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

ANNOUNCEMENT:  Join us Wednesday, September 20, at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: “Tackling the Challenge of Invasive Species to Reduce Impacts to Agriculture.” Details available here.

JUDICIAL: Includes pesticides, environmental law, forestry, and tax issues.

IN RE: IMPRELIS HERBICIDE MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION, THIS DOCUMENT APPLIES TO: ALL ACTIONS, MDL No. 2284, 2017 WL 3908743 (E.D. Penn. September 6, 2017) involved the Imprelis herbicide class action settlement wherein plaintiff claimed DuPont “should have rated a red pine [tree] for removal and replacement after he made a warranty claim.” Plaintiff had submitted a report from his own arborist who found plaintiff’s tree “was stressed by Imprelis exposure,” but Arborist Panel denied his appeal. Court observed that “factual findings and conclusions drawn by the Arborist Panel will be set aside only if they are ‘without reason, unsupported by substantial evidence or erroneous as a matter of law.’” Court affirmed findings of Arborist Panel because their decision was “neither arbitrary nor capricious.”

WESTERN WATERSHEDS PROJECT; NATIONAL PRESS PHOTOGRAPHERS ASSOCIATION; NATURAL RESOURCE DEFENSE COUNCIL, Plaintiffs – Appellants, and PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS INC; CENTER FOR FOOD SAFETY, Plaintiffs, v. PETER K. MICHAEL, in his official capacity as Attorney General of Wyoming; TODD PARFITT, in his official capacity as Director of the Wyoming Department of Environmental Quality; PATRICK JON LEBRUN, Esq., in his official capacity as County Attorney of Fremont County, Wyoming; JOSHUA SMITH, in his official capacity as County Attorney of Lincoln County, Wyoming; CLAY KAINER, in his official capacity as County and Prosecuting Attorney of Sublette County, Wyoming, Defendants – Appellees, and CENTER FOR AGRICULTURE AND FOOD SYSTEMS; FIRST AMENDMENT LEGAL SCHOLARS, Amici Curiae, No. 16-8083, 2017 WL 3908875 (10^TH Cir. September 7, 2017) concerned some Wyoming statutes imposing civil and criminal liability upon any person who “[c]rosses private land to access adjacent or proximate land where he collects resource data.” Plaintiffs alleged the statutes violate the Free Speech and Petition Clauses of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, and are preempted by federal law. Plaintiffs alleged that activities such as collecting water samples and photographing animals are “indispensable to their participation in the formation of public policy.” Appellate court reasoned that the statutes “target the creation of speech by imposing heightened penalties on those who collect resource data.” Appellate court reversed district court ruling for defendants and concluded that the statutes “regulate protected speech under the First Amendment and that they are not shielded from constitutional scrutiny merely because they touch upon access to private property.”

In Concerned Citizens and Retired Miners Coalition, et al., Plaintiffs, v. United States Forest Service, et al., Defendants, No. CV-16-03115-PHX-DGC, 2017 WL 3896290 (D. Ariz. September 6, 2017), plaintiffs challenged the Forest Service’s (FS) approval of a plan to gather environmental data related to construction of a copper mine. FS approved the project after conducting an environmental assessment (EA) and issuing a Finding of No Significant Impact (FONSI). Plaintiffs challenged the EA as “insufficient” and argued that “ omission of the cumulative impact analysis from the draft EA deprived the public of an opportunity to review and comment.”  Court concluded the FS comment process was “reasonable and adequate” because plaintiffs were aware of the proposal and “had the ability to study it with care.” Plaintiffs’ motion for summary judgment denied.

Amarjit KAUR, Plaintiff, v. CLACKAMAS COUNTY ASSESSOR, Defendant, TC–MD 160294N, 2017 WL 3895756 (Or.Tax Magistrate Div.) (OTR-MD September 6, 2017) concerned whether tax assessor properly disqualified plaintiff’s real property from a “forestland special assessment” for the 2016–17 tax year. Court recognized that “[t]o qualify as designated forestland, the land must meet a number of regulatory requirements, including stocking and acreage requirements.” Issue was whether applicable statute “permits an assessor to infer a request to remove a forestland designation from land based on a taxpayer’s actions with respect to that land.” Court found that defendant “incorrectly determined that Plaintiff had requested that the subject property’s forestland designation be removed.” Court ruled for plaintiff, finding assessor’s disqualification of the property invalid.

