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, June 20th: Cottage Food Laws: Adequately Addressing Food Safety and Economic Opportunity? Details available here.

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


JUDICIAL: Includes environmental law, water law, and checkoff program issues.

TRIUMVIRATE, LLC, d/b/a Tordrillo Mountain Lodge, Plaintiff, v. Ryan ZINKE, in his capacity as Secretary of the Interior, et al., Defendants. No. 3:18-cv-0091-HRH, 2018 WL 2770634 (D. Alaska June 8, 2018) concerned a challenge to the Bureau of Land Management’s (BLM) issuance of a “special recreation permit” to the Alaska Snowboard Guides (ASG) for heli-skiing in some Mountains. Plaintiff claimed violations of the National Environmental Policy Act (NEPA), the Federal Land Policy and Management Act (FLPMA), and the Administrative Procedures Act (APA). Plaintiff alleged that permitting heli-skiing “has increased the risks involved in using the area and because it has diminished the availability of untracked snow.” The court ruled plaintiff’s interest in human health and safety “did not fall within NEPA’s zone of interests” and dismissed. Here, plaintiff sought to amend its complaint and appellate court observed that “[w]e have no doubt that ‘recreational use and aesthetic enjoyment’ are among the sorts of interests NEPA was specifically designed to protect.” Motion to amend granted.

