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 labor, forestry, agritourism, NEPA, landowner liability, and labor issues.

In Thomas E. Perez, Secretary of Labor, United States Department of Labor, Plaintiff, v. Valley Garlic, Inc., dba Sequoia Packing Co., a California Corporation; Christian Barrere Marrione, an individual; David Clark Anderson, an individual; X-Treme Ag Labor, Inc., a California corporation; Isabella Alvarez Camacho, an individual; Ofelia Ramirez Morales, an individual; and Cesar Neri, an individual, Defendants, NO. 1:16-CV-01156-AWI-EPG, 2017 WL 772147 (E.D. Cal. Feb. 27, 2017), plaintiff sought to enjoin defendant from “causing vehicles to be used to transport migrant and seasonal agricultural workers without ensuring vehicle safety requirements are met.” Defendant argued that it is not subject to the applicable statute because it is not an agricultural employer and has not caused any vehicles to be used. Defendant also argued plaintiff cannot show irreparable injury or that an injunction is in the public interest. Court considered a number of definitions under the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) and concluded that plaintiff “failed to show a likelihood of irreparable harm in the absence of injunctive relief.” Plaintiff’s motion denied.

In Native Ecosystems Council, Plaintiff, v. Leslie Weldon, in her official capacity as Regional Forester of Region One U.S. Forest Service; United States Forest Service, an agency of the United States; and MARY ERICKSON, in her official capacity as Supervisor of the Custer National Forest, Defendants, CV 16–106–M–DWM, 2017 WL 491638 (D. Mont. Feb.6, 2017), plaintiff sought injunction contending Forest Service failed to comply with the National Environmental Policy Act (NEPA) and the National Forest Management Act (NFMA) when it approved the “North Whitetail Post Fire Project Salvage Sale in the Custer National Forest.” Plaintiff argued Forest Service violated its statutory mandate by “improperly segmenting salvage sales and has been living the ‘big lie’ of grossly exaggerating the abundance of suitable habitat for the black-backed woodpecker and minimizing the impact of those salvage sales.” Court considered the Forest Service’s decision to segment salvage projects and found that “its conclusion that the salvage projects will not have significant cumulative effects, and its determination that its actions were consistent with the Forest Plan were neither arbitrary nor capricious.” Plaintiff’s motion denied.

In re the Marriage of: Malinda A. Grommet, Petitioner and Appellee, v. Dean G. Grommet, Respondent and Appellant, DA 16-0195, 2017 WL 782711 (Mont. Feb. 28, 2017) involved a divorce and distribution of the marital estate. Parties owned and ran a “dude ranch” and married after 9 years of living together. Husband appealed distribution of assets and argued District Court “incorrectly considered the parties’ premarital contributions when determining an equitable distribution of the marital estate.” Court noted that “all property held by the parties must be considered by a court in equitably dividing the parties’ marital estate.” Court observed that the parties commingled property; that title was changed granting wife an interest in properties; and wife enhanced and developed the properties at issue. Court found district judge “correctly determined what assets were to be included in the marital estate and equitably distributed marital estate.” Affirmed.

In AMY GRANAT, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF AGRICULTURE, et al., Defendants, No. 2:15-cv-00605-MCE-DB, 2017 WL 823359 (E.D. Cal. March 2, 2017), plaintiffs sued challenging Forest Service’s closure of hundreds of miles of roads in the Plumas National Forest to motorized vehicles. Plaintiffs claimed defendants violated NEPA, the Travel Management Rule, and “acted arbitrarily and capriciously.” Plaintiffs argued that “by only considering about 33% of the unauthorized routes, the Forest Service did not consider ‘a reasonable range of alternatives.’” Court reasoned that, “The purpose of a reasonable range of alternatives is to “foster[ ] informed decision-making and informed public participation.” Court concluded FS acted within its discretion and granted defendants’ motion for summary judgment.

DALE LEE NORMAN, Petitioner, v. STATE OF FLORIDA, Respondent, No. SC15-650, 2017 WL 823613 (Fla. March 2, 2017) concerned a license issued by the Florida Department of Agriculture and Consumer Services authorizing petitioner to carry a concealed firearm in public. Petitioner found guilty of “Open Carrying of a Weapon” and appealed. Court considered whether Florida’s Open Carry Law violates the Second Amendment. Court held applicable statute does not “unconstitutionally infringe on the Second Amendment” or the Florida Constitution’s “freestanding right to bear arms subject to the Legislature’s authority to regulate the use and manner of doing so.” District court affirmed.

In ALPHA SERVICES, LLC, an Idaho Limited Liability Company; ROBERT ZAHARIE, Plaintiffs-Appellants, v. THOMAS E. PEREZ, U.S. Secretary of Labor, in his official capacity; U.S. DEPARTMENT OF LABOR ADMINISTRATIVE REVIEW BOARD; LAURA FORTMAN, Principal Deputy Wage and Hour Administrator, in her official capacity, Defendants-Appellees, No. 14-35765, 2017 WL 836076 (9th Cir. March 3, 2017), defendant fined plaintiff, a forestry services company, for illegally attaching trailers to its crew-carrier pickup trucks. Review Board determined plaintiff’s vehicles were “trucks” and not “buses” under the law, and upheld fine. Plaintiff appealed Board’s decision and district court determined Board’s interpretation of the regulation was entitled to deference under Skidmore v. Swift & Co. Appellate court observed that Board noted that the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) does not define the terms “bus” and “truck,” and considered definitions of “design” and “construct.” Court was persuaded by Board’s conclusion that plaintiff’s vehicles were “trucks” based on the “original design of the vehicles as trucks,” and affirmed trial court ruling.


REGULATORY: Includes USDA, FWS, FNS, ITA and NOAA notices.

AGRICULTURE DEPARTMENT: Notice USDA submitted information collection requirement(s) to OMB for review. Title: National Animal Health Monitoring System; Antimicrobial Use Studies. Info here.

FISH AND WILDLIFE SERVICE: Notice FWS announce the availability of the technical/agency draft recovery plan for the endangered yellowcheek darter, a fish. Details here.

FOOD AND NUTRITION SERVICE: Notice announcing annual adjustments to the reimbursement rates for meals served in the Summer Food Service Program for Children. Details here.

INTERNATIONAL TRADE ADMINISTRATION:

Notice Department of Commerce is conducting an administrative review of the antidumping duty order on certain frozen warmwater shrimp from India. Details here.

Notice Department of Commerce is conducting an administrative review of the antidumping duty order on certain frozen warmwater shrimp from Thailand. Info here.

Notice Department of Commerce is conducting an administrative review of the antidumping duty order on certain preserved mushrooms from China. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Notice NOAA will submit to OMB for clearance the following proposal for collection of information. Title: Conflict of Interest Disclosure for Nonfederal Government Individuals who are Candidates To Conduct Peer Reviews. Details here.

Notice NMFS has issued an incidental harassment authorization to the Partnership for Interdisciplinary Study of Coastal Oceans to incidentally harass marine mammals during rocky intertidal monitoring surveys. Details here.