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


JUDICIAL: Includes water law, environmental law, finance & credit, labor, landowner liability, 

STOCKTON EAST WATER DISTRICT and Central San Joaquin Water Conservation District, Plaintiffs, v. The UNITED STATES, Defendant, No. 04–541C, 2017 WL 3262230 (Fed. Ct. August 1, 2017) concerned whether a water district is entitled to “expectancy damages” based on the U.S. Bureau of Reclamation’s (agency) breach of a contractual obligation “to make certain minimum amounts of surface water available.” Court considered how the agency’s breaching announcements impacted demand for surface water in the agricultural community. Court determined plaintiff failed to “adduce evidence sufficient to show that . . . demand for surface water during the breach years would have exceeded the amount of water Reclamation actually made available to the district.” Expectancy damages denied.

In ALLIANCE FOR THE WILD ROCKIES, Plaintiff-Appellant, v. JIM PENA, in his official capacity as Regional Forester of Region Six U.S. Forest Service; UNITED STATES FOREST SERVICE, an agency of the United States; RODNEY SMOLDON, in his official capacity as Supervisor of the Colville National Forest, Defendants-Appellees, and STEVENS COUNTY; NORTHEAST WASHINGTON FORESTRY COALITION; PEND OREILLE COUNTY, Intervenor-Defendants-Appellees, No. 16-35856, 2017 WL 3259670 (9th Cir. August 1, 2017), plaintiff appealed denial of a preliminary injunction in a suit alleging violations of the National Forest Management Act (NFMA) and the National Environmental Policy Act (NEPA) by the United States Forest Service, after that agency’s approval of a forest restoration project. Plaintiff claimed the project would harm the pine marten habitat in the affected area. Appellate court affirmed lower court and concluded plaintiff did not satisfy “four required factors” for issuance of a preliminary injunction.

In Halston O. Lenentine, Jr. and Lorraine K. Downs v. Farm Service Agency, No. 15-cv-361-LM, 2017 WL 3189864 (D.N.H. July 26, 2017), plaintiffs sued Farm Service Agency (FSA) to stop foreclosure sale of their home. Lower court granted FSA’s motion to stay to allow plaintiffs time to sell a portion of their property to pay off amount due to FSA under the parties’ mortgage agreements. Plaintiffs could not sell a portion of their property to pay off their mortgage debt and FSA moved for summary judgment. Court concluded FSA has the right to foreclose on their property and granted defendant’s motion.

In Charles O’KEEFE, Appellant-Plaintiff, v. TOP NOTCH FARMS, Appellee-Defendant, No. 93A02-1702-EX-386, 2017 WL 3185279 (Ind. Ct. App. July 27, 2017), plaintiff appealed a denial of worker’s compensation benefits for a work-related injury after Board concluded plaintiff was excluded from receiving benefits under the Worker’s Compensation Act (WCA) because he was working as a “farm or agricultural employee” when injured. Board contended “farm and agricultural employees” are exempt from the Act. On appeal, plaintiff argued that, “although he worked for a farm, he primarily drove a semi-truck and, therefore, did not qualify as a farm or agricultural employee.” Appellate court determined plaintiff’s work was “agricultural in character,” and affirmed Board’s decision.

In Phyllis N. GREGORY, individually and as the personal representative of the estate of Richard D. Gates, deceased, Plaintiff, v. CREEKSTONE FARMS PREMIUM BEEF, LLC, Defendant, No. 15-1207-EFM-JPO, 2017 WL 3168825 (D. Kan. July 26, 2017), plaintiff (Gates), a cattle truck driver, was injured on defendant’s property while delivering a load of cattle and later died from his injuries. Defendant argued it did not owe Gates a duty of care. Defendant argued that the probability of harm was not foreseeable and relied on Kansas premise liability law. Per the court, Kansas premise liability law states that “the duty owed by an owner or occupier of land is one of reasonable care under the circumstances,” and a landowner “is under no duty to remove known and obvious dangers.” Court granted motion to dismiss after concluding defendant did not owe plaintiff “a legal duty to protect him from known and obvious dangers.”


