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

ANNOUNCEMENT: Join us Wednesday, September 6, at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: “Water Law Update.” Details available here.

JUDICIAL: Includes CAFO, renewable energy, and ESA issues.

In Deb Coon, Randal Coon, Carolyn Dostert, Alan Dostert, Lee Fraase, Carol Hoveskeland, Lee Fischer, Ametta Frueh, Tim Frueh, Jan Kasowski, Paul Kasowski, Bill Marcks, Jackie Marcks, Gerald Marcks, David Percel, Liane Stout, Roy Thompson, Sheila Thompson, Judith VonBank, Robert VonBank, Craig Wendt, and Vicki Wendt, Appellants v. North Dakota Department of Health and Rolling Green Family Farms RE, LLP, Appellees, No. 20170089, 2017 WL 3722646 (N.D. August 30, 2017), landowners appealed district court judgment affirming Department of Health decision to issue a farm an animal feeding operation (AFO) permit. Landowners argued their due process rights were violated because their property interests are affected by the decision to grant a permit. Court reasoned that an agency “has a reasonable range of discretion to interpret and apply its own regulations, and the agency’s expertise is entitled to deference when the subject matter is complex.” Court found that, “The Department’s calculation of the number of animal units is entitled to deference.” Court concluded landowners would not be “deprived of a property interest” and affirmed.

In BACKCOUNTRY AGAINST DUMPS, et al., Plaintiffs, v. JAMES RICHARD PERRY, in his official capacity as Secretary of the United States Department of Energy, et al., Defendants, No.: 3:12-cv-03062-L-JLB, 2017 WL 3712487 (S.D. Cal. August 29, 2017), plaintiffs brought NEPA claims against defendants after their approval of a permit for a wind farm. Court found the claims “meritorious” and issue was whether the court should prohibit continued operation of the wind farm during the remand period. Plaintiff moved for an injunction, alleging construction and operation of the wind farm has “harmed enjoyment of the local environment.” Plaintiff argued that if no injunction were issued, “federal agencies will have inadequate incentive to comply with NEPA.” Court concluded that, “Remand to DOE for further review and preparation of a supplemental environmental impact statement addressing the deficiencies noted in this Court’s previous orders will encourage compliance with NEPA.” Plaintiff’s request for injunction denied.

In HUMANE SOCIETY OF the UNITED STATES, et al., Appellees v. Ryan ZINKE, Secretary of the Interior, et al., Appellees U.S. Sportsmen’s Alliance Foundation, et al., Appellants State of Wisconsin, et al., Appellees, No. 15-5041, 865 F.3d 585 (D.C.C. August 1, 2017), animal rights organizations sued Fish and Wildlife Service (FWS), regarding a rule removing the Western Great Lakes segment of gray wolf population from federal protection under the Endangered Species Act (ESA). District court vacated the rule and FWS appealed. Appellate court observed that per the ESA, “the determination of a species’ endangered or threatened status turns on the threats that the species faces ‘throughout all or a significant portion of its range.’” Appellate court concluded that because FWS “categorically excluded the effects of loss of historical range from its analysis, . . . [the agency’s] conclusion about the ongoing threat to the Western Great Lakes segment within its current range was insufficiently reasoned, and therefore arbitrary and capricious.” District court judgment affirmed.

LEGISLATIVE:

H.R. 3667: Veteran and Beginning Farmers Assistance Act. Bill referred to the House Committee on Agriculture which will consider it before sending it to the House floor for consideration.

MEETING: House Committee on Natural Resources: Subcommittee on Energy and Mineral Resources. Legislative Hearing on H.R. 2661 (Rep. Liz Cheney), H.R. 2907 (Rep. Scott Tipton), and H.R. 3565 (Rep. Diane Black). September 6, 10 AM. Location: LHOB 1334.

REGULATORY: Includes EPA, FRNA, FWS, FSIS, FS, ITA, and NOAA rules and notices.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is redesignating the Indiana portion of the Cincinnati-Hamilton, OH-IN-KY, nonattainment area to attainment for the 1997 fine particulate matter (PM2.5) annual national ambient air quality standard (NAAQS or standard). The Indiana portion of the Cincinnati-Hamilton area includes Lawrenceburg Township within Dearborn County. Info here.

