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

JUDICIAL: Includes pesticides, CAA, CWA, and food labeling issues.

In PESTICIDE ACTION NETWORK NORTH AMERICA et al., Plaintiffs and Appellants, v. CALIFORNIA DEPARTMENT OF PESTICIDE REGULATION et al., Defendants and Respondents, VALENT U.S.A. CORPORATION et al., Real Parties in Interest, A145632, 2017 WL 4130466 (Cal. Ct. App. September 19, 2017), defendant approved amended labels for two pesticides: and the amended labels allowed the pesticides to be used on several crops. Both pesticides “contain the active ingredient dinotefuran, which is from a class of pesticides called neonicotinoids.” In approving the labels, defendant concluded uses of both pesticides . . . “would cause no significant environmental effect on honeybees or the environment.” Plaintiff sued challenging the approvals and argued defendant violated the California Environmental Quality Act (CEQA) by “approving the label amendments without sufficient environmental review.” The trial court denied plaintiff’s petition, but appellate court reversed, finding that defendant’s “efforts at environmental review here were deficient.”

In Donald Miller and Dorothy Miller, Appellants-Plaintiffs, v. Crawfordsville Electric Light and Power and City of Crawfordsville, Appellees-Defendants, No. 54A01-1608-PL-2048, 2017 WL 4159718 (Ind. Ct. App. September 20, 2017), plaintiffs sued after employees of defendant sprayed a chemical treatment on several trees on plaintiff’s property causing the trees to die. Defendants countered that the Indiana Tort Claims Act (ITCA) provides that “a tort claim against a political subdivision is barred unless notice is filed with the governing body of that subdivision within 180 days after the loss occurs.” Court observed that plaintiffs knew their trees were sprayed, but “did not file their notice of claim until . . . after the expiration of the 180-day period under the ITCA.” Case dismissed.

In GRAND CANYON TRUST, Plaintiff, v. ENERGY FUELS RESOURCES (U.S.A.) INC., EFR White Mesa LLC, Energy Fuels Inc., and Energy Fuels Holding Corp., Defendants, No. 2:14–cv–243, 2017 WL 4122614 (D. Utah September 15, 2017), plaintiff sued a uranium mill for violating the Clean Air Act (CAA). Issue was whether the mill “complied with radon emission regulations and, even if it did not, if the Trust’s enforcement action is proper under the Clean Air Act’s citizen-suit provision and Article III of the Constitution.” Regarding the monitoring of radon emissions, the court concluded it would not “disrupt the monitoring and regulation where the standard is flexible and Congress intended for the state to be the primary regulating entity.” Court found that the mill was not in violation of the “radon flux limit” and granted summary judgment for defendant.

ORCHARD HILL BUILDING COMPANY, Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS, Defendants, No. 15-cv-06344, 2017 WL 4150728 (N.D. Ill. September 19, 2017) involved a housing development and some undeveloped wetlands property. Plaintiff challenged defendants’ “jurisdictional determination over its property” and claimed the jurisdictional determination was invalid, “even with sufficient nexus, because the property falls within the prior converted cropland exception to the CWA.” Court reasoned that the wetlands on the parcel at issue “do not qualify for the prior converted cropland exemption.” The court also concluded that “artificial wetlands and building conversion exemptions . . . do not apply here because those exemptions are not relevant to jurisdictional determinations under the CWA.” Summary judgment granted for defendant.

SAZERAC COMPANY, INC., et al., Plaintiffs, v. FETZER VINEYARDS, INC., Defendant, No. 3:15-cv-04618-WHO, 2017 WL 4150343 (N.D. Cal. September 19, 2017) involved trademark and trade dress infringement wherein plaintiff claimed defendant’s trade dress on its “1000 Stories red zinfandel wine infringed the trade dress of Sazerac’s Buffalo Trace bourbon.” Court noted that plaintiff did not establish that defendant “intended to infringe at the creation of its product or in its marketing,” and provided “no evidence of actual confusion between the products.” Judgement for defendant.

LEGISLATIVE:

MEETING: Senate Committee on Energy and Natural Resources. Hearings to examine the nominations of Bruce J. Walker, of New York, to be an Assistant Secretary (Electricity Delivery and Energy Reliability), and Steven E. Winberg, of Pennsylvania, to be an Assistant Secretary (Fossil Energy), both of the Department of Energy. Sept. 26 at 10 a.m. (Location: SD-366)

MEETING: House Committee on Natural Resources Meeting. Oversight Hearing titled “Empowering State Based Management Solutions for Greater Sage Grouse Recovery.” Sept. 27 at 9:30 a.m. (Location: LHOB 1334)

MEETING: House Committee on Agriculture. Examining the 2017 Agenda for the Commodity Futures Trading Commission. Sept. 27 at 10 a.m. (Location: LHOB 1300)

REGULATORY: Includes AMS, ARS, USDA, EPA, FWS, FDA, FSIS, NASS, and NOAA rules and notices.

