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


ANNOUNCEMENT: Register today for our Fifth Annual Mid-South Agricultural and Environmental Law Conference in Memphis, TN / June 7-8. CLE credit available! Additional information available here.


JUDICIAL: Includes agritourism, ESA, secured transactions, and ag lease issues.

SAVE ADELAIDA et al., Plaintiffs and Appellants, v. COUNTY OF SAN LUIS OBISPO et al., Defendants and Respondents; WILLOW CREEK NEWCO, LLC, Real Party in Interest and Appellant, 2d Civ. No. B279285, 2018 WL 2439874 (Cal. Ct. App. May 31, 2018) concerned the California Environmental Quality Act (CEQA) wherein the owner of an olive orchard applied to the county for a minor use permit to hold events on its property. The project involved construction of several buildings and the county issued a “mitigated negative declaration” (MND) granting the permit. Neighbors argued an MND was not sufficient and that environmental impact report (EIR) was required. Trial court ruled that an EIR was required “to analyze the impacts of traffic, noise, water use, and cumulative impacts.” However the court also determined that an EIR is not required “to analyze the project’s use of wastewater or compliance with the county’s land use ordinance.” Both parties appealed and appellate court reversed finding that EIR is not required to analyze wastewater.

CONSERVATION CONGRESS, Plaintiff, v. UNITED STATES FOREST SERVICE, et al., Defendants, No. 2:16-cv-00864-MCE-AC, 2018 WL 2427640 (E.D. Cal. May 30, 2018) concerned a Forest Service (FS) project in the Modoc National Forest intended to “reduce fuel loads, improve forest health,” and protect wildlife. Plaintiff sought an injunction on the project and argued that FS violated the Endangered Species Act (ESA), the National Forest Management Act (NFMA), the National Environmental Policy Act (NEPA), and the Administrative Procedure Act (APA), by failing to “adequately measure and/or consider the effects the Project will have” on the Northern Spotted Owl and the gray wolf.” The Spotted Owl is considered “threatened” and the gray wolf “endangered,” per the Endangered Species Act. Court observed that “it appears that Plaintiff simply disagrees with the Government’s decisions on how to manage forest habitat and how to protect and conserve the NSO and the gray wolf.” Court concluded that plaintiff “points to no actual legal error,” and denied the organizaiton’s motion for summary judgment.

ELAYNE MATTAR, INDIVIDUALLY; J&E EUBANKS, INC.; ELAYNE MATTAR, TRUSTEE OF THE JAMES E. EUBANKS AND VIRGINIA L. EUBANKS FAMILY TRUST; MARK MAXIMILLIAN MILAM, INDEPENDENT EXECUTOR OF THE ESTATE OF JAMES E. EUBANKS, DECEASED; AND MARK MAXIMILLIAN MILAM, INDEPENDENT EXECUTOR OF THE ESTATE OF VIRGINIA L. EUBANKS, DECEASED, Appellants, v. BBVA COMPASS BANK, NA, Appellee, NUMBER 13-16-00496-CV, 2018 WL 2440382 (Tex. App. May 31, 2018)  concerned a bank loan secured by land used for a family farm. Farmers sued bank over family’s loan obligations and argued the bank committed “tortious conduct.” Jury ruled for bank, and on appeal, plaintiff argued the bank note “is unenforceable as an unconscionable agreement because the Bank exploited [plaintiff] as an elderly, vulnerable widow in poor financial condition.” Appellate court observed that “unconscionability . . . is not a concept, but a determination to be made in light of a variety of factors not unifiable into a formula.” Court was not persuaded by plaintiff’s evidence, “especially when compared to the evidence that the loans were fair agreements between willing and competent parties.” Affirmed.

In CALIFORNIA CATTLEMEN’S ASSOCIATION, et al., Plaintiffs, v. UNITED STATES FISH AND WILDLIFE SERVICE, et al., Defendants, and Center for Biological Diversity, et al., Defendant–Intervenors, No. 1:17–cv–01536 (TNM), 2018 WL 2417852 (D.D.C. May 29, 2018), groups of California ranchers and farmers challenged federal designation of 1.8 million acres in the Sierra Nevada mountains as “critical habitat for three amphibian species.” Plaintiffs argued its members are impacted by this designation because the land “includes 59 active [U.S.] Forest Service [grazing] allotments … [with] significant overlap between … grazing permittees and CCA members.” Defendants maintained plaintiffs “failed to provide a relevant example of actual or impending injury, and that the critical habitat designation will only marginally increase consulting requirements, with no reduction to grazing rights.” Court was persuaded by the fact that plaintiffs “use at least some of that land to ‘obtain’ feed for their livestock, ‘a necessary raw material,’” and denied defendants’ motion to dismiss.


LEGISLATIVE:

H.R. 1791: Mountains to Sound Greenway National Heritage Act. Text for status Reported by House Committee (Jun 1, 2018) is now available.

H.R. 801: Route 66 National Historic Trail Designation Act. Bill added to the House’s schedule for the coming week.

H.R. 1026: North Country National Scenic Trail Route Adjustment Act. Bill added to the House’s schedule for the coming week, according to the House Majority Leader.

