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

JUDICIAL: Includes labor, aquaculture, renewable energy, antitrust, and secured transactions issues. 

In DIANNE BUCCERI, JANET CHARAK, LISA SANDERS, and PETER STAFFORD, on behalf of themselves and all others similarly situated, Plaintiffs, v. CUMBERLAND FARMS, INC. Defendant, No. 15-cv-13955-IT, 2017 WL 3495693 (D. Mass. August 14, 2017), defendant in a class-action suit involving the Fair Labor Standards Act (FLSA) filed motion to strike “Consent to Join forms filed on behalf of two opt-in plaintiffs.” Plaintiffs, a class of managers employed at defendant’s stores, had 60 days to return the opt-in forms and a couple of the forms were filed late. Court observed that, “The FLSA provides no explicit standard by which a court should consider whether to allow plaintiffs to join a particular action after a court-imposed deadline for the filing of consents has passed.” Regarding the late receipt of plaintiffs’ opt-in forms, the court reasoned that, “The tardiness of the individuals’ filings is not excessive, judicial economy is not negatively impacted, and the remedial purpose of the FLSA is served by permitting the late opt-ins.” Court accepted the late consent forms.

In WEST SLOPE COLORADO OIL AND GAS ASSOCIATION, Plaintiff, v. SALLY JEWELL, in her official capacity as the Secretary of the U.S. Department of the Interior; UNITED STATES DEPARTMENT OF THE INTERIOR; DANIEL M. ASHE, in his official capacity as the Director of the U.S. Fish and Wildlife Service; UNITED STATES FISH AND WILDLIFE SERVICE; RUTH WELCH, in her official capacity as the State Director of the Bureau of Land Management Colorado State Office; BUREAU OF LAND MANAGEMENT COLORADO STATE OFFICE; KENT WALTER, in his official capacity as Field Manager of the Bureau of Land Management White River Field Office Defendants, No. 14-cv-02764-CMA, 2017 WL 3530283 (D. Colo. August 16, 2017), Fish and Wildlife Service (FWS) issued Colorado State University a permit for a restoration project of threatened plants. Plaintiff argued (FWS) violated the Endangered Species Act (ESA) by not implementing procedures applicable to “experimental” plant populations. It alleged the “research population” of plants that FWS authorized to be introduced through a permit was an “experimental population.” Defendants argued FWS may issue permits for populations of threatened plants “outside of the current range of the species.” Court concluded the agency actions at issue were “not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Agency permit actions affirmed.

In SINCLAIR WYOMING REFINING COMPANY, and Sinclair Casper Refining Company, Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. State of Wyoming, Amicus Curiae, No. 16-9532, 2017 WL 3481856 (10^th Cir. August 15, 2017), a small oil refinery owner sought review of the Environmental Protection Agency’s (EPA) denial of its request for “hardship exemptions” from Clean Air Act’s (CAA) renewable-fuel obligations. Appellate court ruled the EPA’s interpretation of hardship exemptions “was entitled to Skidmore, rather than Chevron, deference.” Court also concluded the CAA did not require plaintiff to “demonstrate existential threat to refinery’s future long-term viability.” Case vacated and remanded.

IN RE: PROCESSED EGG PRODUCTS ANTITRUST LITIGATION, This Document Applies to: All Direct Purchaser Actions, No. 08-md-2002, 2017 WL 3494221 (E.D. Pa. August 14, 2017) involved antitrust litigation wherein defendant egg producers sought to decertify a Direct Purchaser Plaintiffs’ class. Court acknowledged that, “Generally, class decertification is prompted by a change in factual circumstances or developments in applicable substantive or procedural law.” Defendant argued plaintiff’s expert witness’ economic models and data is “inconsistent” and “no longer supports the Plaintiffs’ theory.” After considering defendant’s arguments, the court stated, “To the extent that there is disagreement over the models . . . the Court determines that question is best answered by a jury.” Court denied motion to decertify the class.

