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

ANNOUNCEMENT: Mark your calendar for the next Agricultural & Food Law Consortium webinar, Wednesday, September 5th: Be In The Know:  Legal Tips for Your Ag Start-Up. Details available here.

JUDICIAL: Includes environmental, Clean Water Act, and food safety issues. 

WEIL GROUP RESOURCES, LLC, Plaintiff, v. Sam BURTON, in his official capacity as the Manager of the Amarillo Field Office of the Bureau of Land Management, et al., Defendants, No. 2:18-CV-130-D, 2018 WL 3934024 (N.D. Tax. August 15, 2018) involved a Bureau of Land Management (BLM) helium auction and sale of crude helium from the Federal Helium Reserve. BLM is tasked with “regulat[ing] the amount of helium available to each refiner and storage contract holder.” Here, plaintiff sought an injunction to halt an upcoming helium auction and to enjoin “BLM from imposing and implementing Allocation Rules that prevent [plaintiff] and other small companies from timely access to their purchased helium volumes.” Court was persuaded that BLM’s past (2017) allocation methods are satisfactory. Plaintiff also sought redress under the Regulatory Flexibility Act (RFA), but the court found that plaintiff “failed to show that the RFA’s requirements apply.” Motion for preliminary injunction denied.

In NATIVE ECOSYSTEM COUNCIL, and ALLIANCE FOR THE WILD ROCKIES, Plaintiffs, v. JON RABY, Acting State Director, the BUREAU OF LAND MANAGEMENT; and the DEPARTMENT OF THE INTERIOR, Defendants, CV 18-55-BLG-SPW, 2018 WL 3928804 (D. Mont. August 16, 2018), plaintiffs sought injunctions against implementation of “vegetation and riparian treatments” authorized by the Bureau of Land Management in the Iron Mask project area. Lower court denied plaintiffs’ motion, and on appeal, plaintiffs argued the treatments, including the thinning of conifers, will “imminently and irreparably harm their members’ ability to view, experience, and utilize the ear (sic) in their undisturbed state.” Plaintiffs further alleged the “area will be irreversibly degraded because once logging and burning occurs, the BLM cannot put the trees back on the stumps or unburn trees.” Court determined plaintiffs “failed to show a particularized injury to their interests, however, rather than an abstract injury to the environment.” Affirmed.

SOUTH CAROLINA COASTAL CONSERVATION LEAGUE, CHARLESTON WATERKEEPER, AMERICAN RIVERS, CHATTAHOOCHEE RIVERKEEPER, CLEAN WATER ACTION, DEFENDERS OF WILDLIFE, FRIENDS OF THE RAPPAHANNOCK, NORTH CAROLINA COASTAL FEDERATION, and NORTH CAROLINA WILDLIFE FEDERATION, Plaintiffs, v. E. SCOTT PRUITT, as Administrator of the United States Environmental Protection Agency; UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; R.D. JAMES, as Assistant Secretary of the Army for Civil Works; and UNITED STATES ARMY CORPS OF ENGINEERS, Defendants, AMERICAN FARM BUREAU FEDERATION, et al., Intervenor-Defendants, No. 2-18-cv-330-DCN, 2018 WL 3933811 (D.S.C. August 16, 2018) involved “promulgation of the Suspension Rule” suspending the 2015 WOTUS Rule for two years. Here, plaintiffs alleged that in promulgating the Suspension Rule, the EPA and Army Corps violated the Administrative Procedure Act (APA) by “taking action with inadequate public notice and comment as prescribed by the APA.” They also maintained that enactment of the Suspension Rule was “arbitrary and capricious” under the APA. The court observed that the agencies involved “refused to engage in a substantive reevaluation of the definition of the ‘waters of the United States’ even though the legal effect of the Suspension Rule is that the definition of ‘waters of the United States’ ceases to be the definition under the WOTUS rule and reverts to the definition under the 1980s regulation.” The court ultimately found that “[b]y refusing to allow public comment and consider the merits of the WOTUS rule and the 1980s regulation, the agencies did not allow a ‘meaningful opportunity’ to comment.” Court vacated the Suspension Rule.

