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, September 5th: Be In The Know:  Legal Tips for Your Ag Start-Up. Details available here.


JUDICIAL: Includes CAFO, aquaculture, pesticides, and crop insurance issues.

In FOOD & WATER WATCH, Appellant, v. DELAWARE DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL, Appellee, C.A. NO.: N17A-03-006 AML, 2018 WL 4062112 (Del. August 24, 2018), state ag agencies issued order “relieving poultry farms of the duty to monitor water on-site and in nearby streams for pollutants generated by those farms.” Interest group objected and individual members claimed they would cease recreational activities at beaches and lakes “for fear of CAFO-generated pollutants.” Environmental Appeals Board found the group “lacked organizational standing” and appellate court considered “whether an individual’s loss of previously-enjoyed recreational and aesthetic enjoyment of an area affected by government action sufficiently establishes injury in fact.” Court observed that plaintiffs’ “aesthetic and recreational enjoyment of the affected areas” was impacted by the lack of “monitoring requirements.” Critically, the court noted that the threat of water pollution “has affected their activities in an individual and personal manner.” State Supreme Court concluded appellant’s individual members and the group have standing.

In PORTLAND PIPE LINE CORPORATION, et al., Plaintiffs, v. CITY OF SOUTH PORTLAND, et al., Defendants, 2:15-cv-00054-JAW, 2018 WL 4059374 (D. Me. August 24, 2018), a local ordinance prohibited the loading of crude oil onto tankers “and the construction of new structures for that purpose.” Pipeline operator maintained the ordinance violated the dormant Commerce Clause and Foreign Commerce Clause. Court considered a number of arguments regarding the dormant Commerce Clause, including whether the ordinance “has an impermissible extraterritorial reach.” Court reasoned that the primary purpose of the ordinance “was not to create impacts beyond the boundaries of South Portland or to prevent oil sands extraction in other jurisdictions.” Court found the ordinance valid because it “only applies to in-[city] activities, [and] there is no extraterritorial reach.”

In Craig Miller and Treasa Miller, Appellants v. Superior Forestry Service, Inc., Appellee, NO. 03-17-00043-CV, 2018 WL 4039562 (Tex. App. August 24, 2018), plaintiffs’ cattle died after ingesting chlorate and “the likely location of the chlorate exposure was along or near to the rights-of-way.” Lower court issued a judgment notwithstanding the verdict (JNOV) in defendant’s favor and plaintiff appealed. Issue on appeal was whether evidence established that defendant, hired by an energy company to spray herbicides on the right-of-way at issue, was “responsible for the presence of the chlorate.” Plaintiff argued the evidence revealed defendant’s spray crew “was within ten miles of the Miller ranch and had the means to open the locks and access the Miller property.” Plainitff also contended defendant’s treatment of the right-of-way in 2012 implied culpability. Court found there was no evidence [defendant] “entered the property, ‘used chlorate in any way,’ or possessed or added anything to its custom blend herbicide.” Lower court’s JNOV ruling affirmed.

Terry R. BALVIN, Plaintiff, v. RAIN AND HAIL, LLC, Defendant, 4:18-cv-4049-LLP, 2018 WL 3998974 (D.S.D. August 21, 2018) concerned defendant’s denial of plaintiff’s claim for crop insurance benefits under plaintiff’s “federally reinsured multiple peril crop insurance policy.” Arbitrator affirmed defendant’s denial of plaintiff’s claim and on appeal, plaintiff argued the arbitrator exceeded his authority by interpreting the term “good farming practices,” as used in the policy, in reaching a conclusion. Evidence showed arbitrator considered a number of facts about plaintiff’s crops and subsequent damages. Court observed that the arbitrator did not have to interpret “good farming practices” to reach a conclusion, but only had “to apply the factual conclusions made from testimony at the hearing to the Policy and Manual’s language.” Court found arbitrator did not exceed his authority and affirmed for defendant.


REGULATORY: Includes FWS, NOAA, RBCS, and RUS rules and notices.

FISH AND WILDLIFE SERVICE: Notice FWS is proposing a new information collection. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is prohibiting directed fishing for Pacific cod by catcher vessels using trawl gear in the Central Regulatory Area of the Gulf of Alaska. Info here.

Notice NOAA is soliciting nominations for members of the NOAA Science Advisory Board. The SAB is the only Federal Advisory Committee with the responsibility to advise the Under Secretary of Commerce for Oceans, Atmosphere, and NOAA Administrator on long- and short-range strategies for research, education, and application of science to resource management and environmental assessment and prediction. Details here.

RURAL BUSINESS-COOPERATIVE SERVICE: Notice announces that the Rural Business-Cooperative Service (Agency) is accepting fiscal year (FY) 2018 applications for the Delta Health Care Services (DHCS) grant program. The Agency will publish the program funding level on the Rural Development website. Info here.

RURAL UTILITIES SERVICE: Notice invites comments on an information collection for which approval from the Office of Management and Budget (OMB) will be requested. Details here.