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

ANNOUNCEMENT: Join us Wednesday, August 16, at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: “Using LLCs in Agriculture: Beyond Liability Protection.” Details available here.

JUDICIAL: Includes aquaculture, climate change, and agribusiness issues.

In MARC ZITTER, Plaintiff, v. CHRISTOPHER PETRUCCELLI, et al. Defendants, No. 15-6488 (NLH/KMW), 2017 WL 3393805 (D.N.J. August 7, 2017), an oyster farmer claimed the New Jersey Department of Environmental Protection’s Division of Fish and Wildlife violated his constitutional rights when they charged him with “harvesting shellfish from prohibited waters, and confiscated and destroyed his oysters.” Defendants moved to dismiss. Plaintiff argued his property was improperly taken and therefore, a violation of the Fifth Amendment. Court reasoned that, “Having held that [plaintiff] had no legally protectable possessory interest for Fourth Amendment purposes . . . it follows that [plaintiff] also had no legally protectable property interest for Fifth Amendment takings clause purposes.” Plaintiff’s takings claim dismissed.

FRIENDS OF the EEL RIVER, Plaintiff and Appellant, v. NORTH COAST RAILROAD AUTHORITY et al., Defendants and Respondents; Northwestern Pacific Railroad Company, Real Party in Interest and Respondent. Californians for Alternative to Toxics, Plaintiff and Appellant, v. North Coast Railroad Authority et al., Defendants and Respondents; Northwestern Pacific Railroad Company, Real Party in Interest and Respondent, S222472, 2017 WL 3185220 (Cal. July 27, 2017) concerned whether the Interstate Commerce Commission Termination Act (ICCTA) preempts application of the California Environmental Quality Act (CEQA) to a railroad project that has been undertaken by a state public entity, along with a private entity. Court of Appeal ruled “CEQA is preempted by federal law when the project to be approved involves railroad operations.” State Supreme Court differed and reversed, reasoning that “application of state law to govern the functioning of subdivisions of the state does not necessarily constitute regulation.”

Beau BROOKS and Tina Brooks, Plaintiffs v. CATERPILLAR GLOBAL MINING AMERICA, LLC, Defendant, NO. 4:14CV-00022-JHM, 2017 WL 3401476 (W.D. Ken. August 8, 2017) involved a product-liability case wherein a coal miner suffered injuries when his hand was crushed between “a rib of coal and a Caterpillar RB220 Roof Bolter.” Plaintiffs argued the injury would not have occurred “if CGM’s operator handle had not been located so close to the edge of the roof bolter’s operator compartment.” Court considered motions in limine by defendant to prevent introduction of evidence of defendant’s financial condition. Court ruled that defendant’s “financial condition . . . [is] not relevant to the design defect case. Ultimately, evidence regarding the overall financial condition or net worth of Defendant is not admissible.” Motion in limine granted.

REGULATORY: Includes APHIS, EPA, FWS, FS, ITA, and NOAA rules and notices. 

ANIMAL AND PLANT HEALTH INSPECTION SERVICE:

Rule APHIS is withdrawing a proposed rule that would have defined a low-risk classical swine fever region in Mexico from which the agency would have allowed the importation of fresh pork and pork products into the United States under certain conditions. Details here.

Notice APHIS prepared an environmental assessment concerning authorization to ship for the purposes of field testing, and then to field test, an unlicensed Canine Lymphoma Vaccine, Live Listeria Vector. Details here.

ENVIRONMENTAL PROTECTION AGENCY: Rule the 2016 amendments to the Toxic Substances Control Act require EPA to designate chemical substances on the TSCA Chemical Substance Inventory as either “active” or “inactive” in U.S. commerce. Info here.

FISH AND WILDLIFE SERVICE:

Notice FWS invites the public to comment on the following applications to conduct certain activities with endangered and threatened species. Details here.

Notice FWS received an application from Philip R. Rothman and Pamela J. Rothman for a 10-year incidental take permit under the Endangered Species Act. Details here.

FOREST SERVICE:

Notice the Nevada and Placer Counties Resource Advisory Committee (RAC) will meet in Truckee, California. Info here.

Notice the Northern New Mexico Resource Advisory Committee (RAC) will meet in Santa Fe, New Mexico. Info here.

Notice the Ozark-Ouachita Resource Advisory Committee (RAC) will meet in Russellville, Arkansas. Details here.

Notice the Southwest Mississippi Resource Advisory Committee (RAC) will meet in Meadville, Mississippi. Info here.

Notice the Chequamegon-Nicolet National Forest is proposing new recreation fee sites. Details here.

Notice lists the newspapers that will be used by the ranger districts, forests and regional office of the Intermountain Region to publish legal notices required under our regulations. Info here.

INTERNATIONAL TRADE ADMINISTRATION:

Notice ITA is rescinding the administrative review of the antidumping duty order on frozen warmwater shrimp from Thailand for the period February 1, 2016, through January 31, 2017, based on the timely withdrawal of all requests for review. Details here.

Notice ITA is rescinding the administrative review, in part, of the antidumping duty order on certain frozen warmwater shrimp from Vietnam for the period February 1, 2016 through January 31, 2017. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Notice of availability of a final environmental assessment to issue an exempted fishing permit. Info here.

Notice NMFS announces approval of a Marine Conservation Plan (MCP) for Pacific Insular Areas other than American Samoa, Guam, and the Northern Mariana Islands. Info here.

Notice the SEDAR 51 assessment process of Gulf of Mexico gray snapper will consist of a Data Workshop, a series of assessment webinars, and a Review Workshop. Info here.

Notice that Robert Garrott, Ph.D., Montana State University, 310 Lewis Hall, Bozeman, MT 59717, has applied in due form for a permit to conduct research on Weddell seals. Details here.