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 CAFO, SNAP, and pesticide issues.

NEBRASKA BEEF PRODUCERS COMMITTEE, Plaintiff, v. NEBRASKA BRAND COMMITTEE and WILLIAM BUNCE, in his official capacity as Executive Director of the Nebraska Brand Committee, Defendants, 4:17-CV-3061, 2018 WL 708138 (D. Neb. February 5, 2018) involved the constitutionality of the Nebraska Livestock Brand Act. Nebraska Beef Producers Committee argued the Brand Act violates the dormant Commerce Clause and Equal Protection Clause. Nebraska’s Brand Act authorizes the Brand Committee “to charge a registration fee for each 1,000 head the feedlot maintains.” Court considered the burden of the regulation on plaintiffs and concluded the Brand Act “is local regulation, on a matter of local concern, that does not burden interstate commerce.” The court further reasoned that “questions about the efficacy and continued utility of the Brand Act might or might not be well-taken—but they are legislative questions, not constitutional ones.” Motion to dismiss granted.

In ISRAEL K. NEGASH, ET AL. v. UNITED STATES OF AMERICA, No. RDB-17-1954, 2018 WL 722481 (D. Md. February 5, 2018), plaintiff sought to set aside ruling that his convenience store be disqualified from participating in the Supplemental Nutrition Assistance Program (SNAP) due to alleged “trafficking” violations. Here, Food and Nutrition Service’s alert system indicated that plaintiff’s EBT data at his store “was consistent with possible trafficking in EBT benefits.” Court considered the evidence of trafficking at plaintiff’s store and concluded that “FNS’s decision to permanently disqualify the Store from SNAP was not ‘arbitrary and capricious.’” Government’s motion for summary judgment granted.

FRIENDS OF MOON CREEK, an unincorporated association, Cheryl and Robert Balentine, the Estate of Douglas M. Anderson, Tom and Michele Bowyer, George A. Tyler, Mark and Cynthia Moeser, Joe F. Struthers, and Gaylan and Heather Warren, Respondents, v. DIAMOND LAKE IMPROVEMENT, ASSOCIATION, INC.; Sharon Sorby, individually and as Coordinator, Pend Oreille County Noxious Weed Control Board; and Phil Anderson, individually and as Director, Washington Department of Fish and Wildlife, Petitioners, No. 34938-1-III, 2018 WL 715032 (Wash. Ct. App. February 6, 2018) concerned the state of Washington’s weed control statutes. Defendant Sorby, coordinator of a weed control board, applied herbicide after her board decided to eradicate reed canary grass next to homes and businesses in the area. Importantly, Sorby obtained a letter from the Washington State Department of Agriculture “appointing her and the weed board as the department’s limited agents to carry out weed control.” Plaintiffs sued for damage to other plants and defendant sought qualified immunity from liability. Court considered the notice provided by defendant Sorby to plainitffs regarding the herbicide application, concluded she “enjoys qualified immunity,” and reversed lower court ruling.

LEGISLATIVE: 

H.R. 1778: To provide that an order by the Secretary of the Interior imposing a moratorium on Federal coal leasing shall not take effect unless a joint resolution of approval is enacted. Bill’s text for status Reported by House Committee (Feb 5, 2018) is now available.

H.R. 2504: To ensure fair treatment in licensing requirements for the export of certain echinoderms. Bill’s text for status Passed the House (Feb 5, 2018) is now available.

H.R. 2888: Ste. Genevieve National Historical Park Establishment Act. Bill’s text for status Passed the House (Feb 5, 2018) is now available.

H.J.Res. 128: Department of Defense Appropriations Act, 2018. Resolution was referred to the House Committee on Appropriations and House Committee on the Budget.

H.R. 4934: To prohibit assistance to the Government of Pakistan, and to require the Department of State and the United States Agency for International Development to transfer amounts to the Highway Trust Fund. Referred to the House Committee on Appropriations and House Committee on Foreign Affairs,

S. 2371: A bill to amend the Internal Revenue Code of 1986 to modify the definition of municipal solid waste. Referred to the Senate Committee on Finance.

REGULATORY: Includes EPA, FCIC, ITA, and NOAA rules and notices.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is finalizing a finding of attainment by the attainment date and a clean data determination (CDD) for the Oakridge-Westfir, Oregon fine particulate matter nonattainment area. Details here.

Rule EPA is approving state implementation plan (SIP) revisions submitted by the State of West Virginia. These revisions pertain to two West Virginia regulations that established trading programs under the Clean Air Interstate Rule. Details here.

Rule EPA is proposing to approve a State Implementation Plan (SIP) submission, submitted by the State of Alabama, through the Alabama Department of Environmental Management, on October 24, 2017. Info here.

Rule EPA is proposing to approve portions of State Implementation Plan revisions submitted by the Commonwealth of Kentucky, through the Kentucky Division for Air Quality, on December 21, 2016 and August 29, 2017, on behalf of the Louisville Metro Air Pollution Control District. Info here.

Rule EPA is proposing to amend the significant new use rule under section 5(a)(2) of the Toxic Substances Control Act for Oxazolidine, 3,3′-methylenebis[5-methyl-, which was the subject of a premanufacture notice and a significant new use notice. Info here.

FEDERAL CROP INSURANCE CORPORATION: Rule FCIC proposes to revise the General Administrative Regulations; Subpart L—Reinsurance Agreement—Standards for Approval; Regulations for the 2019 and Subsequent Reinsurance Years. Info here.

INTERNATIONAL TRADE ADMINISTRATION: Notice ITA provides a quarterly update of subsidies on articles of cheese that were imported during the period July 1, 2017, through September 30, 2017. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS increases the commercial trip limit for king mackerel in or from Federal waters in an area off the Florida east coast between the border of Flagler and Volusia Counties and the border of Miami-Dade and Monroe Counties in the Atlantic southern zone to 75 fish per day. Details here.

Rule NMFS is issuing regulations under the Marine Mammal Protection Act for the taking of marine mammals incidental to conducting testing and training activities in the Eglin Gulf Test and Training Range in the Gulf of Mexico over the course of five years. Info here.