A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions to: camarigg at uark.edu

JUDICIAL: Includes water rights, NEPA, insurance, NFMA and APA issues.

In CENTER FOR ENVIRONMENTAL LAW AND POLICY, AMERICAN WHITEWATER, & NORTH CASCADES CONSERVATION COUNCIL, Appellants, v. WASHINGTON DEPARTMENT OF ECOLOGY; PUBLIC UTILITY DISTRICT NO. 1 OF OKANOGAN COUNTY, WASHINGTON; WASHINGTON STATE POLLUTION CONTROL HEARINGS BOARD, Respondents., No. 74841-6-I, 2016 WL 3801163 (Wash. Ct. App. July 11, 2016), plaintiffs argued the Pollution Control Hearings Board erred in affirming Department of Ecology’s issuance of a Report of Examination (ROE) “where the aesthetic study was incomplete and the ROE was not conditioned on a minimum instream flow rule.” Appellate court considered whether defendant could issue a ROE and whether it abused its discretion. The court found that the applicable statutory language provided defendant with authority to issue a “preliminary permit,” ensuring that an application remain in good standing while an applicant undertakes “such surveys, investigations, studies, and progress reports, as in the opinion of the department may be necessary.” Appellate court affirmed defendant’s motion for summary judgment.

In Pub. Employees for Envtl. Responsibility v. Hopper, No. 14-5301, 2016 WL 3606363 (D.C. Cir. July 5, 2016), conservation organizations alleged federal agencies violated National Environmental Policy Act (NEPA), Outer Continental Shelf Lands Act, National Historic Preservation Act, Migratory Bird Treaty Act, Coast Guard and Maritime Transportation Act, and Endangered Species Act in approving an off-shore wind energy project. District court granted summary judgment to the agencies. Plaintiffs appealed, challenging the decision to issue a lease for the project without first obtaining “sufficient site-specific data on seafloor and subsurface hazards.” They also argued that the Bureau of Ocean Energy Management (Bureau) violated NEPA by relying on “inadequate geophysical and geotechnical” surveys. Appellate court reversed district court’s holding that the Bureau’s environmental impact statement complied with NEPA and that the Service’s incidental take statement complied with the Endangered Species Act. The court reasoned that the Bureau had a “duty to take a ‘hard look’ at the geological and geophysical environment” at issue. The court conceded that, “in some cases it may be appropriate for an impact statement to provide for ongoing monitoring in order to gather more data. But that does not excuse the Bureau from its NEPA obligation to gather data about the seafloor.”

In Phibro Animal Health Corp. v. Nat’l Union Fire Ins. Co. of Pittsburgh, No. A-5589-13T3, 2016 WL 3747538 (N.J. Super. Ct. App. Div. July 14, 2016), plaintiff, an animal product manufacturer, claimed defendant was required to provide insurance coverage for economic losses sustained by plaintiff’s customers. The customers raised broiler chickens for human consumption and growth of their chickens was stunted when they ingested plaintiff’s intestinal disease drug (Aviax). Trial court entered summary judgment in favor of insurer and plaintiff appealed. The court reasoned that the “pivotal question under the insuring clauses here is thus whether the stunted growth of the chickens allegedly caused by their consumption of Aviax was an ‘accident.’” The court reversed the trial court in part, noting that the stunted growth of the chickens was a non-accidental “occurrence” under the insurance policies and that the “circumstances here qualify as both a covered occurrence and property damage.”

NATIVE ECOSYSTEMS COUNCIL, et al., Plaintiffs, vs. LEANNE MARTEN, et al., Fed. Defendants., No. CV 15-98-M-DLC, 2016 WL 3906621 (D. Mont. July 14, 2016) involved a challenge to a forest project to salvage lodgepole pine trees. Plaintiffs argued that USFS violated NFMA and NEPA by not requiring closure of all “unauthorized roads” within the project area. The court found that plaintiff’s argument was based on a “misrepresentation of the relevant Forest Plan standard.” Per the court, the standard “clearly requires USFS only to restrict travel to routes that have either been ‘designated through site specific travel planning.’” The court declared the project “consistent with the Forest Plan, and USFS could not have violated NFMA by failing to close all unauthorized routes within the Project area.” The court also found no claim under NEPA “because Plaintiffs have not argued that Defendants failed to comply with its disclosure requirements.” Defendants granted summary judgment on plaintiffs’ claims for violations of NFMA and NEPA.

In People for the Ethical Treatment of Animals, Inc. v. United States Dep’t of Agric., No. 5:15-CV-429-D, 2016 WL 3902745 (E.D.N.C. July 12, 2016), PETA alleged the USDA license-renewal process for animal exhibitions violates the Administrative Procedure Act (APA). PETA alleged the USDA’s “policy, pattern, and practice of rubber-stamping” exhibitor license renewals and its renewal of five specific exhibitor licenses violates the APA. The court considered the statutory authority granted to USDA and its “interpretation of that statutory authority as manifested in its licensing and enforcement regulations.” The court applied the “Chevron deference” test, a judicial tool of statutory construction “whereby courts are instructed to defer to the reasonable interpretations of expert agencies charged by Congress to fill any gap left, implicitly or explicitly, in the statutes they administer.” The court granted defendant’s motion for judgment on the pleadings, concluding “USDA properly considered alternative licensing and enforcement structures during the notice and comment periods of earlier iterations of the renewal regulations.”

REGULATORY: Includes EPA, FS and NMFS rules and notices.

ENVIRONMENTAL PROTECTION AGENCY:

Rule establishing tolerances for residues of cyprodinil in or on vegetable, tuberous and corm, subgroup 1C and potato, wet peel. Syngenta Crop Protection, LLC requested these tolerances under the FD&C Act. Details here.

Rule establishing an exemption from the requirement of a tolerance for residues of Isaria fumosorosea strain FE 9901 in or on all food commodities when used according to label directions and good agricultural practices. Details here.

FOREST SERVICE:

Notice New Mexico Collaborative Forest Restoration Program Technical Advisory Panel will meet in Albuquerque, New Mexico. Info here.

Notice listing newspapers that will be used by all Ranger Districts, Grasslands, Forests, and the Regional Office of the Southwestern Region to publish legal notices required under 36 CFR 218 and 219. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS proposes revising regulations implementing conservation measures adopted by the Commission for the Conservation of Antarctic Marine Living Resources. Info here.

Notice NMFS finds that the Atlantic bigeye tuna stock is subject to overfishing. Info here.

Notice NMFS received an application from Stillwater Sciences for one U.S. Endangered Species Act section 10(a)1(A) scientific enhancement permit to conduct invasive species removal from a southern California watershed. Info here.