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


ANNOUNCEMENT: 

Mark your calendar for the next Agricultural & Food Law Consortium webinar, Wednesday, August 15th: Commercial Shellfish Aquaculture Permitting under Nationwide Permit 48. Details available here.

REGISTER NOW for our upcoming Ag Technology & the Law conference, August 15 and 16 in Little Rock, Arkansas. Details here.


JUDICIAL: Includes aquaculture, renewable energy, and pesticde issues.

In NORTHERN CALIFORNIA POWER AGENCY, et al., Plaintiffs, v. The UNITED STATES, Defendant, No. 14-817C, 2018 WL 3617858 (Fed. Cl. July 30, 2018), plaintiffs sought to recover payments allegedly unlawfully collected by the Bureau of Reclamation. Plaintiffs argued Bureau ignored the “proportionality” provision of the Central Valley Project Improvement Act (CVPIA). Government argued the proportionality provision “is not a mandatory limitation on its maximum fund collection.” Court observed that water customers’ payments “are based upon actual annual usage (lower in drought years), and power customers make up the difference to reach an annual monetary objective.” Issue was whether the Bureau followed statutory mandates. Court found that “the disparity between water and power customers’ payments has occurred most notably in years of severe California droughts.” The court concluded that “[d]isproportionate payments caused by droughts do not constitute illegal exactions under the Fifth Amendment.” Case dismissed.

ALTA WIND I OWNER LESSOR C, Alta Wind I Owner Lessor D, Alta Wind II Owner Lessor A, Alta Wind II Owner Lessor B, Alta Wind II Owner Lessor C, Alta Wind II Owner Lessor D, Alta Wind II Owner Lessor E, Alta Wind III Owner Lessor A, Alta Wind III Owner Lessor B, Alta Wind III Owner Lessor C, Alta Wind III Owner Lessor D, Alta Wind IV Owner Lessor A, Alta Wind IV Owner Lessor B, Alta Wind IV Owner Lessor C, Alta Wind IV Owner Lessor D, Mustang Hills, LLC, Alta Wind V Owner Lessor A, Alta Wind V Owner Lessor B, Alta Wind V Owner Lessor C, Alta Wind V Owner Lessor D, Plaintiffs-Appellees v. UNITED STATES, Defendant-Appellant, 2017-1410, 2018 WL 3595957 (Fed. Cir. July 27, 2018) involved a dispute over government grants provided for windfarms. Here, some windfarm facilities applied for over $700 million in grants. The government awarded “approximately $495 million” in grants. Plaintiffs sued to obtain over $200 million in additional grant payments, but the government maintained it had overpaid plaintiffs by nearly $60 million. Different accounting methods for calculating “basis” provided for the discrepancy. Lower court rejected government’s argument that “basis must be calculated using the residual method.” The residual method found that “the overall purchase price must be allocated on a waterfall basis among several categories of assets, some grant-eligible and some not.” Appellate court overruled lower court for not applying residual method. Vacated and remanded.

In IN RE: DICAMBA HERBICIDES LITIGATION, Main Case 1:18-md-2820-SNLJ, Indiv. Case 1:16-cv-299-SNLJ, 2018 WL 3619509 (E.D. Mo. July 30, 2018), Monsanto sought an order for interlocutory appeal “so it can ask the Eighth Circuit to hold as a matter of law . . . either (1) proximate cause must fail or (2) the third-party farmers’ illegal spraying of old dicamba was an intervening and superseding cause.” Plaintiffs argued “the foreseeability of Monsanto’s conduct is not a legal question—it is a factual question.” The court reasoned that “cases discussing proximate cause contain the exasperating caveat that in deciding questions of proximate cause and efficient, intervening cause, each case must be decided on its own facts,” and concluded that “neither of Monsanto’s proposed questions is a question of law appropriate for interlocutory review.” Monsanto’s motion denied.


LEGISLATIVE:

H.R. 497: Santa Ana River Wash Plan Land Exchange Act. Text for status Reported by Senate Committee (Jul 30, 2018) is now available.

S. 436: San Juan County Settlement Implementation Act. Text for status Reported by Senate Committee (Jul 30, 2018) is now available.

S. 440: A bill to establish a procedure for the conveyance of certain Federal property around the Dickinson Reservoir in the State of North Dakota. Text for status Reported by Senate Committee (Jul 30, 2018) is now available.

