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


ANNOUNCEMENT: Join us Thursday, April 20, at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: Ag Taxation & Reform 101:  What You Need to Know. Details available here.


JUDICIAL: Includes environmental, Urb & Ag, nutrition programs, and animal welfare issues.

CALIFORNIA CHAMBER OF COMMERCE et al., Plaintiffs and Appellants, v. STATE AIR RESOURCES BOARD et al., Defendants and Respondents, NATIONAL ASSOCIATION OF MANUFACTURERS, Intervener and Appellant; ENVIRONMENTAL DEFENSE FUND et al.; Interveners and Respondents, MORNING STAR PACKING COMPANY et al., Plaintiffs and Appellants, v. STATE AIR RESOURCES BOARD et al., Defendants and Respondents; ENVIRONMENTAL DEFENSE FUND et al.; Interveners and Respondents, C075930, C075954, 2017 WL 1282055 (Cal. Ct. App. April 6, 2017) involved the California Global Warming Solutions Act of 2006 enacted to reduce greenhouse gas (GHG) emissions. The State Air Resources Board created a “cap-and-trade” program that includes the auction sale of some GHG emissions allowances. Plaintiffs claimed the auction sales exceed the Legislature’s delegation of authority and the revenue generated by the auction sales amounts to a tax. Appellate court held that Legislature gave broad discretion to the Board to design a distribution system, Court also agreed with lower court that the auction sales do not equate to a tax.” Ruling for defendants affirmed.

In SIERRA CLUB, Plaintiff, v. CHESAPEAKE OPERATING, LLC; Devon Energy Production Co., LP; SandRidge Exploration and Production, LLC; and New Dominion, LLC, Defendants, No. CIV–16–134–F, 2017 WL 1287546 (W.D. Okla. April 4, 2017, plaintiff sued under the Solid Waste Disposal Act alleging that injection of liquid waste from oil and gas extraction activities by defendants has contributed to an increase in earthquakes throughout Oklahoma. Per plaintiff, the earthquakes induced by defendants’ activities “present an imminent and substantial endangerment to the public health or environment.” Plaintiff also alleged waste-induced earthquakes have caused property damage. Defendants argued court should decline to exercise jurisdiction over this action under the “Burford abstention” and primary jurisdiction doctrines “because the Oklahoma Corporation Commission has taken action in response to the increased seismicity caused by wastewater disposal activities.” Court dismissed suit per the Burford abstention and primary jurisdiction doctrines.

TRANSCONTINENTAL GAS PIPE LINE COMPANY, LLC, Plaintiff, v. PERMANENT EASEMENTS FOR 2.14 ACRES AND TEMPORARY EASEMENTS FOR 3.59 ACRES IN CONESTOGA TOWNSHIP, LANCASTER COUNTY, PENNSYLVANIA; Hilltop Hollow Limited Partnership; Hilltop Hollow Partnership, LLC General Partner of Hilltop Hollow Limited Partnership; and Lancaster Farmland Trust, Defendants. Transcontinental Gas Pipe Line Company, LLC, Plaintiff, v. Permanent Easement for 2.02 Acres and Temporary Easements for 2.76 Acres in Manor Township, Lancaster County, Pennsylvania; and Stephen Hoffman, Defendants, No. 5:17-cv-00715, No. 5:17-cv-00723, 2017 WL 1283948 (E.D. Pa. April 6, 2017) involved plaintiff’s project to construct a natural gas pipeline running through five states. The Federal Energy Regulatory Commission (FERC) authorized the construction and operation of the pipeline and plaintiff filed fourteen “complaints in condemnation” seeking rights-of-way on defendants’ properties. Here, plaintiff sought motion for preliminary injunction and court reasoned that “a determination as to whether [plaintiff] has a right to condemn, which must be established before the Court may grant injunctive relief, would be premature.”  Court ruled plaintiff “failed to show that it will suffer irreparable harm,” and denied motion.

ALABAMA DEPARTMENT OF PUBLIC HEALTH v. SU WON LEE d/b/a First Avenue Meat and Fish Market, 2160139, 2017 WL 1291131 (Ala. Civ. App. April 7, 2017) involved a decision by a health department disqualifying a grocery store from participating as an authorized vendor in the Alabama Women, Infants, and Children (WIC) program. Issue was whether vendor engaged in “[a] pattern of claiming reimbursement for the sale of an amount of a specific WIC food item that exceeds the vendor’s documented inventory of that WIC food item for a specific period of time.” Health Department provided “substantial evidence demonstrating that First Avenue’s redemptions for infant formula and for milk products exceeded its documented inventory.” Defendant’s disqualification from program upheld.

In STATE of Oregon, Plaintiff-Respondent, v. Robert Lee WRIGHT, Defendant-Appellant, A158893, 284 Or.App. 641, (Or. Ct. App. April 5, 2017), defendant was convicted of four counts of aggravated animal abuse and appealed, challenging the exclusion of evidence that he “has an intellectual disability and that he has a character for gentleness toward animals.” Defendant argued evidence was “relevant to his mental state in committing the offenses.” Appellate court concluded trial court did not err in excluding a reference to defendant’s intellectual disability and that exclusion of evidence of his character for gentleness was “harmless.” Defendant’s convictions affirmed.


REGULATORY: Includes AMS, USDA, FWS, NOAA and USPTO rules and notices.

AGRICULTURAL MARKETING SERVICE: Notice AMS announces a meeting of the Plant Variety Protection Board. Details here.

AGRICULTURE DEPARTMENT:

Notice announcing the Office of Communications will request approval for a new information collection for Event Appearance Requests for the Secretary or members of his staff. Info here.

Notice USDA has submitted information collection requirement(s) to OMB for review. Title: Importation of Fresh Citrus Fruit from Uruguay into the United States. Info here.

FISH AND WILDLIFE SERVICE: Notice that on November 18, 2016, the U.S.-Russia Polar Bear Commission unanimously agreed to maintain the annual taking limit adopted in 2010 for the Alaska-Chukotka polar bear population. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS issues regulations to implement management measures described in Amendment 26 to the Fishery Management Plan for the Coastal Migratory Pelagics Fishery of the Gulf of Mexico and Atlantic Region. Info here.

Rule NMFS is issuing regulations under the Tuna Conventions Act to implement Resolution C-17-01 (Conservation of Tuna in the Eastern Pacific Ocean During 2017). Info here.

Notice Department of Commerce seeks comment on proposed information collections for national marine sanctuary nominations. Details here.

PATENT AND TRADEMARK OFFICE: Notice USPTO will be holding a public symposium on issues relevant to the protection of trade secrets. Info here.