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

ANNOUNCEMENTS:

REGISTER NOW for our upcoming Ag Technology & the Law conference, August 15 and 16 in Little Rock, Arkansas. Details here.

JUDICIAL: Includes environmental law, food labeling, water law, and bankruptcy issues.

WESTERN ORGANIZATION OF RESOURCE COUNCILS and Friends of the Earth, Appellants v. Ryan ZINKE, in His Capacity as Secretary of the Interior, et al., Appellees, No. 15-5294, 2018 WL 3028837 (D.C. June 19, 2018) concerned the Secretary of the Interior’s publication of a programmatic environmental impact statement (PEIS) for a Federal Coal Management Program. Plaintiffs sought an order compelling defendant to update the Program’s environmental impact statement. District Court dismissed, finding defendant had “no duty to supplement the 1979 programmatic EIS for the federal coal management program because there is no remaining or ongoing major federal action that confers upon them a duty to do so.” Appellate court concluded that neither NEPA nor the Department’s own documents “create a legal duty for the Secretary to update the Federal Coal Management Program’s PEIS.” District Court ruling affirmed.

WFM PRIVATE LABLE, L.P., Cross-Claimant, v. 1048547 ONTARIO, INC. d/b/a SKOTIDAKIS GOAT FARM, Cross-Defendant, NO.: A-14-CV-01013-SS, 2018 WL 3029113 (W.D. Tex. June 18, 2018) concerned a contract dispute wherein Whole Foods contracted with a supplier (SGF) to sell Greek yogurt under the “Whole Foods Market 365 Everyday Value” private label. Some of the yogurt contained higher sugar content than disclosed on the product labels, “resulting in a product withdrawal, numerous consumer lawsuits, and other expenses.” Whole Foods sued for breach of contract and supplier countered that it relied on third-party information regarding the accuracy of the sugar content in the yogurt. Court reasoned that “[w]hether SGF had reason to question the test results is irrelevant because the above-referenced contract provisions do not depend on SGF’s subjective belief in the test results.” Court concluded supplier breached the contract by providing “inaccurate sugar content disclosures” for its yogurt.

In INCLINE VILLAGE BOARD OF TRUSTEES, Respondent, v. Matthew F. EDLER and Andrea Edler, Appellants, No. ED 105494, 2018 WL 3028993 (Mo. Ct. App. June 19, 2018), defendants appealed ruling that they did not have riparian rights to an artificial lake owned by plaintiff that abutted defendants’ property. On appeal, defendants argued the lake was not an artificial body of water but “has become a natural body of water and that they have common law riparian rights to it.” Defendant admitted that per Missouri law, “landowners whose property abuts an artificial body of water generally do not have riparian rights.” Here, they argued they possess riparian rights because the body of water at issue is a natural body of water under an “artificial-becomes-natural” theory. Court was not persuaded by defendants’ “artificial-becomes-natural” theory because “they have not relied upon access to the Main Lake from their Sumac Ridge Lot for a lengthy period of time and because they have not shown as a matter of equity and fairness why they should be granted riparian rights to the lake.” Affirmed for plaintiff.

In re: AQUA PESCA, LLC, Debtor, No. 17-00065-GS, 2018 WL 3031085 (Bankr. D. Alaska June 5, 2018) involved a chapter 7 trustee’s sale of a beverage dispensary license. Here, trustee was holding proceeds from the sale and filed an Application to Disburse Proceeds from Sale of Liquor License allowing for distribution of the sale proceeds “pro-rata to various creditors asserting ‘holds’ against the License.” Debtor objected to the distribution of funds and issue was whether holds were filed prior to the sale of the license. Court observed that “[v]alid holds against an Alaska liquor license have traditionally been treated akin to a perfected secured interest in that license, such that those holds are paid directly from the sale proceeds.” Court found “no evidence that the creditors identified in the Application had valid holds under Alaska law at the time of the sale of the License,” and denied trustee’s application.

LEGISLATIVE:

S. 186: Fair RATES Act. This bill’s text for status Reported by Senate Committee (Jun 18, 2018) is now available.

S. 3042: Agriculture Improvement Act of 2018. This bill’s text for status Reported by Senate Committee (Jun 18, 2018) is now available.

H.R. 200: Strengthening Fishing Communities and Increasing Flexibility in Fisheries Management Act. This bill’s text for status Reported by House Committee (Jun 19, 2018) is now available.

S. 3088: A bill to amend the Energy Policy Act of 2005 to require the Secretary of Energy to establish a program to prepare veterans for careers in the energy industry. Referred to the Senate Committee on Energy and Natural Resources.

H.R. 6136: Border Security and Immigration Reform Act of 2018. Referred to the House Committee on Agriculture, House Committee on Armed Services, and 9 other committees.

H.R. 6147: Making appropriations for the Department of the Interior, environment, and related agencies for the fiscal year ending September 30, 2019. This bill was referred to the House Committee on Appropriations which will consider it before sending it to the House floor for consideration.

H.R. 6146: To authorize, direct, expedite, and facilitate a land exchange in Yavapai County, Arizona. Referred to the House Committee on Natural Resources.

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

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is taking direct final action to amend the EPA Acquisition Regulation (EPAAR) by removing Mentor-prot[eacute]g[eacute] clause requirement and the corresponding provision and clause, “Mentor Prot[eacute]g[eacute] Program” and “Procedures for Participation in the EPA Mentor Prot[eacute]g[eacute] Program.” Details here.

Rule EPA is proposing to approve changes to the North Carolina State Implementation Plan (SIP), submitted by the North Carolina Department of Environmental Quality (NC DEQ) through the Division of Air Quality (DAQ), to EPA on October 17, 2017. Info here.

Rule EPA is proposing to update a portion of the Outer Continental Shelf (OCS) Air Regulations. Info here.

FISH AND WILDLIFE SERVICE: Notice FWS uses a collision risk model (CRM) to predict the number of golden and bald eagles that may be killed at new wind facilities. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule implements annual harvest specifications and management measures to establish allowable catch levels for Pacific mackerel for the fishing years 2017-2018 and 2018-2019. Details here.

Rule the Gulf of Mexico (Gulf) Fishery Management Council (Gulf Council) and South Atlantic Fishery Management Council (South Atlantic Council) have submitted the Gulf For-hire Reporting Amendment for review, approval, and implementation by NMFS. Info here.

Notice this action corrects the DATES, ADDRESSES, and SUPPLEMENTARY INFORMATION sections of a notice published on June 6, 2018, which contained some incorrect information that could leave the public misinformed. Details here.

Notice announces the availability of the 2018 Revision to its 2016 Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing–Underwater Acoustic Thresholds for Onset of Permanent and Temporary Threshold Shifts based on comments received during the review of the Guidance. Info here.