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

Judicial: Sovereign Immunity, Clean Water Act, Food Labeling

In KYLE MOELLER v. UNITED STATES, No. 3:21-CV-03012-RAL, 2021 WL 5771185 (D.S.D. Dec. 6, 2021), the court had to determine whether the Bureau of Indian Affairs (BIA) negligently failed to provide plaintiff with accurate information regarding the pasture authorization process. Plaintiff alleged that as a result of the BIA’s negligence he was denied his grazing permit and prohibited from grazing cattle on the Rosebud Sioux Indian Reservation. In 2016, the Rosebud Sioux Tribe passed a resolution which changed a long-standing practice and procedure at BIA which allowed cattle to be pastured as soon as a management plan was on file at the Rosebud Agency. The 2016 Resolution required approval for pasturing authorization prior to starting any cattle grazing and violations will result in a loss of grazing privileges.

The United States argued that the action was barred under the doctrine of sovereign immunity and the plaintiff argued that the FTCA gave the court subject matter jurisdiction over his claims. However, the court found that the FTCA does not apply because plaintiff’s claim does not fall within the FCA because it was not actually a negligence claim but an intentional tort claim.

In In re CLEAN WATER ACT RULEMAKING, No. C 20-04636 WHA, 2021 WL 5792968 (N.D. Cal. Dec. 7, 2021), the court had to decide whether to grant intervenor defendants move for a stay of the order vacating and remanding EPA’s Clean Water Act Section 401 certification rule pending appeal. The court found that intervenors could not (1) demonstrate a strong showing that they would succeed on the merits; (2) that they would be irreparably injured absent a stay; (3) that the issuance of a stay would substantially injured other parties interested in the proceedings; and (4) that a stay was in the public interest. The court denied the motion for a stay.

In FRANCINE CIVELLO, individually & on behalf of all others similarly situated v. CONOPCO, Inc., No. 20 CIV. 1173 (VM), 2021 WL 5761894 (S.D.N.Y. Dec. 3, 2021), the court had to determine whether the labeling on Conopco’s Breyers Delight Vanilla Bean Ice Cream was materially misleading. Plaintiff alleged that the ice cream is not flavored by authentic vanilla, or vanilla flavor extracted from the tropical orchid of the genus Vanilla, making the labeling misleading and in violation of federal labeling laws. The court found that when taken as a whole, a reasonable consumer would interpret the ice cream’s representations as referring to an ingredient, vanilla bean, and not just the vanilla flavor. The court also found that the ice cream contained some amount of vanilla bean and because of that the labeling was not misleading. The court held that the product labeling was not materially misleading and dismissed the claims.

REGULATORY: EPA, FSA, FWS, NOAA

ENVIRONMENTAL PROTECTION AGENCY

Proposed rule announcing a virtual public hearing to be held on January 4, 2022, on its proposal for the “Renewable Fuel Standard (RFS) Program: RFS Annual Rules,” which was signed on December 7, 2021. Info here.

FARM SERVICE AGENCY

Notice requesting comments from interested individuals and organizations on an extension of a currently approved information collection request associated with Market Facilitation Program. Info here.

FISH AND WILDLIFE SERVICE

Notice inviting the public to comment on foreign or native species for which FWS has jurisdiction under the Marine Mammal Protection Act and foreign bird species covered under the Wild Bird Conservation Act. Info here.

Notice announcing receipt of an application from Aitkin and Carlton Counties, Minnesota, for an incidental take permit (ITP) under the Endangered Species Act for the proposed Aitkin-Carlton Counties Habitat Conservation Plan. If approved, the ITP would authorize the incidental take of three bat species for a 25-year period. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION 

Temporary rule reopening the 2021 sablefish primary fishery for vessels using pot/trap gear effective December 10, 2021, to December 31, 2021. Info here.

Final rule announcing routine inseason adjustments to management measures in commercial groundfish fisheries. Info here.