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, March 21st: 2018 Farm Bill Outlook. Details available here.


JUDICIAL: Includes CWA, aquaculture, right to farm, and taxation issues.

GILA RESOURCES INFORMATION PROJECT, Amigos Bravos, Turner Ranch Properties, L.P., State of New Mexico, EX REL., Hector BALDERAS, Attorney General, and William C. Olson, Appellants-Petitioners, v. NEW MEXICO WATER QUALITY CONTROL COMMISSION, Appellee-Respondent, and Freeport-mcmoran Chino Mines Company, Freeport-mcmoran Tyrone, Inc., Freeport-mcmoran Cobre Mining Company, and New Mexico Environment Department, Intervenors-Respondents, NOS. S-1-SC-35279, 2018 WL 1192748 (N.M. March 8, 2018) concerned New Mexico’s Copper Mine Rule wherein defendant (Commission) adopted regulations to “prevent water pollution and to monitor water quality.” Plaintiffs argued the Rule violates New Mexico’s Water Quality Act (WQA) “because it is premised on an impermissible construction of the statutory phrase ‘place of withdrawal of water for present or reasonably foreseeable future use.’” Plaintiffs further argued the Rule also allows for groundwater contamination at open pit copper mining facilities. Court was not persuaded by plaintiffs’ argument and concluded the Copper Rule “is premised on a permissible construction of the statutory phrase.” Commission’s decision affirmed.

In OLYMPIC FOREST COALITION, a Washington corporation, Plaintiff–Appellee, v. COAST SEAFOODS COMPANY, a Washington corporation, Defendant–Appellant, No. 16-35957, 2018 WL 1220506 (9th Cir. March 9, 2018), environmental groups filed a citizen suit under the Clean Water Act (CWA) claiming owner of an oyster hatchery discharged pollution into an adjacent bay “through pipes and ditches, and channels.” Plaintiffs argued such discharge required a National Pollution Discharge Elimination System (NPDES) permit. Lower court denied defendant’s motion to dismiss for failure to state claim and he appealed. Appellate court held that “pipe, ditches, and channels discharging pollutants from non-concentrated aquatic animal production facilities are point sources requiring NPDES permit.”

In GEORGIA PACIFIC CONSUMER, PRODUCTS, LP v. RATNER, et al.; and vice versa, A17A1969, A17A1970, 2018 WL 1193299 (Ga. Ct. App. March 8, 2018), plaintiffs claimed defendant, a paper mill, damaged their property and interfered with the use and enjoyment of their property as a result of its operation of a recycled paper mill plant that existed prior to construction of their homes. Defendant argued Georgia’s “right to farm” statute bars the Plaintiffs’ claims for nuisance. The court reasoned that “encouraging recycling conserves forest land and enables continued development of additional markets for distributing products made from wood fibers.” Court further considered the language of the applicable statute and concluded that “protecting a facility such as the Mill from nuisance liability by finding that it is a ‘forest products processing plant’ squarely aligns with the purpose of the ‘right to farm’ statute.”

In STATE OF WISCONSIN EX REL. THE PETER OGDEN FAMILY TRUST OF 2008 AND THE THERESE A. MAHONEY-OGDEN FAMILY TRUST OF 2008, PETITIONERS-APPELLANTS, v. BOARD OF REVIEW FOR THE TOWN OF DELAFIELD, RESPONDENT-RESPONDENT, No. 2017AP516, 2018 WL 1187787 (Wis. Ct. App. March 7, 2018), a family trust appealed Board of Review decision sustaining a 2016 property tax assessment of the trust’s real property. Trust argued Board erred by accepting assessor’s change in the classification of the property from agricultural and agricultural forest to residential. Assessor argued that in order for land to qualify as agricultural land, “crops grown on the property must be grown for a business purpose.” Court agreed with family trust and reversed Board decision, finding that a “business purpose” was not necessary to classify the property as agricultural.