AGRICULTURAL MARKETING SERVICE: Notice announcing the Agency’s intent to request emergency approval from the Office of Management and Budget (OMB) for a new information collection for beef producers, where applicable, to provide prior affirmative consent authorizing a state Qualified State Beef Council (QSBC) to retain a portion of their assessments collected under the Beef Promotion and Research Act of 1985. Details here.

AGRICULTURAL RESEARCH SERVICE:

Notice that the U.S. Department of Agriculture, Forest Service, intends to grant to DVO, Inc. of Chilton, Wisconsin, an exclusive license to the Federal Government’s rights in U.S. Patent No. 8,414,808, “Composite Components from Anaerobic Digested Fibrous Materials”, issued on April 9, 2013. Info here.

Notice the U.S. Department of Agriculture, Agricultural Research Service, intends to grant to Rainier Seeds, Inc. of Davenport, Washington, an exclusive license to the variety of crested wheatgrass described in Plant Variety Protection Application Number 201600403, `USDA-FORAGECREST,’ filed on September 4, 2016. Info here.

AGRICULTURE DEPARTMENT: Notice USDA has submitted the following information collection requirement(s) to OMB for review. Title: Assessment of States’ Use of Computer Matching Protocols in SNAP. Details here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is approving portions of a state implementation plan (SIP) revision submittal from the State of Delaware pursuant to the Clean Air Act. Details here.

Rule EPA is conditionally approving revisions to the Texas State Implementation Plan (SIP) addressing Oxides of Nitrogen (NOX) Reasonably Available Control Technology (RACT) for the Martin Marietta cement manufacturing plant in Ellis County. Details here.

Rule EPA is proposing to approve a temporary modification of the currently-designated Massachusetts Bay Dredged Material Disposal Site pursuant to the Marine Protection, Research, and Sanctuaries Act. Details here.

FISH AND WILDLIFE SERVICE:

Notice FWS is proposing to renew an information collection. Title: Endangered and Threatened Wildlife, Experimental Populations. Details here.

Notice the BLM will be analyzing potential impacts of their decision regarding Hycroft Resource and Development Incorporated’s proposed expansion as described in BLM’s notice of intent published in December 2014. Info here.

Notice FWS issued permits to conduct certain activities with endangered species, marine mammals, or both. Details here.

FOOD AND DRUG ADMINISTRATION:

Rule is announcing that Zinpro Corp. has filed a petition proposing that the food additive regulations be amended to provide for the safe use of chromium DL-methionine as a nutritional source of chromium in cattle feed. Info here.

Notice The requirements for color additive certification are described in 21 CFR part 80. In the certification procedure, a representative sample of a new batch of color additive, accompanied by a “request for certification” that provides information about the batch, must be submitted to FDA’s Office of Cosmetics and Colors. Info here.

Notice the Public Health Security and Bioterrorism Preparedness and Response Act of 2002 added section 414 of the Federal Food, Drug, and Cosmetic Act, which requires that persons who manufacture, process, pack, hold, receive, distribute, transport, or import food in the United States establish and maintain records identifying the immediate previous sources and immediate subsequent recipients of food. Details here.

Notice the Federal Food, Drug, and Cosmetic Act requires the establishment of a Reportable Food Registry (the Registry) by which instances of reportable food must be submitted to FDA by responsible parties and may be submitted by public health officials. Details here.

FOOD SAFETY AND INSPECTION SERVICE: Notice FSIS with participation from the Food and Drug Administration (FDA), the Centers for Disease Control and Prevention (CDC), the National Center for Biotechnology Information (NCBI), and other stakeholders is hosting a public meeting to discuss FSIS’ and other agencies’ practices and plans for collecting and analyzing whole genome sequence (WGS) data of bacteria isolated from official samples. Info here.

NATIONAL AGRICULTURAL STATISTICS SERVICE: Notice NASS will seek approval to conduct a new information collection to gather data related to the number of producers, acreage, number of vines, age of vines, etc. of wine grape varieties. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Notice announcing receipt of an exempted fishing permit (EFP) application from the International Halibut Commission. Info here.

Notice announcing receipt of an exempted fishing permit (EFP) application from the Alaska Seafood Cooperative. Details here.

Notice the New England Fishery Management Council (Council) is scheduling a public meeting of its Scientific & Statistical Committee to consider actions affecting New England fisheries in the exclusive economic zone. Details here.

Notice the Western Pacific Fishery Management Council (Council) will hold its 127th Scientific and Statistical Committee (SSC) meeting. Info here.