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

Judicial: Aquaculture, Environmenal, APA, CAFO, Trespass,

OTAY MESA PROPERTY, L.P., et al., PLAINTIFFS, v. UNITED STATES DEPARTMENT OF THE INTERIOR, et al., DEFENDANTS. Additional Party Names: Otay Int’l, LLC, Rancho Vista Del Mar, Ryan Zinke, U.S. Fish & Wildlife Serv., No. 13-CV-0240 (KBJ), 2018 WL 4608223 (D.D.C. Sept. 25, 2018);
Plaintiffs own land in San Diego County, California, that the U.S. Fish and Wildlife Service (“the FWS”) has designated as a “critical habit” for the endangered Riverside fairy shrimp under the Endangered Species Act (“the ESA”), 16 U.S.C §§ 1531–1544. Plaintiff has filed the instant action against the FWS and its acting Director, the U.S. Department of the Interior (“Interior”), and two high-ranking Interior officers in their official capacities (collectively, “Defendants”) to challenge the propriety of the FWS’s critical habitat designation under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701–706. The Court has already issued one memorandum opinion in this matter, see Otay Mesa Prop., L.P. v. U.S. Dep’t of the Interior, 144 F. Supp. 3d 35 (D.D.C. 2015), wherein all disputed issues between Plaintiff and FWS concerning the critical habitat designation for the endangered Riverside fairy shrimp were resolved save one: namely, whether it was proper for the FWS to assign a ‘critical habitat’ designation to 56 acres of Plaintiff’s property that is immediately adjacent to the stock pond that contains the shrimp solely on the basis of the agency’s finding that the types of geological features that are generally necessary to support the shrimp species exist on those acres. The FWS had concluded that the 56 acres constituted either “occupied” critical habitat under the first prong of section 1532(5)(A) of Title 16 of the United States Code, or, alternatively, “unoccupied” critical habitat essential for the conservation of the species under the second prong of that same provision, but the agency had not conducted any hydrological studies or other surveys to determine the extent to which the 56 acres of land actually supported the ecological system that is necessary for the shrimp’s survival. As explained below, the question of whether or not the FWS employed an appropriate methodology to reach the critical habitat determination at issue in this case depends upon the meaning of the term “occupied” as it appears in the ESA, and also turns on the distinction that that statute makes between the standards for designating occupied and unoccupied critical habitats.
Before this Court at present are the parties’ renewed cross-motions for summary judgment and the supplemental briefs that they have filed regarding these key legal issues. Plaintiff maintains that it is entitled to judgment as a matter of law, because the FWS improperly designated the 56 acres of land as “occupied” habitat even though the shrimp live only in the one-acre stock pond and not on the land. Plaintiff further contends that the FWS’s occupied critical habitat designation is improper under the ESA because there is no record evidence demonstrating that all 56 acres of adjacent land must be preserved in order to supply water to the one-acre stock pond where the shrimp live, and that the FWS improperly designated the 56 acres as “unoccupied” critical habitat in the alternative because it failed to apply the statutory standard for unoccupied critical habitat designations.  Defendants respond that the Court should order summary judgment in their favor, because the FWS reasonably determined that the stock pond and all 56 adjacent acres satisfy the ESA’s definition of occupied critical habitat on the basis of the best available scientific data (Defs.’ 2d Suppl. Br., ECF No. 41, at 7–12, 16–22), and the FWS applied the correct legal standards when alternatively designating this area as unoccupied critical habitat under the ESA (id. at 12–16).
The Court finds that the law and record evidence do not support the FWS’s “occupied” or “unoccupied” critical habitat designations, and thus the critical habitat determination that Plaintiff’s challenges here must be set aside as arbitrary and capricious and contrary to law in violation of the APA. To be specific, the manner in which the FWS determined the scope of the area that the Riverside fairy shrimp occupies is inconsistent with the ESA’s prescriptions for making that determination, and when the agency determined the area of unoccupied critical habitat, it failed to employ the statutory standard that is applicable to unoccupied critical habitat designations. Consequently, Plaintiff’s renewed motion for summary judgment was granted.
WHITAKER FARMS, LLC v. FITZGERALD FRUIT FARMS, LLC; & vice versa., No. A18A1420, 2018 WL 4611417 (Ga. Ct. App. Sept. 26, 2018)
