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, August 15th: Commercial Shellfish Aquaculture Permitting under Nationwide Permit 48. Details available here.

REGISTER NOW for our upcoming Ag Technology & the Law conference, August 15 and 16 in Little Rock, Arkansas. Details here.

JUDICIAL:Includes CERCLA, CWA, food labeling, and secured transactions issues.

In UNITED STATES OIL RECOVERY SITE POTENTIALLY RESPONSIBLE PARTIES GROUP, Plaintiff-Appellee v. RAILROAD COMMISSION OF TEXAS; Stephen F. Austin State University; Texas A&M University; Texas Department of Criminal Justice; Texas Department of Transportation; Texas General Land Office; Texas Southern University; Texas State University System; University of Houston; the University of Texas System, Defendants-Appellants, No. 17-20361, 2018 WL 3649653 (5^th Cir. August 1, 2018), plaintiff sought to have defendant help with cleanup costs of a superfund site and asserted a claim under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Lower court denied defendant’s motion to dismiss. On appeal, plaintiff argued sovereign immunity does not protect the state when it engages in “proprietary functions,” and that defendant “waived sovereign immunity by participating in CERCLA cleanup with the EPA at the superfund site.” Court observed it has “never held that an arm of the state is able to assert sovereign immunity as to some claims but not others.” The court also reasoned that “an arm of the state waives state sovereign immunity only if it “voluntarily invokes federal court jurisdiction.”  Reversed and remanded.

In SIERRA CLUB; Appalachian Voices; Chesapeake Climate Action Network; Wild Virginia, Petitioners, v. STATE WATER CONTROL BOARD; Robert Dunn, Chair of the State Water Control Board; Heather Wood, Vice-Chair of the State Water Control Board; Lou Ann Jesse-Wallace, Member of the State Water Control Board; Timothy G. Hayes, Member of the State Water Control Board; Roberta A. Kellam, Member of the State Water Control Board; G. Nissa Dean, Member of the State Water Control Board; Robert Wayland, III, Member of the State Water Control Board; Department of Environmental Quality; David K. Paylor, Director, Department of Environmental Quality; Melanie D. Davenport, Director, Water Permitting Division, Department of Environmental Quality, Respondents, Mountain Valley Pipeline, LLC, Intervenor. Chesapeake Bay Foundation, Inc., Amicus Supporting Petitioner. Del. Sam Rasoul; Preserve Craig, Inc.; Doe Creek Farm, Inc.; Georgia Haverty; Four Corners Farm, LLC; David J. Werner; Betty B. Werner; Ian Elliott Reilly; Carolyn Elizabeth Reilly; Robert M. Jones; Donna T. Jones; Blue Ridge Environmental Defense League; Preserve Bent Mountain; Preserve Floyd; Preserve Franklin; Pittsylvania Pride, Petitioners, v. State Water Control Board; Robert Dunn, Chair of the State Water Control Board; Heather Wood, Vice-Chair of the State Water Control Board; Lou Ann Jesse-Wallace, Member of the State Water Control Board; Timothy George Hayes, Member of the State Water Control Board; Roberta A. Kellam, Member of the State Water Control Board; G. Nissa Dean, Member of the State Water Control Board; Robert Wayland, III, Member of the State Water Control Board; Department of Environmental Quality; David K. Paylor, Director, Department of Environmental Quality; Melanie D. Davenport, Director, Water Permitting Division, Department of Environmental Quality, Respondents, Mountain Valley Pipeline, LLC, Intervenor. Chesapeake Bay Foundation, Incorporated, Amicus Supporting Petitioner. No. 17-2406, No. 17-2433, 2018 WL 3635962 (4^th Cir. August 1, 2018), per the Clean Water Act (CWA), Virginia certified it had “reasonable assurance that . . . construction of a natural gas pipeline would not degrade the state’s water.” Environmental groups sought review of the certification and argued Virginia’s Department of Environmental Quality (DEQ) had no basis for concluding that “measures, restrictions, and programs [are] in place to . . . satisfy the requirements of Virginia’s antidegradation policy.” Plaintiffs argued the Virginia agencies relied on EPA judgment and analysis “rather than taking a more site-specific approach.” Court disagreed with plaintiffs and concluded the agencies did not act “arbitrarily in placing significant reliance on the effectiveness of its ‘tried and true’ methods here.” Petition for review denied.

In BIOLA DANIEL, ABEL DURAN, and TREKEELA PERKINS, on behalf of themselves and all others similarly situated, Plaintiffs, v. TOOTSIE ROLL INDUSTRIES, LLC, Defendant, 17 Civ. 7541 (NRB), 2018 WL 3650015 (S.D.N.Y. August 1, 2018), plaintiffs claimed violations of the Federal Food Drug & Cosmetic Act, New York General Business Law, and the Mississippi Consumer Protection Act, alleging defendant’s boxes of Junior Mints contain “non-functional slack-fill,” misleading consumers as to the amount of candy contained in the boxes. Defendant moved to dismiss. Court observed the appearance of the products’ weight on the boxes as well as “the ease with which consumers can calculate the number of candies contained therein,” and “consumers’ expectations of slack-fill.” Court ultimately concluded the slack-fill at issue with the Junior Mints did not constitute a “material misrepresentation.” Dismissed.

