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

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JUDICIAL: Includes climate change, landowner liability, CWA, and right to farm issues.

In PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY, Plaintiff, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Defendant, No. 17–652 (BAH), 2018 WL 2464463 (D.D.C. June 1, 2018), plaintiff filed a Freedom of Information Act (FOIA) request for EPA records “relied upon by Administrator Pruitt . . . that support the conclusions that human activity is not the largest factor driving global climate change. EPA produced no records in response and argued the FOIA request is required because the request is actually “an impermissible attempt to compel EPA and its Administrator to answer questions and take a position on the climate change debate.” Court observed that “[t]his hyperbolic objection strays far afield from the actual text of both parts of the FOIA request.” The court further reasoned that the EPA’s “twisted interpretation of plaintiff’s counsel’s suggestion as evidence that the FOIA request was intended to operate as ‘an interrogation’ is simply a reach too far.” Court concluded that the records sought by plaintiff “must be searched for and disclosed unless exempt.”

In CHRISTOPHER BRODERICK, Individually and as Successor in Interest, etc. et al., Plaintiffs and Appellants, v. STATE OF CALIFORNIA et al., Defendants and Respondents, F073710, 2018 WL 3032365 (Cal. Ct. App. June 19, 2018), plaintiff was injured running near a water channel constructed by the California Department of Transportation (Caltrans) and sued, alleging a “dangerous condition of public property.” Trial court ruled for defendant after concluding plaintiffs failed to present substantial evidence of “a dangerous condition of public property.” Trila court also found that   “assumption of risk” granted Caltrans a complete defense. Appellate court disagreed and was persuaded that “evidence did not compel the conclusion that Caltrans was shielded by the defense of primary assumption of risk.” Reversed and remanded.

TAMARA BRYANT, Plaintiff, v. EARL BYRON REAMS, II, and THE H. NEIL REAMS FAMILY LLLP, a Colorado limited liability limited partnership, Defendants, No. 16-cv-01638-NYW, 2018 WL 2984693 (D. Col. June 14, 2018) concerned the Colorado Fence Law and whether “actual notice is a prerequisite to apportioning liability to Colorado Department of Transportation (CDOT) for any negligence.” Here, plaintiff sued for negligence after some cows wandered onto a highway due to a broken fence. Issue for court was to determine what standard of care applies to CDOT “as a designated nonparty at fault in an action regarding livestock that wandered onto a public highway.” Court interpreted the applicable statute and found it “reflects a requirement of actual notice as a mandatory condition precedent to CDOT’s affirmative duty to repair.” With respect to plaintiff’s negligence claim, the court concluded actual notice “is not an element necessary to establish that CDOT was negligent for the purpose of apportionment.”

In OHIO VALLEY ENVIRONMENTAL COALITION, INC.; Sierra Club; West Virginia Highlands Conservancy, Inc.; West Virginia Rivers Coalition, Plaintiffs–Appellees, v. Scott PRUITT, Administrator, United States Environmental Protection Agency; Cecil Rodrigues, Acting Regional Administrator, United States Environmental Protection Agency, Region III, Defendants–Appellants, No. 17-1430, 2018 WL 3039954 (4^TH Cir. June 20, 2018), environmental groups sued under Clean Water Act (CWA), alleging that Environmental Protection Agency (EPA) “failed to perform nondiscretionary duty to promulgate pollutant limits for biologically impaired waters in West Virginia.” District court found EPA’s duty was “triggered by West Virginia constructively submitting no total maximum daily loads (TMDLs) for the waters.” Appellate court, however, found that West Virginia “had not constructively refused to submit TMDLs,” and reversed.

In TOWNSHIP OF WILLIAMSTOWN, Plaintiff-Appellee, v. SANDALWOOD RANCH, LLC, ALEC KOLENDA, and SARAH KOLENDA, Defendants-Appellants, And LOVE ADVERTISING, INC., Defendant, No. 337469, 2018 WL 3039596 (Mich. Ct. App. June 19, 2018), defendants operated a horse-boarding facility comprised of a house and barn, and plaintiff sued alleging violations of a local zoning ordinance. Defendants appealed lower court ruling for plaintiff and argued their apartment is protected under the Right to Farm Act (RTFA). Court observed the RTFA is an affirmative defense, and here the defendant had to prove “the challenged condition or activity constitutes a ‘farm’ or ‘farm operation,’ and . . . the farm operation conforms to the relevant GAAMPs.” Issue for court was “whether the use of that apartment building in connection with the business of boarding horses is a protected ‘farm operation.’” Defendants maintained any use of the building is within the definition of “farm” per the statute, but the court reasoned that although the barn may be protected under the RTFA, not “every activity within the building is necessarily shielded from local regulation.” Affirmed for plaintiff.