In UNITED STATES of America, Plaintiff, Walker River Paiute Tribe, Intervenor-Plaintiff, National Fish and Wildlife Foundation, Petitioner, Mineral County, Intervenor-Plaintiff, and Nevada State Engineer, Respondent-Appellant, v. UNITED STATES BOARD OF WATER COMMISSIONERS, Participant-Appellee, Backtrack, LLC; Bale Counter, Inc.; Gary M. Berrington; Berrington Custom Hay Hauling & Trans., Inc.; Damian, Ltd.; Peter A. Fenili; GDA Degree, Inc.; Gary G. Garms; Gary J. Garms; Kari D. Garms; Toni Garms; Garmsland Limited, LLC; High Sierra Garlic; Jackaroo, LLC; Settelmeyer–Rosse Ranch Management, LLC; Six–N–Ranch, Inc.; Straggler, LLC, Objectors-Appellees, and Nevada Department of Wildlife; California State Water Resources Control Board; Mono County, California; Lyon County, Nevada, Respondents, Walker Lake Working Group; Walker River Irrigation District, Defendants. United States of America, Plaintiff, Walker River Paiute Tribe, Intervenor-Plaintiff, National Fish and Wildlife Foundation, Petitioner, Mineral County, Intervenor-Plaintiff, and Nevada Department of Wildlife, Respondent-Appellant, v. United States Board of Water Commissioners, Participant-Appellee, Backtrack, LLC; Bale Counter, Inc.; Gary M. Berrington; Berrington Custom Hay Hauling & Trans., Inc.; Damian, Ltd.; Peter A. Fenili; GDA Degree, Inc.; Gary G. Garms; Gary J. Garms; Kari D. Garms; Toni Garms; Garmsland Limited, LLC; High Sierra Garlic; Jackaroo, LLC; Settelmeyer–Rosse Ranch Management, LLC; Six–N–Ranch, Inc.; Straggler, LLC, Objectors-Appellees, and Nevada State Engineer; California State Water Resources Control Board; Mono County, California; Lyon County, Nevada, Respondents, Walker Lake Working Group; Walker River Irrigation District, Defendants. United States of America, Plaintiff, Walker River Paiute Tribe, Intervenor-Plaintiff, Mineral County, Intervenor-Plaintiff, and National Fish and Wildlife Foundation, Petitioner-Appellant, v. United States Board of Water Commissioners, Participant-Appellee, Backtrack, LLC; Bale Counter, Inc.; Gary M. Berrington; Berrington Custom Hay Hauling & Trans., Inc.; Damian, Ltd.; Peter A. Fenili; GDA Degree, Inc.; Gary G. Garms; Gary J. Garms; Kari D. Garms; Toni Garms; Garmsland Limited, LLC; High Sierra Garlic; Jackaroo, LLC; Settelmeyer–Rosse Ranch Management, LLC; Six–N–Ranch, Inc.; Straggler, LLC, Objectors-Appellees and Nevada State Engineer; Nevada Department of Wildlife; California State Water Resources Control Board; Mono County, California; Lyon County, Nevada, Respondents Walker Lake Working Group; Walker River Irrigation District, Defendants. United States of America, Plaintiff, Walker River Paiute Tribe, Intervenor-Plaintiff, National Fish and Wildlife Foundation, Petitioner, Mineral County, Intervenor-Plaintiff, and Walker River Irrigation District, Defendant-Appellant, v. United States Board of Water Commissioners, Participant-Appellee, Backtrack, LLC; Bale Counter, Inc.; Gary M. Berrington; Berrington Custom Hay Hauling & Trans., Inc.; Damian, Ltd.; Peter A. Fenili; GDA Degree, Inc.; Gary G. Garms; Gary J. Garms; Kari D. Garms; Toni Garms; Garmsland Limited, LLC; High Sierra Garlic; Jackaroo, LLC; Settelmeyer–Rosse Ranch Management, LLC; Six–N–Ranch, Inc.; Straggler, LLC, Objectors-Appellees, and Nevada State Engineer; Nevada Department of Wildlife; Mono County, California; Lyon County, Nevada, Respondents, Walker Lake Working Group, Defendant. United States of America, Plaintiff, Walker River Paiute Tribe, Intervenor-Plaintiff, National Fish and Wildlife Foundation, Petitioner, and Mineral County, Intervenor-Plaintiff-Appellant, Walker Lake Working Group, Defendant-Appellant, v. United States Board of Water Commissioners, Participant-Appellee, Backtrack, LLC; Bale Counter, Inc.; Gary M. Berrington; Berrington Custom Hay Hauling & Trans., Inc.; Damian, Ltd.; Peter A. Fenili; GDA Degree, Inc.; Gary G. Garms; Gary J. Garms; Kari D. Garms; Toni Garms; Garmsland Limited, LLC; High Sierra Garlic; Jackaroo, LLC; Settelmeyer–Rosse Ranch Management, LLC; Six–N–Ranch, Inc.; Straggler, LLC, Objectors-Appellees, and Nevada State Engineer; Nevada Department of Wildlife; Mono County, California; Lyon County, Nevada, Respondents, Walker River Irrigation District, Defendant. United States of America, Plaintiff, National Fish and Wildlife Foundation, Petitioner, Mineral County, Intervenor-Plaintiff, and Walker River Paiute Tribe, Intervenor-Plaintiff-Appellant, v. United States Board of Water Commissioners, Participant-Appellee, Backtrack, LLC; Bale Counter, Inc.; Gary M. Berrington; Berrington Custom Hay Hauling & Trans., Inc.; Damian, Ltd.; Peter A. Fenili; GDA Degree, Inc.; Gary G. Garms; Gary J. Garms; Kari D. Garms; Toni Garms; Garmsland Limited, LLC; High Sierra Garlic; Jackaroo, LLC; Settelmeyer–Rosse Ranch Management, LLC; Six–N–Ranch, Inc.; Straggler, LLC, Objectors-Appellees, and Nevada Department of Wildlife; Nevada State Engineer; California State Water Resources Control Board; Mono County, California; Lyon County, Nevada, Respondents, Walker Lake Working Group; Walker River Irrigation District; Joseph Landolt; Beverly Landolt, Defendants. No. 15-16316, No. 15-16317, No. 15-16319, No. 15-16321, No. 15-16323, No. 15-16489, 890 F.3d 1134 (9th Cir. May 22, 2018), farmers sought review under appellate court’s in rem jurisdiction of Nevada State Engineer’s and California State Water Resources Control Board’s approval of conservation organization’s and irrigation district’s change applications regarding their use of their water claims from Walker River. Lower court rejected Nevada’s and California’s rulings, refused to grant change applications, and remanded. Conservation organization and irrigation district appealed. Appellate court found that the farmers “failed to demonstrate that they had any right to the stored water that would have been injured by irrigation district’s proposed change.” The court also concluded the irrigation district’s proposed change “did not violate Decree’s prohibition on delivering water outside the basin of the Walker River.” Reversed and remanded.

