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 Thursday, January 19, at 12 noon (ET) for a free webinar: Major Market Approval and the Syngenta China Corn Class Action. Details and sign-in information here.  

JUDICIAL: Includes CWA, food law, water, and commercial fishing issues.

Center for Environmental Law and Policy; and Wild Fish Conservancy, Plaintiffs, v. United States Fish and Wildlife Service; and Daniel M. Ashe, in his official capacity as Director of the United States Fish and Wildlife Service, Defendants, No. 2:15-CV-00264-SMJ, 2017 WL 80254 (E.D. Wash. Jan. 9, 2017) concerned a National Pollutant Discharge Elimination System (NPDES) permit issue. The United States Fish and Wildlife Service (FWS) operates a fish hatchery in Washington and the hatchery “discharges effluent” into a creek, requiring an NPDES permit per the Clean Water Act (CWA). The Environmental Protection Agency (EPA) issued an NPDES permit for the hatchery in 1975. Plaintiffs claim the permit expired and the hatchery has discharged pollutants into the creek without an NPDES permit since that time, in violation of the CWA. Court noted that the hatchery’s NPDES permit expired on August 31, 1979, and the permit was not automatically extended. The court concluded that “the Hatchery has therefore been discharging pollutants into Icicle Creek without an NPDES permit throughout the statute-of-limitations period.” FWS’s motion for summary judgment denied.

In Jose Alfonso Becerra (#85762), Plaintiff, v. Donald Kramer, et al., Defendants, Case No. 16 C 1408, 2017 WL 85447 (N.D. Ill. Jan. 10, 2017), plaintiff, a prisoner, allegedly got sick after eating some “savory stroganoff” served in jail and claimed jail workers failed to “use a steamer to warm food and properly wash food trays and utensils.” Court observed that, “Correctional officials must provide inmates with . . . nutritionally adequate food that is served under conditions that do not present an immediate risk of harm to their health.” Court found plaintiff failed to submit evidence his illness resulted from food poisoning and concluded that “a single, isolated incident of food poisoning, even if suffered by many prisoners at an institution, does not rise to the level of a constitutional violation.” Defendant’s motion for summary judgment granted.

In EQT Production Company, Petitioner v. Department of Environmental Protection of the Commonwealth of Pennsylvania, Respondent, No. 485 M.D. 2014, 2017 WL 105981 (Pa. Commw. Ct. Jan. 11, 2017), petitioner, operator of natural gas wells, challenged respondent’s interpretation of the Clean Streams Law. Respondent interpreted the statute as “authorizing a penalty under a continuing violation theory for every day that industrial waste or a substance resulting in pollution remains in a water of the Commonwealth following the initial release of the waste or substance.” Petitioner argued a violation “only occurs . . . on the days that the industrial waste or substance resulting in pollution is discharged or enters from an area outside of the waters of the Commonwealth (e.g., a factory, industrial site, railcar, etc.) into a water of the Commonwealth.” Petitioner further maintained, “Once the discharge or entry stops, no additional violations occur even if the previously released regulated substance continues to be present in the water.” Court concluded respondent’s interpretation of the Clean Streams Law “is not supported by the statutory provisions and framework or the rules of statutory construction. The [Department’s] interpretation would result in potentially limitless continuing violations for a single unpermitted release of industrial waste while any of the waste remained in any water of the Commonwealth.” The court also noted respondent’s interpretation “ignores the fact that violations require some culpable action or inaction by the polluter.” Petitioner’s application for summary relief granted.

