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

Judicial: Mootness, Calculation of Damages

In Alaska v. United States Dep’t of Agric., No. 17-5260, 2021 WL 5312998 (D.C. Cir. Nov. 16, 2021), the court considered whether Alaska’s appeal regarding the “Roadless Rule” was moot. Alaska originally opposed the Roadless Rule, issued in 2001 by the Department of Agriculture’s Forest Service, because of the two major national forests that make up a lot of the state, the Tongass and the Chugach. In 2020, while appeals to a district court case dismissal were pending, the Agriculture Department issued a final rule exempting the Tongass from the Roadless rule.

Alaska maintained that the appeal was not moot even though the Agriculture Department had rescinded and replaced the challenged regulation. Alaska argued that the case was not moot because the “voluntary cessation” doctrine applied and that the prospect of a new regulation that reimposes the Roadless Rule on the Tongass also saves the case from mootness. The court determined that both of these arguments were unsuccessful because Alaska had not, and could not, argue that the 2020 Tongass exemption was an effort to manipulate the judicial process and that determining whether the Roadless Rule would be reapplied to the Tongas would require speculation about future actions by policymakers.

Alaska also argued that the case was not moot with regards to the Chugach National Forest because the Chugach was not the focus during the judicial proceeding regarding the 2001 Roadless Rule. The court found that Alaska failed to demonstrate an injury in fact regarding the Chugach on the record. The court concluded that because Alaska failed to show actual harm to the Cugach, the argument fails on appeal.

The court held that Alaska’s claims regarding the application of the Roadless Rule to the Tongass National Forest was moot and the claims were dismissed and the district court’s decisions regarding the Tongass were vacated.

In Dettenhaim Farms, Inc. v. Greenpoint Ag, LLC, 2021 WL 5349451 54,162 (La. App. 2 Cir. 11/17/21), the court considered whether damages awarded to the plaintiff were proper. The case involved damages to a soybean crop caused by the failure of a salesman of crop supplies to timely notify two farmers that he was no longer checking their soybean crop for insects. The court determined that the trial court abused its discretion when it allowed for damages to be calculated using the 2016 yield. Accordingly, the court reduced the damage award to match the best yield during a five-year span. The court also found that the plaintiffs failed to mitigate the damage to the soybean crop because they did not take reasonable action to obtain advice and act on it sooner.

REGULATORY: AMS, APHIS, EPA, FWS, FS

AGRICULTURAL MARKETING SERVICE

Proposed rule inviting comments on a recommendation from the State of Washington Apricot Marketing Committee to suspend the reporting and assessment requirements prescribed under the marketing order regulating apricots grown in designated counties in Washington. Info here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE

Notice advising the public that we have added Malaysia to the list of regions that the Animal and Plant Health Inspection Service considers to be affected with African horse sickness. We have taken this action because of confirmation of AHS in Malaysia. Info here.

ENVIRONMENTAL PROTECTION AGENCY

Proposed rule announcing the receipt of an initial filing of a pesticide petition requesting the establishment or modification of regulations for residues of pesticide chemicals in or on various commodities. Info here.

FISH AND WILDLIFE SERVICE

Proposed rule announcing the 12-month findings for two freshwater turtle species, the Pascagoula map turtle ( Graptemys gibbonsi ) and the Pearl River map turtle ( Graptemys pearlensis ), as endangered or threatened species. Info here.

FOREST SERVICE

Proposed rule to repeal a final rule promulgated in 2020 that exempted the Tongass National Forest from the 2001 Roadless Area Conservation Rule. Info here.