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

JUDICIAL: Includes animal feeding operation, administrative law, and business law issues.

In WATERKEEPER ALLIANCE, et al., Petitioners v. ENVIRONMENTAL PROTECTION AGENCY, Respondent, U.S. Poultry and Egg Association, et al., Intervenors, No. 09-1017, 853 F.3d 527 (D.C. April 11, 2017), environmental groups petitioned for review of Environmental Protection Agency’s (EPA) rule exempting farms from Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and Emergency Planning and Community Right-to-Know Act (EPCRA) notification requirements “for air releases of hazardous substances from animal wastes.” Association of poultry producers intervened as respondents. Court of appeals held that CERCLA and EPCRA “were not ambiguous as to whether EPA could create new exemptions to notification requirements for release of hazardous substances,” and that the EPA “could not use de minimis power to create exemption to CERCLA and EPCRA notification requirements.” Plaintiffs’ petition granted.

In CURTIS DAVIS, WANDA DAVIS, CHRISTIE YOUNG, Plaintiffs – Appellants, v. UNITED STATES DEPARTMENT OF AGRICULTURE, SECRETARY, UNITED STATES DEPARTMENT OF AGRICULTURE, Defendants – Appellees, No. 16-16846, 2017 WL 1628955 (11th Cir. May 2, 2017), plaintiffs applied for farm program payments from USDA and the Farm Service Agency found all three applicants eligible for the payments, “but it later determined that they each made misrepresentations in their applications that disqualified them from receiving the payments.” Appellate court observed that, “The Administrative Procedure Act governs our review of the USDA’s final determinations.” Court upheld USDA ruling and concluded the agency “committed no legal error and its factual findings are supported by substantial evidence.”

Hal MCKNIGHT; Frank M. Ford, Jr.; and Paula M. Love, Plaintiff, v. MARATHON OIL COMPANY Baking Co. of Denton LLC, Defendants, No. CIV-17-00264-R, 2017 WL 1628981 (W.D. Okla. May 1, 2017) concerned plaintiffs that own interests in oil and minerals produced by an Oklahoma well that defendant operates per a lease with plaintiffs. Plaintiffs alleged defendants committed fraud by failing to disclose it was deducting costs from plaintiffs’ royalty payments. Court observed that plaintiffs failed to allege they “detrimentally relied on any representation by [defendants],” and “failure to plead detrimental reliance—an ‘indispensable element’ of a fraud claim—warrants dismissal.” Case dismissed.

LEGISLATIVE:  A recent summary of state agritourism legislation is available here.

REGULATORY: Includes FWS, FDA, and ITA rules and notices.

FISH AND WILDLIFE SERVICE: Rule FWS announces a 90-day finding on a petition to remove the Bone Cave harvestman from the List of Endangered and Threatened Wildlife under the Endangered Species Act. Details here.


Rule FDA extends the compliance date for the final rule requiring disclosure of nutrition information for standard menu items in restaurants and retail food establishments. Details here.

Rule FDA amends the food additive regulations to no longer provide for the use of potassium perchlorate as an additive in closure-sealing gaskets for food containers. Info here.

Rule FDA denies a petition requesting revocation of the Threshold of Regulation exemption No. 2005-006 to no longer exempt the use of sodium perchlorate monohydrate as a conductivity enhancer in antistatic agents. Details here.

INTERNATIONAL TRADE ADMINISTRATION: Notice Department of Commerce seeks public comment on any subsidies provided by countries exporting softwood lumber or softwood lumber products to the United States during the period July 1, 2016, through December 31, 2016. Info here.