SIBLEY STATE BANK, Plaintiff-Appellee, v. Dale W. BRAAKSMA, Danna S. Braaksma, Jesse Dale Braaksma, and Braaksma Grain Farms, Inc., Defendants-Appellants, No. 17-1021, 2018 WL 3471850 (Iowa Ct. App. July 18, 2018) involved a foreclosure action after farmers defaulted on loans secured by their farmland. Lower court ruled for Bank and farmers appealed ruling of summary judgment. Farmers took issue with “the interpretation of a creditor’s right to cure a default in a foreclosure action on agricultural land,” per the relevant “right-to-cure” statute. Farmers argued they could cure their default “by tendering either the amount of all unpaid installments or any performance necessary to cure a default.” Bank argued “it is unreasonable to [allow] a debtor to cure a default by the promise of a future payment.” Court agreed with Bank’s interpretation and affirmed.

LEGISLATIVE: 

H.R. 5772: To designate the J. Marvin Jones Federal Building and Courthouse in Amarillo, Texas, as the “J. Marvin Jones Federal Building and Mary Lou Robinson United States Courthouse”. Text for status Reported by Senate Committee (Aug 1, 2018) is now available.

S. 3021: A bill to designate the United States courthouse located at 300 South Fourth Street in Minneapolis, Minnesota, as the “Diana E. Murphy United States Courthouse”. Text for status Reported by Senate Committee (Aug 1, 2018) is now available.

H.R. 6147: Interior, Environment, Financial Services, and General Government Appropriations Act, 2019. Passed in the House and the Senate, but the Senate made changes and sent it back to the House on August 1, 2018.

S. Con.Res. 42: A concurrent resolution supporting America’s clean car standards and defending State authority under the Clean Air Act to protect their citizens from harmful air pollution. Text is now available.

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

AGRICULTURAL MARKETING SERVICE: Notice AMS is revising the United States Classes, Standards, and Grades for Poultry to lower the age requirement for the “roaster and roasting chickens” class of poultry and identify a ready-to-cook weight of 5.5 pounds or more. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is making conforming changes to the EPA office and address to which paper documents concerning imports and exports of hazardous waste and conditionally excluded cathode ray tubes must be sent. Details here.

Rule EPA is withdrawing the direct final rule published on June 15, 2018, to approve a revision to the Commonwealth of Pennsylvania state implementation plan (SIP) requesting removal of Pennsylvania requirements limiting summertime gasoline volatility to 7.8 pounds per square inch (psi) Reid Vapor Pressure. Info here.

Rule EPA Region 10 announces the deletion of the Frontier Hard Chrome, Inc. (FHC) Superfund Site (Site) located in Vancouver, Washington, from the National Priorities List. Details here.

FISH AND WILDLIFE SERVICE: Notice FWS is initiating 5-year status reviews of 42 species under the Endangered Species Act of 1973, as amended. A 5-year review is an assessment of the best scientific and commercial data available at the time of the review. We are requesting submission of information that has become available since the last reviews of these species. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Notice the Acting Assistant Regional Administrator for Sustainable Fisheries, Greater Atlantic Region, NMFS, has made a preliminary determination that an Exempted Fishing Permit application contains all of the required information and warrants further consideration. Details here.

Notice the Acting Assistant Regional Administrator for Sustainable Fisheries, Greater Atlantic Region, NMFS, has made a preliminary determination that an Exempted Fishing Permit application contains all of the required information and warrants further consideration. Info here.

Notice that Aaron Roberts, Ph.D., University of North Texas, Biological Sciences, 1155 Union Circle, #310559, Denton, TX 76203, has applied for an amendment to Scientific Research Permit No. 21217. Info here.

Notice NMFS has received a request from the Alaska Department of Transportation and Public Facilities (ADOT&PF) to issue an incidental harassment authorization (IHA) previously issued to ADOT&PF to incidentally take nine species of marine mammal, by Level A and Level B harassment, during construction activities associated with the Sand Point City Dock Replacement Project in Sand Point, Alaska. Info here.

Notice NMFS has found that the following stocks are overfished or subject to overfishing. Klamath River fall-run Chinook salmon, Queets coho salmon, Juan de Fuca coho salmon, Snohomish coho salmon, and Sacramento River fall-run Chinook salmon are now overfished. Upper Columbia River summer-run Chinook salmon is now subject to overfishing. Details here.

RURAL UTILITIES SERVICE: Notice RUS is announcing funding availability and is soliciting letters of intent for loan applications under the Rural Energy Savings Program (RESP), announcing the application process for those loans and deadlines for applications from eligible entities. Details here.