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


JUDICIAL: Includes ESA, environmental, and food labeling issues.

In WILDEARTH GUARDIANS, Plaintiff, CENTER FOR BIOLOGICAL DIVERSITY, Consolidated-Plaintiff, v. UNITED STATES FISH & WILDLIFE SERVICE; et al., Defendants, MONTANA TRAPPERS ASSOCIATION, NATIONAL TRAPPERS ASSOCIATION, AND FUR INFORMATION COUNCIL OF AMERICA, Defendant-Intervenors, No. CV 16-65-M-DWM, 2018 WL 1023104 (W.D. Mont. February 22, 2018), plaintiff claimed Fish and Wildlife Service (FWS) failed to comply with procedures in implementing an export program “that allows certain animal pelts and parts to be exported from the United States pursuant to the Convention on International Trade in Endangered Species (CITES).” Defendant-Intervenors argued participants in the CITES program “are required and indispensable parties that cannot be joined due to their sovereign immunity, requiring dismissal.” Court concluded defendants share an interest with the states and tribes “in defending . . . the current administration of the CITES program,” and that their interest “in local wildlife management and an economically viable tagging regime is further represented by Defendant-Intervenors.” Motion to dismiss denied.

In LITTLE TRAVERSE LAKE PROPERTY OWNERS ASSOCIATION; Douglas Jones; L. Gene Morse; Linda Morse; Mary Ann Shutz; Marcia Skjaerlund, Plaintiffs–Appellants, v. NATIONAL PARK SERVICE, Defendant–Appellee, No. 17-1064, 2018 WL 1023018 (6th Cir. February 23, 2018), plaintiffs, homeowners impacted by development of a trail near their homes, objected to a “trail plan” implemented by defendants. They claimed defendants violated the National Environmental Policy Act (NEPA) “when it failed to consider an alternative route proposed by Plaintiffs during the 2008 public comment period.” District court found that plaintiffs failed show there are “exceptional circumstances requiring supplementation of the administrative record.” Appellate court considered “what citizens must do during the administrative planning stage of a federal agency action in order to preserve a later challenge to the agency’s final decision under NEPA.” Court observed plaintiffs “failed to participate in [defendant’s] planning process,” and “did not allow [defendant] the opportunity to give the issues meaningful consideration before issuing its final decision.” Affirmed for defendant.

In STATE of California, et al., Plaintiffs, v. BUREAU OF LAND MANAGEMENT, et al., Defendants. Sierra Club, et al., Plaintiffs, v. Ryan Zinke, in his official capacity as Secretary of the Interior, et al., Defendants, Nos. 17–cv–07186–WHO; 17–cv–07187–WHO, 2018 WL 1014644 (N.D. Cal. February 22, 2018), plaintiffs sought preliminary injunction enjoining Bureau of Land Management (BLM) “from instituting a rule suspending or delaying the requirements of the Waste Prevention, Production Subject to Royalties, and Resource Conservation Rule.” Issue concerned what burden federal agency bears “when it seeks to suspend a federal regulation for further analysis,” and court analyzed preliminary injunction factors. Court concluded BLM “failed to provide the requisite reasoned analysis in support of the Suspension Rule, and it is therefore arbitrary and capricious within the meaning of the APA.” Court also found plaintiffs displayed “irreparable injury caused by the waste of publicly owned natural gas, increased air pollution and associated health impacts, and exacerbated climate impacts.” Preliminary injunction granted.

In NATALIA BRUTON, Plaintiff, v. GERBER PRODUCTS COMPANY, Defendant, No. 12-CV-02412-LHK, 2018 WL 1009257 (N.D. Cal. February 13, 2018), plaintiff alleged defendant’s claims about ingredients in their baby food “must be made in accordance with federal regulations under the Food, Drug, and Cosmetic Act (FDCA). Plaintiff, seeking class action status, claimed defendant “makes nutrient content claims on virtually all Gerber food products, despite the fact that the Food and Drug Administration (FDA) does not authorize nutrient content claims on foods intended for children under age two.” Gerber argued it “ceased using the challenged label statements on the eight products [plaintiff] bought years ago,” and stopped using “the challenged label statements entirely on all remaining products in the class definition around the same time.” Considering defendant’s arguments, the court found plaintiff “lacks standing to pursue injunctive relief because the conduct that [plaintiff] would enjoin, Gerber’s mislabeling, has ended.”


REGULATORY: Includes EPA, FWS, NOAA and RHS rules and notices. 

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is approving revisions submitted by the State of Texas that affect the Texas State Implementation Plan concerning Texas’ motor vehicle air pollution rules and retail gasoline dispensing labeling requirements for El Paso. Details here.

Rule EPA is proposing to approve a submittal by the State of California to revise its State Implementation Plan. Info here.

FISH AND WILDLIFE SERVICE:

Rule FWS is removing Eureka Valley evening-primrose from the Federal List of Endangered and Threatened Plants. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS announces final 2018 and 2019 harvest specifications, apportionments, and prohibited species catch allowances for the groundfish fishery of the Bering Sea and Aleutian Islands management area. Details here.

Rule extends the emergency action to remove the 2017 southern windowpane flounder accountability measures (AM) for non- groundfish trawl vessels. Info here.

Rule announcing a 90-day finding on a petition to list as threatened or endangered the Upper Klamath-Trinity Rivers Chinook salmon Evolutionarily Significant Unit. Info here.

Rule NMFS is proposing to revise regulations under the Magnuson-Stevens Fishery Conservation and Management Act to implement Amendment 4. Details here.

Rule NMFS is reopening the public comment period on the proposed rule on requirements of the Vessel Monitoring System Type-Approval that published on December 5, 2017. Info here.

Notice that the Center for Whale Research (Responsible Party: Kenneth Balcomb III), 355 Smuggler’s Cove Road, Friday Harbor, WA, 98250, has applied in due form for a permit to conduct research on marine mammals. Info here.

Notice that Mystic Aquarium, 55 Coogan Boulevard, Mystic, CT 06355 (Responsible Party: Katie Cubina), has applied in due form for a permit to collect, receive, import, and export marine mammal parts for scientific research. Details here.

Notice NMFS has received a request from Harvest Alaska, LLC (Harvest), a subsidiary of Hilcorp, for authorization to take marine mammals incidental to installing two pipelines in Cook Inlet. Info here.

RURAL HOUSING SERVICE: Notice of a Request for Proposal announcing an availability of funds and the timeframe to submit proposals for Multi- Family Housing Transfer and Prepayment Technical Assistance grants. Details here.

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