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 GE, preemption and wetlands issues.

In Syngenta Seeds, Inc. v. Cty. of Kauai, No. 14-16833, 2016 WL 6818862, (9th Cir. Nov. 18, 2016), defendant (county) passed ordinance requiring commercial farmers to “maintain ‘buffer zones’ between crops to which pesticides are applied and certain surrounding properties, provide notifications before and after applying pesticides, and file annual reports disclosing the cultivation of GE crops.” Court considered whether ordinance’s pesticide provisions are preempted by Hawaii state law, as the district court held. Court observed Hawaii courts apply a “ ‘comprehensive statutory scheme’ test” to decide field-preemption claims,” and per this test, a local law is preempted if “it covers the same subject matter embraced within a comprehensive state statutory scheme disclosing an express or implied intent to be exclusive and uniform throughout the state.” Court noted Hawaii Pesticides Law “comprehensively regulates pesticides and creates a clear inference of legislative intent to preempt local regulations of pesticides.” Court ultimately ruled the pesticide provisions at issue “are impliedly preempted by Hawaii law and beyond the County’s power.” District court decision affirmed.

In HAWAI’I PAPAYA INDUSTRY ASSOCIATION; BIG ISLAND BANANA GROWERS ASSOCIATION; HAWAI’I CATTLEMEN’S COUNCIL, INC.; PACIFIC FLORAL EXCHANGE, INC.; BIOTECHNOLOGY INNOVATION ORGANIZATION; RICHARD HA; JASON MONIZ; GORDON INOUYE; ERIC TANOUYE; HAWAI’I FLORICULTURE AND NURSERY ASSOCIATION, Plaintiffs-Appellees, v. COUNTY OF HAWAII, Defendant-Appellant., No. 14-17538, 2016 WL 6819700, (9th Cir. Nov. 18, 2016), defendant appealed summary judgment for plaintiff holding that a local ordinance “is impliedly preempted under state law and expressly preempted, in part, by federal law.” The ordinance at issue bans “open air testing of genetically engineered organisms of any kind” and “open air cultivation, propagation, development, or testing of genetically engineered crops or plants.” Plaintiffs maintained ordinance is preempted under state law and that it is “expressly preempted by the Plant Protection Act (PPA), in its application to plants that the U.S. Animal and Plant Health Inspection Service (APHIS) regulates as plant pests.” The court noted that, “We have held that federal law preempts the Ordinance in its application to GE plants that APHIS regulates as plant pests, but not in its application to federally deregulated, commercialized GE plants.” The court also observed that “Hawaii courts apply a ‘comprehensive statutory scheme test’ to decide field-preemption claims,” and here, found that “Hawaii state law impliedly preempts the Ordinance in its remaining application to commercialized GE plants.” Ruling for plaintiff affirmed.

In Dep’t Of Envtl. Quality v. Gomez, No. 328033, 2016 WL 6809542 (Mich. Ct. App. Nov. 17, 2016), defendants appealed order requiring them to remove 1.2 acres of fill dirt they placed in a wetland on their property. Defendants had purchased 54 acres of property and planned a horse pasture and over a number of years, added “fill dirt” to the land. Defendants were charged with violating the Natural Resources and Environmental Protection Act (NREPA) and ordered to restore the ground to its natural condition. On appeal, defendants argued their use of fill dirt to create a pasture was “exempt from wetland permitting requirements” as a “farming or ranching activity.” Court considered whether “placement of fill material in a wetland in order to grow grass thereon constitutes ‘cultivating’ the land.” Court ruled defendants’ “extensive placement of soil and other materials” did not qualify as an exemption, “especially given the definition of ‘fill material.’” Ruling for plaintiff affirmed.

LEGISLATIVE: 

S. 3395: Prescribed Burn Approval Act of 2016. Bill passed Senate on November 17 and goes to the House.

H.R. 845: National Forest System Trails Stewardship Act. Bill passed Congress on November 16 and goes to the President.

H.R. 564: Endangered Salmon and Fisheries Predation Prevention Act. Bill’s text for status Reported by House Committee is now available.

H.R. 6336: To amend the Rural Electrification Act of 1936 to provide grants for access to broadband telecommunications services in rural areas. Bill referred to the House Committee on Agriculture and House Committee on Energy and Commerce which will consider it before sending it to the House.

H.R. 6343: To amend the Internal Revenue Code of 1986 to encourage the sale of locally and regionally produced agricultural products in underserved communities. Bill referred to the House Committee on Agriculture and House Committee on Ways and Means which will consider it before sending it to the House.

H.R. 6342: To amend the Animal Welfare Act to restrict the use of exotic and wild animals in traveling performances. Bill referred to the House Committee on Agriculture which will consider it before sending it to the House.

H.R. 6344: To authorize the Secretary of the Interior to convey certain Federal land in Mohave County, Arizona, to qualified entities. Bill referred to the House Committee on Natural Resources which will consider it before sending it to the House.

REGULATORY: Includes USDA, EPA, FWS, FDA, NOAA, and RBCS rules and notices.

AGRICULTURE DEPARTMENT: Notice announcing upcoming meeting of The Council for Native American Farming and Ranching, a public advisory committee of the Office of Tribal Relations. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule establishing tolerances for residues of endothall in or on multiple commodities. United Phosphorus, Inc. requested these tolerances under the Federal Food, Drug, and Cosmetic Act. Info here.

Rule EPA is taking final action to approve South Coast Air Quality Management District Rule 2449, Control of Oxides of Nitrogen Emissions from Off-Road Diesel Vehicles, as a revision to the SCAQMD portion of the California State Implementation Plan. Details here.

Rule EPA designates Ohio portion of the Campbell-Clermont KY-OH sulfur dioxide nonattainment area from nonattainment to attainment. Info here.

FISH AND WILDLIFE SERVICE:

Notice FWS invites the public to comment on applications to conduct certain activities with endangered species. Info here.

Notice FWS announces revisions to its Mitigation Policy. Details here.

FOOD AND DRUG ADMINISTRATION:

Notice FDA announces that a proposed collection of information was submitted to OMB for review. Title: Preparing a Claim of Categorical Exclusion or an Environmental Assessment for Submission to the Center for Food Safety and Applied Nutrition. Info here.

Notice FDA reopens comment period for the notice, published in the Federal Register of September 9, 2016 announcing availability of the draft guidance for industry entitled “Substantiation for Structure/Function Claims Made in Infant Formula Labels and Labeling.” Details here.

Notice FDA announces availability of a report of a Center for Veterinary Medicine working group proposing possible changes to the current review processes for new animal drug applications providing for the use of multiple new animal drugs in combination drug medicated feeds. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Notice NMFS announces its request for applications for the 2017 shark research fishery from commercial shark fishermen with directed or incidental shark limited access permits. Info here.

Notice NMFS received application from U.S. Department of the Air Force requesting an Incidental Harassment Authorization to take marine mammals, by harassment, incidental to a Maritime Weapon Systems Evaluation Program within a section of the Eglin Gulf Test and Training Range in the northern Gulf of Mexico. Info here.

RURAL BUSINESS-COOPERATIVE SERVICE: Notice seeking applications for loans and grants under the Rural Economic Development Loan and Grant Programs. Details here.