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 leases, crop insurance, bankruptcy, and environmental issues.

In THOMAS R. BACK, Individually and on behalf of all other similarly situated states, Plaintiff, v. CHESAPEAKE OPERATING, LLC and CHESAPEAKE APPALACHIA, LLC, Defendant, NO. 7:16-192-KKC, 2018 WL 4088036 (E.D. Ky. August 27, 2018), plaintiff owned oil and gas property leased to defendant. The lease granted defendant “the right to produce and sell the oil and gas,” and pay royalties to plaintiff. Plaintiff claimed breach of contract and fraud, alleging he was not paid his full royalties. Plaintiff asserted the parties “modified the written lease agreement either by oral agreement or by their conduct over the years.” Court observed that per the statute of frauds, “an oil or gas lease is an interest in land, and must be in writing . . . because oil and gas being minerals are a part of the realty.” Court noted that the current lease agreement was in writing and concluded that “subsequent modifications to the lease that materially affect the lease’s terms, must also be in writing.” Plaintiff’s breach of contract claim dismissed.

In J.O.C. FARMS, LLC, Plaintiff, v. SONNY PERDUE, Secretary of Agriculture for the United States of America, HEATHER MANZANO, Administrator for the Risk Management Agency, United States Department of Agriculture, and the RISK MANAGEMENT AGENCY, United States Department of Agriculture, Defendants, No. 4:16-CV-288-D, 2018 WL 4088765 (E.D.N.C. August 27, 2018), plaintiff sought “additional indemnity payments” for crop losses under a federally reinsured crop insurance policy. On remand, Risk Management Agency (RMA) found plaintiff did not provide evidence to support additional payment and here, plaintiff challenged RMA’s ruling. Appellate court noted that RMA found that plaintiff “did not prove that plant disease caused underlying losses to its 2009 tobacco crop.” The court also observed that although plaintiff’s initial indemnity payment was calculated incorrectly, “the error redounded to [plaintiff’s] benefit.” Defendants’ motion for summary judgment granted.

In re: GREGORY JOHN TE VELDE Debtor. GREGORY JOHN TE VELDE Plaintiff, V. RABOBANK N.A., et al. Defendants, No. 18-11651-A-11, 2018 WL 4063365 (Bankr. E.D. Cal. August 23, 2018) concerned Oregon’s non-possessory lien statutes, including Agricultural Services Liens (ASL), “which extend to crops and animals, their ‘proceeds,’ and, in limited instances, to the offspring of those animals.” Dairy owner (debtor) filed for bankruptcy and a dairy processor impounded and held $1.2 million in milk proceeds. Issue was whether the ASL “extend[s] to milk produced by a cow subject to such a lien.” Court considered language of the relevant state statutes and concluded “[t]he text does not support a finding that milk, or monies from its sale, are proceeds or a product within the meaning of Oregon Revised Statutes.” The court also stated that “milk is a product, not a proceed, and [the statute] narrowly tailors the circumstances in which agricultural service liens attach to products.” Court ruled for debtor.

In FOREST PRESERVATION SOCIETY, Plaintiff and Appellant, v. DEPARTMENT OF FORESTRY AND FIRE PROTECTION et al., Defendants and Respondents; MENDOCINO REDWOOD COMPANY, LLC, Real Party in Interest. A148182, 2018 WL 4091010 (Cal. Ct. App. August 28, 2018), plaintiff appealed after its petition challenging a timber harvesting plan was denied. Plaintiff alleged violations of the California Environmental Quality Act (CEQA), the Z’Berg-Nejedly Forest Practice Act (Act), and Forest Practice Rules. Plaintiff claimed the timber harvesting plan (THP) was “deficient” and that defendant “failed to proceed in the manner required by law in its assessment and subsequent approval of the plan’s cumulative impacts on greenhouse gas emissions.” Appellate court considered a number of plaintiff’s arguments, including that “respondents had a legal duty to provide the public with numerical calculations or information to support the carbon sequestration projections in [the] THP.” Court concluded that “[n]owhere does CEQA or the Act require a THP to contain a quantitative analysis of a plan’s anticipated carbon sequestering capability as compared to its anticipated greenhouse gas emissions.” Affirmed for defendants.


REGULATORY: Includes CCC, EPA, ESA, FWS, FDA, FNS, FS, and NOAA rules and notices.

COMMODITY CREDIT CORPORATION:

Rule CCC is issuing a new regulation to implement the Agricultural Trade Promotion Program (ATP). Details here.

Rule CCC is issuing a new regulation to implement the Market Facilitation Program (MFP). Info here.

Notice MFP provides payments to producers with commodities that have been significantly impacted by actions of foreign governments resulting in the loss of traditional exports. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is approving revisions to the State Implementation Plan (SIP) for Oklahoma submitted by the State of Oklahoma designee with a letter dated February 14, 2017. Info here.

ECONOMIC AND STATISTICS ADMINISTRATION:

Notice Commerce announces the establishment of the American Workforce Policy Advisory Board, pursuant to Executive Order 13845, Establishing the President’s National Council for the American Worker, (E.O. 13845 or executive order), and in accordance with the Federal Advisory Committee Act (FACA). Info here.

FISH AND WILDLIFE SERVICE:

Notice FWS received an application from Chandler’s Sand and Gravel, LLC for a 10-year incidental take permit for the endangered least Bell’s vireo pursuant to the Endangered Species Act. Details here.

Notice FWS announces receiving the City of Tempe’s survival enhancement permit application, under the Endangered Species Act. Info here.

FOOD AND DRUG ADMINISTRATION: Notice FDA is announcing the fiscal year (FY) 2019 annual fee rate for recognized accreditation bodies and accredited certification bodies, and the fee rate for accreditation bodies applying to be recognized in the third-party certification program that is authorized by the Federal Food, Drug, and Cosmetic Act (FD&C Act), as amended by the FDA Food Safety Modernization Act (FSMA). Info here.

FOOD AND NUTRITION SERVICE: Notice of a revision of a currently approved collection associated with requests by State agencies to operate a Disaster Supplemental Nutrition Assistance Program (D-SNAP) to temporarily provide food assistance to households following a disaster. Details here.

FOREST SERVICE: Rule USDA is initiating an environmental impact statement (EIS) and public rulemaking process to address the management of inventoried roadless areas on the Tongass National Forest within the State of Alaska. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS announces approval by the Office of Management and Budget (OMB) of a collection-of-information requirement, which was contained in regulations implementing fishing limits in purse seine and longline fisheries, and other restrictions, for U.S. vessels used to fish for highly migratory species in the western and central Pacific Ocean (WCPO), in a final rule published on July 18, 2018. Details here.

Notice NOAA is soliciting nominations for members of the NOAA Science Advisory Board. Info here.