REGULATORY: Includes AMS, USDA, EPA, FWS, FS, NOAA, and RBCS  rules and notices.

AGRICULTURAL MARKETING SERVICE: Rule withdraws the Organic Livestock and Poultry Practices final rule published in the Federal Register on January 19, 2017, by the U.S. Department of Agriculture’s Agricultural Marketing Service. The existing organic livestock and poultry regulations remain effective. Details here.

AGRICULTURE DEPARTMENT:

Notice USDA has submitted information collection requirement(s) to OMB for review. Title: Third National Survey of WIC Participants (NSWP-III). Info here.

Notice USDA has submitted information collection requirement(s) to OMB for review. Title: 7 CFR 1726, Electric System Construction Policies and Procedures—Electric. Details here.

Notice USDA has submitted information collection requirement(s) to OMB for review. Title: Emergency Conservation Program and Biomass Crop Assistance Program. Info here.

Notice USDA is soliciting public comment on a proposed realignment of the Office of the Assistant Secretary for Civil Rights (OASCR), which will improve customer service, better align functions within the organization, and ensure improved consistency, resource management, and strategic decision-making. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is approving the State of Ohio’s request to redesignate the portion of Fulton County, Ohio known as the Delta nonattainment area (Delta area) to attainment of the 2008 National Ambient Air Quality Standards (NAAQS or standard) for lead. Info here.

Rule EPA is approving a state implementation plan (SIP) revision submitted by the Commonwealth of Virginia (Virginia). Info here.

Rule EPA is approving two state implementation plan (SIP) revisions (Revision C16 and Revision I16) formally submitted by the Commonwealth of Virginia. Info here.

Rule EPA is proposing to approve a portion of a revision to the Hamilton County portion of the Tennessee State Implementation Plan (SIP) submitted by the State of Tennessee through the Tennessee Department of Environment and Conservation from Chattanooga/Hamilton County Air Pollution Control Bureau on June 25, 2008. Details here.

FISH AND WILDLIFE SERVICENotice FWS seeks comment on applications to conduct certain activities with endangered species. Info here.

FOREST SERVICE:

Notice FS is seeking comments from all interested individuals and organizations on a new generic information collection request, Social Science and Economics Data Collections on Goods, Services, and Jobs Provided by Forests and Natural Areas. Info here.

Notice FS is seeking comments from all interested individuals and organizations on a new generic information collection request, Social Science and Economics Data Collections on Natural Disasters and Disturbances. Info here.

Notice FS is seeking comments from all interested individuals and organizations on a new generic information collection request, Social Science and Economics Data Collections on Natural Resource Planning and Collaborative Conservation. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is closing the commercial fishery for blacktip sharks, aggregated large coastal sharks (LCS), and hammerhead shark management groups in the western Gulf of Mexico sub-region. Info here.

Rule NMFS is opening directed fishing for sablefish with fixed gear managed under the Individual Fishing Quota (IFQ) Program and the Community Development Quota (CDQ) Program. Details here.

Rule implements the management measures contained in Framework Adjustment 2 to the Tilefish Fishery Management Plan and adjusts the 2018 specifications for this fishery. Info here.

Rule NMFS has received a request from the U.S. Navy (Navy) for authorization to take marine mammals incidental to the training and testing activities conducted in the Atlantic Fleet Training and Testing (AFTT) Study Area. Info here.

Notice advises the public that a direct take permit has been issued pursuant to section 10(a)(1)(A) of the Endangered Species Act of 1973 (ESA) for a program rearing and releasing summer steelhead in the Wenatchee River basin of Washington state. Details here.

RURAL BUSINESS-COOPERATIVE SERVICE: Notice of Solicitation of Applications is being issued prior to passage of a final appropriations act to allow potential applicants time to submit applications for financial assistance under Rural Energy for America Program for Federal Fiscal Year 2018, and give the Agency time to process applications within the current fiscal year. Info here.