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


ANNOUNCEMENT: Please join us for the 4th Annual Mid-South Agricultural and Environmental Law Conference, Friday, June 9, 2017. Details here.


JUDICIAL: Includes pesticde, animal welfare, CWA, and landowner liability issues.

BAYER CROPSCIENCE AG, BAYER CROPSCIENCE NV, Plaintiffs-Appellees v. DOW AGROSCIENCES LLC, MYCOGEN PLANT SCIENCE, INC., AGRIGENETICS, INC., DBA MYCOGEN SEEDS, LLC, PHYTOGEN SEED COMPANY, LLC, Defendants-Appellants, 2016-1530, 2016-1623, 2017 WL 788321 (Fed. Cir. March 1, 2017) 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. District court confirmed arbitration award and denied Dow’s motion to clarify “that interest from the date of the district court’s judgment would accrue at the statutory rate for post-judgment interest rather than the tribunal’s higher post-award rate.” Appellate judge ruled district court “correctly confirmed the award, but abused its discretion regarding post-judgment interest.” Appellate court modified lower court judgment “to state that interest from the date of the district court’s judgment accrues at the federal statutory rate.”

In NEW YORK PET WELFARE ASSOCIATION, INC., Plaintiff-Appellant, v. CITY OF NEW YORK, NEW YORK CITY COUNCIL, COREY JOHNSON, individually and in his capacity as New York City Councilman, ELIZABETH S. CROWLEY, individually and in her capacity as New York City Councilwoman, Defendants-Appellees, LINDA B. ROSENTHAL, individually and in her capacity as New York State Assembly Member, Defendant, No. 15-4013-cv, 2017 WL 816880 (2d Cir. March 2, 2017), plaintiff alleged that law requiring City pet shops to purchase dogs and cats directly from federally licensed breeders violated the dormant Commerce Clause and was preempted by the federal Animal Welfare Act. Plaintiff also alleged law mandating that pet shops sterilize dogs and cats before releasing them to consumers was preempted by New York law. District court held the laws “do not discriminate against or unduly burden interstate commerce, and do not conflict with either federal or New York law.” Judgment for defendant affirmed.

CITY OF KENNETT, MISSOURI, Plaintiff, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al. Defendants, No. 1:14-CV-33-SNLJ, 2017 WL 769831 (E.D. Mo. Feb. 28, 2017) involved a dispute about a man-made stream (“Buffalo Ditch”) that did not meet the water quality standard for dissolved oxygen. Plaintiff sought an order vacating the “Buffalo Ditch total maximum daily load (TMDL)” and enjoining defendants from enforcing it. The EPA argued “the area where the dissolved oxygen water quality standard is not attained is within the three-mile section immediately downstream” of a wastewater treatment plant. Court considered whether the suit was ripe for review and considered the “hardship to the parties of withholding judicial consideration.”  Court reasoned that In light of the fact that because “the TMDL itself states that the dissolved oxygen criterion is not certain, the allowable pollutant allocation for the KWTP is not certain, and the City might ultimately have no injury . . . the parties will experience no hardship if they now continue the process set into motion by the TMDL.” Defendant’s motion for summary judgment granted.

In UNITED STATES OF AMERICA, Plaintiff, v. PAUL KENNER, Defendant, 4:16CR3085, 2017 WL 782497 (D. Neb. Feb. 28, 2017), plaintiff alleged defendant, a Nebraska rancher, allowed 300 head of his cattle to graze on land of a Refuge without paying the required fee and that he used a motorized vehicle on the land. Government claimed defendant violated the National Wildlife Refuge System Administration Act of 1996 which provides, “No person shall disturb, injure, cut, burn, remove, destroy, or possess any real or personal property of the United States, including natural growth, in any area of the System … or enter, use, or otherwise occupy any such area for any purpose.” Court “not inclined” to impose strict liability standard on defendant, but found him guilty of negligence. Court noted the pasture was not “permanently damaged,” and charged defendant with covering “reasonable costs of the investigation.”


REGULATORY: Includes AMS, USDA, FS, and NOAA rules and notices.

AGRICULTURAL MARKETING SERVICE:

Rule AMS reopens comment period on a proposal to create new United States Standards for Grades of Frozen Onions. Details here.

Notice the 2002 Farm Bill requires the Secretary of Agriculture to establish a Peanut Standards Board. Info here.

AGRICULTURE DEPARTMENT:

Notice USDA submitted information collection requirement(s) to OMB for review. Title: Aquaculture Survey. Info here.

FOREST SERVICE:

Notice FS seeks comments on the currently approved information collection 0596-0066, Advertised Timber for Sale. Details here.

Notice FS seeks comments on the proposed new information collection, Southwestern Crown of the Continent Collaborative Forest Landscape Restoration Project. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS prohibits directed fishing for pollock in Statistical Area 620 in the Gulf of Alaska. Details here.

Notice the SEDAR Data Best Practices Panel will develop best practice recommendations for SEDAR Data Workshops. Info here.

Notice Free Atlantic Shark Identification Workshops and Protected Species Safe Handling, Release, and Identification Workshops will be held in April, May, and June of 2017. Info here.

Notice the Pacific Fishery Management Council will convene a pre-assessment workshop to review proposed data and modeling approaches for groundfish stock assessments scheduled for assessment this year. Details here.