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 CWA, CAA, animal welfare, and pesticide issues. 

In JTO, INC., Plaintiff, v. The TRAVELERS INDEMNITY COMPANY OF AMERICA, Defendant, NO.1:16CV648, 2017 WL 1017468 (N.D. Ohio March 16, 2017), plaintiff, a construction company, was sued by the government for alleged violations of the Clean Water Act for road work on protected wetlands. Plaintiff’s insurance company denied coverage and plaintiff sought “defense and indemnity coverage” under defendant’s insurance policies. Issue was whether plaintiff’s construction activity was an “occurrence” under the policy. Court reasoned that, “Whether [plaintiff’s] discharge of dredged and fill material into protected waters without a permit was an ‘occurrence’ is a factual issue and the Court cannot hold as a matter of law that [plaintiff’s] actions ‘are clearly and indisputably outside the contracted coverage.’” Court denied insurance company’s motion for judgment on the pleadings.

In CALIFORNIA COMMUNITIES AGAINST TOXICS, et al., Plaintiffs, v. Scott PRUITT, Administrator, United States Environmental Protection Agency, Defendant, No. 15–cv–512 (TSC), 2017 WL 978974 (D.D.C. March 13, 2017), environmental groups sued to compel Environmental Protection Agency (EPA) to perform “overdue rulemakings” mandated by Clean Air Act concerning emissions standards for sources of hazardous air pollutants. Plaintiffs moved for summary judgment and EPA cross-moved for same. Court found plaintiffs’ timeline was “simply too compressed at this stage to afford any reasonable possibility of compliance.” Court imposed a timeline for EPA to perform overdue rulemakings “in between organizations’ requested one to two years and EPA’s proposed five years.”

Sara TINKER, Plaintiff, v. KNOX COUNTY, Tennessee and Frankie Byrne, Defendants, No. 3:16-CV-141, 2017 WL 1011448 (E.D. Tenn. March 14, 2017) involved the seizure of dogs by an animal control officer from a home. Local ordinance limits the number of dogs that may be kept at a home and requires animal control officers to provide advanced notice before any seizure. Court noted that officer “could have, in her discretion, not followed through with the seizure of the animals,” and further, that the officer “did not give the plaintiff the 30-day notice to remedy the situation prior to the seizure.” Court found officer did not follow local ordinance.

BAYER CROPSCIENCE AG, BAYER S.A.S., Plaintiffs-Appellants v. DOW AGROSCIENCES LLC, Defendant-Appellee, 2015-1854, 2017 WL 1033962 (Fed. Cir. March 17, 2017) originally involved an international arbitration tribunal’s decision on a contract claim and patent-infringement claims. Bayer sued Dow for patent infringement, but district court stayed pending arbitration. Arbitration tribunal awarded Bayer $455 million, including damages for breach of contract and patent infringement. Here, Bayer appealed a district court’s award of attorney fees to Dow upon finding that “the case stood out from others and was thus exceptional.” Bayer argued trial court abused its discretion in granting the fees to Dow. Federal Circuit court stated, “We hold that the district court did not abuse its discretion in determining that, under the totality of the circumstances, this was an exceptional case, and we affirm the district court’s grant of … fees.” Affirmed for defendant.


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

AGRICULTURAL MARKETING SERVICE:

Rule addressing 2017 sunset review submitted to the Secretary of Agriculture through AMS’ National Organic Program. Details here.

Rule would implement a recommendation from the Idaho-Eastern Oregon Potato Committee to decrease the assessment rate established for the 2017-2018 and subsequent fiscal periods from $0.0025 to $0.002 per hundredweight of potatoes handled. Info here.

Rule would implement a recommendation from the Cherry Industry Administrative Board to establish free and restricted percentages for the 2016-17 crop year under the marketing order for tart cherries grown in the states of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is taking direct final action to approve a revision to the California State Implementation Plan consisting of state regulations establishing standards and other requirements relating to the control of emissions from new on-road and new and in-use off-road vehicles and engines. Info here.

Rule EPA is updating the materials that are incorporated by reference into the District of Columbia state implementation plan. Details here.

Rule EPA is taking direct final action to correct a previously approved diesel inspection and maintenance program provision in Albuquerque/Bernalillo County’s State Implementation Plan. Info here.

Rule EPA is taking direct final action to approve the required second carbon monoxide maintenance plan as a revision to the Texas State Implementation Plan. Details here.

INTERNATIONAL TRADE ADMINISTRATION:

Notice that on September 13, 2016, the Department of Commerce initiated a changed circumstances review of the antidumping duty order on certain pasta from Italy. Details here.

Notice ITA is partially rescinding the administrative review of the antidumping duty order on honey from the People’s Republic of China. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is opening directed fishing for northern rockfish in the Bering Sea and Aleutian Islands Management Area. Info here.

Rule increasing the possession and trip limit for Gulf of Maine cod and haddock for Northeast multispecies common pool vessels for the remainder of the 2016 fishing year. Info here.

Rule NMFS implements accountability measures for the greater amberjack recreational sector in the exclusive economic zone of the Gulf of Mexico for the 2017 fishing year. Details here.