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, February 21st: Agricultural Nutrient Management: State Innovations and Local Responsibility. Details available here.


JUDICIAL: Includes animal welfare, administrative law, CWA, and water law issues.

In PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC., Plaintiff, v. WILDLIFE IN NEED AND WILDLIFE IN DEED, INC., TIMOTHY L. STARK, and MELISA D. STARK, Defendants, 4:17-cv-00186-RLY-DML, 2018 WL 828461 (S.D. Ind. February 12, 2018), defendant operated a small park wherein the public could interact with large cats and plaintiff sued alleging violations of the Endangered Species Act. Lower court issued Temporary Restraining Order (TRO) preventing defendant from declawing any of their captive lions and tigers, and here, plaintiff moved for a preliminary injunction. Court reasoned that “declawing ‘harms’ the Big Cats because it actually injures wildlife,” and granted plaintiff’s motion.

In TIMOTHY CLEVELAND, Plaintiff, v. THOMAS C. HUNTON, et al., Defendants, NO. 1:16-cv-01732-AWI-SAB, 2018 WL 827757 (E.D. Cal. February 12, 2018), plaintiff obtained a micro loan from the United States Department of Agriculture (USDA) to develop a poultry farm and failed to repay the loan term within eighteen months. Plaintiff argued he deserved a longer loan term as defendant “accelerated” the loan. Plaintiff sought review of the acceleration determination and an Administrative Law Judge (ALJ) approved the acceleration decision. On appeal, plaintiff argued the Administrative Procedures Act (APA) was violated “by the acceleration decision and ALJ’s determination.” Defendants sought dismissal, arguing plaintiff “seeks review of a non-final determination,” and contending that the ALJ decision “was not a final agency determination.” Court agreed with defendant and dismissed the claims.

In NATIONAL ASSOCIATION OF MANUFACTURERS, Petitioner v. DEPARTMENT OF DEFENSE et al., 138 S.Ct. 617 (2018), petitions for review questioning the validity of Environmental Protection Agency’s (EPA) and United States Army Corps of Engineers’ final rule clarifying definition of “waters of the United States,” were transferred to U.S. Court of Appeals for the Sixth Circuit. Appellate court denied various motions to dismiss and Supreme Court granted certiorari. Court held that “challenges to rule, separating waters into three jurisdictional groups in order to clarify definition of ‘waters of the United States,’ were required to be brought in federal district courts.” Reversed and remanded.

In John E. MORIARITY and Mae E. Moriarity, Appellants–Petitioners, v. INDIANA DEPARTMENT OF NATURAL RESOURCES, Appellee–Respondent, No. 27A04–1612–PL–2731, 2018 WL 828492 (Ind. Ct. App. February 13, 2018), plaintiff constructed a dam and lake on his farmland and defendant served plaintiff with a notice in violation of Indiana’s Dam Safety Act. The Natural resources Commission issues a final order affirming defendant’s finding. On appeal, plaintiffs argued that defendant “misinterpreted its jurisdiction under the Indiana Code,” and that its jurisdiction “hinged on whether the fish pond—or, more technically, its ‘structure’—was built ‘in, on, or along’ a stream.” Appellate court sided with the Commission and held “the term ‘stream’ is unambiguous and means a body of running water flowing in a channel on the surface of the ground.” Affirmed for defendant.


LEGISLATIVE:

S. 2421: A bill to amend the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 to provide an exemption from certain notice requirements and penalties for releases of hazardous substances from animal waste at farms. Referred to the Senate Committee on Environment and Public Works.

S. 2424: A bill to require the Secretary of Agriculture to convey certain Federal land to facilitate scientific research supporting Federal space and defense programs. Referred to the Senate Committee on Energy and Natural Resources.

H.R. 5005: To direct the Secretary of the Interior to conduct a special resource study to determine the suitability and feasibility of establishing the birthplace of James Weldon Johnson in Jacksonville, Florida, as a unit of the National Park System. Referred to the House Committee on Natural Resources.


REGULATORY: Includes AMS, EDA, EPA, NASS and NOAA rules and notices.

AGRICULTURAL MARKETING SERVICE: Rule invites comments on the establishment of handler diversion and reporting requirements as recommended by the Cranberry Marketing Committee. Details here.

ECONOMIC DEVELOPMENT ADMINISTRATION: Notice the National Advisory Council on Innovation and Entrepreneurship will hold a public meeting via teleconference on Wednesday, March 14, 2018. Info here.

ENVIRONMENTAL PROTECTION AGENCYRule EPA is proposing to approve a SIP revision of the definition of “volatile organic compounds” by the State of South Carolina because the State has demonstrated that these changes are consistent with the Clean Air Act (CAA or Act). Details here.

NATIONAL AGRICULTURAL STATISTICS SERVICE: Notice announces the intention of NASS to seek reinstatement of an information collection, the 2018 Census of Aquaculture. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule adjusts the 2018 catch limits in the four herring management areas to account for underages and overages in those areas during 2016. Info here.

Rule NMFS proposes to implement management measures described in a framework action to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico. Details here.

Notice NMFS has issued an incidental harassment authorization to the National Park Service to take, by harassment, one species of marine mammal incidental to glaucous winged gull and climate monitoring research activities in Glacier Bay National Park, Alaska. Info here.