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


JUDICIAL: Includes pesticides, aquaculture, antitrust, landowner liability, ESA, and environmental law issues.

In IN RE: IMPRELIS HERBICIDE MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION, THIS DOCUMENT APPLIES TO: ALL ACTIONS, MDL No. 2284, 11-md-02284, 2017 WL 3775264 (E.D. Penn. August 30, 2017), James and Peggy Merrill appealed ruling of the Imprelis Arborist Panel and asked  Court to excuse the lateness of their claim because they did not realize Imprelis damaged their trees until after the claims deadline. Court considered the specific language of the settlement agreement and observed that “the parties carefully crafted the Settlement Agreement and yet still failed to include any explicit guidance to class members or to the Court regarding a standard of review, thereby giving class members no direct notice of what they would encounter at this level of review.” Court applied and an “arbitrary and capricious standard of review” and denied the Merrills’ appeal.

In Eureka TOWNSHIP, Appellant, v. Teresa Lynn PETTER, et al., Respondents, A17–0020, 2017 WL 3863144 (Minn. Ct. App. September 5, 2017), a district court ruled that a township’s exotic animal ordinance conflicts with state law. Respondent, a wildlife specialist for the USDA and owner of agriculturally-zoned property in the township, possessed “wolves, foxes, raccoons, lynxes” and other animals on the property. Township tried to enjoin respondent from housing the animals on his property and on appeal, respondent challenged order declaring he was “not an animal control officer within the meaning of an exception to the ordinance.” Appellate court concluded respondent was an animal control officer under the ordinance, but concluded he could possess the animals “only to the extent that such possession is associated with his duties as an animal control officer.”

IN RE: BROILER CHICKEN GROWER LITIGATION, NO. 6:17-CV-00033-RJS, 2017 WL 3841912 (E.D. Okla. September 1, 2017) concerned class action antitrust claims by broiler chicken growers against twelve defendant poultry companies allegedly “engaged in illicit anticompetitive activity in concert with others to artificially suppress grower compensation.” Growers sued under the Sherman Antitrust Act and the Packers and Stockyards Acts. Defendants moved to stay discovery, arguing that discovery will be “costly and burdensome” and that the “wide-ranging allegations concerning a decade of conduct and directed against a dozen Defendants in the Consolidated Amended Complaint only exacerbate these costs and burdens because the breadth of discovery will be very broad.” Defendants’ motion to stay discovery granted.

Jeanette CARABELLO and Guillermo Castro, Plaintiffs–Appellants, v. Patricia CARPENTER, Defendant–Respondent, No. L–1840–14, 2017 WL 3863781 (N.J. Super. Ct. App. Div. September 5, 2017) involved a common law negligence claim after plaintiff was bitten by a pit bull. Trial judge declared defendant was a “keeper” of the dog and not liable as she was not required to know the dog’s “propensities.” On appeal, court considered definition of “owner” and stated that “when a common law negligence claim is asserted, ‘owner’ is used interchangeably with a ‘harborer’ or ‘keeper’ in determining ‘whether there was knowledge of a dog’s vicious propensit[ies] and a failure to control the animal.’” Reversed and remanded to determine whether defendant knew of dog’s “vicious propensities.”

In WILDEARTH GUARDIANS, Plaintiff, v. UNITED STATES ARMY CORPS OF ENGINEERS, Federal Defendant, MIDDLE RIO GRANDE CONSERVANCY DISTRICT, Defendant-Intervenor, No. CV 14-0666 RB/SCY, 2017 WL 3841826 (D.N.M. September 1, 2017), plaintiff, under the citizen-suit provision of the Endangered Species Act, challenged Army Corps of Engineers’ failure to consult with the Fish and Wildlife Service (FWS) regarding the silvery minnow in the Rio Grande. Plaintiff moved to compel the agency to complete the record with additional research and materials. Court recognized the case was governed by the Administrative Procedures Act (APA) and observed that “[a] court reviewing agency action under the APA presumes the record compiled by the agency is adequate, and limits its review to that record.” Court ruled that plaintiff did not present “clear evidence to rebut the presumption of adequacy and to convince the Court to admit the extra-record material.” Motion denied.

