A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions to: camarigg at uark.edu

ANNOUNCEMENT: Join us Wednesday, February 15, at 12 noon (ET) for our next Agricultural & Food Law Consortium webinar: Legal Checkup on Checkoffs: Recent & Emerging Legal Issues in Federal & State Checkoff Programs. Details available here.

JUDICIAL: Includes CWA, SNAP, labeling, and BLM issues.

Natural Resources Defense Council, et al., Plaintiffs, v. Gina McCarthy, et al., Defendants, No. 16–cv–02184–JST, 2017 WL 491147 (N.D. Cal. Feb. 7, 2017) involved environmental organizations suing the Environmental Protection Agency (EPA) regarding alleged failure to comply with “non-discretionary duty under Clean Water Act (CWA) to review and take appropriate action regarding revisions to water quality standards.” EPA moved to dismiss and court noted that a “mandated, nondiscretionary duty imposed on the (EPA) Administrator is a prerequisite for federal jurisdiction under the Clean Water Act citizen suit provision.” Issue was “whether or not Plaintiffs have adequately pleaded that the temporary orders issued by the State throughout 2014–2016 qualify as ‘revisions’ to the water quality standards in the EPA–approved 1995 Bay–Delta Plan.” Court held that the claims fell within exception to mootness doctrine and that plaintiffs “adequately pled that EPA had non-discretionary duty to review revisions to standards.” Defendant’s motion to dismiss denied.

In Tony’s Pantry Mart Inc. #1, Plaintiff, v. United States of America, Department of Agriculture Food and Nutrition Service, Defendant, No. 15 C 2967, 2017 WL 514184 (N.D. Ill. Feb. 8, 2017), plaintiff appealed Food and Nutrition Service ruling permanently disqualifying his store from participating in the Supplemental Nutrition Assistance Program (SNAP). FNS agents monitored plaintiff’s store and documented a number of fraudulent SNAP transactions. Appellate court observed that, “To survive summary judgment, a plaintiff in a Food Stamp Program disqualification case must raise material issues of fact as to each alleged violation.” Court ruled that “while Plaintiff’s explanations about its pricing and customer spending patterns negate some of the inferences from the EBT data, the explanation and evidence that Plaintiff provides does not account for all of the suspicious activity highlighted by the FNS in its final decision.” FNS motion for summary judgment granted.

In BREATHE DC, Plaintiff, v. SANTA FE NATURAL TOBACCO COMPANY, et al. Defendants, Civil Action No. 16-2378 (ESH), 2017 WL 521513 (D.D.C. Feb. 8, 2017), plaintiff sought injunction claiming defendants falsely implied their cigarettes are safer than others by marketing them as “Natural,” “Additive-Free,” and “100% Additive-Free,” in violation of the D.C. Consumer Protection Procedures Act (DCCPPA). Court considered “how the value of injunctive relief should be determined for purposes of satisfying the amount in controversy.” Defendant argued that the costs of complying with the injunction plaintiff sought “far exceed $75,000,” including the loss of value of their brand, Court observed that, “Even if the brand’s name includes one of the words that plaintiff seeks to enjoin, it does not follow that the brand’s value should be considered in determining the amount in controversy. Any loss of brand value would be an incidental effect of ceasing defendants’ allegedly illegal conduct, not a direct result of the Court’s order.” Case remanded to state court.

In FRIENDS OF ANIMALS, Plaintiff, v. THE UNITED STATES BUREAU OF LAND MANAGEMENT, Defendant, No. 17-cv-00136 (CRC), 2017 WL 499882, (D.D.C. Feb. 7, 2017), plaintiff challenged Bureau of Land Management’s (BLM) potential removal of wild horses from public rangeland. Plaintiff sought preliminary injunction stopping the removal claiming BLM did not consider environmental consequences and did not “properly determine an overpopulation of horses exists.” Court not persuaded that plaintiff “would suffer irreparable harm as a result of the gather, or that the balance of the equities and the public interest weigh in its favor.” Plaintiff’s preliminary injunction motion denied.

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

ANIMAL AND PLANT HEALTH INSPECTION SERVICE:

Rule extending the comment period for proposed rule revising regulations regarding the importation, interstate movement, and environmental release of genetically engineered organisms. Details here.

Rule extending the comment period for a proposed rule to allow the importation of Hass avocados from Colombia into the continental United States. Details here.

FISH AND WILDLIFE SERVICE:

Rule listing the rusty patched bumble bee as an endangered species is delayed. Details here.

Rule proposing migratory bird subsistence harvest regulations in Alaska for the 2017 season. Info here.

INTERNATIONAL TRADE ADMINISTRATION: Notice ITA has developed information on subsidies being provided either directly or indirectly by foreign governments on articles of cheese subject to an in-quota rate of duty. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule revises the yellowtail snapper commercial and recreational fishing year and removes the requirement to use circle hooks for the commercial harvest of yellowtail snapper in the Gulf exclusive economic zone south of Cape Sable, Florida. Info here.

Rule governing the unintentional taking of marine mammals incidental to the rehabilitation of the Jetty System at the Mouth of the Columbia River. Details here.

Rule NMFS will implement measures described in Amendment 8 to the Fishery Management Plan for the Reef Fish Fishery of Puerto Rico and the U.S. Virgin Islands, Details here.