In SIERRA CLUB, INC., Plaintiff, v. ST. JOHNS RIVER WATER MANAGEMENT DISTRICT, Governing Board of the St. Johns River Water Management District, John Miklos, Maryam Ghyabi, Fred Roberts, Jr., George Robbins, Douglas Bournique, Charles Drake, Lad Daniels, Douglas Burnett, Carla Yetter, United States Army Corps of Engineers and Alan M. Dodd, Defendants, No: 6:14-cv-1877-Orl-40GJK, 2018 WL 3853997 (M.D. Fla. August 13, 2018), the Sierra Club sued a water management district and Army Corps of Engineers (ACOE) for violating the Clean Water Act’s (CWA’s) Compensatory Mitigation Rule when the agencies allowed portions of a “wetland mitigation bank” to be used for mixed-use development. The Court reviewed the Mitigation Rule and the CWA, and concluded that “nothing [here] would prohibit alteration of the boundaries of a mitigation bank.” The court further found that Sierra Club failed to demonstrate the District violated the CWA by issuing permits allowing for reduction of the size of the mitigation bank at issue. Defendants’ motion for summary judgment granted.

In PATTERSON et al. v. KEVON, LLC d/b/a Big Kev’s Barbecue, S17G1957, 2018 WL 3965745 (Ga. August 20, 2018), guests got sick after a wedding rehearsal dinner and alleged food at the dinner was “defective, pathogen-contaminated, undercooked, and negligently prepared.” Lower court found for defendant after concluding plaintiffs “failed to exclude every other reasonable hypothesis regarding the cause of their illness.” On appeal, the Georgia Supreme Court considered plaintiff’s evidence and reasoned the state’s case law has developed “the mistaken impression that food poisoning cases ‘are a unique species of negligence cases’ imposing a heavier burden upon the plaintiff to show proximate cause than that generally required of nonmovants on summary judgment.” Here, the Court observed that although plaintiff’s evidence was circumstantial, “it went well beyond . . . general allegations,” and defendant “failed to demonstrate the absence of evidence of proximate cause.” Summary judgment for defendant reversed.

REGULATORY: Includes AMS, APHIS, EPA, FWS, NOAA and RUS rules and notices.

AGRICULTURAL MARKETING SERVICE: Rule AMS is correcting a final rule that appeared in the Federal Register on July 12, 2018. The document implemented new information collection and reporting requirements for a handler diversion under the Cranberry marketing order. Info here,

ANIMAL AND PLANT HEALTH INSPECTION SERVICE: Notice announces the Animal and Plant Health Inspection Service’s intention to request an extension of approval of an information collection associated with qualitative customer and stakeholder feedback on service delivery by the Animal and Plant Health Inspection Service. Details here.

ENVIRONMENTAL PROTECTION AGENCY: Rule EPA is granting a petition submitted by Blanchard Refining Company LLC–(Blanchard) to exclude (or delist) the residual solids generated from the reclamation of oil bearing hazardous secondary materials (OBSMs) on-site at Blanchard’s Galveston Bay Refinery (GBR), located in Texas City, Texas from the lists of hazardous wastes. Details here.

FISH AND WILDLIFE SERVICE: Notice FWS is proposing to renew an information collection. Info here.


Rule extends the measures in an emergency interim final rule for the North Atlantic shortfin mako shark fishery published on March 2, 2018. Info here.

Rule implements an accountability measure (AM) for commercial blueline tilefish in the exclusive economic zone (EEZ) of the South Atlantic. Info here.

Rule NMFS is prohibiting directed fishing for Atka mackerel in the Central Aleutian district (CAI) of the Bering Sea and Aleutian Islands management area (BSAI) by vessels participating in the BSAI trawl limited access fishery. Details here.

Rule reduces the sub-annual catch limits for the four Atlantic Herring Management Areas (including Area 1A, 1B, 2, and 3). This action is necessary to address Atlantic herring population decline due to poor recruitment into the population. Info here.

RURAL UTILITIES SERVICE: Notice invites comments on this information collection for which approval from the Office of Management and Budget (OMB) will be requested. Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency. Details here.