In DELANO FARMS COMPANY et al., Plaintiffs and Appellants, v. CALIFORNIA TABLE GRAPE COMMISSION, Defendant and Respondent. S226538, 417 P.3d 699 (Cal. May 24, 2018) grape producers sued over constitutionality of compelled assessments funding Table Grape Commission’s promotional activities. Lower court granted summary judgment for Commission. Producers appealed, and appellate court affirmed. State Supreme Court ultimately ruled grape advertising assessments “were not unconstitutional compelled speech.” Affirmed.


LEGISLATIVE:

H.R. 3: Spending Cuts to Expired and Unnecessary Programs Act. Text for status Referred to Senate Committee (Jun 11, 2018) is now available.

H.R. 221: Hydrographic Services Improvement Amendments Act. Text for status Reported by House Committee (Jun 12, 2018) is now available.

H.R. 224: Polar Bear Conservation and Fairness Act. Text for status Reported by House Committee (Jun 12, 2018) is now available.

S. 3056: A bill to establish a more uniform, transparent, and modern process to authorize the construction, connection, operation, and maintenance of international border-crossing facilities for the import and export of oil and natural gas. Referred to the Senate Committee on Energy and Natural Resources.

S. 3053: A bill to amend title XXI of the Social Security Act to ensure access to mental health and substance use disorder services for children and pregnant women under the Children’s Health Insurance Program. Referred to the Senate Committee on Finance.

H.R. 6072: Making appropriations for the Department of Transportation, and Housing and Urban Development, and related agencies for the fiscal year ending September 30, 2019. Referred to the House Committee on Appropriations.

H.R. 6078: To provide for the boundary of the Palo Alto Battlefield National Historic Park to be adjusted, to authorize the donation of land to the United States for addition to that historic park. Referred to the House Committee on Natural Resources.

H.R. 6073: To amend the Rural Electrification Act of 1936 to provide requirements on the use of assistance for broadband deployment. Referred to the House Committee on Agriculture and House Committee on Energy and Commerce.

H.R. 6077: Recognizing the National Comedy Center in Jamestown, New York. Referred to the House Committee on Natural Resources.

H.R. 5895: Energy and Water Development and Related Agencies Appropriations Act, 2019. Bill provides funding for national defense nuclear weapons activities, the Army Corps of Engineers, various programs under the Department of Energy, the Legislative Branch, the Department of Veterans Affairs, military construction and family housing for the Department of Defense, and other related agencies.


REGULATORY: Includes AMS, EPA, FWS, and NASS rules and notices.

AGRICULTURAL MARKETING SERVICE:

Rule changes the assessment rate computation under the Agricultural Marketing Service’s (AMS) regulations regarding a national research and promotion program for U.S. peanuts. Details here.

Rule amends the Rules of Practice governing Marketing Orders and Marketing Agreements (MOMA), and Research, Promotion, and Information (R&P) programs overseen by USDA Agricultural Marketing Service to include a definition of the term “mail.” Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule establishes an exemption from the requirement of a tolerance for Extract of Swinglea glutinosa in or on all food commodities when used in accordance with label directions and good agricultural practices. Details here.

Rule EPA is proposing to approve a revision to the Placer County Air Pollution Control District (PCAPCD) portion of the California State Implementation Plan (SIP). Info here.

Rule EPA is proposing to approve a state implementation plan (SIP) revision submitted by the Commonwealth of Pennsylvania. Details here.

Rule EPA is proposing to approve a state implementation plan (SIP) revision submitted by the State of West Virginia to change reliance on the Clean Air Interstate Rule to reliance on the Cross-State Air Pollution Rule with the purpose of addressing certain regional haze requirements and visibility protection requirements for the 2010 sulfur dioxide national ambient air quality standards. Info here.

Rule EPA is proposing to approve a request from Louisiana for EPA to relax the federal Reid Vapor Pressure (RVP) standard applicable to gasoline introduced into commerce from June 1 to September 15 of each year for the Louisiana parishes of East Baton Rouge, West Baton Rouge, Livingston, Ascension, and Iberville. Info here.

FISH AND WILDLIFE SERVICENotice FWS proposes to establish annual hunting regulations for certain migratory game birds for the 2019-20 hunting season. Details here.

NATIONAL AGRICULTURAL STATISTICS SERVICE: Notice announces the intention of the National Agricultural Statistics Service (NASS) to request revision and extension of a currently approved information collection, the Floriculture Survey. Details here.