Agricultural Law Weekly Review—June 2, 2016

Written by M. Sean High – Staff Attorney

The following information is an update of recent, local, state, national, and international legal developments relevant to agriculture:

Water: SCOTUS Holds Landowners may Challenge WOTUS Determinations in Court

On May 31, 2016, the Supreme Court of the United States held that landowners have the ability to bring legal action against the U.S. Army Corps of Engineers (Corps) determinations regarding whether a particular piece of property contains waters of the United States (U.S. Army Corps of Engineers v. Hawkes Co. Inc.).  According to the Court, a Corps issued waters of the United States “revised jurisdictional determination” is a “final agency action” that provides no other “adequate alternative to challenging it in court.”

Food Safety: FDA Publishes FSMA Final Rule for Food Facility Hazards

On May 27, 2016, the Food and Drug Administration (FDA) published notice in the Federal Register of a final rule entitled Mitigation Strategies to Protect Food against Intentional Adulteration (81 FR 34165).  According to FDA, the department “is issuing this final rule to require domestic and foreign food facilities that are required to register under the Federal Food, Drug, and Cosmetic Act (the FD&C Act) to address hazards that may be introduced with the intention to cause wide scale public health harm.” The final rule becomes effective July 26, 2016.

Labor: DOL Sues Pilgrim’s Pride for Alleged Hiring Discrimination

On May 25, 2016, the U.S. Department of Labor issued a press release announcing that the agency’s Office of Federal Contract Compliance Programs has filed a lawsuit with the Office of Administrative Law Judges “alleging that Pilgrim’s Pride Corp. has systematically discriminated against female, African American and white jobseekers at its Mount Pleasant processing facility.” According to the press release, Pilgrim’s Pride currently holds federal contracts in excess of $75 million and the company’s alleged actions violated Executive Order 11246 which “prohibits federal contractors from discriminating in employment based on race, color, religion, sex, sexual orientation, gender identity or national origin, and requires contractors to ensure equal opportunity in employment.”

Food Safety: Group Files Suit Seeking FDA Regulation of Oysters

On May 25, 2016 the organization Center for Science in the Public Interest (CSPI) filed a complaint against the U.S. Food and Drug Administration (FDA) regarding CSPI’s 2012 citizen petition filed with FDA asking the agency to establish a performance standard that would ensure levels of the bacteria Vibrio vulnificus “are nondetectable in oysters and other molluscan shell fish sold for raw consumption.” According to the complaint, CSPI seeks court “declaration that [FDA] has acted unlawfully by withholding action on CSPI’s petition and an order requiring [FDA] to act.”

Animal Health: Report Examines Effect of HPAI on Local Economies

The May 2016 issue of the Agricultural and Applied Economics Association’s Choices magazine contained a report assessing the economic effect of the 2014-2015 Highly Pathogenic Avian Influenza (HPAI) outbreak in the United States.  According to the report, “[a]n initial assessment of the local consequences suggests the outcomes from the HPAI outbreak resulted in fewer jobs, lower output, lower value-added, and decreased local, state, and Federal tax receipts.” The report stated that “[a]pproximately $879 million was spent on the 2014-2015 HPAI outbreak and Fall planning activities…[a]pproximately $200 million of the total mitigation expenditures were indemnity payments…to farmers, growers, and companies, $610 million to response activities on premises…$34 million on Fall planning costs, and the remaining $35 million likely applied to overtime, travel, and supplies for Veterinary Services’ employees.”