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


ANNOUNCEMENT: Join us this Friday, June 9, in Memphis, Tennessee, for the 4th Annual Mid-South Agricultural and Environmental Law Conference. Details here.


JUDICIAL: Includes water law, Urb & Ag, animal welfare, CWA, and biosecurity issues.

In re VENOCO, LLC, et al., Debtors, CITY OF BEVERLY HILLS, and BEVERLY HILLS UNIFIED SCHOOL DISTRICT, Plaintiffs, v. VENOCO, LLC, Defendant, No. 17-10828 (KG), 2017 WL 2374683 (Bankr. D. Del. May 31, 2017), City sought a preliminary injunction against defendant, operator of an oil producing well site situated on a portion of Beverly Hill High school property. Defendant sought Chapter 11 bankruptcy relief and plaintiff wanted an order directing defendant to maintain the site until it “satisfactorily complied with [a] Plug and Abandon Order.” Court, in denying plaintiffs’ motion, stated, “Venoco and its estate will suffer substantial irreparable harm if the Court grants injunctive relief. Courts must balance the harm to the nonmoving party against the potential harm to the moving party.”

In Rudy F. WEBB; Betty Webb; Arnez Harper; Charletha Harper, on behalf of themselves and all others similarly situated, Plaintiffs–Appellants v. EXXON MOBIL CORPORATION; ExxonMobil Pipeline Company; ExxonMobil Pipeline Company, L.P.; Mobil Pipe Line Company, Defendants–Appellees, No. 15-2879, 2017 WL 1946958 (8th Cir. May 11, 2017), servient tenement owners brought class action against an oil pipeline company alleging company breached easement contracts “by failing to reasonably operate and repair the pipeline.” Plaintiffs also sought to rescind the easements and the pipeline’s removal. Lower court decertified the class and entered summary judgment for company. Servient tenement owners appealed. Appellate court found District Court did not abuse its discretion when it decertified class on basis that it failed to satisfy commonality prerequisite. The court also determined that  “common questions of law and fact did not predominate over individual issues, precluding class certification.”

In The PEOPLE of the State of New York, Respondent, v. Rose NEIRA, Appellant, No. 2013–87 N CR, 2017 WL 2382325 (N.Y. App. Div. May 23, 2017), defendant was convicted of failing to provide proper sustenance to an animal in violation of New York’s Agriculture and Markets Law. The dog’s body was destroyed after a necropsy was performed and on appeal, defendant argued she “could not conduct an independent necropsy” and could not present a defense “based on scientific evidence that the dog had suffered from a systemic disease.” District court sanctioned prosecutor for destruction of the dog and appellate court reasoned that “the sanction imposed by the District Court, that the necropsy report would not be admitted into evidence, was adequate.”

EASTERN OREGON MINING ASSOCIATION; Guy Michael; and Charles Chase, Petitioners-Appellants, v. DEPARTMENT OF ENVIRONMENTAL QUALITY; Dick Pederson, in his capacity as Director of the Department of Environmental Quality; and Neil Mullane, in his capacity as Administrator of the Water Quality Division of the Department of Environmental Quality, Respondents-Respondents, Waldo Mining District, an unincorporated association; Thomas A. Kitchar; and Donald R. Young, Petitioners-Appellants, v. Department of Environmental Quality; Dick Pederson, in his capacity as Director of the Department of Environmental Quality; and Neil Mullane, in his capacity as Administrator of the Water Quality Division of the Department of Environmental Quality, Respondents-Respondents, A156161, 285 Or.App. 821, (Or. Ct. App. June 1, 2017) involved an appeal regarding the “permitting of discharges from small suction dredge mining.” Petitioners argued issuance of any permits was within the “exclusive regulatory authority” of the Army Corps of Engineers under the Clean Water Act (CWA). On appeal, petitioners claimed Department of Environmental Quality (DEQ) “had no authority under federal law to issue a 700-PM permit.” DEQ argued, on the other hand, that it had the “delegated authority to issue the permit under the Clean Water Act’s National Pollution Discharge Elimination System (NPDES).” Appellate court agreed with DEQ and found the agency had the delegated authority “to regulate visible turbidity resulting from small suction dredge mining.”

In SUNG HWAN CO., LTD., Plaintiff–Appellant, v. RITE AID CORPORATION, Defendant–Respondent, No. 3529, 112444/01, 2017 WL 2269975 (N.Y. App. Div. May 25, 2017), state Supreme Court dismissed plaintiff’s suit alleging defendant sold him listeria-tainted ice cream in South Korea, after plaintiff failed to establish jurisdiction. Appellate court found Supreme Court did not err in finding defendant “did not operate or control the ice cream factory directly or through a subsidiary acting as a ‘department’ of defendant.” Court also considered cases from “across the country involving defendant,” and found them “inapposite.” Affirmed for defendant.


LEGISLATIVE:

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

H.R. 497: Santa Ana River Wash Plan Land Exchange Act. This bill’s text for status is now available.

H.R. 660: Bureau of Reclamation Transparency Act. This bill’s text for status is now available.

H.R. 1967: Bureau of Reclamation Pumped Storage Hydropower Development Act. This bill’s text for status is now available.


REGULATORY: Includes USDA, EPA, FS, ITA, and NOAA rules and notices.

AGRICULTURE DEPARTMENT: Notice that on behalf of USDA’s Pollinator Health Working Group, NIFA will host a Listening Session to discuss a strategy to monitor native bees in the United States. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA will approve the negative declarations for several designated facility classes in various states of Region 8. Info here

Rule EPA is granting reconsideration of additional requirements in the final rule, “Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources,” published in the Federal Register on June 3, 2016. Info here.

FOREST SERVICE:

Notice of initiating the assessment phase of the land management plan revision for the Grand Mesa, Uncompahgre and Gunnison National Forests. Details here.

Notice FS is participating as a cooperating agency with the Federal Energy Regulatory Commission in the preparation of the Atlantic Coast Pipeline and Supply Header Project Environmental Impact Statement. Info here

Notice USDA Forest Service (Forest Service) is participating as a cooperating agency with the Federal Energy Regulatory Commission (FERC) and the Bureau of Land Management (BLM) in the preparation of the Mountain Valley Pipeline Project (MVP) and Equitrans Expansion Project (EEP) Environmental Impact Statement. Info here.

Notice the Payette National Forest is preparing an Environmental Impact Statement to evaluate and disclose the potential environmental effects from: (1) Approval of the “Stibnite Gold Project Plan of Restoration and Operations.” Details here.

INTERNATIONAL TRADE ADMINISTRATION:

Notice Commerce initiated countervailing duty investigations on biodiesel from Argentina and Indonesia. Details here.

Notice the United States Court of International Trade  entered final judgment sustaining Commerce’s final remand redetermination concerning the countervailing duty investigation of oil country tubular goods from China. Info here.

Notice Commerce published in the Federal Register the preliminary results of the administrative review of the antidumping duty order on pure magnesium from China covering the period May 1, 2015 through April 30, 2016. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Notice the New England Fishery Management Council has cancelled the public meeting of its Whiting Committee and Advisory Panel that was scheduled for Wednesday, June 14, 2017, at 9:30 a.m. Info here.

Notice the New England Fishery Management Council will hold a three-day meeting to consider actions affecting New England fisheries in the exclusive economic zone. Info here.

Notice the New England Fishery Management Council will hold a three-day meeting to consider actions affecting New England fisheries in the exclusive economic zone. Details here.