LEGISLATIVE:

S. 822: BUILD Act. This bill’s text for status Reported by Senate Committee (Sep 7, 2017) is now available.

S. 1767: Farm to School Act of 2017. This bill’s text is now available.

S. 1773: A bill to amend the Federal Crop Insurance Act to limit the overall rate of return for crop insurance providers and remove the requirement of budget neutrality in the Standard Reinsurance Agreement. This bill was referred to the Senate Committee on Agriculture, Nutrition, and Forestry.

S. 1776: A bill to amend the Farm Security and Rural Investment Act of 2002 to reauthorize energy programs through fiscal year 2023. This bill was referred to the Senate Committee on Agriculture, Nutrition, and Forestry which will consider it before sending it to the Senate floor for consideration.

H.R. 3699: To promote and enhance urban agricultural production and agricultural research in urban areas, and for other purposes. This bill was referred to the House Committee on Agriculture.

H.R. 3698: To amend the Federal Crop Insurance Act to limit the overall rate of return for crop insurance providers and remove the requirement of budget neutrality in the Standard Reinsurance Agreement. This bill was referred to the House Committee on Agriculture.

MEETING: Senate Committee on Agriculture, Nutrition, and Forestry Meeting. Hearings to examine nutrition programs, focusing on perspectives for the 2018 Farm Bill. September 14 at 9:30 a.m. (Location: SH-216).

REGULATORY: Includes USDA, EPA, FWS, FS, NOAA and NTIA rules and notices.

AGRICULTURE DEPARTMENT:

Notice USDA will submit the following information collection requirement(s) to OMB for review. Title: Child Nutrition Labeling Program. Info here.

Notice announces the intention of the Office of the Assistant Secretary for Civil Rights to request approval for a new information collection for the Equal Employment Opportunity Formal Complaint Form. Info here.

Notice USDA will submit the following information collection requirement(s) to OMB for review. Title: Advanced Biofuel Payment Program. Details here.

Notice USDA will submit the following information collection requirement(s) to OMB for review. Title: Electronic Import Inspection. Details here.

ENVIRONMENTAL PROTECTION AGENCY: Rule EPA is proposing to approve a proposed revision to the Arkansas Regional Haze State Implementation Plan (SIP) submitted for parallel processing on July 12, 2017, by the State of Arkansas through the Arkansas Department of Environmental Quality. Details here.

FISH AND WILDLIFE SERVICE: Notice FWS reviewed recent data and are revising the take limits for passage peregrine falcons beginning in the fall of 2017. Info here.

FOREST SERVICE:

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

Notice the Olympic Peninsula Resource Advisory Committee (RAC) will meet in Forks, Washington. Details here.

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

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

Notice FS is seeking nominations for Secure Rural School Resource Advisory Committees pursuant to the Secure Rural Schools and Community Self-Determination Act (the Act) and the Federal Advisory Committee Act. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS announces a 10,000 lb (4.535 kg) trip limit that may not be landed more than once per day for the Illex squid fishery beginning September 1, 2017. Details here.

Rule this action approves and implements regulations submitted by the Mid-Atlantic Fishery Management Council in an Omnibus Framework Adjustment to all of its fishery management plans. Info here.

Notice the Caribbean Fishery Management Council’s Scientific and Statistical Committee (SSC) will hold a 5-day meeting. Info here.

Notice the National Oceanic and Atmospheric Administration (NOAA), Office for Coastal Management will hold a public meeting to solicit comments on the performance evaluation of the California State Coastal Conservancy and San Francisco Bay Conservation and Development Commission. Details here.

Notice the New England Fishery Management Council (Council) is scheduling a public meeting of its Skate Committee on to consider actions affecting New England fisheries in the exclusive economic zone. Info here.

NATIONAL TELECOMMUNICATIONS AND INFORMATION ADMINISTRATION: Notice NTIA will host a series of webinars on a monthly basis to engage the public and stakeholders with information to accelerate broadband connectivity, improve digital inclusion, strengthen policies and support local priorities. Info here.