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


ANNOUNCEMENT: REGISTER NOW for our upcoming Ag Technology & the Law conference, August 15 and 16 in Little Rock, Arkansas. Details here.


JUDICIAL: Includes CWA, international trade, renewable energy, and ag lease issues.

3630 INVESTMENT CORP., et al., Plaintiffs, v. MIAMI-DADE COUNTY, Defendant, Number: 17-22925-CIV-MORENO, 2018 WL 3213489 (S.D. Fla. June 29, 2018) concerned a land-use dispute wherein plaintiffs alleged the County’s storm water drainage system “does not include a method to prevent sediment from entering the system and depositing onto Plaintiffs’ property.” Plaintiffs argued “sediment” is “a pollutant in and of its own” and alleged “[t]he discharge of the sediment and materials to the Miami River is a violation of the Clean Water Act.” Court considered whether Florida’s definitions of “pollutants” or “’hazardous substances’ . . . are as broad as those found in the Clean Water Act,” but concluded plaintiffs met their burden of establishing a plausible entitlement to relief. County’s motion to dismiss denied.

ANDRITZ SUNDWIG GMBH, Plaintiff, v. UNITED STATES OF AMERICA, Defendant, CIVIL ACTION NO. 4:18-2061, 2018 WL 3218006 (S.D. Tex. July 2, 2018) involved international trade issues after the presence of insects was detected in wooden cargo crates at the Port of Houston. An Emergency Action Notices (EAN) was issued for safeguarding the entire Cargo and packaging on behalf of the the United States Department of Agriculture (USDA), Animal Plant Health Inspection Service (APHIS), Plant Protection and Quarantine (PPQ). Here, plaintiff sought a preliminary injunction to avoid having to ship the cargo back per a Re-Exportation Order. Court recognized that the “[t]he threat of the siricidae to the pine trees near the Port of Houston and in the surrounding areas is significant.” The court also noted that “[t]he consequences of siricidae infestation, both economically and environmentally, are very high and irreversible or extremely difficult to combat.” Court denied preliminary injunction.

ALTERNATIVE CARBON RESOURCES, LLC, Plaintiff, v. THE UNITED STATES, Defendant, No. 15-155T, 2018 WL 3216891 (Fed. Cl. July 2, 2018) concerned a dispute over refundable “alternative fuel mixture credits” claimed by that plaintiff under the Internal Revenue Code (IRC). Internal Revenue Service (IRS) ruled plaintiff did not qualify for the credits and sought to recover the payments it made to plaintiff. Court agreed with IRS and determined plaintiff was “not entitled to the alternative fuel mixture credits that it claimed” and was “not entitled to abatement of the excessive claim penalties assessed by the IRS.” Appellate court sided with lower court, finding plaintiff “failed to demonstrate a likelihood of success on the merits or even a substantial case.” Plaintiff’s motion to stay denied.

In FRANKLIN FARMS, LLC, Appellant, v. NORTH AMERICAN AUCTION COMPANY, et al., Respondents, No. ED 106131, 2018 WL 3193768 (Mo. Ct. App. June 29, 2018), trial court found a 2008 lease of farmland between plaintiff and defendant voidable by operation of the Statute of Frauds. Trial court found the lease “failed to provide an accurate legal description of the leased land or to otherwise adequately describe or identify the real estate.” The court also determined that “application of the Statute of Frauds converted the lease to a year-to-year contract.” On appeal, plaintiff argued defendants waived Statute of Frauds defense “by proceeding to trial on Respondents’ counterclaim for breach of contract, and . . . the Statute of Frauds is inapplicable because the parties partially performed under the contract.” Appellate court reasoned that plaintiff failed “make a showing of gross injustice,” and affirmed for defendant.


LEGISLATIVE:

H.R. 2075: Crooked River Ranch Fire Protection Act. This bill has been added to the House’s schedule for the coming week, according to the House Majority Leader. See the week ahead.

H.R. 3281: Reclamation Title Transfer and Non-Federal Infrastructure Incentivization Act. This bill has been added to the House’s schedule for the coming week, according to the House Majority Leader. See the week ahead.

