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

JUDICIAL: Includes SNAP, CAA, patent, pesticides, PACA, climate change, and water law issues.

DAWN McGEE, Plaintiff and Appellant, v. STATE OF MONTANA, DEPARTMENT OF PUBLIC HEALTH & HUMAN SERVICES, Respondent and Appellee, DA 16-0514, 2017 WL 2859466 (Mont. July 5, 2017) involved an appeal from a termination of SNAP benefits based on plaintiff’s refusal to provide income information. Plaintiff was part of an unmarried couple raising their biological child. Plaintiff would not provide income information to Health and Human Services Department after the agency learned plaintiff was living with her partner. Agency cancelled plaintiff’s SNAP benefits and appellate court observed that “when two individuals live together with a minor child in common, even if they customarily purchase food and prepare meals separately, they shall be treated as a single household.” Court concluded, “When the household refused to provide income information the Department requested, the Department was required to terminate SNAP benefits.”

In CLEAN AIR COUNCIL, et al., Petitioners v. E. Scott PRUITT, Administrator, Environmental Protection Agency and Environmental Protection Agency, Respondents, American Petroleum Institute, et al., Intervenors, No. 17-1145, 2017 WL 2838112 (D.C. July 3, 2017), environmental organizations challenged EPA decision to stay implementation of portions of a final rule concerning methane and greenhouse gas emissions. Court concluded EPA lacked authority under the Clean Air Act (CAA) to stay the rule and granted motion to vacate the stay.

In NEW WORLD INTERNATIONAL, INC., National Auto Parts, Inc., Plaintiffs-Appellants v. FORD GLOBAL TECHNOLOGIES, LLC, Defendant-Appellee, 2016-2097, 859 F.3d 1032 (Fed. Ct. June 8, 2017), a seller of aftermarket automobile parts sued a nonresident patent holder, seeking “declaratory judgment of noninfringement and invalidity with regard to holder’s design patents.” District court dismissed for lack of personal jurisdiction and Seller appealed. Appellate court held that licensing agreement provision requiring holder to indemnify licensee that regularly did business in forum state “did not arise out of or relate to enforcement or defense of holder’s design patents.” The court also determined that patent holder “did not assume meaningful obligation to enforce or defend its design patents under licensing agreement.”

In MARY ANN SCHOENHOFER; AUTUMN L. JOHNSON; RALPH ROGERSON, Plaintiffs – Appellants, v. JACKIE McCLASKEY, in her official capacity as Secretary of the Department of Agriculture of the State of Kansas, Defendant – Appellee, No. 16-3226, 2017 WL 2836796 (10^th Cir. July 3, 2017), plaintiff, a licensed pest-control applicator, challenged a regulation of the Kansas Department of Agriculture requiring “excessive pesticide treatment in preconstruction applications.” Plaintiff alleged the regulation is preempted by both the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and by the Sherman Antitrust Act because it conflicts with pesticide labels approved by the Environmental Protection Agency (EPA), and “limits consumer choice and competition through retail price maintenance.” Appellate court affirmed the lower court holding that the Kansas regulation is “neither expressly nor impliedly preempted by FIFRA,” and noted plaintiff “conceded the absence of an essential element of his Sherman Act claim.”

In Brad JANICEK d/b/a Janicek Farms and Blue Diamond Turf, LLC, Plaintiffs, v. FIRST FRUITS HOLDINGS, LLC d/b/a Four Rivers Onion Packing, Defendant, No. 1:16-CV-489-DVB, 2017 WL 2834485 (D. Idaho June 29, 2017), plaintiff had a contract with defendant to provide onions in exchange for payment. Defendant later rejected the contract and plaintiff sued for payment under the Perishable Agricultural Commodities Act (PACA). Defendant argued plaintiffs waived their PACA trust rights because “the Contract terms provide that payment for the onion shipments be made in installments that were scheduled for seven months following receipt and acceptance of the onions.” Agreeing with defendants, the court ruled that under the contract, “Plaintiffs waived any entitlement to PACA trust benefits by setting the time for payment under the Contract to more than 30 days following delivery.”

In ALLCO FINANCE LIMITED, Plaintiff-Appellant, v. Robert J. KLEE, in his official capacity as Commissioner of the Connecticut Department of Energy and Environmental Protection, Defendant-Appellee, Katherine S. Dykes, John W. Betkoski, III, and Michael Caron, in their official capacities as Commissioners of the Connecticut Public Utilities Regulatory Authority, Defendants-Appellees, Nos. 16-2946, 16-2949, 2017 WL 2782856 (2^nd Cir. June 28, 2017), an owner of solar projects sued state energy regulators claiming Connecticut’s “renewable energy solicitations” conducted under two state laws were preempted by the Federal Power Act (FPA), and that the state’s “renewable portfolio standard (RPS) program” violated the dormant Commerce Clause “by requiring state’s utilities to either produce renewable energy themselves or buy renewable energy credits from other renewable energy producers located within region.” District court granted defendants’ motions to dismiss for lack of standing and for failure to state claim and plaintiff appealed. Appellate court affirmed, finding that Connecticut’s renewable energy solicitations “were not preempted by FPA,” and that the state’s RPS program did not violate dormant Commerce Clause.