S. 930: Western Area Power Administration Transparency Act. Text for status Reported by Senate Committee (Jul 30, 2018) is now available.

S. 1030: A bill to require the Federal Energy Regulatory Commission to submit to Congress a report on certain hydropower projects. Text for status Reported by Senate Committee (Jul 30, 2018) is now available.

S. 1142: J. Bennett Johnston Waterway Hydropower Extension Act of 2017. Text for status Reported by Senate Committee (Jul 30, 2018) is now available.

H.R. 2582: Confirming State Land Grants for Education Act. Thext for status Reported by Senate Committee (Jul 30, 2018) is now available.

H.R. 2768: Fowler and Boskoff Peaks Designation Act. Text for status Reported by Senate Committee (Jul 30, 2018) is now available.

H.R. 2897: To authorize the Mayor of the District of Columbia and the Director of the National Park Service to enter into cooperative management agreements for the operation, maintenance, and management of units of the National Park System. This bill’s text for status Reported by Senate Committee (Jul 30, 2018) is now available.

S. 2074: A bill to establish a procedure for the conveyance of certain Federal property around the Jamestown Reservoir in the State of North Dakota. Text for status Reported by Senate Committee (Jul 30, 2018) is now available.

S. 2102: Acadia National Park Boundary Clarification Act. Text for status Reported by Senate Committee (Jul 30, 2018) is now available.

H.R. 4609: West Fork Fire Station Act of 2017. Text for status Reported by Senate Committee (Jul 30, 2018) is now available.

S. 3302: A bill to amend title 38, United States Code, to provide for the non-applicability of non-Department of Veterans Affairs covenants not to compete to the appointment of physicians in the Veterans Health Administration. Referred to the Senate Committee on Veterans’ Affairs.

S. 3303: A bill to amend the Federal Water Pollution Control Act to make changes with respect to water quality certification. Referred to the Senate Committee on Environment and Public Works.

S. 3312: A bill to suspend proposed rulemaking signed by former Administrator of the Environmental Protection Agency Scott Pruitt. Referred to the Senate Committee on Environment and Public Works.

H.R. 6645: To amend the Harmful Algal Bloom and Hypoxia Research and Control Act of 1998 to reauthorize the national harmful algal blooms and hypoxia program and require an assessment and action plan for reducing harmful algal blooms. Referred to the House Committee on Natural Resources and House Committee on Science, Space, and Technology.

H.R. 6644: To suspend proposed rulemaking signed by former Administrator of the Environmental Protection Agency Scott Pruitt. Referred to the House Committee on Agriculture, House Committee on Energy and Commerce, and 2 other committees.

H.R. 6647: To amend the Native American Graves Protection and Repatriation Act to move the enforcement office to the Bureau of Indian Affairs. Referred to the House Committee on Natural Resources.


REGULATORY: Includes EPA, FDA, FS, ITA, and NOAA rules and notices.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA determines that biodiesel and heating oil produced from distillers sorghum oil via a transesterification process, and renewable diesel, jet fuel, heating oil, naphtha, and liquefied petroleum gas (LPG) produced from distillers sorghum oil via a hydrotreating process, meet the lifecycle GHG emissions reduction threshold of 50 percent required for advanced biofuels and biomass-based diesel under the Renewable Fuel Standard (RFS) program. Info here.

FOOD AND DRUG ADMINISTRATION: Notice solicits comments on FDA’s Research and Evaluation Survey for the Public Education Campaign on Tobacco (RESPECT) among the Lesbian Gay Bisexual Transgender (LGBT). Info here.

FOREST SERVICE: Notice the Helena–Lewis & Clark National Forest is proposing to implement new fees at the following sites: Three rental cabins, one campground, and one group campground. Info here.

INTERNATIONAL TRADE ADMINISTRATION:

Notice the Department of Commerce is initiating a changed circumstances review and preliminarily determining that Coastal Aqua Private Limited is the successor-in-interest to Coastal Aqua in the context of the antidumping duty order on certain frozen warmwater shrimp from India. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Notice Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information. Title: Documentation of fish harvest. Details here.

Notice NOAA invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. Title: Alaska Quota Cost Recovery Programs. Info here.