LEGISLATIVE:

H.R. 5925: CRISIS Act. Added to the House’s schedule for the coming week. This bill passed in the House on June 20, 2018 and goes to the Senate next for consideration.

H.R. 4760: Securing America’s Future Act of 2018. This bill has been added to the House’s schedule for the coming week.

H.R. 6136: Border Security and Immigration Reform Act of 2018. Added to the House’s schedule for the coming week.

S. 3092: A bill to amend the Food and Nutrition Act of 2008 to provide certain requirements relating to commitments by State agencies to provide the State share of the administrative costs of administering the supplemental nutrition assistance program. Referred to the Senate Committee on Agriculture, Nutrition, and Forestry.

H.R. 6170: To direct the Secretary of the Interior to establish a demonstration program to adapt the successful practices of providing foreign aid to underdeveloped economies to the provision of Federal economic development assistance to Native communities. Referred to the House Committee on Natural Resources.

H.R. 6162: To amend the Commodity Exchange Act to exempt certain small entities dealing in foreign exchange that serve small- and medium-sized businesses from certain capital and margin requirements. Referred to the House Committee on Agriculture.

H.R. 6157: Making appropriations for the Department of Defense for the fiscal year ending September 30, 2019. Referred to the House Committee on Appropriations.

REGULATORY: Includes EPA, FDA and NOAA rules and notices.

ENVIRONMENTAL PROTECTION AGENCY:

Rule establishes tolerances for residues of acetochlor in or on alfalfa and related animal commodities which are identified and discussed later in this document. Monsanto Company requested these tolerances under the Federal Food, Drug, and Cosmetic Act. Details here.

Rule establishes tolerances for residues of benzovindiflupyr in or on bluegrass, forage at 0.15 parts per million (ppm), bluegrass, hay at 7.0 ppm, bluegrass, straw at 6.0 ppm, bromegrass, forage at 0.15 ppm, bromegrass, hay at 7.0 ppm, bromegrass, straw at 6.0 ppm, fescue, forage at 0.15 ppm, fescue, hay at 7.0 ppm, fescue, straw at 6.0 ppm, and others. Details here.

Rule establishes an exemption from the requirement of a tolerance for residues of oxirane, 2-methyl-, polymer with oxirane, mono ether, number average molecular weight 1900 daltons; when used as an inert ingredient in a pesticide chemical formulation. Info here.

Rule establishes a tolerance for residues of thiencarbazone-methyl in or on wheat forage. Bayer CropScience requested this tolerance under the Federal Food, Drug, and Cosmetic Act (FFDCA). Info here.

Rule establishes tolerances for residues of tolfenpyrad in or on multiple commodities which are identified and discussed later in this document. Details here.

Rule EPA is announcing the availability of training materials covering the expanded training content required by the Federal Insecticide, Fungicide and Rodenticide Act Worker Protection Standard (WPS) for both agricultural workers and pesticide handlers. Info here.

Rule Environmental Protection Agency (EPA) is notifying the public that Allegheny County Health Department (ACHD) has completed the regulatory process for voluntary withdrawal from EPA’s delegation of authority to enforce the chemical accident prevention regulations, and EPA is proposing to modify amendments indicating that ACHD does not have delegated authority to implement and enforce the regulatory requirements. Info here.

FOOD AND DRUG ADMINISTRATION: Notice FDA announces a forthcoming public advisory committee meeting of the Tobacco Products Scientific Advisory Committee. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS issues regulations to implement management measures described in a framework action to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP), as prepared by the Gulf of Mexico (Gulf) Fishery Management Council (Council). Details here.

Rule NMFS implements management measures described in Regulatory Amendment 4 to the Fishery Management Plan for Spiny Lobster in the Gulf of Mexico (Gulf) and South Atlantic (FMP), as prepared and submitted by the Gulf and South Atlantic Fishery Management Councils (Councils). Info here.

Rule NMFS has received a petition for an incidental take regulation (ITR) from the Bureau of Ocean Energy Management (BOEM). Info here.