred to the Senate Committee on Energy and Natural Resources which will consider it before sending it to the Senate floor for consideration.

H.R. 3354: Department of the Interior, Environment, and Related Agencies Appropriations Act, 2018. The House Appropriations Committee passed each of the 12 Fiscal Year 2018 appropriations bills out of subcommittee and full committee.

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

ANIMAL AND PLANT HEALTH INSPECTION SERVICE:

Notice an environmental assessment and finding of no significant impact have been prepared by the Animal and Plant Health Inspection Service relative to the release of a leaf-feeding moth, Hypena opulenta, for the biological control of swallow-worts. Info here.

Notice informing the public of the international standard-setting activities of the World Organization for Animal Health, the Secretariat of the International Plant Protection Convention, and the North American Plant Protection Organization. Details here.

Notice advising the public that APHIS is adding Uganda to the list of regions that the Animal and Plant Health Inspection Service considers to be affected by highly pathogenic avian influenza. Details here.

Notice advising the public that APHIS is adding Zimbabwe to the list of regions that the Animal and Plant Health Inspection Service considers to be affected by highly pathogenic avian influenza. Details here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is taking direct final action to approve revisions to the Kansas State Implementation Plan (SIP) and the 112(l) program. Info here.

Rule EPA is approving a State Implementation Plan (SIP) revision submitted by the New Jersey Department of Environmental Protection. Info here.

Rule EPA is approving a State Implementation Plan (SIP) revision submitted by the State of Rhode Island. Details here.

Rule EPA is promulgating significant new use rules (SNURs) under the Toxic Substances Control Act (TSCA) for 37 chemical substances which were the subject of premanufacture notices. Info here.

Rule EPA is finalizing minor technical amendments to Procedure 6 that were proposed in the Federal Register on May 19, 2016. Details here.

Rule EPA is proposing to approve revisions to the Kansas State Implementation Plan (SIP) and the 112(l) program submitted on December 5, 2016, by the State of Kansas. Info here.

Rule EPA is proposing amendments to the National Emission Standards for Hazardous Air Pollutants (NESHAP) From the Portland Cement Manufacturing Industry to address the results of the residual risk and technology review (RTR) the EPA is required to conduct in accordance with section 112 of the Clean Air Act. Details here.

FOOD AND DRUG ADMINISTRATION:

Rule FDA is announcing that Akzo Nobel Surface Chemistry AB has filed a petition proposing that the food additive regulations be amended to provide for the safe use of glyceryl polyethylene glycol (200) ricinoleate as an emulsifier in animal food that does not include food for cats, dogs, vitamin premixes, or aquaculture. Info here.

Rule FDA is announcing that Akzo Nobel Surface Chemistry AB has filed a petition proposing that the food additive regulations be amended to provide for the safe use of glyceryl polyethylene glycol (15) ricinoleate as an emulsifier in animal food that does not include food for cats, dogs, vitamin premixes, or aquaculture. Details here.

Notice FDA is announcing a public meeting entitled “2017 Scientific Meeting of the National Antimicrobial Resistance Monitoring System.” The purpose of the public meeting is to discuss the current status of the National Antimicrobial Resistance Monitoring System (NARMS) and directions for the future. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Notice Free Atlantic Shark Identification Workshops and Protected Species Safe Handling, Release, and Identification Workshops will be held in October, November, and December of 2017. Info here.

Notice NMFS issued an incidental harassment authorization (IHA) to Washington State Department of Transportation (WSDOT) to take small numbers of marine mammals, by harassment, incidental to Mukilteo Multimodal Construction Project in Washington State. Info here.

RURAL UTILITIES SERVICE:

Notice RUS invites comments on an information collection for which the agency intends to request approval from the Office of Management and Budget. Title: 7 CFR 1726, Electric System Construction Policies and Procedures. Info here.

Notice RUS invites comments on an information collection for which the agency intends to request approval from the Office of Management and Budget. Title: RUS Electric Loan Application and Related Reporting. Info here.