Budha Ismail JAM, et al., Appellants v. INTERNATIONAL FINANCE CORPORATION, Appellee, No. 16-7051, 2017 WL 2697990 (D.C. June 23, 2017) involved a group of fishermen and farmers living near a power plant in India. An Indian trade union sued seeking damages against an international company that financed development of the power plant. Plaintiffs alleged the plant injured the marine ecosystem, air quality, and their health. District court dismissed suit on grounds that defendant was immune from action under International Organizations Immunities Act. Plaintiffs appealed and appellate court found that organization did not waive its absolute immunity under the International Organizations Immunities Act and noted that, “Should appellants’ suit be permitted, every loan the IFC makes to fund projects in developing countries could be the subject of a suit in Washington.” Affirmed for defendant.

REGULATORY: Includes APHIS, EPA, FWS, FSIS, GIPSA, ITA and NOAA rules and notices. 

ANIMAL AND PLANT HEALTH INSPECTION SERVICE: Notice APHIS has prepared a final environmental assessment and finding of no significant impact and will issue a permit for the field release of diamondback moths that have been genetically engineered for repressible female lethality, also known as female autocide. Details here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is approving a noninterference demonstration that evaluates whether the change for the Federal Reid Vapor Pressure requirements in Shelby County would interfere with the Area’s ability to meet the requirements of the Clean Air Act. Details here.

Rule EPA is taking direct final action to approve revisions to the Commonwealth of Pennsylvania state implementation plan. Details here.

Rule EPA is taking final action to approve a revision to the Antelope Valley Air Quality Management District. Info here.

Rule establishes tolerances for residues of flonicamid in or on multiple commodities which are identified and discussed later in this document. Interregional Research Project Number 4 (IR-4) requested these tolerances under the Federal Food, Drug, and Cosmetic Act. Info here.

Rule establishes tolerances for residues of prosulfuron in or on grain, cereal, forage, fodder, and straw, group 16, stover; grain, cereal, forage, fodder, and straw, group 16, forage; grain, cereal, forage, fodder, and straw, group 16, hay; grain, cereal, forage, fodder, and straw, group 16, straw; and grain, cereal, group 15. Info here.

FISH AND WILDLIFE SERVICE: Notice advises the public that the Center of Excellence in Hazardous Material Management and the New Mexico State Land Office have applied for two separate enhancement of survival permits pursuant to the Endangered Species Act. Info here.

FOOD SAFETY AND INSPECTION SERVICE: Notice announcing the availability of and requesting comment on guidance for importing meat, poultry, and egg products into the United States. Details here.

GRAIN INSPECTION, PACKERS AND STOCKYARDS ADMINISTRATION:

Notice GIPSA is revising the United States Standards for Beans to (1) establish a class and grade requirement chart for “chickpea,” also known as “garbanzo bean,” and (2) establish a new grade determining factor, definition, factor limits, and visual reference image for “contrasting chickpeas.” Details here.

Notice GIPSA is revising the United States Standards for Lentils to establish an additional grading factor, definition, grade requirements, and visual reference images for “wrinkled lentils,” and establish a special grade, definition, special grade requirements, designation, and visual reference images for “green lentils.” Details here.

INTERNATIONAL TRADE ADMINISTRATION: Notice ITA aligned the 2015-2016 new shipper review of the antidumping duty order on honey from China with the 2015-2016 administrative review of the same order covering the same period of review, and is therefore conducting the reviews concurrently. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS implements accountability measures (AMs) for species and species groups in the exclusive economic zone (EEZ) of the U.S. Caribbean off Puerto Rico (Puerto Rico management area) for the 2017 fishing year. NMFS has determined that annual catch limits (ACLs) in the Puerto Rico management area were exceeded for spiny lobster; the commercial sectors of triggerfish and filefish (combined), and Snapper Unit 2; and the recreational sectors of triggerfish and filefish (combined), and jacks, based on average landings during the 2013-2015 fishing years. Info here.

Rule NMFS implements management measures for the 2017 summer flounder and scup recreational fisheries. Details here.

Rule announces inseason changes to management measures in the Pacific Coast groundfish fisheries. Info here.

Notice NOAA through NMFS and NOS seeks public input on identifying existing regulations that: Eliminate jobs, or inhibit job creation; are outdated, unnecessary, or ineffective; impose costs that exceed benefits; create a serious inconsistency or interfere with regulatory reform initiatives and policies; are inconsistent with the requirements of section 515 of the Treasury and General Government Appropriations Act, 2001; and/or derive from or implement Executive Orders or other Presidential directives that have been subsequently rescinded or substantially modified. Details here.

Notice NOAA issued an incidental harassment authorization to Washington State Department of Transportation to take small numbers of marine mammals, by harassment, incidental to Seattle Multimodal Construction Project in Washington State. Info here.

Notice NMFS has issued an incidental harassment authorization to Ocean Wind, LLC, to incidentally harass, by Level B harassment only, marine mammals during high-resolution geophysical and geotechnical survey investigations associated with marine site characterization activities off the coast of New Jersey in the area of the Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf. Details here.