A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions to: camarigg at uark.edu


ANNOUNCEMENT: Join us Wednesday at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: “Digesting the FSMA Animal Food Rule.” Details available here.


JUDICIAL: Includes zoning, agritourism, condemnation, PACA, nutrition programs, and urb and ag issues.

In SOUTHERN STATES-BARTOW COUNTY, INC. et al. v. RIVERWOOD FARM HOMEOWNERS ASSOCIATION et al, S16A1716, 2017 WL 765890 (Ga. Feb. 27, 2017), a group of private property owners sought injunction against landfill operator, claiming the landfill violated zoning ordinances. Superior Court granted summary judgment for group and operator appealed. Supreme Court ruled that county zoning ordinance that required “exercise of any vested rights for non-conforming uses within one year of ordinance adoption” was unconstitutional as applied to operator. Case reversed and remanded.

James E. O’Neil, Mary Ellen O’Neil, Shay Patrick O’Neil, and Shaun Michael O’Neil, Petitioners-Appellees, v. Conejos County Board of Commissioners, Respondent-Appellant, and Board of Assessment Appeals, Appellee, Colorado State Board of Assessment Appeals Nos. 65665, 2017 WL 929214 (Colo. App. March 9, 2017) involved property tax issues wherein County appealed order by assessment board classifying petitioners property as “residential” for tax purposes. Petitioners wanted to rent out their property as a bed and breakfast and obtained a special use permit from County requiring payment of sales and lodging tax. For ad valorem tax purposes, County reclassified property from residential to commercial. Court observed, “Whether property is classified ‘residential’ or ‘commercial,’ depends on whether it was ‘designed for use predominantly as a place of residency’ or whether it was used for activities ‘having profit as a primary aim.’” Court noted petitioners used property as a “second home” and only rented it in the summer. Board’s classification of home as “residential” for tax purposes affirmed.

Claude SEARS, et al., Plaintiffs, v. UNITED STATES, Defendant, No. 12–889L, No. 13–404L (Consolidated), 2017 WL 914647, (Fed. Cl. March 8, 2017) involved plaintiffs that own sixteen parcels next to the right-of-way of a railroad line that was converted into a recreational trail under the National Trails System Act Amendments of 1983. Issue was the “valuation of the land underlying the right-of-way and the effect of the right-of-way on the value of plaintiffs’ adjacent parcels.” Court considered a number of issues, including value of the land underlying the right-of-way; cost to “reclaim the corridor and convert it to usable farmland;” and “diminution in value of the subject parcels due to the creation of point rows.” Court found plaintiffs did not incur damages regarding “access to and over the right-of-way, landlocking, or crossing maintenance,” and applied a “per-acre diminution in value to the acreage of the parcel after the taking,” in determining the value of the farmland.

In MEVI AVOCADOS, INC., Plaintiff, v. MAYA FOODS, LLC and Doris E. Martinez, Defendants, 1:16-cv-3984-WSD, 2017 WL 908471 (N.D. Ga. March 8, 2017), plaintiff sold defendant produce and became a beneficiary in a Perishable Agricultural Commodity Act (PACA) Trust. Plaintiff preserved its interest in the PACA Trust by sending invoices to pefendant and defendant failed to pay $110,068.00 in PACA Trust funds. Plaintiff sought to recover amount due, plus interest and attorney fees. In considering issue of attorney fees court noted the attorney in question “bills at an [hourly] rate of $295.00.” Court found attorney’s rate was “reasonable, and likely below-market, rate in the Atlanta market for legal services.” Default judgment entered against defendant.

In FOUR OAKS FAMILY AND CHILDREN’S SERVICES and TIM CART, Plaintiffs-Appellees, v. IOWA DEPARTMENT OF EDUCATION, BUREAU OF NUTRITION AND HEALTH SERVICES, Defendant-Appellant, No. 16-0163, 2017 WL 935072 (Iowa Ct. App. March 8, 2017), plaintiff, a non-profit providing child services, participates in the Child and Adult Carew Food Program (CACFP), which reimburses daycare providers for meals for children. Defendant rescinded plaintiff’s participation in the program after repeated warnings. Defendant argued federal law allows it to “seek formal termination of an institution’s agreement to participate in the CACFP when the Department determines serious deficiencies existed and were not corrected.” Plaintiff claimed regulation “preclude the Department from seeking formal termination when an institution has voluntarily terminated its participation prior to written notice of serious deficiencies.” Trial court ruled for plaintiff and defendant appealed. Appellate court reversed, finding that “federal law allowed [defendant] to terminate Four Oaks’s participation in the CACFP and place it on the national disqualified list.”

