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


JUDICIAL: Includes ESA, SNAP, FSA, and right to farm issues.

CENTER FOR BIOLOGICAL DIVERSITY; PESTICIDE ACTION NETWORK NORTH AMERICA, non-profit organizations, Plaintiffs-Appellants, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Defendant-Appellee, CROPLIFE AMERICA; RESPONSIBLE INDUSTRY FOR A SOUND ENVIRONMENT (“RISE”); SOUTHERN CROP PRODUCTION ASSOCIATION; WESTERN PLANT HEALTH ASSOCIATION; MIDAMERICA CROPLIFE ASSOCIATION; AMERICAN FARM BUREAU FEDERATION; AMERICAN CHEMISTRY COUNCIL; NATIONAL AGRICULTURAL AVIATION ASSOCIATION; NATIONAL ALLIANCE OF FOREST OWNERS; NATIONAL CORN GROWERS ASSOCIATION; NATIONAL COTTON COUNCIL; NATIONAL COUNCIL OF FARMER COOPERATIVES; NATIONAL POTATO COUNCIL; OREGONIANS FOR FOOD AND SHELTER; USA RICE FEDERATION; WASHINGTON FRIENDS OF FARMS AND FORESTS, Intervenor-Defendants-Appellees, No. 14-16977, 2017 WL 460659 (9th Cir. Feb. 2, 2017) involved a suit brought by two environmental groups in 2011, contending Environmental Protection Agency (EPA) officials approved numerous pesticides knowingly harmful to endangered and threatened species, such as the Elf owl and the California condor, without consulting wildlife officials as required by law. Plaintiffs argued the EPA violated the Endangered Species Act (ESA) when it registered such pesticides without consulting with National Marine Fisheries Service and U.S. Fish and Wildlife officials. Appellate court disagreed with the lower court’s decision that certain older pesticides were immune from lawsuits pushing for a consultation process under Section 7 of the Endangered Species Act. In reaching its conclusion, the court considered thirty-one “failure-to-consult Claims for Relief” at issue and specifically noted the lower court incorrectly applied the “collateral attack doctrine,” prohibiting plaintiffs “from using a later order that implements a prior agency action as a vehicle to undo the underlying action or order.” The case was remanded for further proceedings. A copy of the opinion is available here.

In Mohammad Hanif d/b/a Sunny’s Food Store, Plaintiff, v. United States of America, Defendant, NO. H–15–2718, 2017 WL 447465 (S.D. Tex. Feb. 2, 2017), plaintiff appealed decision to disqualify his store from the Supplemental Nutrition Assistance Program (SNAP) after his employees sold non-food items and provided cash to undercover agents. Plaintiff argued denying him participation in SNAP (instead of paying a fine) is “unlawful, arbitrary, and capricious, and contrary to law.” Court observed that a plaintiff “challenging his permanent disqualification from SNAP bears the burden of proving by a preponderance of the evidence that the agency’s action was ‘invalid.’” Court reasoned that even if a plaintiff “was unaware that his employee exchanged money for SNAP benefits is irrelevant because ‘as a matter of law, approved food store owners are responsible for the acts of their employees irrespective of the owner’s knowledge or lack of participation in trafficking.’” Decision to disqualify plaintiff from the SNAP program affirmed.

In JERRY DELONEY and PEGGY DELONEY PLAINTIFFS v. DENNIS CHASE; and CHASEMASTER CORPORATION DEFENDANTS, NO. 4:15-CV-4104, 2017 WL 440268 (W.D. Ark. Feb. 1, 2017), plaintiffs, African-American poultry farmers, alleged the Farm Service Agency (FSA), “failed to timely process their loan applications and later denied their applications because they are African-American, in violation of the Equal Credit Opportunity Act.” Plaintiffs hired defendant to represent them and plaintiffs were awarded $460,000. Defendants told plaintiffs they would invest the proceeds, but plaintiffs claim they never received any money from defendants and sued, alleging breach of contract. Plaintiffs sought default judgment after defendant made no appearance. Court found that “the record indicates Defendants have not acted in good-faith and would be unlikely to establish excusable neglect,” and, “Defendants appear to have cultivated a trusting relationship with Plaintiffs and then used that trust as a means of obtaining more money from Plaintiffs.” Plaintiff’s motion for default judgment granted.

In FRANK J. CASELLA, JR. and CAROLYN G. CASELLA, Plaintiffs-Appellants, v. EUGENIO POSTORIVO, HEATHER POSTORIVO and POSTORIVO FARMS, Defendants-Respondents, NO. A-5166-14T1, 2017 WL 444315 (N.J. Super. Ct. App. Div. Feb. 2, 2017), plaintiffs owned land surrounded by defendant’s horse farm. Defendant sought variances to construct buildings on the property, but when defendant failed to follow conditions of approval, plaintiffs sued. Lower court concluded sole authority over disputes regarding defendant’s commercial farm rested with the Agricultural Development Board (per the New Jersey right to Farm Act) and dismissed the case. Plaintiffs appealed and court observed the local ordinance “implicates a policy that does not directly conflict with farming practices. In such cases greater deference should be afforded to local zoning regulations and ordinances.” Court concluded that “plaintiffs’ attack on the order transferring the matter to the Agricultural Development Board for administrative review of whether the complaint challenges legitimate agricultural management practices protected by the Act falls short,” and affirmed lower court ruling for defendant.


REGULATORY: Includes FDA and FS notices.

FOOD AND DRUG ADMINISTRATION:

Notice FDA is modifying process it sues to collect and post curricula vitae of advisory committee members so that CVs will be posted to its website without removing information. Info here.

Notice seeking comments on FDA’s process for collecting nominations of candidates to serve on FDA’s advisory committees. Details here.

FOREST SERVICE: Notice the National Advisory Committee for Implementation of the National Forest System Land Management Planning Rule Committee will meet in Washington, DC. Info here.