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

Judicial: Endangered Species Act

In ANIMAL LEGAL DEFENSE FUND, Plaintiff, v. OLYMPIC GAME FARM, INC., et al., Defendants., No. C18-6025RSL, 2022 WL 683212 (W.D. Wash. Mar. 8, 2022), the court needed to determine whether animals within defendant’s possession were listed species for purposes of the Endangered Species Act (“ESA”). The defendants argued that the grizzly bears within their possession should not have been considered a listed species because they were obtained outside of the United States and the offspring of those bears should also not be a listed species because they were descended from grizzly bears from another country. The court found that it did not matter where the grizzly bears came from but that they were considered a listed species because they are located or found in the 48 continuous States.

Defendants next argued that their gray wolves should not be considered a listed species because they were hybrid wolf dogs and not fully wolves. The court dismissed this interpretation because the wolves had a negligible amount of non-wolf genetic material. The court also noted that if defendant’s interpretation was to stand that an animal’s status under the ESA could not be determined without a DNA analysis and a vast majority of animals would lose their protection.

Defendants then argued that their Canada lynx was not a listed species pursuant to the ESA because it was born in captivity and was therefore exempt from the “take” protections of the ESA. The court found that the plaintiff’s failed to prove that the Canada lynx was born in the wild. However, plaintiffs claim that the captive Canada lynx violated state law, and as long as the state law claim survives so does the ESA claim.

The court held that plaintiff raised a triable issue of fact regarding whether the feeding of unrestricted bread to bears, the housing and care of wolves, the failure to provide adequate veterinarian care to tigers for renal disease, and/or the failure to provide timely and adequate care for the Canada lynx’s broken femur violated the ESA. All other aspects of plaintiff’s ESA claims and the public nuisance claim were dismissed.

REGULATORY: EPA, NOAA, USDA

ENVIRONMENTAL PROTECTION AGENCY

Final rule establishing tolerances for residues of buprofezin in or on multiple commodities. Info here.

Final rule establishing tolerances for residues of novaluron in or on Almond, hulls and the Tree nut group 14-12. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION

Notice in accordance with the Marine Mammal Protection Act (MMPA), its implementing regulations, and the MMPA Regulations for Taking Marine Mammals Incidental to Geophysical Surveys Related to Oil and Gas Activities in the Gulf of Mexico, notification is hereby given that a Letter of Authorization has been issued to BHP Billiton Petroleum Inc. for the take of marine mammals incidental to geophysical survey activity in the Gulf of Mexico. Info here.

Notice announcing that NOAA issued two consecutive incidental harassment authorizations to the United States Department of the Air Force to incidentally harass, by Level B harassment only, marine mammals during two years of testing of the Long-Range Cannon system at Vandenberg Space Force Base, California. Info here.

UNITED STATES DEPARTMENT OF AGRICULTURE

Notice announcing the availability of funds for fiscal year 2022 and soliciting applications from community-based and non-profit organizations, institutions of higher education, and Tribal entities to compete for financial assistance through the Outreach and Assistance for Socially Disadvantaged Farmers and Ranchers and Veteran Farmers and Ranchers Program. Info here.