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 CWA, PACA, employment, CAFO, and APHIS issues.

In State of Maine v. McCarthy, No. 1:14-CV-00264-JDL, 2016 WL 6838221, (D. Me. Nov. 18, 2016), the EPA disapproved surface water quality standards that the State of Maine issued under the Clean Water Act (CWA). Maine sought judicial review of EPA’s disapproval under the Administrative Procedure Act (APA) and citizen suit provisions of the CWA. Court noted the CWA “imposes on the EPA Administrator ‘a mandatory duty to review any new or revised state water quality standards.’ Reviewing the water quality standards is mandatory; approving or rejecting them is discretionary.” The court noted that the “crux of Maine’s Second Amended Complaint is that the EPA erred when it disapproved certain state water quality standards, not that the EPA failed to review them,” and concluded that Maine failed to state a claim under the Clean Water Act.

In In Re: Paradise Corner, LLC, Respondent, PACA-D Docket No. 14-0098, 2016 WL 6850525, (U.S.D.A. Oct. 26, 2016), respondent violated the Perishable Agricultural Commodities Act (PACA) by failing to promptly pay for fruits and vegetables received and accepted “in the course of interstate or foreign commerce.” Respondent had no PACA license and, “Where there is no license to revoke . . . the appropriate sanction is a finding of willful, flagrant and repeated violations of section 2(4) of the PACA and publication of that finding.” Court observed that, “Willfulness under the PACA docs not require evil intent. Willfulness requires intentional actions or actions undertaken with careless disregard of the statutory requirements.” Court found that respondent “intentionally, or with careless disregard for the payment requirements in section 2(4) of the PACA, ‘shifted the risk of nonpayment to sellers of the perishable agricultural commodities.’” Court ordered publication of respondent’s PACA violations.

In SHELENE JEAN-LOUIS & JUDES PETIT-FRERE, on behalf of themselves & others similarly situated, Plaintiffs, v. CLEAR SPRINGS FARMING, LLC, FLORIDA GOLD CITRUS, INC., JACK GREEN, JR., HOWARD LEASING , INC., & HOWARD LEASING III, INC., Defendants., No. 8:13-CV-3084-T-30AEP, 2016 WL 6836186, (M.D. Fla. Nov. 21, 2016), plaintiffs brought class action against defendants for employment discrimination under Civil Rights Act of 1964 and the Florida Civil Rights Act. Defendants recruited plaintiffs and over 100 other black/Haitian/Afro-Haitian/African Americans to pick blueberries. Plaintiffs reported for work for over a week and were denied work each day. Plaintiffs argued defendants’ failure to provide them with work constituted “unlawful race, color, and national origin discrimination.” Defendants moved for summary judgment claiming they did not act as plaintiffs’ “employer” and had contracted out their human resources activities to a third party (defendant Green). Court found defendant “would be liable” for any discriminatory acts (by Green) and denied defendant’s motion.

In IN THE MATTER OF: TRENTON FARMS RE, LLC Permit No. MOGS10500, Appellant, v. MISSOURI DEPARTMENT OF NATURAL RESOURCES, HICKORY NEIGHBORS UNITED, INC., Respondent., No. WD 79527, 2016 WL 6871554, (Mo. Ct. App. Nov. 22, 2016), plaintiff appealed Missouri Clean Water Commission’s (CWC) decision to deny a permit for a concentrated animal feeding operation (CAFO). Plaintiffs claimed constitutional rights violations and that defendant erred in finding plaintiff’s application “did not adequately prove the CAFO operation was protected from a one hundred-year flood” as required by statute. Although court noted that “CWC’s interpretation of ‘continuing authority’ is arbitrary and contrary to the plain and ordinary meaning of the regulation,” it concluded that “because Trenton Farms failed to adequately demonstrate that the entire swine CAFO operation was protected from a one hundred-year flood . . . the CWC did not err in denying Trenton Farms’ Permit Application.” Ruling for defendant affirmed.

Matter of BIN-00029 (Field S-1), No. 116MJ09608EJLCWD, 2016 WL 6836933, (D. Idaho Nov. 18, 2016) is related to the currently pending case, Mickelsen Farms, LLC et. al. v. Animal and Plant Health Inspections Service, et. al. In that case, plaintiffs challenge enforcement procedures APHIS employs to carry out inspections related to detecting the Pale Cyst Nematode (PCN), a pest attacking potato crops. Here, APHIS served subpoenas on some farmers requesting access to twelve fields to collect soil samples to be tested for PCN. Farmers refused access and APHIS obtained warrants and sampled the soil. Court observed that the Plant Protection Act “bestows upon the Secretary of the Department of Agriculture and other Federal agencies the authority to regulate exports, imports, and interstate commerce in agricultural products and other commodities that pose a risk of harboring plant pests.” Notably, the Secretary may “enter, with a warrant, any premises … for the purpose of conducting investigations or making inspections and seizures under this chapter.” Farmers argued they were not “afforded due process” and that the warrants were issued without probable cause. Court recommended district judge deny farmers’ motion to quash, but grant their request to “limit the soil sampling protocol to require hand sampling.”

REGULATORY: Includes FWS and NOAA rules and notices.

FISH AND WILDLIFE SERVICE:

Notice FWS will ask Office of Management and Budget to approve an information collection. Title: Pacific Northwest Coastal Landscape Conservation Design Social Network Survey. Info here.

Notice FWS will prepare a draft Supplemental Environmental Impact Statement under the National Environmental Policy Act to consider potential impacts on the human environment from proposed amendments to an incidental take permit and associated habitat conservation plan. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS announces its approval of two transfers of 2016 commercial bluefish quota from the Commonwealth of Virginia to the State of New York. Info here.

Notice that a document entitled, “Draft Environmental Assessment for the Bluefield Holdings, Inc. Site 2 Shoreline Restoration Project Credits Purchase” is available for public review and comment. Details here.

Notice OAR publishes this notice to solicit applications to fill a single membership vacancy on the Ocean Exploration Advisory Board with an individual demonstrating expertise in data science and management and one other area of expertise relevant to ocean exploration, such as seafloor mapping. Details here.

Notice NMFS Assistant Administrator issued affirmative finding annual renewals for the Governments of Ecuador, El Salvador, Guatemala, Mexico, and Spain under the Marine Mammal Protection Act. Info here.