In BITTERROOTERS FOR PLANNING, INC., and BITTERROOT RIVER PROTECTIVE ASSOCIATION, INC. Plaintiffs and Appellees, v. MONTANA DEPARTMENT OF ENVIRONMENTAL QUALITY, an agency of the State of Montana, Defendant and Appellant, STEPHEN WANDERER and GEORGIA FILCHER, Defendants, Intervenors and Appellants, DA 16-0429, 2017 WL 3867630 (Mont. September 5, 2017), the Montana Department of Environmental Quality (DEQ) appealed ruling finding the agency violated the Montana Environmental Policy Act (MEPA) “by issuing a wastewater discharge permit for an unnamed “big box” retail merchandise store . . . without considering environmental impacts of the construction.” One question the court considered was whether the MEPA requires DEQ “to identify the actual owner or operator of a wastewater treatment facility prior to issuing a MWQA groundwater discharge permit?” Plaintiffs argued that “the identity of the contemplated owner . . . is information directly relevant to consideration of the potential environmental impacts of the construction.” Court ruled that per the application permit, DEQ must identify the “actual owner or operator of the contemplated facility for which an applicant seeks the subject wastewater discharge permit.” Affirmed in part.


LEGISLATIVE:

H.R. 3672: Making supplemental appropriations for disaster relief requirements for the fiscal year ending September 30, 2017. Bill added to the House’s schedule for the coming week.

H.R. 2083: Endangered Salmon and Fisheries Predation Prevention Act. Bill’s text for status Reported by House Committee (Sep 5, 2017) is now available.

H.R. 2316: Cooperative Management of Mineral Rights Act of 2017. Bill’s text for status Reported by House Committee (Sep 5, 2017) is now available.

H.R. 2768: Fowler and Boskoff Peaks Designation Act. Bill’s text for status Reported by House Committee (Sep 5, 2017) is now available.


REGULATORY: Includes EPA, FWS, FS, NIFA, NOAA, and RHS rules and notices.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is approving a State Implementation Plan (SIP) revision submitted by the State of Maine on August 18, 2015. Info here.

Rule amends an exemption from the requirement of a tolerance for residues of oxypropylene and/or polymers where the alkyl chain contains a minimum of six carbons, and a minimum number average molecular weight (in amu) 1,100 to include Poly(oxy-1,2-ethanediyl), α-isooctyl-ω-hydroxy (CAS Reg. No. 61723-78-2) when used as an inert ingredient in pesticide formulations. Details here.

FISH AND WILDLIFE SERVICE:

Rule FWS determines endangered species status and designate critical habitat under the Endangered Species Act of 1973 for Guadalupe fescue, a plant species from the Chihuahuan Desert of west Texas and Mexico. Info here.

Notice FWS will renew an information collection with revisions. Details here.

Notice FWS received an application from the San Lorenzo Valley Water District for a 20-year incidental take permit under the Endangered Species Act of 1973. Details here.

FOREST SERVICE:

Notice the Huron-Manistee Resource Advisory Committee (RAC) will meet in Mio, Michigan. Details here.

Notice the Nevada and Placer Counties Resource Advisory Committee (RAC) will meet in Truckee, California. Info here.

Notice the Olympic Peninsula Resource Advisory Committee (RAC) will meet in Forks, Washington. Details here.

NATIONAL INSTITUTE OF FOOD AND AGRICULTURE: Notice NIFA is soliciting nominations of veterinary service shortage situations for the Veterinary Medicine Loan Repayment Program for fiscal year (FY) 2018. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS proposes specifications for the 2018 commercial golden tilefish fishery and projected specifications for 2019 and 2020. Info here.

Notice of extension of Deep Seabed Hard Mineral Exploration Licenses. Details here.

Notice of availability of Final Environmental Assessment. Details here.

RURAL HOUSING SERVICE: Notice RHS will request an extension for a currently approved information collection in support of the program for Fire and Rescue Loans. Info here.