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


ANNOUNCEMENT: REGISTER NOW for the Fifth Annual Mid-South Agricultural and Environmental Law Conference and you’ll be eligible for two “bonus” hours of online CLE! Details here.


JUDICIAL: Includes ESA, food labeling, and CWA issues.

In DESERT SURVIVORS, et al., Plaintiffs, v. US DEPARTMENT OF THE INTERIOR, et al., Defendants, No. 16-cv-01165-JCS, 2018 WL 2215741 (N.D. Cal. May 15, 2018), plaintiffs challenged U.S. Fish and Wildlife Service (FWS) decision to withdraw proposed listing of the Bi-State Sage-Grouse as “threatened” under the Endangered Species Act. FWS decision to withdraw was based on its conclusion under the “Policy for Evaluation of Conservation Efforts When Making Listing Decisions” (PECE). Plaintiffs moved for summary judgment, arguing FWS must consider “the magnitude of the impact on the species that the measures can be expected to achieve, and ‘the estimated length of time that it will take for a formalized conservation effort to produce a positive effect on the species.’” Court concluded FWS’s PECE analysis was “arbitrary and capricious because it does not offer any basis for concluding that the conservation efforts . . . are sufficiently certain to be effective.” Plaintiffs’ motion for summary judgment granted.

CIGAR ASSOCIATION OF AMERICA, et al., Plaintiffs, v. U.S. FOOD AND DRUG ADMINISTRATION, et al., Defendants, No. 1:16–cv–01460 (APM), 2018 WL 2223653 (D.D.C. May 15, 2018) involved a challenge to Food and Drug Administration’s (FDA) “Deeming Rule” and “User Fee Rule” as applied to manufacturers and importers of cigars and pipe tobacco. Plaintiffs’ alleged the Deeming Rule’s health warning requirements violate the First Amendment because they “unjustifiably and dramatically increases the size of health warnings already required by the FTC consent orders on cigar packages and advertisements.” Defendant countered the regulations only mandate plaintiffs “make accurate health-related disclosures reasonably aimed at help[ing] consumers better understand and appreciate the risks and characteristics of tobacco products.” After a lengthy First Amendment analysis, the court concluded that since the warning statements “are factual and uncontroversial disclosures aimed at informing the public about the risks of cigar and pipe tobacco use . . . the Rule is constitutional.”

In SISSETON–WAHPETON OYATE OF the LAKE TRAVERSE RESERVATION; Dave Flute, Chairman, Plaintiffs–Appellants v. UNITED STATES CORPS OF ENGINEERS; Colonel John W. Henderson, in his official capacity as District Commander; Steven E. Naylor, in his official capacity as Regulatory Program Manager, Defendants–Appellees, No. 16-4283, 888 F.3d 906 (8th Cir. April 25, 2018), Indian tribe alleged Corps of Engineers violated Administrative Procedure Act (APA), Clean Water Act (CWA), and National Historic Preservation Act (NHPA) by issuing “permit and exemption determinations allowing adjacent landowner’s construction of farm road across wetland adjacent to lake.” A third party owned land adjacent to a lake and was building a road across the property and applied for permits under the Clean Water Act (CWA). Lower court ruled for defendants and issue on appeal was whether a Corps of Engineers letter constituted a “final agency action for purposes of the Tribe’s challenges to the Corps’s permit and exemption determinations.” The letter at issue stated that third party’s roadways “met requirements for CWA’s farm-road exemption and each constituted single and complete project.” Appellate court ruled the letter did not constitute a “final agency action.” Court further stated that the tribe’s claim that Corps’ determination that roadway had not been “recaptured” was a “nonjusticiable challenge to enforcement decision.” Affirmed.


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

COMMODITY CREDIT CORPORATION: Rule the Office of Management and Budget (OMB) issued regulatory guidance to agencies to establish requirements for Federal financial assistance applicants, recipients, and subrecipients that are necessary for the implementation of the Federal Funding Accountability and Transparency Act of 2006. Details here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is taking final action to approve a submittal by the State of California to revise its State Implementation Plan (SIP). Info here.

Rule EPA is proposing to approve portions of the Oklahoma State Implementation Plan (SIP) submittal addressing the CAA requirement that SIPs address the potential for interstate transport of air pollution to significantly contribute to nonattainment or interfere with maintenance of the 2012 fine particulate matter National Ambient Air Quality Standards in other states. Info here.

FISH AND WILDLIFE SERVICE:

Notice announces the availability of a draft Environmental Assessment (DEA) under the National Environmental Policy Act  for the potential issuance of a take permit for bald eagles pursuant to the Bald and Golden Eagle Protection Act. Info here.

Notice FWS announces the availability of a final environmental impact statement (EIS) for a proposed project to restore coastal wetlands at the south end of San Diego Bay. Details here.

Notice FWS provide a list to the public of the permits issued under sections 10(a)(1)(A) and 10(a)(1)(B) of the ESA. Details here.

FOREST SERVICE: Notice the North Central Idaho Resource Advisory Committee will meet in Grangeville, Idaho. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule the North Pacific Fishery Management Council submitted Amendment 116 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area to the Secretary of Commerce for review. Info here.

Notice NMFS has received three scientific research permit application requests relating to Pacific salmon and steelhead. Details here.