A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions to: camarigg at uark.edu

ANNOUNCEMENT: Join us tomorrow, September 21, at 12 noon (ET) for a free webinar: CRISPR: A Biotechnology Breakthrough and an Inventorship Quandary. Details and sign-in information here.  

JUDICIAL: Includes H-2A, ESA, contract, and procedural issues.

In Hispanic Affairs Project v. Perez, No. 15-CV-01562 (BAH), 2016 WL 4734350 (D.D.C. Sept. 9, 2016), plaintiffs, including two foreign sheepherders employed on temporary H-2A visas, sued Department of Labor (DOL) and two private defendants (Association Defendants), challenging DOL’s application of a superceded 2011 administrative rule and a new 2015 Rule set out in Training and Employment Guidance Letters (TEGLs). Plaintiffs also sought claims against the Association Defendants, seeking back pay under both the 2011 TEGLs and 2015 Rule. Plaintiffs sought back pay on the basis of quasi-contract and argued that because “minimum wages set under the 2011 TEGL[s] and the 2015 Rule are invalid, the wage terms in the service contracts” entered into with the employers are “unenforceable.” Court considered whether the plaintiffs could establish that “wage terms in employment contracts with foreign sheepherders are invalid” and whether the Association Defendants’ “retention of the benefit was unjust.” Court found the declaratory order sought by the plaintiffs “is attenuated from the ultimate relief they seek of back pay from the employers and, even if granted, would not considerably help them obtain that particular remedy.” Accordingly, plaintiffs’ claims dismissed for lack of redressability and standing.

In NEW ENGLAND ANTI-VIVISECTION SOCIETY, et al., Plaintiffs, v. UNITED STATES FISH AND WILDLIFE SERVICE, et al., Defendants, & YERKES NATIONAL PRIMATE RESEARCH CENTER, Intervenor-Defendant., No. 16-CV-149 (KBJ), 2016 WL 4919871 (D.D.C. Sept. 14, 2016), plaintiff sued United States Fish and Wildlife Service (FWS) to enjoin the agency’s grant of a wildlife export permit. Plaintiffs object to FWS’s decision to permit the transfer of eight chimpanzees to a zoo in the UK. Plaintiff’s argued FWS’s actions violated the ESA, the APA, the NEPA, and the CITES. Court observed that “principles of Article III standing permit ‘human beings [to] invoke their own injuries in fact to challenge harms done to animals,’ . . . but it can be ‘exceptionally confusing’ to apply settled standing doctrine to determine when and under what circumstances an act that is allegedly harmful to animals works a cognizable injury in fact to human plaintiffs.” Court stated that “Plaintiffs themselves must have a concrete and particularized injury in fact that is actual or imminent,” and concluded, “plaintiffs have not satisfied these threshold requirements under binding law regarding Article III standing in animal-welfare and environmental-law cases.” Defendant’s motion for summary judgment granted.

NESTLÉ PURINA PETCARE COMPANY, Plaintiff/Counterclaim Defendant, v. THE BLUE BUFFALO COMPANY LTD., Defendant/Counterclaim Plaintiff,, No. 4:14 CV 859 RWS, 2016 WL 4917600 (E.D. Mo. Sept. 15, 2016) concerned a false advertising pet food case. Plaintiff alleged defendant falsely advertised its pet foods as “free of poultry by-product meal and meeting other nutritional claims” in violation of the Lanham Act. Defendant admitted that poultry by-product was in some of its pet foods, but argued both its ingredient supplier and broker deceived them. Defendant brought third-party claims for breach of contract and indemnification against supplier and broker. Court declared the breach of contract claim was “subsumed” by defendant’s warranty claims. Court further found that defendant failed to allege “any facts to plausibly suggest that the parties intended that [defendant] have a right of indemnification” against the third parties. Defendant’s claim for implied-in-fact indemnity dismissed.

Pigford v. Vilsack, No. CV 97-1978 (PLF), 2016 WL 4921378 (D.D.C. Sept. 15, 2016) concerned a decision impacting a class of African-American farmers that sued USDA for discrimination in determining farming credit and benefits. In April 1999, the court approved a Consent Decree settling plaintiffs’ claims and creating a method for resolving individual claims of class members outside routine litigation. Here, four sets of pro se parties asked for further hearings under the 1999 Consent Decree. The court observed that it had previously considered similar motions and concluded that it had “no authority to entertain these arguments, which were clearly foreclosed by the terms of the Consent Decree.” The court further noted that “the same conclusion holds true today — indeed, even more so in light of the Wind-down Stipulation and Order rendered on November 2, 2015.” The court found the four pro se motions “barred by the doctrine of res judicata.”

REGULATORY: Includes FCIC, FRNA, FS, NOAA and NTIA rules and notices.

FEDERAL CROP INSURANCE CORPORATION:

Notice announcing a public comment period on the information collection requests associated with the Area Risk Protection Insurance. Info here.

Notice announces a public comment period on the information collection requests associated with the Subpart U— Ineligibility for Programs under the Federal Crop Insurance Act. Details here.

FIRST RESPONDER NETWORK AUTHORITY: Notice FirstNet announces the availability of the Draft Programmatic Environmental Impact Statement for the West Region. Info here.

FOREST SERVICE: Notice USDA submitted information collection requirement(s) to OMB for review and clearance. Title: Application and Permit for Non-Federal Commercial Use of Roads, Trails and Areas Restricted by Regulation or Order. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS announces a valid specified fishing agreement that allocates up to 1,000 metric tons of the 2016 bigeye tuna limit for the Commonwealth of the Northern Mariana Islands to identified U.S. longline fishing vessels. Details here.

Rule the Mid-Atlantic and New England Fishery Management Councils are developing an omnibus amendment to allow for industry-funded monitoring. Info here.

Notice soliciting nominations for the National Sea Grant Advisory Board and notice of public meeting. Details here.

Notice NMFS received a request from the Sonoma County Water Agency for authorization to take marine mammals incidental to conducting estuary management activities in the Russian River, CA, over the course of five years. Info here.

NATIONAL TELECOMMUNICATIONS AND INFORMATION ADMINISTRATION: Notice FirstNet announces the availability of the Draft Programmatic Environmental Impact Statement for the West Region. Details here.