H.R. 2991: Susquehanna National Heritage Area Act. Bill added to the House’s schedule for the coming week, according to the House Majority Leader.


REGULATORY: Includes ARS, APHIS, EPA, FSA, FWs, NOAA and RHS rules and notices.

AGRICULTURAL RESEARCH SERVICE:

Notice ARS will request an extension of a currently approved information collection, Information Collection for Document Delivery Services at the National Agricultural Library (NAL), which expires November 30, 2018. Details here.

Notice ARS will seek approval to collect information in support of research and related activities. Info here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE:

Rule APHIS is amending the fruit and vegetable regulations to allow the importation of tree tomatoes from Ecuador into the continental United States. Info here.

Rule APHIS is amending the Animal Welfare Act regulations to implement amendments to the Act that broadened the scope of the exemptions from the licensing requirements for dealers and exhibitors. Details here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is taking final action to approve a revision to the State of Maryland’s Clean Air Act (CAA) sections 111(d) and 129 State Plan for municipal waste combustors. Details here.

Rule establishes a temporary exemption from the requirement of a tolerance for residues of the spinach defensin proteins SoD2, SoD2*, SoD7, and SoD8 in or on citrus when used as plant-incorporated-protectants in accordance with the terms of Experimental Use Permit (EUP) No. 88232-EUP-1. Info here.

Rule EPA is proposing to rescind the Regional Haze Federal Implementation Plan (FIP) that we promulgated on August 23, 2012, to regulate air pollutant emissions from Reid Gardner Generating Station Units 1, 2, and 3 (RGGS), previously located in Clark County, Nevada. Info here.

Rule EPA will approve a revision to the regional haze State Implementation Plan (SIP), submitted by Washington on November 6, 2017. Info here.

Rule EPA is proposing to approve a state plan submitted by the State of Tennessee for implementing and enforcing the Emissions Guidelines (EG) applicable to existing Commercial and Industrial Solid Waste Incineration (CISWI) units. Details here.

Rule establishes initial air quality designations for certain areas in the United States, including areas of Indian country, for the 2015 primary and secondary national ambient air quality standards for ozone. Info here.

Rule EPA is proposing to approve 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 2010 Sulfur Dioxide National Ambient Air Quality Standards. Info here.

Rule EPA is proposing to approve a State Implementation Plan revision submitted by the State of Connecticut. Details here.

Rule EPA is proposing to take the following four actions regarding the South Carolina State Implementation Plan (SIP): Approve the portion of South Carolina’s September 5, 2017, SIP submittal seeking to change reliance from the Clean Air Interstate Rule to the Cross-State Air Pollution Rule for certain regional haze requirements. Details here.

Rule EPA Region 8 is issuing a Notice of Intent to Delete Davenport and Flagstaff Smelters Superfund Site (Site) located in Sandy City, Salt Lake County, Utah, from the National Priorities List and requests public comments on this proposed action. Info here.

FARM SERVICE AGENCY: Notice FSA is announcing the opportunity for interested veterans to apply for a new pilot program, Veteran Farmer Streamlined Eligibility Pilot Program which will assist veterans in meeting the management experience requirements at a faster pace for either a Microloan or Down payment Loan through the Farm Ownership Loan (FO) Program. Info here.

FISH AND WILDLIFE SERVICE:

Rule prescribes final frameworks from which States may select season dates, limits, and other options for the 2018-19 migratory bird hunting seasons. Info here.

Notice FWS announces a public meeting of the International Wildlife Conservation Council. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS announces management measures for the 2018 summer flounder, scup, and black sea bass recreational fisheries. The implementing regulations for these fisheries require NMFS to publish recreational measures for the fishing year. Info here.

Rule NMFS implements an accountability measure (AM) for the commercial sector for yellowtail snapper in the South Atlantic exclusive economic zone. Details here.

Rule NMFS announces one in-season action in the ocean salmon fisheries. Details here.

Notice Commerce will submit to the Office of Management and Budget (OMB) for clearance a proposal for collection of information under the provisions of the Paperwork Reduction Act. Title: Fisheries Finance Program Requirements. Info here.

Notice Commerce will submit to the Office of Management and Budget (OMB) for clearance a proposal for collection of information under the provisions of the Paperwork Reduction Act. Title: Permits for Incidental Taking of Endangered or Threatened Species. Info here.

Notice NMFS has received one permit application from the Monterey Peninsula Water Management District (District) to enhance propagation and survival of species listed under the Endangered Species Act. Info here.

Notice NMFS has received applications for renewal of two enhancement permit applications pursuant to the Endangered Species Act (ESA) section for hatchery operations rearing and releasing Snake River fall Chinook salmon in the Snake River basin of Idaho. Details here.

Notice NOAA announces the availability of the Record of Decision (ROD) for the Final Portland Harbor Programmatic Environmental Impact Statement and Restoration Plan. Info here.

RURAL HOUSING SERVICE: Notice RHS will request a revision for a currently approved information collection in support of the program for Self-Help Technical Assistance Grants. Details here.