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


JUDICIAL: Includes urb & ag, local food systems, environmental law, and landowner liability issues.

In BUTCHERTOWN NEIGHBORHOOD ASSOCIATION, INC., and ANDREW S. CORNELIUS APPELLANTS v. LOUISVILLE METRO BOARD OF ZONING ADJUSTMENT; JBS USA, LLC; and SWIFT PORK COMPANY APPELLEES, NO. 2015-CA-000690-MR, 2017 WL 2889543 (Ky. Ct. App. July 7, 2017), defendant operated a hog slaughtering facility and obtained a “modified conditional use permit (MCUP)” to expand its operations. Plaintiff challenged the MCUP and lost. On appeal, plaintiff argued Board should have made “the same required factual determinations, supported by substantial evidence, that would justify the issuance of an original CUP.” Appellate court reasoned that, “A request for modification is not the time to reconsider the original CUP,” and affirmed lower court ruling.

STATE of Montana, Plaintiff and Appellee, v. Daniel B. MCGREGOR, Defendant and Appellant, DA 16-0554, 2017 WL 2778086 (Mont. June 27, 2017) concerned whether “violation of the use restrictions for private property enrolled in Montana’s Block Management Program” is a violation of a statute requiring hunters to obtain permission of the landowner before hunting on private property. Defendant, a hunter, did not have permission to hunt on an area of land and appealed his denial of a motion to dismiss. Court observed that, “In Montana, because a person is on notice that they are subject to the rules of the Department related to the management of wildlife, it is no defense that they were ignorant of those rules or the law, or that they relied on statements from an adjoining property owner.” Denial of motion to dismiss affirmed.

Kristen GIOVANNI et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF THE NAVY, Defendant, No. 16-4873, 2017 WL 2880749 (E.D. Pa. July 6, 2017), plaintiffs lived near a Naval Air Station and discovered chemicals from the naval facilities “infiltrated their water supply.” They sued seeking an injunction requiring the Navy to provide “medical monitoring, a health assessment, a health effects study and blood testing.” The Navy filed a motion to dismiss for lack of subject matter jurisdiction. Court observed that the facilities are “subjects of an ongoing response action” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Court ruled that because plaintiffs’ suit is a “challenge” to a “removal or remedial action” under CERCLA, it lacked jurisdiction and granted Navy’s motion to dismiss.

In Charles B. CUMMINGS, Plaintiff–Appellant, v. Robert W. MANVILLE, Defendant–Respondent, 2017 WL 2884484 (N.Y. App. Div. July 7, 2017), plaintiff was injured after riding his ATV over a pothole on defendant’s property. Lower court ruled defendant was immune from liability under the applicable recreational use statutes. Plaintiff appealed and court reasoned that, “In analyzing whether land is suitable for a specific recreational use, courts look to whether the portion of the land on which the plaintiff was injured was suitable for that particular activity.” Appellate court concluded that, “by viewing defendant’s property and surrounding area as a whole, rather than focusing on the general suitability of the road where the accident occurred, the trial court erred in its legal analysis when making its suitability determination.” Reversed and remanded.


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

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is withdrawing the May 30, 2017, direct final rule approving the redesignation of the Muncie nonattainment area to attainment for the 2008 national ambient air quality standards for lead, the state’s plan for maintaining the 2008 lead NAAQS through 2030 for the area, and the 2013 attainment year emissions inventory for the area. Info here.

Rule establishes a tolerance for residues of buprofezin in or on rice grain. Details here.

Rule EPA is proposing to approve changes that modify the Louisville Metro Air Pollution Control District’s air quality regulations. Info here.

Rule EPA is proposing to approve a revision to the Minnesota State Implementation Plan submitted on October 4, 2016. Details here.

Rule EPA is proposing to approve several changes to the North Carolina State Implementation Plan submitted by the State of North Carolina. Details here.

INTERNATIONAL TRADE ADMINISTRATION: Notice ITA determined that the request for a NSR of the antidumping duty order on Fresh Garlic from China meets the statutory and regulatory requirements for initiation. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Notice NMFS will hold public meetings in the U.S. and abroad beginning in July 2017. The intent of the meetings is to discuss implementation of the U.S. Seafood Import Monitoring Program. All meetings are free of charge and open to the public. Details here.

Notice NMFS issued an incidental harassment authorization (IHA) to Point Blue Conservation Science to incidentally harass four species of marine mammals during seabird research activities in central California. Info here.