LEGISLATIVE:

S. 1696: A bill to amend the Energy Policy Act of 2005 to provide for a smart energy and water efficiency management pilot program. Bill referred to the Senate Committee on Energy and Natural Resources.

S. 1687: A bill to establish the Financing Energy Efficient Manufacturing Program at the Department of Energy to provide financial assistance to promote energy efficiency and onsite renewable technologies in manufacturing facilities. Bill referred to the Senate Committee on Energy and Natural Resources.

S. 1695: A bill to establish centers of excellence for innovative stormwater control infrastructure. Bill referred to the Senate Committee on Environment and Public Works.

H.R. 3637: To amend the Food Security Act of 1985 to better assist producers who are voluntarily making the transition to organic production systems, and for other purposes. Bill referred to the House Committee on Agriculture.


REGULATORY: Includes USDA, EPA, FWS, FS, ITA, NIFA, and NOAA rules and notices.

AGRICULTURE DEPARTMENT:

Notice USDA has submitted the following information collection requirement(s) to OMB for review. Title: Laboratory Approval Programs. Info here.

Notice USDA has submitted the following information collection requirement(s) to OMB for review. Title: Importation of Unshu Oranges from the Republic of Korea into the Continental United States. Details here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule CERCLA requires that the National Oil and Hazardous Substances Pollution Contingency Plan include a list of national priorities among the known releases or threatened releases of hazardous substances, pollutants or contaminants throughout the United States. Info here.

Rule establishes tolerances for residues of ethaboxam in or on Ginseng; Pepper/eggplant, subgroup 8-10B; Vegetable, cucurbit, group 9; and Vegetable, tuberous and corm, subgroup 1C. Valent USA Corporation requested these tolerances under the Federal Food, Drug, and Cosmetic Act. Details here.

Rule establishes an exemption from the requirement of a tolerance for indirect or inadvertent residues of cyclaniliprole on multiple commodities identified and discussed later in this document. Details here.

FISH AND WILDLIFE SERVICE:

Rule FWS proposes to establish annual hunting regulations for certain migratory game birds for the 2018-19 hunting season. Info here.

Notice FWS announces the availability of a draft environmental assessment (draft EA) under the National Environmental Policy Act of 1969. Details here.

Notice FWS will draft environmental analysis/document under the National Environmental Policy Act for the proposed issuance of an incidental take permit (ITP) under section 10(a)(1)(B) of the Endangered Species Act of 1973, for the draft General Conservation Plan for Oil and Gas Activities in Santa Barbara County. Info here.

FOREST SERVICE:

Notice the Davy Crockett-Sam Houston Resource Advisory Committee (RAC) will meet in Ratcliff, Texas. Info here.

Notice the Fresno and Madera Counties Resource Advisory Committee (RAC) will meet in Clovis, California. Info here.

Notice the Huron-Manistee Resource Advisory Committee (RAC) will meet in Mio, Michigan. Details here.

Notice the West Virginia Resource Advisory Committee (RAC) will meet in Elkins, West Virginia. Info here.

INTERNATIONAL TRADE ADMINISTRATION: Notice ITA is conducting an administrative review of the antidumping duty order on pasta from Italy, covering the period July 1, 2015, through June 30, 2016. Details here.

NATIONAL INSTITUTE OF FOOD AND AGRICULTURE: Notice NIFA is announcing the I-FAST prize competition to develop and implement the Innovations in Food and Agricultural Science and Technology (I-FAST) Program. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS implements an accountability measure for the commercial sector for the Other Jacks Complex in the South Atlantic for the 2017 fishing year through this temporary rule. Info here.

Rule North Pacific Fishery Management Council submitted Amendment 48 to the Fishery Management Plan for Bering Sea/Aleutian Islands King and Tanner Crabs to NMFS for review. Details here.

Notice of SEDAR 54 assessment webinar IV for Highly Migratory Species Sandbar shark. Info here.

Notice the New England Fishery Management Council is scheduling a public meeting of its Scientific & Statistical Committee to consider actions affecting New England fisheries in the exclusive economic zone. Details here.