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

                                                                                                                                               

JUDICIAL: Includes Colorado state law, take of wildlife

In State of Colorado v. 5 Star Feedlot Inc., No. 18CA1131 2019 WL 5444307 (Colo. App. Oct. 24, 2019) the Colorado State Court of Appeals considered whether 5 Star Feedlot, a cattle feedlot in the eastern portion of the state, could be liable under state law section 33-6-110, C.R.S. 2019 for “taking” wildlife after a heavy rainstorm caused one of the wastewater containment ponds on the lot to overflow, allegedly killing close to 15,000 fish in a river several miles away. The alleged take occurred in 2015, and this action was initially brought by the State of Colorado under state law section 33-6-110(1) which authorizes the Colorado Division of Parks and Wildlife to bring a civil action “to recover possession or value or both possession and value of any wildlife taken in violation of articles 1 to 6” of title 33. 5 Star Feedlot moved to dismiss the complaint in the district court, arguing that it didn’t “take” fish under the wildlife code’s definition of “take.” The district court denied that motion and ultimately concluded that 5 Star Feedlot had “taken” the fish in violation of the wildlife statues. 5 Star Feedlot appealed that determination to this court, arguing that it did not “take” any fish in violation of the law because it had not “knowingly” taken any fish, and didn’t perform any voluntary act causing the fish to die. The Court of Appeals agreed with 5 Star Feedlot, finding that the state law required that a party have a “culpable mental state of ‘knowingly’” taking wildlife in order to violate the statute. The court concluded that 5 Star Feedlot had not violated the state statute because it had not knowingly caused the wastewater to overflow and kill the fish.

                                                                                                                                               

REGULATORY: Includes AMS, EPA, NOAA

AGRICULTURAL MARKETING SERVICE

Withdrawal of Proposed Rule to remove varietal exemptions from the California table grape marketing order and the table grape import regulation as well as to remove administrative exemptions previously granted for certain varieties of imported grapes. Info here.

ENVIRONMENTAL PROTECTION AGENCY

Final Rule establishing tolerances for residues of pendimethalin in or on the leaf petiole vegetable subgroup 22B, monarda oil, monarda fresh leaves, rosemary oil, and rosemary fresh leaves. Info here.

Final Rule establishing tolerances for residues of sulfoxaflor in or on rice grain, rice hulls, and avocados. Info here.

Final Rule establishing tolerances for residues of fenbuconazole in or on tea. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION

Temporary Rule implementing accountability measures for commercial gray triggerfish in the exclusive economic zone (EEZ) of the South Atlantic and closing the commercial sector for gray triggerfish in the South Atlantic EEZ to protect the gray triggerfish resource. Info here.

Proposed Rule implementing recreational sector management measures as described in Vision Blueprint Recreational Regulatory Amendment 26 to the Fishery Management Plan for the Snapper-Grouper Fisher of the South Atlantic Region. This proposed rule would remove the minimize size limits for queen snapper, silk snapper, and blackfin snapper, reduce the minimum size limit for gray triggerfish, and modify the 20-fish snapper-grouper aggregate bag limit. Info here.