Rule EPA is withdrawing the July 3, 2017, direct final rule approving a State Implementation Plan (SIP) revision submitted by the State of Rhode Island. Details here.

FIRST RESPONDER NETWORK AUTHORITY: Notice FirstNet announces the availability of the Final Programmatic Environmental Impact Statement for the Central Region. Details here.

FISH AND WILDLIFE SERVICE: Notice FWS seeks comment on applications for a permit to conduct activities intended to enhance the survival of endangered or threatened species. Details here.

FOOD SAFETY AND INSPECTION SERVICE: Rule FSIS is confirming that on September 1, 2017, it will adjust inspection coverage at official establishments that slaughter fish of the order Siluriformes from all hours of operation to once per production shift. FSIS also is responding to comments received on the May 17, 2017 Federal Register document that announced these changes. Details here.

FOREST SERVICE:

Notice the Central Montana Resource Advisory Committee (RAC) will meet in Stanford, Montana. Info here.

Notice the Central Montana Resource Advisory Committee (RAC) will meet in Stanford, Montana. Details here.

Notice the Fremont and Winema Resource Advisory Committee (RAC) will meet in Bly, Oregon. Info here.

Notice the Fresno and Madera Counties Resource Advisory Committees (RAC) will meet in Clovis, California. Details here.

Notice the Plumas County Resource Advisory Committee (RAC) will meet in Quincy, California. Details here.

Notice the Snohomish-South Mt. Baker-Snoqualmie Resource Advisory Committee (RAC) will meet in Everett, Washington. Info here.

Notice the Snohomish-South Mt. Baker-Snoqualmie Resource Advisory Committee (RAC) will meet in Everett, Washington. Details here.

Notice the West Virginia Resource Advisory Committee (RAC) will meet in Elkins, West Virginia. Info here.

Notice the Wrangell-Petersburg Resource Advisory Committee (RAC) will meet in Wrangell, Alaska and Petersburg, Alaska. Info here.

Notice the United States Department of Agriculture (USDA) is seeking nominations for the Forestry Research Advisory Council of the Agriculture and Food Act of 1981 (the Act), and the Federal Advisory Committee Act. Info here.

INTERNATIONAL TRADE ADMINISTRATION: Notice ITA is postponing until November 13, 2017, the deadline for issuing the final determination in the less-than-fair-value (LTFV) investigation of certain softwood lumber products from Canada. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS implements accountability measures (AMs) for Atlantic migratory group cobia that are sold (commercial) and harvested from the exclusive economic zone (EEZ) of the Atlantic. Details here.

Rule NMFS is adjusting the 2017 C seasonal apportionments of the total allowable catch (TAC) for pollock in the Gulf of Alaska (GOA) by re-apportioning unharvested pollock TAC in Statistical Areas 610, 620, and 630 of the GOA. Info here.

Rule NMFS is prohibiting retention of the incidental catch allowance for Pacific Ocean perch in the Central Regulatory Area of the Gulf of Alaska. Info here.

Rule removes the 2017 southern windowpane flounder accountability measures for non-groundfish trawl vessels that were triggered as a result of a 2015 quota overage. Info here.

Rule NMFS is temporarily closing the U.S. pelagic longline fishery for bigeye tuna for vessels over 24 meters in overall length in the eastern Pacific Ocean (EPO) through December 31, 2017, because the 2017 catch limit of 500 metric tons is expected to be reached. Details here.

Notice the Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35). Title: Processed Products Family of Forms. Details here.

Notice NOAA will submit to the Office of Management and Budget for clearance a proposal for collection of information under the provisions of the Paperwork Reduction Act. Title: Emergency Beacon Registrations. Info here.

Notice NOAA will submit to the Office of Management and Budget for clearance a proposal for collection of information under the provisions of the Paperwork Reduction Act. Title: Alaska Region Scale and Catch Weighing Requirements. Info here.