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


ANNOUNCEMENT: Register today for our Fifth Annual Mid-South Agricultural and Environmental Law Conference in Memphis, TN / June 7-8. CLE credit available! Additional information available here.


JUDICIAL: Includes labor, CAFO, and SNAP issues.

In The STATE EX REL. Sharon VONDERHEIDE, Relator, v. MULTI–COLOR CORPORATION and Industrial Commission of Ohio, Respondents, No. 16AP–493, 2018 WL 2065556 (Ohio Ct. App. May 3, 2018) commission denied plaintiff’s application for temporary total disability (TTD) compensation and issue was whether the work plaintiff performed at her family’s farm qualified as “employment.” In denying plaintiff’s compensation, commission considered that plaintiff did not live on the family farm, despite her employment. Court found that commission’s consideration of this evidence was overreaching and “an abuse of discretion.” Order vacated.

In WOODELL MCGOWAN, et al., Plaintiffs, v. MURPHY-BROWN, LLC d/b/a SMITHFIELD HOG PRODUCTION DIVISION, Defendant, No. 7:14-CV-182-BR, 2018 WL 2297538 (E.D.N.C. May 18, 2018), plaintiffs sued regarding defendant’s Concentrated Animal Feeding Operations (CAFO) and sought to have an expert witness (a “cultural anthropologist”) offer an opinion regarding “the parameters of the rural community’s use and enjoyment of their land,” and how plaintiffs have been impacted by defendant’s operation. Defendant moved to exclude plaintiffs’ expert witness testimony as “cumulative.” Court concluded plaintiffs could ably testify about “their historical use of their properties, how their uses of the properties have been disrupted since [defendant] began operations and the importance of outdoor activities to their quality of life.” Defendant’s motion to exclude granted.

In Mahdi IROBE and Suuqa Bakaro Grocery, Plaintiffs, Appellants, v. UNITED STATES DEPARTMENT OF AGRICULTURE, Defendant, Appellee, No. 17-1943, 2018 WL 2294401 (1st Cir. May 21, 2018), plaintiff was charged with unlawfully tracking in Supplemental Nutrition Assistance Program (SNAP) benefits and appealed a summary judgment ruling granted in favor of the USDA. Issue for court was “the allocation of the burden of proof in a civil action,” regarding SNAP violations. Court considered the USDA evidence against the store owner and noted that the large number of “aberrational transactions reflected in the Store’s EBT database are adequate to ground a strong inference of trafficking.” The store owner, on the other hand, relied “almost entirely on [plaintiff’s] deposition testimony, in which he offered generalized, non-specific observations about his customers’ shopping habits.” Court affirmed summary judgment after concluding “no rational factfinder could conclude that the Store had demonstrated by a preponderance of the evidence that the finding of trafficking was improvident.”


LEGISLATIVE:

S.J.Res. 60: A joint resolution providing for the reappointment of Barbara M. Barrett as a citizen regent of the Board of Regents of the Smithsonian Institution. Text for status Referred to House Committee (May 21, 2018) is now available.

H.R. 5655: Camp Nelson Heritage National Monument Act. Text for status Reported by House Committee (May 21, 2018) is now available.

Motion to Invoke Cloture: Dana Baiocco to be a Commissioner of the Consumer Product Safety Commission: Dana Baiocco, of Ohio, to be a Commissioner of the Consumer Product Safety Commission for a term of seven years from October 27, 2017. Cloture Motion Agreed to 49/45.

H.R. 4830: SIT-REP Act. Passed 382/0.

H.R. 4451: Homeless Veterans’ Reintegration Programs Reauthorization Act of 2017. Passed 377/1.

H.R. 3832: Veterans Opioid Abuse Prevention Act. Passed 377/2.


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

AGRICULTURAL MARKETING SERVICE: Rule announcing the availability of an informational webinar regarding the proposed National Bioengineered Food Disclosure Standard. Details here.

ENVIRONMENTAL PROTECTION AGENCY: Rule establishes tolerances for residues of clopyralid in or on multiple commodities which are identified and discussed later in this document. Details here.

FISH AND WILDLIFE SERVICE:

Rule the U.S. District Court for Alaska in its October 17, 2011, order in Peratrovich et al. v. United States and the State of Alaska, 3:92-cv-0734-HRH (D. Alaska), enjoined the United States “to promptly initiate regulatory proceedings for the purpose of implementing the subsistence provisions in Title VIII of the Alaska National Interest Lands Conservation Act (ANILCA) with respect to submerged public lands within Tongass National Forest” and directed entry of judgment. This rule adds submerged parcels to the subsistence regulations to ensure compliance with the Court order. Details here.

Rule FWS proposes special migratory bird hunting regulations for certain Tribes on Federal Indian reservations, off-reservation trust lands, and ceded lands for the 2018-19 migratory bird hunting season. Details here.

Notice FWS seeks comment on applications to conduct certain activities with endangered species. With some exceptions, the Endangered Species Act (ESA) prohibits activities with endangered and threatened species unless a Federal permit allows such activity. Info here.

FOOD AND NUTRITION SERVICE: Notice invites the general public and other public agencies to comment on a proposed information collection. This collection is a revision of a currently approved collection which FNS employs to determine public participation in the School Breakfast Program. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS reopens the exclusive economic zone (EEZ) off Georgia in the South Atlantic to trawling for penaeid shrimp, i.e., for brown, pink, and white shrimp. Info here.

Notice NOAA is announcing: (1) An addendum to the plan that provides for additional efforts to complete the assessment of natural resource damages for lost ecological and human use services resulting from releases of hazardous substances and oil to the lower Willamette River in Portland, Oregon; and (2) a provision of a 30-day period for public comment on the addendum. Details here.