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

Judicial: Subject Matter Jurisdiction, Standing, Claim Preclusion

In RANCHERS-CATTLEMEN ACTION LEGAL FUND, UNITED STOCKGROWERS OF AMERICA v. UNITED STATES DEPARTMENT OF AGRICULTURE, et al., No. CV 20-2552 (RDM), 2021 WL 4462723 (D.D.C. Sept. 29, 2021), the court considered the USDA’s motion to dismiss for lack of jurisdiction and failure to state a claim. Ranchers-Cattleman Action Legal Fund (“R-CALF”) brought an action under the Administrative Protection Act (“APA”). R-CALF is claiming that the USDA substantively amended the Beef Checkoff Program violating the APA by entering into agreements (“MOUs”) with the Qualified State Beef Councils (“QSBCs”) instead of engaging in notice-and-comment rulemaking. The MOUs increased USDA oversight over how QSBCs use their funds that they received from the Beef Checkoff Program. While the underlying case is focused on the MOUs, the issue that was immediately before this court was a motion to dismiss for lack of standing.

Here, the court concluded that R-CALF has adequately alleged the elements of associational standing to sue on behalf of its members. In order to have associational standing the plaintiff must plausibly allege that the plaintiff has at least one member “who would otherwise have standing to sue in her own right,” “the interests the association seeks to protect are germane to its purpose”, and “neither the claim asserted nor the relief requested required the participation of the individual member in the lawsuit.” R-CALF sufficiently demonstrated that at least one of their members have suffered an injury and that the injury they have suffered, a diminished return on investments, is a result of the challenged MOUs.

However, the court repeatedly stated that R-CALF only met USDA’s facial challenge to standing, the court’s decision did not address the factual question of R-CALF’s standing. A facial challenge asks whether the complaint alleges facts sufficient to establish the court’s jurisdiction. A factual challenge goes beyond the pleadings and must resolve any disputed issues of fact in order to rule upon the motion to dismiss.

Next, the court addressed whether R-CALF’s complaint should have been precluded by the final judgement from previous litigation. Ultimately, the court decided that because the state law on this question was so unsettled it would postpone addressing the claim preclusion defense until more evidence was submitted and until the issue of jurisdiction was completely resolved.

The court denied the USDA’s motion to dismiss for lack of jurisdiction and for failure to state a claim without prejudice.

REGULATORY: EPA, FS, FWS

ENVIRONMENTAL PROTECTION AGENCY

Final rule announcing that the EPA is issuing regulations to implement certain provisions of the American Innovation and Manufacturing Act, as enacted on December 27, 2020. This Act mandates the phasedown of hydrofluorocarbons, which are highly potent greenhouse gases, by 85 percent over a period ending in 2036. Info here.

FISH AND WILDLIFE SERVICE

Notice announcing FWS’s intention to conduct a 5-year status review under the Endangered Species Act for the polar bear (Ursus maritimus). The polar bear was listed as threatened in 2008. FWS is requesting submission of information that has become available since the last review of the species in 2017. Info here.

FOREST SERVICE

Notice announcing that the Forest Service intends to establish Secure Rural Schools Resource Advisory Committees. Info here.