Cupids Health

Ag & Food Law Daily Update: April 29, 2021


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

                                                                                                                                               

JUDICIAL: Includes NEPA, NFMA, environmental law, public lands

In WildEarth Guardians v. Bail, No. 2:20-CV-440-RMP, 2021 WL 1550567 (E.D. Wash. Apr. 20, 2021), the court considered whether to grant an injunction that would prevented the United States Forest Service (“USFS”) from authorizing domestic sheep grazing on certain allotments (“Wentachee allotments”) within the Okanogan-Wenatchee National Forest while the underlying challenge proceeds. The Wentachee allotments are located within bighorn sheep habitat, and in 2019 USFS started a new NEPA process for the planning and management of domestic sheep and goat grazing within the range of bighorn sheep habitat. The completed NEPA analysis is expected in November, 2021. The plaintiffs in this case allege that by continuing to authorize domestic sheep grazing on the Wentachee allotments, USFS has violated its duties under both the National Forest Management Act (“NFMA”), and the National Environmental Policy Act (“NEPA”) to protect bighorn sheep populations and to supplement outdated environmental analyses. Specifically, the plaintiffs argue that domestic sheep grazing on the Wentachee allotments should no longer be allowed because of the risk of disease transmission between domestic sheep and bighorn sheep. Accordingly, the plaintiffs have asked the court to issue an injunction on grazing in the Wentachee allotments while the challenge is litigated.

In the Ninth Circuit, a court will only issue an injunction if the party seeking the injunction has made a “clear showing” that: (1) it is likely to succeed on the merits of the case; (2) it is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tip in its favor; and (4) an injunction is in the public interest. According to the court, the plaintiffs in this case have failed to make a “clear showing” that they would suffer an irreparable injury without injunctive relief. The plaintiffs argued that an irreparable injury would occur without an injunction preventing grazing on the Wentachee allotments because continuing to allow grazing may result in the transmission of deadly diseases to bighorn sheep. Ultimately, the court concluded that the plaintiffs failed to show that such an injury would occur because of a lack of evidence that “the spatial separation between domestic sheep and bighorn sheep desired by [the] plaintiffs” would occur as a result of closing the Wentachee allotments while the underlying case was litigated. Therefore, the court denied preliminary injunction.

 REGULATORY: Includes EPA, FEMA, FWS, NOAA

Environmental Protection Agency

Notice announcing the availability of EPA’s interim registration review decisions for various chemicals. Info here.

Notice announcing the availability of the EPA’s preliminary work plan for the following chemical: Metrafenone. Info here.

Federal Emergency Management Agency

Final rule identifying communities where the sale of flood insurance has been authorized under the National Flood Insurance Program that are scheduled for suspension on the effective dates listed within this rule because of noncompliance with the floodplain management requirements of the program. Info here.

Fish and Wildlife Service

Final rule designating critical habitat for the northern Mexican gartersnake under the Endangered Species Act. Info here.

Final rule revising the migratory bird subsistence harvest regulations in Alaska. Info here.

National Oceanic and Atmospheric Administration

Temporary rule prohibiting directed fishing for Pacific cod by catcher vessels using trawl gear in the Bering Sea and Aleutian Islands management area. Info here.

Temporary rule prohibiting directed fishing for Greenland turbot in the Aleutian Islands subarea of the Bering Sea and Aleutian Islands management area. Info here.



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