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


ANNOUNCEMENT: Join us this Wednesday, June 21, at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: “Agritourism, Zoonotic Diseases and Legal Liability.”  Details available here.


JUDICIAL: Includes water rights, agritourism, CWA, and ag lease issues. 

UNITED STATES of America, Plaintiff-Appellant/Cross-Appellee, and Gila River Indian Community; San Carlos Apache Tribe of Arizona, Intervenor-Plaintiffs-Appellants/Cross-Appellees, v. GILA VALLEY IRRIGATION DISTRICT; Franklin Irrigation District; Freeport Minerals Corporation; Larry W. Barney; Viri Viva Lunt Revocable Trust; TRP Family Trust; Ronald Howard; Janice Howard; Myrna Curtis; Joe B. Tatum; Judy L. Tatum; Harrington Ranch and Farm; S&R Daley, LP; Steve Daley; Ross and Fawn Bryce Family Trust; Householder Family Limited Partnership; Kenneth Claridge, Defendants-Appellees/Cross-Appellants, Nos. 14-16942, 2017 WL 2541042 (9th Cir. June 13, 2017) involved interpretation of a Globe Equity Decree of 1935 and whether landowners can transfer their rights to divert water from the Gila River in Arizona. In 1997, a mineral corporation (defendant) purchased farms along the River for the purpose of obtaining water rights, and parties to the Decree objected. Court recognized that, “It is axiomatic in water law that the appropriator, be he junior or be he senior, always has the burden of establishing that a change in his diversion or in his use of water has not affected the rights of other appropriators.” District court determined defendant abandoned 1.4 acres of land and defendant appealed. Appellate court agreed with lower court regarding abandonment and determined the creation of a road and canal indicated “an intent to abandon,” and that defendant “failed to use its water rights in the land covered by the canal for at least eleven years.”

TOM BRAKKE and RHONDA BRAKKE d/b/a/ PINE RIDGE HUNTING LODGE, and McBRA, INC., Appellees, v. IOWA DEPARTMENT OF NATURAL RESOURCES and IOWA NATURAL RESOURCE COMMISSION, Appellants, No. 15-0328, 2017 WL 2616928 (Iowa June 16, 2017) landowners challenged emergency order issued by the Iowa Department of Natural Resources (DNR) ordering them to quarantine a deer preserve for five years after whitetail deer on the property tested positive for chronic wasting disease. The order required the landowners to “repair and maintain an electric fence around the property for the quarantine period.” A district court held the DNR’s emergency order was “irrational, illogical, and wholly unjustifiable,” because the DNR “was acting outside the legislature’s grant of authority.” Appellate court affirmed district court and found DNR “lacked statutory authority to issue an emergency order that imposed a quarantine on land.” Notably, the court also refused to allow the DNR to present evidence the landowners “received certain indemnity payments from the United States Department of Agriculture (USDA).”

In Maureen Harden HERD and The Estate of Hern J. Herd, Deceased, BY AND THROUGH SPECIAL ADMINISTRATOR, Stan HERD, Appellants, v. SHRAUNER FEEDYARD, LLC, Appellee, No. 116,193, 2017 WL 2617647 (Kan. Ct. App.  June 16, 2017), defendant operates a cattle-feeding facility near plaintiff’s home. In 2012, received permit to expand its facility and build a water pollution control system. Plaintiff sued claiming the expansion “violated the separation distance requirements between a confined feeding facility and the nearest habitable structure.” Appellate court agreed with district court finding that defendant’s expansion “was exempt from the separation distance requirements under all three exceptions” set forth by statute.

Paul Elliott WISE and David N. McNees, Co-Executors of the Estate of Marilyn Janet Wise, Appellants, v. Robert L. BAILEY, Sr., and Betty Hooks Bailey, Appellees, No. 115,583, 2017 WL 2610760 (Kan. Ct. App. June 16, 2017) involved a suit by coexecutors of an estate to determine the rights and interests of family members to surface and mineral interests in real estate. The district court granted summary judgment to defendants on grounds they had entered into a valid “family settlement agreement” establishing their rights and interests in the real estate. Plaintiffs argued the family settlement agreement was unenforceable because it was an “executory contract,” and “was not approved by the district court.” Appellate court found for defendants and concluded the family settlement agreement “was sufficient to transfer title to the Franklin County and Kiowa County real estate.”


REGULATORY: Includes AMS, APHIS, CCC, FWS, FAS, and NOAA rules and notices.

AGRICULTURAL MARKETING SERVICE: Notice AMS is proposing amendments to the United States Standards for Grades of Carcass Beef. Info here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE:

Notice APHIS will request a revision to and extension of approval of an information collection associated with its efforts to control Johne’s disease in the United States. Details here.

Notice APHIS will request the reinstatement of an information collection for a National Animal Health Monitoring System Equine Herpesvirus Study to support the equine industry in the United States. Details here.

Notice APHIS is adding 22 taxa of plants for planting that are quarantine pests and 34 taxa of plants for planting that are hosts of 8 quarantine pests to our lists of taxa of plants for planting whose importation is not authorized pending pest risk analysis. Details here.

COMMODITY CREDIT CORPORATION: Notice CCC will request a revision for a currently approved information collection in support of the CCC Export Credit Guarantee Program based on current program levels and participants. Info here.

FISH AND WILDLIFE SERVICE:

Notice FWS sent an Information Collection Request to OMB for review and approval regarding Marine Mammal Marking, Tagging, and Reporting Certificates, and Registration of Certain Dead Marine Mammal Hard Parts. Info here.

Notice FWS will ask the Office of Management and Budget to approve an information collection regarding Migratory Bird Harvest Information Program and Migratory Bird Surveys. Details here.

Notice FWS will ask the Office of Management and Budget to approve an information collection regarding National Wildlife Refuge Special Use Permit Applications and Reports. Info here.

FOREIGN AGRICULTURAL SERVICE: Notice of product coverage and trigger levels for safeguard measures provided for in the World Trade Organization Agreement on Agriculture. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATIONRule NMFS is re-opening the private angling component for red snapper in the exclusive economic zone of the Gulf of Mexico through this temporary rule. Info here.