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 FEMA, FSIS, labeling, and zoning issues.
CITY PARK FOR EVERYONE COALITION, ET AL. v. FEDERAL EMERGENCY MANAGEMENT AGENCY, ET AL, NO. 15-918, 2016 WL 7116022 (E.D. La. Dec. 7, 2016) involved plans to build an 18-hole golf course within New Orleans’ City Park and FEMA’s decision to help fund the project. Plaintiffs claimed defendants failed to comply with NEPA and sought an injunction compelling FEMA to withhold funds. Specifically, plaintiffs allege FEMA did not consider environmental impacts of developing the land at issue for golf. Defendant argued plaintiffs’ claims were moot “because it has already provided the funds obligated towards the golf course and because the golf course is substantially completed.” Court was persuaded by defendant’s argument and noted that “FEMA’s draft EA (environmental assessment) and FONSI detail FEMA’s conclusion (and the reasoning behind it) that the golf course would not result in significant adverse impacts to the quality of the environment.” Plaintiffs’ claims dismissed as moot.
In American Federation of Government Employees, AFL–CIO and Charles Stanley Painter, Appellants v. Thomas J. Vilsack, in his official capacity as United States Secretary of Agriculture, et al., Appellees, No. 15-5259, 2016 WL 6915542 (D.C. Nov. 1, 2016), plaintiff challenged USDA final rule changing how the Department’s Food Safety Inspection Service (FSIS) implements the Poultry Products Inspection Act (PPIA). District court dismissed complaint for lack of the requisite allegations of causation and redressability. Plaintiffs contended “Congress’s determination that adulterated poultry can injure consumers . . . and that Congress thereby determined that any violation of the statute necessarily results in injury to consumers.” The appellate court, however, found that “a general congressional determination that the risk of future harm to the public warrants prophylactic legislation does not alone suffice to bestow standing on all intended beneficiaries of such legislation.” Dismissal affirmed.
In CASSANDRA YORK and STEPHANIE TEACHOUT, Individually and on Behalf of all Others Situated, Plaintiffs, v. ANDALOU NATURALS, INC., Defendant, Case No. 16-CV-894-SMY-DGW, 2016 WL 7157555 (S.D. Ill. Dec. 8, 2016), plaintiffs argued defendant deceived consumers into believing its hair products were made only of “natural” ingredients, but the products contained synthetic chemicals. Plaintiffs alleged violations of the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA) and the Missouri Merchandising Practices Act (MMPA). Defendant moved to dismiss and argued presence of an ingredient list on its product was “not likely to mislead a reasonable consumer.” Court noted that, “While the presence of an ingredient list may be relevant to . . . defense at trial, the ‘ingredient list’ defense cannot, as a matter of law, defeat an MMPA claim.” Defendant’s motion to dismiss denied.
In THOMAS BEARD, Plaintiff-Appellant, v. TOWN OF MONROE, PLANNING AND ZONING COMMISSION OF THE TOWN OF MONROE, JOSEPH CHAPMAN, Defendants-Appellees, 16-44-cv, 2016 WL 7177758 (2d Cir. Dec. 9, 2016), plaintiff alleged defendants violated his Equal Protection rights by “enforcing zoning restrictions against him while failing to enforce the same restrictions against other individuals who purportedly were similarly situated.” Plaintiff owns five acres of land subject to use restrictions. Plaintiff stored excavators, plow trucks, and tractors on his property, and defendants issued a permanent injunction ordering him to cease and desist excavating, hauling, or selling third parties top soil. Plaintiff appealed, arguing defendants “did not enforce the zoning regulations against the owners of two other properties . . . engaged in similar activities.” Considering a similar property owner (Smith), appellate court observed that although “Smith ran an excavation business and created topsoil on his property, he had not regularly sold topsoil or loam since approximately 2009. His primary business was farming, including raising farm animals.” Other property owners had not received complaints and court concluded the “record demonstrates that Smith and Beard were not sufficiently similar to support a finding that the Town improperly denied pre-existing use status to Beard.” District court’s grant of summary judgment to defendants affirmed.
