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 FCIC, APA and negligence issues.

Ace Am. Insurcance Co. v. Fed. Crop Ins. Corp., No. 14-1992 (RCL), 2016 WL 5118279 (D.D.C. Sept. 20, 2016) concerned a contract to reinsure crops. Plaintiffs (crop insurance providers) argued the Federal Crop Insurance Corporation (FCIC) improperly modified the actuarial methodology setting premiums for crops. Plaintiffs claimed they entered into a five-year standard agreement based upon representations from FCIC that the actuarial methodology underlying premiums would not change. The court noted that “merely pleading that changing the rates was a statutory violation rather than an action ‘not in accordance with’ the standard agreement is problematic.” The court considered a number of plaintiff’s claims and concluded that, “plaintiffs could have, but elected not to, challenge the Board’s holding under the APA. In light of the fact they did not do so and are not entitled to a de novo proceeding,” defendant’s motion to dismiss granted.

In THE HUMANE SOCIETY OF THE UNITED STATES, et al., Plaintiffs, v. GINA McCARTHY, in her official Capacity as Administrator, United States Environmental Protection Agency, and UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendants, No. 15-cv-00141 (TSC) 2016 WL 5107003 (D.D.C. Sept. 19,2016), plaintiffs sued EPA pursuant to the Administrative Procedure Act (APA), seeking to compel EPA to provide a response to their 2009 petition for rulemaking. That petition requested that EPA regulate Concentrated Animal Feeding Operations (CAFOs). Plaintiffs argued EPA’s failure to respond to their petition violated the APA. The court noted, “whether this court has jurisdiction in this matter turns on whether the government has waived immunity to suit.” Per the court, “Plaintiffs failed to effectuate waiver of sovereign immunity through notice,” and therefore, the court “lacks subject matter jurisdiction over this particular dispute.” Defendant’s motion to dismiss granted.

In Joseph GONZALEZ, Appellant v. BANDERA COUNTY, Appellee, No. 04-16-00142-CV, 2016 WL 5172654 (Tex. App. Sept. 21, 2016), plaintiff was injured when thrown from his motorcycle while crossing a cattle guard on a public road. Plaintiff argued the cattle guard was a “special defect,” and evidence suggested Bandera County breached duty of care owed invitees. Court examined facts of the case and noted, “Even if the prior repairs supported an inference that the cattle guards might need repairs in the future, the possibility that a dangerous condition involving the cattle guards could develop over time is insufficient to show actual knowledge.” Evidence established Bandera County did not have “actual knowledge” of the condition of the cattle guard and affirmed trial court ruling for defendant.

LEGISLATIVE: 

H.R. 845: National Forest System Trails Stewardship Act. This bill’s text for status Reported by House Committee (Sep 20, 2016) is now available.

H.R. 2494: Eliminate, Neutralize, and Disrupt Wildlife Trafficking Act of 2016. Bill was passed by Congress on September 21, 2016 and goes to the President.

H.R. 2647: Emergency Wildfire and Forest Management Act of 2016. This bill’s text for status Reported by Senate Committee (Sep 19, 2016) is now available.

H.R. 3957: Emergency Citrus Disease Response Act of 2016. Passed 400/20.

H.R. 5883: Clarification of Treatment of Electronic Sales of Livestock Act of 2016. This bill’s text for status Reported by House Committee (Sep 20, 2016) is now available.

H.R. 6081: To provide for a land conveyance in the State of Nevada. Bill was referred to the House Committee on Natural Resources which will consider it before sending it to the House. Sponsor: Rep. Cresent Hardy [R-NV4].

H.R. 6099: To support the establishment and improvement of communications sites on or adjacent to Federal lands under the jurisdiction of the Secretary of the Interior or the Secretary of Agriculture through the retention and use of rental fees associate. Bill referred to the House Committee on Agriculture and House Committee on Natural Resources which will consider it before sending it to the House. Sponsor: Rep. Cresent Hardy [R-NV4].

REGULATORY: Includes APHIS, EPA, FS and NOAA rules and notices.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE: Notice APHIS will extend determination of nonregulated status of J.R. Simplot Company’s Innate Potato designated as Russet Burbank event W8 to Simplot’s Ranger Russet variety (X17) and Atlantic variety (Y9) potatoes. Details here.

ENVIRONMENTAL PROTECTION AGENCY: Rule establishing tolerances for residues of flupyradifurone in or on multiple commodities. Bayer CropScience LP requested these tolerances under the Federal Food, Drug, and Cosmetic Act. Info here.

FOREST SERVICE:

Notice FS is withdrawing the Notice of Intent to prepare an Environmental Impact Statement for the Dalton Mountain Forest Restoration and Fuels Reduction project on the Lincoln Ranger District of the Helena-Lewis and Clark National Forest. Details here.

Notice Berlaimont Estates LLC owns a 680-acre private inholding completely within the White River National Forest to the north of Interstate 70 in the vicinity of Edwards, Colorado. Info here.

NATIONAL OCEANIC AND ATMOPSHERIC ADMINISTRATION: Rule NMFS issues proposed rule to implement Amendment 47 to the Fishery Management Plan for Bering Sea/Aleutian Islands King and Tanner Crabs and to make minor clarifications to regulations implementing the Crab FMP. Info here.