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, Tuesday, January 16th, 2018: “The New Deal: Understanding and Negotiating Dairy Supply Contracts.” Details available here.


JUDICIAL: Includes lease, CWA, and PACA issues.

In Mary Ann VIG, as Personal Representative of the Estate of Junietta W. Swenson, Deceased, Plaintiff and Appellant v. Willis G. SWENSON, Defendant and Appellee, No. 20170032, 2017 WL 6047209 (N.D. December 7, 2017), plaintiff, representative of an Estate, appealed dismissal of her suit against defendant seeking reimbursement after defendant allegedly “converted rent and grain proceeds” when he subleased the farmland at issue. Defendant signed agricultural leases with the deceased and plaintiff claimed the leases “were for longer than ten years and were each void.” Issue was whether defendant validly converted the proceeds of land he subleased from the deceased. Court conclude the two leases “are valid and enforceable because each is by operation of law limited to the life estate interest of the lessor and thus contains a conditional term not necessarily in excess of ten years.” Affirmed for defendant.

In AUDUBON SOCIETY OF GREATER DENVER, Petitioner, v. UNITED STATES ARMY CORPS OF ENGINEERS, Respondent, CASTLE PINES METROPOLITAN DISTRICT, CASTLE PINES NORTH METROPOLITAN DISTRICT, CENTENNIAL WATER AND SANITATION DISTRICT, CENTER OF COLORADO WATER CONSERVANCY DISTRICT, CENTRAL COLORADO WATER CONSERVANCY DISTRICT, TOWN OF CASTLE ROCK, and COLORADO DEPARTMENT OF NATURAL RESOURCES, Intervenor Respondents, No. 14-cv-02749-PAB, 2017 WL 6334229 (D. Colo. December 12, 2017), plaintiff challenged Army Corps of Engineers’ (Corps) plan to “reallocate 20,600 acre-feet of water in [a reservoir] from flood control to storage for municipal and industrial use.” Plaintiff claimed Corps violated the National Environmental Policy Act (NEPA) by using the term “’average year yield’ as the measure of water that would become available due to the project,” and by relying on “outdated water rights assumptions.” Corps countered that it evaluated alternatives based on the “overall project purpose for the activity requiring a discharge into waters of the United States,” and that “there is no requirement that it evaluate the same alternatives under the NEPA and the [Clean Water Act] CWA.” Corpos’ decision affirmed.

G.W. PALMER & CO., INC., Plaintiff, v. FLORIDA FRESH PRODUCE CORP., Maria Eludis Rodriguez, Jose Luis Rodriguez, Serafin Rodriguez, S&A Enterprises of Immokalee LLC, Immokalee Produce Center, LLC, and Immokalee Produce Center Holdings, LLC, Defendants, No: 2:17-cv-657-FtM-29MRM, 2017 WL 6041918 (M.D. Fla. December 6, 2017) involved a Perishable Agricultural Commodities Act (PACA) suit wherein plaintiff sought a temporary restraining order enforcing a statutory PACA trust preventing defendant from “moving any assets associated with the $341,324.25 worth of produce received from Plaintiff.” Defendant purchased produce from plaintiff and failed to pay. Plaintiff sought relief and alleged defendant was “funneling” money to her son instead of providing payment. Court considered the evidence and agreed with plaintiff that “dissipation of trust assets constitutes irreparable harm justifying injunctive relief.” Here, however, plaintiff provided “no evidence of asset dissipation, apart from the mere fact of nonpayment.” Court found the evidence suggested defendant “is awaiting payment from its own customers . . . not funneling assets to the [defendants] and their other corporate entities.” Plaintiff’s motion denied.


LEGISLATIVE:

S. 2218: A bill to provide for the conveyance of a Forest Service site in Dolores County, Colorado, to be used for a fire station. Bill referred to the Senate Committee on Energy and Natural Resources.

H.R. 2872: Promoting Hydropower Development at Existing Nonpowered Dams Act. Bill promotes hydropower development at existing nonpowered dams by establishing an expedited licensing process that will result in a final decision on an application in two years or less.


REGULATORY: Includes EPA, FCC, FCIC, FNS, and NOAA rules and notices.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is taking final action finding that Washington State failed to submit an infrastructure State Implementation Plan (SIP) to satisfy certain interstate transport requirements of the Clean Air Act (CAA) with respect to the 2012 annual fine particles national ambient air quality standard (NAAQS). Details here.

Rule EPA is taking final action to determine that the deficiency that formed the basis for a disapproval of the contingency measures submitted for the San Joaquin Valley nonattainment area for the 1997 fine particulate matter national ambient air quality standards (NAAQS) has been corrected. Info here.

FEDERAL COMMUNICATIONS COMMISSIONRule the Federal Communications Commission eliminates historic preservation review of replacement utility poles that support communications equipment, subject to conditions that ensure no effects on historic properties. Info here.

FEDERAL CROP INSURANCE CORPORATION: Rule that document 2017-25330 beginning on page 55723 in the issue of Friday, November 24, 2017, requires a number of corrections. Details here.

FOOD AND NUTRITION SERVICE: Notice this Request for Information is to help FNS gather feedback from a wide variety of stakeholders on how FNS’ crediting system can best address today’s evolving food and nutrition environment, as well as to offer first-rate customer service to those operating and benefitting from the Child Nutrition Programs. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is adjusting the Swordfish (SWO) General Commercial permit retention limits for the Northwest Atlantic, Gulf of Mexico, and U.S. Caribbean regions for January through June of the 2018 fishing year, unless otherwise later noticed. Info here.

Notice the Pacific Fishery Management Council’s (Pacific Council) will host the Area 2A Pacific Halibut Managers Coordination Meeting via webinar. The meeting is open to the public. Details here.