LEGISLATIVE:
S. 3531: A bill to designate certain National Forest System land in the State of Idaho as wilderness. Bill referred to the Senate Committee on Energy and Natural Resources. Sponsor: Sen. James Risch [R-ID].
H.R. 6483: To encourage the development, certification, and adoption of environmentally sustainable swine waste disposal technologies, and for other purposes. Bill referred to the House Committee on Agriculture and House Committee on Ways and Means. Sponsor: Rep. David Price [D-NC4].
H.R. 6481: To promote and enhance urban agricultural production and agricultural research in urban areas, and for other purposes. Bill referred to the House Committee on Agriculture. Sponsor: Rep. Marcy Kaptur [D-OH9].
H.R. 4245: To exempt exportation of certain echinoderms and mollusks from licensing requirements under the Endangered Species Act of 1973. Bill’s text for status passed Senate with an Amendment and is now available.
REGULATORY: Includes USDA, EPA, FWS, FS, GIPSA, ITA, BLM, NASS, NIFA, and NOAA rules and notices.
AGRICULTURE DEPARTMENT:
Notice USDA will submit information collection requirement(s) to OMB for review. Title: National Organic Program. Info here.
Notice USDA will submit information collection requirement(s) to OMB for review. Title: Irradiation Phytosanitary Treatment for Fresh Fruits and Vegetables. Details here.
ENVIRONMENTAL PROTECTION AGENCY:
Rule EPA issues a final rule implementing the Formaldehyde Standards for Composite Wood Products Act. Details here.
Rule establishing the annual percentage standards for cellulosic biofuel, biomass-based diesel, advanced biofuel, and total renewable fuel that apply to all motor vehicle gasoline and diesel produced or imported in the year 2017. Details here.
FISH AND WILDLIFE SERVICE:
Notice FWS announces availability of a final comprehensive conservation plan, environmental assessment, and finding of no significant impact for the Glacial Ridge National Wildlife Refuge. Info here.
Notice Florida Department of Military Affairs applied for an enhancement of survival permit associated with a candidate conservation agreement with assurances pursuant to the Endangered Species Act of 1973. Details here.
FOREST SERVICE:
Notice Black Hills National Forest Advisory Board will meet in Rapid City, South Dakota. Details here.
Notice North Mt. Baker-Snoqualmie Resource Advisory Committee will meet in Sedro-Woolley, WA. Info here.
Notice Siuslaw Resource Advisory Committee will meet in Corvallis, Oregon. Details here.
GRAIN INSPECTION, PACKERS AND STOCKYARDS ADMINISTRATION:
Notice GIPSA announces designations of Amarillo Grain Exchange, Inc.; Cairo Grain Inspection Agency, Inc.; Louisiana Department of Agriculture and Forestry; North Carolina Department of Agriculture and D.R. Schaal Agency, Inc. to provide official services under the United States Grain Standards Act. Info here.
Notice GIPSA seeks comments on the quality of services provided by the following designated agency: Northeast Indiana Grain Inspection, Inc. Details here.
INTERNATIONAL TRADE ADMINISTRATION: Notice The Renewable Energy and Energy Efficiency Advisory Committee will hold a conference call on Thursday, December 22, 2016 at 11:00 a.m. Info here.
LAND MANAGEMENT BUREAU: Rule BLM amends its regulations establishing procedures used to prepare, revise, or amend land use plans pursuant to the Federal Land Policy and Management Act. Info here.
NATIONAL AGRICULTURAL STATISTICS SERVICE: Notice of Revision of Confidentiality Pledge under the Title V of the E-Government Act, Confidential Information Protection and Statistical Efficiency Act of 2002 and Title 7, Chapter 55, Section 2276. Details here.
NATIONAL INSTITUTE OF FOOD AND AGRICULTURE: Notice NIFA will host a virtual listening session. Details here.
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:
Rule NMFS announces its approval of a transfer of 2016 commercial bluefish quota from the State of Maryland to the State of New York. Details here.
Notice Department of Commerce invites comment on proposed and/or continuing information collections. Details here.
Notice NMFS issued an IHA to the Port of Kalama for an IHA to take small numbers of marine mammals, by Level B harassment, incidental to in-water construction activities associated with the Port of Kalama Expansion Project. Info here.