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

ANNOUNCEMENT: Join us Wednesday, October 18th, at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: “Understanding the H-2A Temporary Agricultural Guest Worker Program.” Details available here.

JUDICIAL: Includes animal welfare, food labeling, and nutrition programs issues.

In Kenneth Hetrick Appellee v. Ohio Department of Agriculture Appellant, Nos. WD-16-061, WD-16-062, 2017 WL 4464371 (Ohio Ct. App. October 6, 2017), the Ohio Department of Agriculture (ODA) appealed a ruling declaring the agency improperly denied a dangerous wild animal permit to the appellee. Appellee applied for a “rescue facility permit” and a “wildlife shelter permit” under Ohio’s Dangerous Wild Animals and Restricted Snakes Act. ODA denied both applications. Lower court found ODA had “improperly denied the permits and discriminated against [appellee]”. On appeal, ODA argued its denial of the applications was based on “reliable, probative and substantial evidence and were in accordance with law.” Appellate court agreed with ODA, in part, and reinstated the agency’s denial of both permits.

In JAMES M. BARBER, ET AL., Plaintiffs, v. SAM’S CLUB EAST, INC., ET AL., Defendants, NO. 6:17-CV-00035, 2017 WL 4479221 (W.D. Va. October 6, 2017), plaintiffs claimed they bought and ate a bag of salad containing a shredded mouse. Plaintiffs sued the producer and retailers of the salad for negligence and breach of warranty. Defendant moved to dismiss for failure to state a claim. Court noted that, “[p]laintiff alleges that the bags of salad stated that the salad was “Washed & Ready-to-Enjoy!”, and that by also pleading “the presence of the mouse carcass, Plaintiff sufficiently pleads that this express warranty was breached.” Defendant’s motion denied.

In BREAD FOR THE CITY, Appellant v. UNITED STATES DEPARTMENT OF AGRICULTURE, et al., Appellees, No. 16-5329, 2017 WL 4448219 (D.C. October 6, 2017), plaintiff provided nutrition assistance to the needy and sued Department of Agriculture, alleging the agency “spent hundreds of millions of dollars less than the law required on The Emergency Food Assistance Program (TEFAP).” Lower court dismissed case and plaintiff appealed. Appellate court ruled TEFAP spending provision “only required Department to spend inflation-adjusted 2009 amount plus $50 million in 2015.”

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

AGRICULTURAL RESEARCH SERVICE: Notice ARS will grant to Golden Valley Organics, Inc. (dba) BioWest Ag Solutions of Nampa, Idaho, an exclusive license to U.S. Patent No. 9,414,602, “PSEUDOMONAS FLUORESCENS INHIBIT ANNUAL BLUEGRASS AND ROUGH BLUEGRASS ROOT GROWTH AND GERMINATION”, issued on August 16, 2016. Details here.

AGRICULTURE DEPARTMENT: Notice USDA submitted information collection requirement(s) to OMB for review. Title: Annual Survey of Farmer Cooperatives. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is finalizing approval of a portion of a state implementation plan (SIP) submission from the State of California regarding Clean Air Act requirements for ambient ozone monitoring in the Bakersfield Metropolitan Statistical Area (MSA) for the 1997 ozone and 2008 ozone national ambient air quality standards. Info here.

Rule EPA is approving elements of a State Implementation Plan (SIP) revision from the State of Missouri for the 2010 Nitrogen Dioxide (NO2) National Ambient Air Quality Standard. Details here.

Rule EPA is approving elements of a State Implementation Plan (SIP) revision from the State of Missouri for the 2012 Annual Fine Particulate Matter (PM2.5) National Ambient Air Quality Standard (NAAQS) and two state statutes into the SIP to address the requirements relating to conflicts of interest found in section 128 of the Clean Air Act. Details here.

Rule EPA is approving, and incorporating by reference, changes to Oregon’s State Implementation Plan (SIP) submitted on April 22, 2015. Info here.

Rule EPA is finalizing approval of certain State Implementation Plan (SIP) revisions submitted by Utah on January 4, 2016, and of certain revisions submitted on January 19, 2017, for the coarse particulate matter (PM10) national ambient air quality standard (NAAQS) in the Salt Lake County and Utah County PM10 nonattainment areas. Details here.

Rule finalizes the residual risk and technology review (RTR) conducted for the chemical recovery combustion sources at kraft, soda, sulfite, and stand-alone semichemical pulp mills regulated under the national emission standards for hazardous air pollutants. Details here.

Rule EPA is proposing to approve elements of a State Implementation Plan (SIP) revision from the State of Missouri for the 2010 Nitrogen Dioxide (NO2) National Ambient Air Quality Standard. Info here.

Rule EPA is proposing to approve elements of a State Implementation Plan (SIP) revision from the State of Missouri for the 2012 Annual Fine Particulate Matter (PM2.5) National Ambient Air Quality Standard (NAAQS) and two state statutes into the SIP to address the requirements relating to conflicts of interest found in section 128 of the Clean Air Act. Info here.

FISH AND WILDLIFE SERVICE:

Notice FWS received an application from Mr. Robert Campbell for an incidental take permit under the Endangered Species Act. Info here.

Notice FWS received an application from Betteravia Ranches, LLC for an incidental take permit under the Endangered Species Act. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS implements an accountability measure (AM) for commercial king mackerel in the western zone of the Gulf of Mexico (Gulf) exclusive economic zone (EEZ) through this temporary rule. Info here.

Rule NMFS is reallocating the projected unused amount of Pacific cod from catcher vessels equal to or greater than 60 feet (18.3 meters) length overall (LOA) using pot gear to catcher/processors using pot gear and catcher vessels less than 60 feet (18.3 meters) LOA using hook-and-line or pot gear in the Bering Sea and Aleutian Islands management area. Details here.

Notice NMFS has issued an incidental harassment authorization (IHA) to the Seattle Department of Transportation (Seattle DOT) to incidentally harass, by Level B harassment only, marine mammals during pile driving and removal activities associated with the restoration of Pier 62 project in Seattle Waterfront, Elliot Bay in Seattle, Washington. Info here.