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

JUDICIAL: Includes Endangered Species Act, worker safety, Poultry Products Inspection Act, and Pandemic Liability Protection Act

In WildEarth Guardians v. Haaland, No. 219CV09473ODWKSX, 2021 WL 4263831 (C.D. Cal. Sept. 20, 2021), the court considered whether the Fish and Wildlife Service’s (“FWS”) decision not to list the Joshua tree as threatened under the Endangered Species Act (“ESA”) was arbitrary, capricious, contrary to the best scientific and commercial data available, and not in accordance with the ESA. In 2015, WildEarth Guardians filed a petition under the ESA requesting that FWS list the Joshua tree as a threatened species. In 2019, FWS released their 12-Month Finding that determined that Joshua trees do not need to be listed as threatened or endangered under the ESA. WildEarth Guardians then brought an action that challenged the 12-Month Finding as violating the ESA.

The court determined that the FWS failed to support their conclusion that climate change would not affect Joshua trees and they do not need to be listed under the ESA. Additionally, the court found that FWS failed to articulate any rational connection between their fire threat conclusions and the data upon which it relied. FWS also failed to consider and ignored scientific studies and models regarding Joshua trees. Ultimately, the court held that the FWS’s 12-Month Finding was arbitrary, capricious, and contrary to the ESA.

In Fields v. Tyson Foods, Inc., No. 6:20-CV-00475, 2021 WL 4302836 (E.D. Tex. Sept. 22, 2021), the court considered whether Tyson negligently failed to exercise ordinary care to reduce or eliminate the risk of its employees being exposed to COVID-19. Plaintiffs’ claimed that their employer, Tyson Foods, directed them to return to work during state-issued stay-at-home orders. Plaintiffs’ further alleged that Tyson failed to provide adequate personal protective equipment to employees and failed to implement social distancing guidelines, all of which allegedly caused plaintiffs to contract COVID-19. The court held that the plaintiffs’ complaint failed to state a claim against Tyson for which relief could be granted because the Poultry Products Inspection Act (“PPIA”) and the Pandemic Liability Protection Act (“PLPA”) each independently foreclosed the plaintiffs’ claims. The court determined that the plaintiffs’ claims that Tyson failed to impose adequate safety measures to reduce the spread of COVID-19 within its facility would impose additional requirements to those authorized under the PPIA and were therefore preempted by federal law.

The court also concluded that under the PLPA, in order for the plaintiffs’ claim to have survived dismissal, they must have alleged that Tyson either knowingly failed to warn or remedy some condition at the facility that Tyson knew would expose plaintiffs to COVID-19 or knowingly defied government COVID-19 guidance that applied to Tyson. Additionally, the court determined that the complaint failed to show that Tyson’s conduct was the cause-in-fact of the plaintiffs’ contracting COVID-19. Accordingly, the court granted Tyson’s motion to dismiss.

REGULATORY: FWS

 FISH AND WILDLIFE SERVICE

Notice announcing the availability of a habitat conservation plan developed by Thurston County, Washington, in support of an application for an incidental take permit under the Endangered Species Act. The applicant is seeking authorization for the incidental take of six species, expected to result from various County-permitted development activities, as well as construction and maintenance of County-owned or County-managed infrastructure, over the next 30 years. Info here.