H.R. 219: Swan Lake Hydroelectric Project Boundary Correction Act. This bill’s text for status Passed Congress (Jul 3, 2018) is now available.

H.R. 220: To authorize the expansion of an existing hydroelectric project, and for other purposes. This bill’s text for status Passed Congress (Jul 3, 2018) is now available.

H.R. 5956: Northern Mariana Islands U.S. Workforce Act of 2018. This bill’s text for status Passed Congress (Jul 3, 2018) is now available.


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

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is granting a request by the State of California to reclassify the Eastern Kern County nonattainment area from “Moderate” to “Serious” for the 2008 ozone national ambient air quality standards. Info here.

Rule EPA is approving State Implementation Plan (SIP) revisions submitted by the State of Colorado on May 26, 2017, addressing regional haze. Details here.

Rule EPA is approving portions of State Implementation Plan (SIP) submissions from Colorado, Montana, North Dakota, South Dakota and Wyoming addressing the Clean Air Act interstate transport SIP requirements for the 2012 annual Fine Particulate Matter National Ambient Air Quality Standards. Info here.

Rule EPA is approving portions of Oklahoma’s State Implementation Plan (SIP) submittal, that addresses a CAA requirement that SIPs account for potential interstate transport of air pollution that significantly contributes to nonattainment or interferes with maintenance of the 2012 fine particulate matter National Ambient Air Quality Standards in other states. Details here.

Rule EPA is proposing to approve a portion of the state implementation plan revision submitted by the District of Columbia that pertains to the good neighbor and interstate transport requirements of the Clean Air Act (CAA) for the 2008 ozone national ambient air quality standards. Details here.

Rule EPA is proposing to approve a state implementation plan (SIP) submission from Maryland addressing the infrastructure requirements of section 110 of the Clean Air Act (CAA) for the 2012 annual fine particulate matter National Ambient Air Quality Standard. Info here.

Rule EPA is proposing to approve a state implementation plan (SIP) revision submitted by the State of West Virginia. This revision pertains to West Virginia’s Prevention of Significant Deterioration program. Details here.

FISH AND WILDLIFE SERVICE: Notice FWS announces receipt of four incidental take permit (ITP) applications and four habitat conservation plans. Details here.

FOOD AND DRUG ADMINISTRATION: Notice FDA is announcing that it has reorganized the Office of Foods and Veterinary Medicine (OFVM), Center for Food Safety and Applied Nutrition (CFSAN) by establishing the new Office of Executive Programs (OEP); realigning OFVM’s Office of Coordinated Outbreak Response and Evaluation (CORE) Network along with its Prevention Staff and Response Staff under CFSAN. Info here.

FOREST SERVICE:

Notice FS invites the public to share their input on a proposed fee to access the Blacksburg Shooting Range on the Eastern Divide Ranger District. Details here.

Notice the Chattahoochee-Oconee National Forests are proposing to charge new fees at Pocket Recreation Picnic Area on the Conasauga Ranger District and Raven Cliffs Trailhead on the Chattooga River Ranger District. Info here.

Notice the Francis Marion & Sumter National Forests in South Carolina are proposing to charge new fees at eight rifle range facilities: Cedar Creek, Indian Creek, Fairforest, Leeds, Philson Crossroads, Beaver Dam Creek, Candy Branch and Boggy Head Rifle Ranges. Details here.

Notice the National Forests in Florida are proposing to charge new fees at four campgrounds for $10 per night and one day use area for $5 per vehicle. Info here.

Notice the National Forests in North Carolina are proposing to charge new fees at six recreation sites. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule the National Marine Fisheries Service (NMFS) announces the approval of Amendment 115 to the Fishery Management Plan (FMP) for Groundfish of the Bering Sea and Aleutian Islands Management Area. Details here.

Rule proposes regulations to approve and implement measures submitted by the New England Fishery Management Council in Framework Adjustment 5 and 2018-2019 Specifications to the Northeast Skate Complex Fishery Management Plan. Details here.

Notice NMFS has received four scientific research permit application requests relating to Pacific salmon and steelhead. Info here.

Notice NMFS has issued an incidental harassment authorization (IHA) to Point Blue Conservation Science. Info here.