In STEVEN F. SCHROEDER, a married man dealing with his sole and separate property, Appellant, v. PHILLIP J. HABERTHUR, as trustee of a deed of trust, EXCELSIOR MANAGEMENT GROUP, LLC, an Oregon limited liability company, EXCELSIOR MORTGAGE EQUITY FUND II, LLC, an Oregon limited liability company, JAMES HANEY, and CLS MORTGAGE, INC., a Washington corporation, Respondents, No. 33336-l-III, 2017 WL 3483668 (Wash Ct. App. August 15, 2017), plaintiff defaulted on a loan secured by a deed of trust on a 200-acre parcel of land. Court ruled for defendant and on appeal, issue was “whether the deed of trust act (DTA) can be construed using definitions found in the Uniform Commercial Code (UCC).” Appellate court considered “whether timber is a ‘crop’ so that the forest land should have been considered agricultural property under the DTA.” Plaintiff maintained it was error for the trial court “to consider the current UCC definition—distinguishing ‘timber’ from ‘crops’—because the definition was adopted two years after the DTA and could not have been intended by the legislature.” Court noted that, “The word “crops” is not defined in the DTA and is only inferentially defined by example in the UCC.” Court agreed with the trial court that “growing or felling timber does not constitute farming,” and affirmed.

LEGISLATIVE:

H.R. 3661: To establish a program to award prizes for the development of innovative, environmentally safe solutions for reducing, mitigating, and controlling harmful algal blooms. Referred to the House Committee on Natural Resources which will consider it before sending it to the House floor for consideration.

REGULATORY:  Includes USDA, EPA, FWS, ITA, and NOAA rules and notice. 

AGRICULTURE DEPARTMENT:

Notice USDA submitted information collection requirement(s) to OMB for review. Title: Importation of Hass Avocado from Michoacán Mexico. Info here.

Notice USDA submitted information collection requirement(s) to OMB for review. Title: National Appeals Division Customer Service Survey. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is taking direct final action to approve changes to the South Carolina State Implementation Plan (SIP) to revise several miscellaneous rules, covering definitions, source tests, credible evidence, open burning, air pollution episodes, and fugitive particulate matter. Info here.

Rule establishes an exemption from the requirement of a tolerance for residues of naphthalenesulfonic acids formaldehyde condensates, potassium salts when used as an inert ingredient applied to growing crops and raw agricultural commodities after harvest by amending an existing exemption for similar substances. Info here.

FISH AND WILDLIFE SERVICE: Notice FWS announces it will implement amenity fees at Clarks River National Wildlife Refuge (Refuge), located in Kentucky, as authorized by the Federal Lands Recreation Enhancement Act. Details here.

INTERNATIONAL TRADE ADMINISTRATION:

Notice ITA issued its final judgment, sustaining the Department of Commerce’s remand results pertaining to the ninth administrative review of the antidumping duty order on certain frozen warmwater shrimp from Vietnam. Details here.

Notice section 3(e) of the Presidential Executive Order on Buy American and Hire American directs the Secretary of Commerce and the United States Trade Representative to assess the impacts of all United States free trade agreements and the World Trade Organization Agreement on Government Procurement (GPA) on the operation of Buy American Laws. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Notice NMFS will hold a 2-day Atlantic Highly Migratory Species (HMS) Advisory Panel (AP) meeting in September 2017. Info here.

Notice the Pacific Fishery Management Council’s (Pacific Council) Ad Hoc Trawl Groundfish Electronic Monitoring Technical Advisory Committee (GEMTAC) and Groundfish Electronic Monitoring Policy Advisory Committee (GEMPAC) (GEM Committees) will hold a joint work session via webinar, which is open to the public. Info here.

Notice of a meeting of the Sanctuary System Business Advisory Council. Details here.

Notice the South Atlantic Fishery Management Council will hold a meeting of its Scientific and Statistical Committee to review the Research Track stock assessment development procedure proposed by the Southeast Fisheries Science Center. Details here.

Notice the Office for Coastal Management, National Ocean Service, National Oceanic and Atmospheric Administration, U.S. Department of Commerce is announcing a 30-day public comment period for the Jobos Bay National Estuarine Research Reserve Management Plan revision. Info here.

Notice that a Letter of Authorization has been issued to the U.S. Navy for the take of marine mammals incidental to waterfront construction activities at Naval Submarine Base Kings Bay, Georgia. Details here.