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


ANNOUNCEMENT: Join us TODAY 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, agritourism, conservation programs, and CWA issues.

In WASCO LLC, Petitioner, v. N.C. DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, DIVISION OF WASTE MANAGEMENT, Respondent, No. COA16-414, 2017 WL 1381586 (N.C. Ct. App. April 18, 2017), plaintiff sought declaration it was not an “operator” of a textile manufacturing facility and not responsible for “remedial cleanup efforts” required by the Resource Conservation and Recovery Act and North Carolina’s Hazardous Waste Program. Issue on appeal was whether plaintiff was “an operator of a landfill for purposes of the State Hazardous Waste Program’s post-closure permitting requirement.” Appellate court focused on definition of the term “closure” and stated “closure of a solid waste management facility is the time it ceases to operate, that definition also makes clear closure includes the act of securing the facility to prevent future harm.” Court declared plaintiff “an operator of a landfill for purposes of the post-closure permitting requirement at the Site” and affirmed lower court.

CLAYTON BYRD in his official capacity as Executive Director of the TENNESSEE ALCOHOLIC BEVERAGE COMMISSION, et al., Plaintiffs, v. TENNESSEE WINE AND SPIRITS RETAILERS ASSOCIATION, Defendant, No. 3:16-cv-02738, 2017 WL 1364730 (M.D. Tenn. April 14, 2017) involved a Tennessee company whose members are not residents of Tennessee, but wanted to operate liquor stores in the state. Per statute, “No retail license under this section may be issued to any individual: Who has not been a bona fide resident of this state during the two-year period immediately preceding the date upon which application is made to the commission.” Issue was whether state residency requirements violate the dormant Commerce Clause. Court found “no showing that the residency requirements advance a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives.” Court declared the residency requirements unconstitutional under the dormant Commerce Clause.

CLARENCE E. MOCK III, SPECIAL ADMINISTRATOR OF THE ESTATE OF CARL LANDGRAF, DECEASED, APPELLANT AND CROSS-APPELLEE, v. GAIL L. NEUMEISTER AND MARLENE NEUMEISTER, APPELLEES AND CROSS-APPELLANTS, No. S-15-1226, 296 Neb. 376 (Neb. April 14, 2017) involved estate planning issues and an appeal from an order refusing to set aside life-time transfers of tracts of farmland as a result of alleged undue influence. Issue was whether plaintiff proved by “clear and convincing evidence” the deeds were the result of undue influence. Court not persuaded by plaintiffs arguments and found “no abuse of discretion by the district court in declining to tax costs of depositions.” District court decree affirmed.

In HAYES OYSTER COMPANY, Plaintiff, v. OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY and RICHARD WHITMAN, in his official capacity as its interim director, Defendants, No.: 3:16-cv-02028-JE, 2017 WL 1381659 (D. Or. April 17, 2017), plaintiff, a commercial oyster harvester, took issue with defendant’s regulation of National Pollutant Discharge Elimination System (NPDES) permits. Plaintiff argued “wasteload allocations for NPDES permitted dischargers in the Tillamook Watershed are not reasonably calculated to attain compliance with the water quality standard for all shellfish growing waters . . . and the zero load assumption does not meet Defendant DEQ’s duty under federal law.” Plaintiff filed a claim for public nuisance and sought redress under federal law. Court observed that, “Although the federal-state relationship envisioned by the Clean Water Act—and envisioned by the TMDL scheme at issue—includes a residual federal component, Plaintiff has not convinced the Court that Congress intended federal courts to be the avenue by which parties may challenge state TMDL decisions.” Defendant’s motion to dismiss for lack of subject matter jurisdiction granted.


REGULATORY: Includes USDA, EPA, FWS, FDA, NASS and NOAA rules and notices.

AGRICULTURE DEPARTMENT: Notice USDA has submitted information collection requirement(s) to OMB for review. Title: Special Supplemental Nutrition Program for Women, Infants, and Children (WIC) Program Regulations—Reporting and Recordkeeping Burden. Info here.

ENVIRONMENTAL PROTECTION AGENCY: Rule establishes tolerances for residues of deltamethrin in or on orange; citrus, dried pulp; citrus, oil. Details here.

FISH AND WILDLIFE SERVICE: Notice FWS is initiating 5-year status reviews for 138 species in Hawaii, Oregon, Washington, and California under the Endangered Species Act. Details here.

FOOD AND DRUG ADMINISTRATION: Notice that a proposed collection of information was submitted to OMB for review. Title: Current Good Manufacturing Practice in Manufacturing, Packaging, Labeling, or Holding Operations for Dietary Supplements. Details here.

NATIONAL AGRICULTURAL STATISTICS SERVICE: Notice NASS announces a meeting of an Expert Panel on Publication of Farm Operator Demographic data obtained through the 2017 Census of Agriculture. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMNISTRATION:

Rule approving the Pacific Halibut Catch Sharing Plan and codified regulations for the International Pacific Halibut Commission’s regulatory Area 2A off Washington, Oregon, and California. Info here.

Notice NOAA received an application for five-year extensions of Deep Seabed Mining Exploration Licenses. Info here.

Notice NMFS evaluated one Tribal Resource Management Plan submitted by the Confederated Tribes of the Colville Reservation. Details here.