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


ANNOUNCEMENT: Join us for the next Agricultural & Food Law Consortium webinar, Wednesday, September 19th, at 12 noon (ET): Understanding USDA’s New Dairy Revenue Insurance Program. Details here.


JUDICIAL: Includes CAFO, water law, and food labeling issues.

In FOOD & WATER WATCH, Plaintiff, v. UNITED STATES DEPARTMENT OF AGRICULTURE, et al., Defendants, No. 17-1714 (BAH), 2018 WL 4283568 (D.D.C. September 7, 2018), plaintiff sought to aside defendant’s environmental assessment concerning a nonparty farm’s “application for a guaranteed loan to construct and operate a poultry concentrated animal feeding operation.” Plaintiff made claims under the National Environmental Policy Act (NEPA) and asserted defendants failed to complete an “adequate environmental impact statement” in connection with the loan application. Defendant countered plaintiff’s claims are moot and plaintiff lacks standing. Regarding mootness, court observed that “defendants fail to acknowledge that . . . the FSA’s loan guarantee for the OMH CAFO is ongoing.” Regarding standing, the court found a causal link “sufficient to establish a causal relationship between the final agency action—the loan guarantee—and the plaintiff’s claimed injuries.” Defendants’ motion denied.

In MINERAL COUNTY, Intervenor-Plaintiff-Appellant, Walker Lake Working Group, Defendant-Appellant, And United States of America, Plaintiff, Walker River Paiute Tribe, Intervenor-Plaintiff, v. WALKER RIVER IRRIGATION DISTRICT; Nevada Department of Wildlife; Fenili Family Trust, c/o Peter Fenili and Veronica Fenili, Trustees; Six N Ranch, Inc., c/o Richard and Cynthia Nuti; Michael Nuti; Nancy Nuti; Ralph E. Nuti; Mary E. Nuti; Lawrence M. Nuti; Leslie Nuti; Mica Farms, LLC, c/o Mike Faretto; John and Lura Weaver Family Trust, c/o Lura Weaver, Trustee; Smith Valley Garage, Inc., c/o Dan Smith and Shawna Smith; Donald Giorgi; Lorie McMahon; Merle McMahon; Centennial Livestock; Lyon County; Annett’s Mono Village; F.I.M. Corporation; R.N. Fulstone Company; James T. Fousekis, Trustee; Chris H. Gansberg, Jr.; Faye E. Gansberg; Todd Gansberg; Hunewill Land & Livestock Co., Inc.; David Sceirine; Pamela Haas; Virginia Lake Mutual Water Company; Mono County, County Counsel, Defendants-Appellees, No. 15-16342, 2018 WL 3995835 (9th Cir. August 20, 2018), plaintiff sought recognition of its right to an additional amount of water “from river under decree adjudicating water rights in river basin.” County intervened, asking the court to modify the final decree “to recognize rights of county and public to have minimum levels of water to maintain viability of lake in the county.” Lower court dismissed and County appealed. Issue for court was whether the public trust doctrine “applies to appropriative rights settled under the [decree at issue] is an open question.” Court reasoned that since the issue “has significant implications for Nevada’s water laws and because we cannot be certain how the Nevada Supreme Court would resolve this matter, certification on this question of law is appropriate.”

In Patrick MCMORROW, Marco Ohlin, and Melody DiGregorio, individually and on behalf of themselves and all others similarly situated, Plaintiffs, v. MONDELEZ INTERNATIONAL, INC., Defendant, No. 17-cv-02327-BAS-JLB, 2018 WL 3956022 (S.D. Cal. August 18, 2018), plaintiffs claimed defendant’s breakfast products “are designed to appeal to health conscious consumers and that such advertising is deceptive and misleading because these products contain ‘high levels of added sugar.’” Defendant argued plaintiffs lack standing because they “did not individually purchase all of the Products at issue.” Court reasoned that “[a] plaintiff has standing for claims relating to products that he or she did not purchase if the “products are the same kind . . . comprised of largely the same ingredients, and … bear[ ] the same alleged mislabeling.” Court found the alleged products and misrepresentations “sufficiently similar,” and determined plaintiffs have standing.


LEGISLATIVE:

S. 97: Nuclear Energy Innovation Capabilities Act of 2017. Bill added to the House’s schedule for the coming week.

H.R. 589: Department of Energy Research and Innovation Act. Bill added to the House’s schedule for the coming week.