GARY N. PORTER and LORI PORTER, Appellees, v. RICHARD L. HARDEN and JANICE HARDEN, Appellants, No. 15-0683, 2017 WL 942845 (Iowa March 10, 2017) concerned whether “a tenant’s decision to graze a single horse on the property where the tenant resides is enough to establish a farm tenancy.” Court observed that, “’Farm tenancy’ means a leasehold interest in land held by a person who produces crops or provides for the care and feeding of livestock on the land, including by grazing or supplying feed to the livestock.” Plaintiffs stipulated they had one thirty-eight-year-old horse on the property in question, but district court ruled one horse was “insufficient to demonstrate that the land was primarily devoted to the care or feeding of livestock.” Court affirmed district court ruling and determined land “not devoted primarily to the production of crops or the care and feeding of livestock cannot be the foundation for a . . . farm tenancy.”

In NDA FARMS, L.L.C. and CONNIE J. VEASMAN, Plaintiffs-Appellees, v. CITY OF AMES, IOWA THROUGH THE AMES MUNICIPAL ELECTRIC SYSTEM, Defendant-Appellant, No. 16-0028, 2017 WL 935067 (Iowa Ct. App. March 8, 2017), defendant (City) appealed condemnation award to property owners for a thirty-three-foot-wide easement City obtained for installing electric power lines. Defendant challenged trial court’s evidentiary rulings and failure to instruct jury on “speculative damages.” Defendant was denied a limiting instruction regarding the testimony of a real estate appraiser, but appellate court determined the information elicited did not influence “the jury more than the valuations presented by each party’s expert witness or in any way prejudiced the City.” Court found jury’s damage award was “not wholly unfair and unreasonable” and affirmed.


LEGISLATIVE:

H.R. 1500: To redesignate the small triangular property located in Washington, DC, and designated by the National Park Service as reservation 302 as “Robert Emmet Park.” Bill referred to the House Committee on Natural Resources.

H.R. 1491: To reaffirm the action of the Secretary of the Interior to take land into trust for the benefit of the Santa Ynez Band of Chumash Mission Indians. Bill referred to the House Committee on Natural Resources.


REGULATORY: Includes APHIS, EPA, FWS, NASS, and NOAA rules and notices.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE: Notice APHIS will request reinstatement of an information collection associated with the Animal and Plant Health Inspection Service’s Student Outreach Program. Info here.

ENVIRONMENTAL PROTECTION AGENCY: Rule EPA is taking final action to approve a revision to the Yolo-Solano Air Quality Management District portion of the California State Implementation Plan. This revision concerns emissions of volatile organic compounds and particulate matter from confined animal facilities. Details here.

FISH AND WILDLIFE SERVICE:

Notice FWS seeks comments on applications to conduct activities with endangered species. Details here.

Notice an applicant requests amendment of her permit to increase the number of Florida bonneted bats that may be radio-tagged or tagged with GPS satellite transmitters from 30 non-reproductive adults to up to 70. Details here.

Notice FWS seeks comment on an incidental take permit application for the federally listed American burying beetle. Info here.

NATIONAL AGRICULTURAL STATISTICS SERVICE: Notice NASS will request revision and extension of a currently approved information collection, the Current Agricultural Industrial Reports program. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule adjusts the previously established 2017 Atlantic bluefish sector transfer amount from the recreational fishery to the commercial fishery. Info here.

Notice the Oregon Department of Fish and Wildlife submitted two Hatchery and Genetic Management Plans, and the Washington Department of Fish and Wildlife submitted eight HGMPs. Details here.

Notice NMFS issued Stillwater Sciences one section 10(a)1(A) scientific enhancement permit for conducting invasive species removal from a south-central California watershed. Info here.