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


JUDICIAL: Includes environmental, water law, urb & ag, and bankruptcy issues.

CHEVRON MINING INC., Plaintiff – Appellant, v. UNITED STATES OF AMERICA, UNITED STATES DEPARTMENT OF THE INTERIOR, and UNITED STATES DEPARTMENT OF AGRICULTURE, Defendants – Appellees, AMERICAN EXPLORATION & MINING ASSOCIATION, COLORADO MINING ASSOCIATION, and STATE OF MONTANA, Amici Curiae, No. 15-2209, 2017 WL 3045887 (10th Cir. July 19, 2017) involved US-owned national forest lands in New Mexico that were mined by plaintiff. Issue was whether the United States is a “potentially responsible party” (PRP) for the environmental contamination on the land. Court concluded that under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the United States is an “owner,” and a PRP, “because it is strictly liable for its equitable portion of the costs necessary to remediate the contamination arising from mining activity on federal land.” Court also determined that the United States “cannot be held liable as an ‘arranger’ of hazardous substance disposal because it did not own or possess the substances in question.”

In James Jefferson Jowers Sr., Andrew J. Anastos, Ben Williamson, Melanie Ruhlman, and Anthony Ruhlman, Appellants, v. South Carolina Department of Health and Environmental Control, Respondent, No. 27725, 2017 WL 3045982 (S.C. July 19, 2017), plaintiffs claimed the registration provisions in the Surface Water Withdrawal Act are “an unconstitutional taking, a violation of due process, and a violation of the public trust doctrine.” The Surface Water Withdrawal, Permitting, Use, and Reporting Act regulates surface water withdrawals in South Carolina. Lower granted summary judgment against plaintiffs, finding they lacked standing and their dispute was not ripe. Court noted that “at some point in the future the State may fail to protect against currently nonexistent unreasonable uses of surface water,” and affirmed.

Thomas G. Hahn, Jr., et al., appellants, v. Johanne Hagar, respondent, 2015–06560 (Index No. 6257/11) 2017 WL 3045806 (N.Y. App. Div. July 19, 2017) involved a family dispute over the future of a farm. Plaintiff held a life estate in the property, and two of his sisters, holding remainder interests, wanted to sell development rights to the property to preserve its use as a farm. Court considered whether development rights constitute “real property, or a part thereof” per statute. Court observed that “plaintiffs failed to establish that the sale of the development rights for the property would be expedient.” Court ruled “development rights constitute real property” and affirmed ruling for defendants.