Appellant appeals following a jury verdict in favor of Appellee’s on Appellee’s complaint seeking damages for trespass after Appellant’s property manager locked the gates to the peach orchard where Appellee was harvesting peaches.
The court affirmed the trial court’s denial of Appellant’s motion for a directed verdict and motion for judgment notwithstanding the verdict, but reverse the trial court’s refusal to allow the jury to consider an award of punitive damages.
Don’t Waste Arizona Inc., Plaintiff, v. Hickman’s Egg Ranch Inc., Defendant., No. CV-16-03319-PHX-GMS, 2018 WL 4599730 (D. Ariz. Sept. 25, 2018)
Pending before the Court are Plaintiff’s Motion for Clarification, the parties’ briefs concerning the retroactive application of the FARM Act, and the supplemental briefing concerning the reporting of emissions from animal waste under EPCRA.
Defendant operates two large chicken egg facilities, each emitting more than one thousand pounds of ammonia from chicken manure per day. Plaintiff is an environmental non-profit with members who live in the vicinity of Defendant’s facilities. Plaintiff brought this suit against Defendant based on its failure to report ammonia emissions in violation of the Emergency Planning and Community Right-to-Know ActIn preparation for a bench trial, the parties asked the Court to clarify various legal questions. First, the Court addresses whether EPCRA requires reports of emissions from animal waste. Second, the Court addresses relevant burdens of proof.
The Court concluded that the expected handling and storage of animal waste would be considered a routine agricultural operation under 42 U.S.C. § 11021(e)(5). Further, the Court grants Plaintiff’s motion for clarification. Plaintiff has the burden to prove that a qualifying release occurred and it will present first at trial. Defendant bears the burden of proving whether the “routine argument exception” applies.
GULF FISHERMENS ASSOCIATION ET AL. v. NATIONAL MARINE FISHERIES SERVICE ET AL., No. CV 16-1271, 2018 WL 4587652 (E.D. La. Sept. 25, 2018);
This case is a challenge to administrative action by the National Marine Fisheries Service (NMFS), whereby it adopted a regulatory scheme for offshore aquaculture in the federal waters of the Gulf of Mexico Exclusive Economic Zone. Plaintiffs include a bevy of special interests groups representing both food safety advocates and Gulf fishermen. Plaintiffs challenge the aquaculture regulations as facially invalid because they fall outside NMFS’s authority to regulate fisheries under the Magnuson-Stevens Fishery Conservation and Management Act (MSA). They also challenge the propriety of the rulemaking process under which the regulations were enacted. Plaintiffs aver that the Agency failed to properly consider a litany of environmental problems that will be presented by aquaculture in the Gulf of Mexico.Plaintiffs seek declaratory and equitable relief declaring that Defendants violated the MSA, the Endangered Species Act (ESA), the National Environmental Policy Act (NEPA), and the Administrative Procedures Act (APA) when they enacted regulations regarding offshore aquaculture. Plaintiffs ask this Court to vacate the regulations as arbitrary and capricious agency actions and order Defendants to comply with theses statutes before proposing any new action regarding aquaculture in the Gulf of Mexico. Plaintiffs and Defendants have filed Cross-Motions for Summary Judgment on all issues raised in this case. Plaintiff’s Motion was granted.
Regulatory: USDA Forest Service, USDA ERS, Commerce Department
Notice; USDA Forest Service, Assessment of Agriculture, Forestry, and Rural Communities in the U.S. Caribbean, Info Here
Comment Request; Commerce Department, Interim Procedures for Considering Requests under the Commercial Availability Provision of the United States-Colombia Trade Promotion Agreement. Info Here
Notice; USDA ERS, In accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13) and OMB regulations at 5 CFR part 1320 (60 FR 44978, August 29, 1995), this notice announces the ERS’ intention to request renewal of approval from the Office of Management and Budget (OMB) for a generic clearance that will allow ERS to rigorously develop, test, and evaluate its survey methodologies, instruments, and administration. The mission of ERS is to provide economic and other social science information and analysis for public and private decisions on agriculture, food, natural resources, and rural America. This request is part of an on-going initiative to improve ERS data product quality, as recommended by both its own guidelines and those of OMB. Info Here

Legistlative:

H.R. 6870: To rename the Stop Trading on Congressional Knowledge Act of 2012 in honor of Representative Louise McIntosh Slaughter, Assigned to Agriculture Committee, Information Here.