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


ANNOUNCEMENT: Join us Wednesday, October 4th, at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: “Legal Issues with Data (Big and Small).” Details available here.


JUDICIAL: Includes ESA, urb & ag, and  conservation programs issues.

In CALIFORNIA RIVER WATCH, Plaintiff, v. JOHN DONNELLY SWEENEY; POINT BUCKLER, LLC; POINT BUCKLER CLUB, LLC; DOES 1 through 10, inclusive,1 Defendants, No. 2:16-cv-02972-KJM-KJN, 2017 WL 4248013 (E.D. Cal. September 25, 2017), plaintiff sued property developers for violating the Endangered Species Act (ESA) by allegedly “converting a critical endangered species habitat into a kite surfing and duck hunting haven.” Defendants moved to dismiss, arguing plaintiff’s claims are moot because “state agency orders overlap with River Watch’s requested relief.” Court was not convinced and stated that “[t]he state orders, which relate primarily to water quality compliance, do not preclude [plaintiff’s] requested remedies here regarding take of endangered species or critical habitat mitigation.” Defendants’ motion denied.

In Dale W. THORPE and Renee M. Thorpe, Plaintiffs, v. UPPER MAKEFIELD TOWNSHIP, et al., Defendants, NO. 14–6154, 2017 WL 4269049 (E.D. Pa. September 25, 2017), plaintiffs (Native American farm operators) sued alleging that after they purchased a 149–acre property, they were discriminated against on the basis of ethnicity in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Plaintiffs argued that defendants prevented them from “processing deer, interfering with their ability to operate the Farm Store . . . subjecting them to unreasonable inspections, and exhibiting bias.” Court found “no evidence that [plainitff’s] Native American heritage motivated the actions of Defendant Kuhns or anyone associated with the Township.” Court found no “discriminatory intent,” and granted summary judgment for defendants.

In JAMES M. FOGG FARMS, INC., et al., Plaintiffs, v. THE UNITED STATES, Defendant, No. 17-188C, 2017 WL 4275852 (Fed. Cl. September 27, 2017), plaintiffs claimed the Government underpaid them pursuant to their Conservation Security Program (CSP) contracts. They also alleged Congress’s enactment of the 2008 Farm Bill “prevented them from renewing their contracts . . . and was therefore an anticipatory repudiation of their alleged right to renew their contracts.” Plaintiffs maintained the Court “must read the CSP statute into the contract.” The court reasoned that, “[w]hile the contracts expressly incorporated the regulations, they did not incorporate the statute.” Court dismissed plaintiffs’ suit, concluding that, “Plaintiffs did not have a contractual right to anything provided in the statute, either the method of calculating payments, or the renewal option.”


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

AGRICULTURAL MARKETING SERVICE:

Rule AMS proposes amendments to Marketing Order No. 989 (order), which regulates the handling of raisins produced from grapes grown in California and provides producers with the opportunity to vote in a referendum to determine if they favor the changes. Info here.

Notice AMS will request an extension and revision of a currently approved information collection under the Dairy Product Mandatory Reporting Program. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is taking direct final action to approve elements of a State Implementation Plan (SIP) submission, for the 2012 Annual Fine Particulate Matter (PM2.5) National Ambient Air Quality Standard. Details here.

Rule EPA is taking direct final action to approve elements of a State Implementation Plan (SIP) submission, and an amended SIP submission from the State of Iowa for the 2010 Sulfur Dioxide (SO2) National Ambient Air Quality Standard. Details here.

Rule EPA is taking direct final action to approve a revision to the State of Maryland’s state implementation plan. Info here.

Rule EPA is approving New Jersey’s regional haze progress report, submitted on June 28, 2016, as a revision to its State Implementation Plan. Info here.

Rule EPA is approving New York’s regional haze progress report, submitted on June 16, 2015, as a revision to its State Implementation Plan. Info here.

Rule EPA is approving several changes to the North Carolina State Implementation Plan (SIP) submitted by the State of North Carolina, through the North Carolina Department of Environmental Quality (NCDEQ), on December 14, 2004, and March 1, 2016. Info here.

Rule EPA is proposing to approve a revision to the California State Implementation Plan. Info here.

Rule EPA is proposing to approve elements of a State Implementation Plan (SIP) submission from the State of Iowa for the 2012 Annual Fine Particulate Matter (PM2.5) National Ambient Air Quality Standard. Info here.

FEDERAL HIGHWAY ADMINISTRATION: Rule this SNPRM provides interested parties the opportunity to comment on the proposed revisions to the FHWA and FTA joint regulations implementing the National Environmental Policy Act (NEPA) and Section 4(f) requirements. Details here.

FISH AND WILDLIFE SERVICE: Rule FWS withdraws the proposed rule to list the Kenk’s amphipod, an invertebrate from the District of Columbia, Maryland, and Virginia as an endangered species under the Endangered Species Act. Info here.

FOOD AND DRUG ADMINISTRATION: Notice FDA announces a forthcoming public advisory committee meeting of the Antimicrobial Drugs Advisory Committee. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION: Rule NMFS is issuing regulations under the Tuna Conventions Act to implement amendments to Resolution C-17-01 per Resolution C-17-02 which was adopted by the Inter-American Tropical Tuna Commission in July 2017. Info here.