Kevin Marilley; Salvatore Papetti; Savior Papetti, on behalf of themselves and similarly situated, Plaintiffs–Appellees, v. Charlton H. Bonham, in his official capacity as Director of the California Department of Fish and Game, Defendant–Appellant, No. 13-17358, 844 F.3d 841 (9^th Cir. Dec. 21, 2016) concerned a class action suit by nonresident commercial fishers. California charges nonresident commercial fishers “higher fees for vessel registrations, licenses, and permits than it charges resident commercial fishers.” A class of nonresident commercial fishers challenged the fees under the Privileges and Immunities Clause and the Equal Protection Clause. California argued that “fee differentials” charged to nonresident commercial fishers “appropriately compensate it for costs incurred in enforcement and conservation efforts attributable to nonresidents as their proportionate share.” The court observed that “the Supreme Court has stated that a state’s expenditures may justify discrimination against nonresidents that would otherwise be impermissible under the Privileges and Immunities Clause.” The court concluded that, “When the benefit at issue is access to a natural resource, the state may not exclude nonresidents, but it may seek reimbursement for money spent to manage and preserve the resource.” Court held California’s fee differentials do not violate Privileges and Immunities Clause and the Equal Protection Clause.

LEGISLATIVE:

S. 69: A bill to codify and modify regulatory requirements of Federal agencies. Bill referred to the Senate Committee on Homeland Security and Governmental Affairs. Sponsor: Sen. Pat Roberts [R-KS].

S. 77: A bill to amend the Agricultural Act of 2014 to repeal the forfeiture rule for peanuts under the nonrecourse marketing assistance loan program. Bill referred to the Senate Committee on Agriculture, Nutrition, and Forestry. Sponsor: Sen. Jeff Flake [R-AZ].

S. 80: A bill to protect the right of individuals to bear arms at water resources development projects. Bill referred to the Senate Committee on Environment and Public Works. Sponsor: Sen. Michael Crapo [R-ID].

H.R. 368: To provide the force and effect of law for certain regulations relating to the taking of double-crested cormorants to reduce depredation at aquaculture facilities and protect public resources. Bill referred to the House Committee on Natural Resources. Sponsor: Rep. Eric “Rick” Crawford [R-AR1].

H.R. 382: To amend the Department of Agriculture program for research and extension grants to increase participation by women and underrepresented minorities in the fields of science, technology, engineering, and mathematics to redesignate the program as the “Jeannette Rankin Women and Minorities in STEM Fields Program”. Bill referred to the House Committee on Agriculture. Sponsor: Rep. Grace Meng [D-NY6].

H.R. 424: To direct the Secretary of the Interior to reissue final rules relating to listing of the gray wolf in the Western Great Lakes and Wyoming under the Endangered Species Act of 1973, and for other purposes. Bill referred to the House Committee on Natural Resources. Sponsor: Rep. Collin Peterson [D-MN7].

H.R. 428: To survey the gradient boundary along the Red River in the States of Oklahoma and Texas, and for other purposes. Bill referred to the House Committee on Natural Resources. Sponsor: Rep. Mac Thornberry [R-TX13].

REGULATORY: Includes EPA, FWS, FS, NOAA, and PTO rules and notices.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is establishing reporting and recordkeeping requirements for chemical substances when they are manufactured or processed at the nanoscale. Details here.

Rule EPA is promulgating a final rule to adjust the level of statutory civil monetary penalty amounts under the statutes EPA administers. Info here.

FISH AND WILDLIFE SERVICE: Notice FWS announce the availability of a draft comprehensive conservation plan (CCP) and environmental assessment (EA) for Plum Tree Island National Wildlife Refuge (NWR) for public review and comment. Plum Tree Island NWR is located in Poquoson, Virginia, and is administered by staff at Eastern Virginia Rivers NWR Complex based in Warsaw, Virginia. Info here.

FOREST SERVICE: Notice the National Urban and Community Forestry Advisory Council will meet via teleconference. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule closes Georges Bank Cod Trimester Total Allowable Catch Area to Northeast multispecies common pool vessels for the remainder of the fishing year. Info here.

Rule NMFS publishes its final List of Fisheries for 2017. Details here.

Rule NMFS announces a 12-month finding on a petition to list the giant manta ray and reef manta ray as threatened or endangered under Endangered Species Act. Details here.

Notice Department of Commerce seeks comment on proposed information collections regarding Alaska region crab permits. Details here.

Notice NMFS announces a 12-month finding and listing determination on a petition to list Alabama shad as threatened or endangered under Endangered Species Act. Info here.

PATENT AND TRADEMARK OFFICE: Notice USPTO seeks comments from stakeholders on whether the accelerated examination program should be retained. Info here.