In In re: SEMCRUDE L.P., et al., Debtors ARROW OIL & GAS, INC., et al v. J. ARON & COMPANY, et al ANSTINE & MUSGROVE, INC; ARROW OIL & GAS INC; BEASLEY OIL COMPANY; BLAKE EXPLORATION LLC; BRADEN-DEEM INC; CALVIN NOAH, d/b/a Calvin Noah Oil Company; CMX INC; CASEY MUSGROVE OIL CO, INC; CENTRAL OPERATING INC; CLARK EXPLORATION COMPANY; CORAL COAST PETROLEUM INC; CRAWLEY PETROLEUM CORP; DC ENERGY INC; D.E. EXPLORATION INC; DAVIS PETROLEUM INC; DAYSTAR PETROLEUM INC; DK OPERATING INC; DOUBLE EAGLE EXPLORATION INC; DRILLERS AND PRODUCERS INC; DUNCAN OIL PROPERTIES INC; FAIRFIELD OIL & GAS CORP; THE GLOCO LLC; GMX RESOURCES INC; GRA EX, LLC; GREAT PLAINS ENERGY, INC; GROUND DEVELOPMENT CO; HERMAN L LOEB, LLC; H.I. INC; J&D INVESTMENTS, LLC; JACK EXPLORATION, INC; KAHAN & ASSOCIATES INC; KEITH F. WALKER OIL & GAS CO., LLC; KINGERY DRILLING CO; KLM EXPLORATION COMPANY INC; LANCE RUFFEL OIL & GAS CORPORATION; LANDMARK RESOURCES INC; LARIO OIL & GAS CO; L&J OIL PROPERTIES, INC; LD DRILLING, INC; LITTLE BEAR RESOURCES, INC; MCCOY PETROLEUM CORPORATION; MCGINESS OIL COMPANY OF KANSAS; MESA EXPLORATION COMPANY, INC; MID-CONTINENT ENERGY CORPORATION; MOLITOR OIL, INC; MULL DRILLING COMPANY, INC; MURFIN DRILLING COMPANY, INC; MUSGROVE ENERGY INC; MUSTANG FUEL CORP; NYTEX ENERGY LLC; OIL COMPANY OF AMERICA INC; OKLAHOMA OIL & GAS MANAGEMENT INC; PICKRELL DRILLING COMPANY, INC; PROLIFIC RESOURCES, LLC; RAMA OPERATING COMPANY, INC; RANDON PRODUCTION COMPANY INC; RED OAK ENERGY INC; RITCHIE EXPLORATION INC; RJ SPERRY CO; ROSS HOENER, INC; SEEKER, LLC; SHORT & SHORT, LLC; SNYDER PARTNERS; STEPHENS & JOHNSON OPERATING CO; TEMPEST ENERGY RESOURCES LP; TEX-OK ENERGY LIMITED PARTNERSHIP; TGT PETROLEUM CORPORATION; THREE-D RESOURCES, INC; THOROUGHBRED ASSOCIATES, LLC; TRIPLEDEE DRILLING CO., LLC; TRIPOWER RESOURCES, LLC; VIKING RESOURCES, INC; V.J.I. NATURAL RESOURCES INC; VEENKER RESOURCES, INC; VESS OIL CORPORATION; VINCENT OIL CORPORATION; W.D. SHORT OIL COMPANY, LLC; WELLCO ENERGY, INC; WELLSTAR CORPORATION; WHITE EXPLORATION INC; WHITE PINE PETROLEUM CORPORATION, Appellants, In re: SEMCRUDE L.P., et al., Debtors, BP OIL SUPPLY COMPANY v. SEMGROUP, L.P., et al Star Production, Inc; LSC Production Company, Appellants, In re: SEMCRUDE L.P., et al., Debtors J. ARON & COMPANY v. SEMGROUP, L.P., et al IC-Co, Inc., Appellant In re: SEMCRUDE L.P., et al., Debtors IC-CO, INC; WEOC, INC.; RESERVE MANAGEMENT INC v. J. ARON & COMPANY IC-CO, Inc., Appellant, Nos. 15-3094, 15-3095, , 15-3096, 15-3097, No. 15-3121, No. 15-3123, No. 15-3124, 2017 WL 3045889 (3rd Cir. July 19, 2017), oil producers sold oil to appellants (SemGroup), midstream oil and gas service providers and to debtors in a number of underlying Chapter 11 cases. SemGroup sold oil and traded oil futures with appellees, downstream oil purchasers. The producers took no actions to protect themselves in case of SemGroup’s insolvency, but a number of downstream purchasers did — their goal was to “set off the amount they owed SemGroup for oil by the amount SemGroup would owe them for the value of the outstanding futures trades.” SemGroup filed for bankruptcy and the downstream purchasers were paid in full while the oil producers were paid in part. Court ruled that, “Because the oil producers did not take precautionary measures to ensure payment in case of SemGroup’s insolvency, all they have to rely on are local laws they contend give them automatically perfected security interests or trust rights in the oil that ended up in the hands of the downstream purchasers.” Summary judgment for downstream purchasers affirmed.


REGULATORY: Includes AMS, USDA, EPA, FRNA, FWS, FS, NOAA, and RHS rules and notices.

AGRICULTURAL MARKETING SERVICE:

Rule implements a recommendation from the California Walnut Board to decrease the assessment rate established for the 2017-18 and subsequent marketing years from $0.0465 to $0.0400 per kernelweight pound of assessable walnuts. Details here.

Rule invites comments on the establishment of reporting requirements under the Federal marketing order for pecans. Info here.

Notice AMS announces a meeting of the National Organic Standards Board to discuss the development of a proposal on aeroponics/bioponics/hydroponics. Info here.

AGRICULTURE DEPARTMENT: Notice USDA has submitted information collection requirement(s) to OMB for review. Title: 7 CFR 3575-A, Community Programs Guaranteed Loans. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule approving a revision to the Florida State Implementation Plan submitted by the Florida Department of Environmental Protection (DEP) on February 20, 2013. Details here.

Rule expanding the list of acceptable substitutes pursuant to the EPA’s Significant New Alternatives Policy (SNAP) program. Info here.

Rule proposing the annual percentage standards for cellulosic biofuel, biomass-based diesel, advanced biofuel, and total renewable fuel that apply to gasoline and diesel transportation fuel produced or imported in the year 2018. Details here.

FIRST RESPONDER NETWORK AUTHORITY: Notice the First Responder Network Authority announces the availability of the Final Programmatic Environmental Impact Statement for the West Region. Details here.

FISH AND WILDLIFE SERVICE: Notice FWS invites the public to comment on applications to conduct certain activities with endangered species, marine mammals, or both. Info here.

FOREST SERVICE: Notice FS is preparing an environmental impact statement (EIS) on its proposed treatment of 150,000 acres of insect-infested areas of the Medicine Bow National Forest. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS announces that the 2017 summer flounder commercial quota allocated to the Commonwealth of Massachusetts has been harvested. Details here.

Notice NMFS announces that 12 American Samoa pelagic longline limited entry permits in three vessel size classes are available for 2017. Details here.

RURAL HOUSING SERVICE: Notice RHS will reinstate a previously approved information collection in support of the Single Family Housing Guaranteed Loan Program. Info here.