H.R. 2591: Modernizing the Pittman-Robertson Fund for Tomorrow’s Needs Act. Bill added to the House’s schedule for the coming week.

H.R. 2606: Stigler Act Amendments of 2018. Bill added to the House’s schedule for the coming week.

H.R. 3186: Every Kid Outdoors Act. Bill has been added to the House’s schedule for the coming week.

H.R. 3764: Little Shell Tribe of Chippewa Indians Restoration Act of 2017. Bill added to the House’s schedule for the coming week, according to the House Majority Leader.

H.R. 4824: Rural Broadband Permitting Efficiency Act of 2018. Bill added to the House’s schedule for the coming week.

H.R. 5317: To repeal section 2141 of the Revised Statutes to remove the prohibition on certain alcohol manufacturing on Indian lands. Bill added to the House’s schedule for the coming week.

H.R. 5532: Reconstruction Era National Historical Park Act. Bill added to the House’s schedule for the coming week.

H.R. 5923: Walnut Grove Land Exchange Act. Bill added to the House’s schedule for the coming week.

H.R. 6287: 9/11 Memorial Act. Bill added to the House’s schedule for the coming week.

H.R. 6720: To prohibit the slaugher of dogs and cats for human consumption. Bill added to the House’s schedule for the coming week.

H.R. 5895: Energy and Water, Legislative Branch, and Military Construction and Veterans Affairs Appropriations Act, 2019. Bill added to the House’s schedule for the coming week.

H.R. 660: Bureau of Reclamation Transparency Act. Bill added to the House’s schedule for the coming week.

H.R. 4689: To authorize early repayment of obligations to the Bureau of Reclamation within the Northport Irrigation District in the State of Nebraska. Bill added to the House’s schedule for the coming week.

H.R. 6040: Contra Costa Canal Transfer Act. Bill added to the House’s schedule for the coming week.


REGULATORY: Includes Includes AMS, USDA, EPA, NOAA and RUS rules and notices.

AGRICULTURAL MARKETING SERVICE:

Rule implements a recommendation to establish a grower allotment percentage for the 2018-19 crop year and allows for the diversion of processed products from that year under the marketing order for cranberries grown in the production area. Details here.

Rule would implement a recommendation from the Processed Pear Committee to decrease the assessment rate established for “summer/fall” varieties of pears for canning for the 2018-2019 and subsequent fiscal periods. Info here.

Notice announces AMS intention to request approval for ballots and a petition form used to collect nominations of members and alternates to serve on the Board. Info here.

AGRICULTURE DEPARTMENT: Notice USDA has submitted the following information collection requirement(s) to OMB for review. Title: Request to Change FEHB Enrollment or to Receive Plan Brochures for Spouse Equity/Temporary Continuation of Coverage Enrollees/Direct Pay Annuitants (DPRS 2809). Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA Region 1 announces the deletion of the Old Southington Landfill Superfund Site (Site) located in Southington, Connecticut, from the National Priorities List (NPL). Info here.

Rule the New Mexico Environment Department has submitted updated regulations for receiving delegation and approval of a program for the implementation and enforcement of certain New Source Performance Standards and National Emission Standards for Hazardous Air Pollutants for all sources. Info here.

Rule establishes an exemption from the requirement of a tolerance for residues of Metschnikowia fructicola strain NRRL Y- 27328 in or on the stone fruit group. Details here.

Rule EPA is proposing to grant a petition submitted by Sandvik Special Metals (Sandvik), in Kennewick, Washington to exclude up to 1,500 cubic yards of F006 wastewater treatment sludge per year from the list of federal hazardous wastes. Info here.

Rule EPA is proposing the results of the residual risk and technology reviews (RTR) for three rules–the National Emission Standards for Hazardous Air Pollutants (NESHAP) for the Surface Coating of Large Appliances; the NESHAP for the Printing, Coating, and Dyeing of Fabrics and Other Textiles. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION: Rule NMFS is prohibiting directed fishing for yellowfin sole in the Bering Sea and Aleutian Islands management area (BSAI) for vessels participating in the BSAI trawl limited access fishery. Details here.

RURAL UTILITIES SERVICE: Notice Rural Utilities Service’s Water and Environmental Programs (WEP) received $165,475,000 in supplemental grant funding of which $163,475,000 is available for repairs to drinking water systems and sewer and solid waste disposal systems impacted by Hurricanes Harvey, Irma, and Maria. Details here.