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, March 15, at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: “Digesting the FSMA Animal Food Rule.” Details available here.


JUDICIAL: Includes APA, easement, environmental, CWA, CAFO, and CAA issues.

In UTAH NATIVE PLANT SOCIETY & GRAND CANYON TRUST, Plaintiffs, v. UNITED STATES FOREST SERVICE & TOM TIDWELL, in his official capacity as Chief of the United States Forest Service, Defendants, No. 2:16-cv-56-PMW, 2017 WL 822098 (D. Utah March 2, 2017), plaintiffs sued regarding Forest Service’s decision allowing mountain goats to be introduced onto land near a Research Natural Area and Forest Service filed motion to dismiss for lack of subject matter jurisdiction. Court observed that when a Research Natural Area is designated, Forest Service must keep the area in its “virgin or unmodified condition.” Court found Forest Service “has not determined whether the goats’ presence in the Manti-La Sal National Forest violates federal law or the existing Forest Plan.”  Ultimately, court determined plaintiffs “failed to provide the court any action or inaction on behalf of the Forest Service that is reviewable under the Administrative Procedure Act (APA).” Motion to dismiss granted.

Mount Aldie, LLC v. Land Trust of Virginia, Inc., No. 160305, 2017 WL 830484 (Va. March 2, 2017) involved an easement dispute. Plaintiff’s “predecessor in title” conveyed a conservation easement by “Deed of Gift of Easement” (Easement) to defendant covering a 60-acre tract of forested land bounded by the Little River (Property). After acquiring the property, plaintiff removed trees and graded the land. Defendant sued seeking injunction requiring plaintiff to return the property to its original condition on grounds plaintiff breached the easement. Defendant was awarded damages and plaintiff appealed, arguing trial court erred in interpreting the easement, leading court to “erroneously find no genuinely disputed material facts existed that would preclude awarding partial summary judgment to [defendant] on the issue of liability.” Court considered language of the easement, including the term “new opening or clearing,” and found plaintiff’s admissions that it “disturbed more than 1,000 square feet of earth within the buffer without giving prior notice to or receiving permission from [defendant], without more, are in no way dispositive of [defendant’s] claim that [plaintiff] breached [the easement].” Reversed for plaintiff.

In GOVERNMENT OF THE PROVINCE OF MANITOBA AND STATE OF MISSOURI, EX REL. CHRIS KOSTER, MISSOURI ATTORNEY GENERAL’S OFFICE, APPELLEES v. RYAN ZINKE, SECRETARY, U.S. DEPARTMENT OF THE INTERIOR, ET AL., APPELLEES, STATE OF NORTH DAKOTA, APPELLANT, No. 16-5203, 2017 WL 836092 (D.D.C. March 3, 2017), appellant filed a motion to modify an injunction governing the Northwest Area Water Supply Project after a district court stated North Dakota did not “present either changes in law or facts sufficient to warrant modifying the injunction.” North Dakota and Bureau of Reclamation worked for years on a safe drinking water project and once started, plaintiff challenged sufficiency of the Environmental Assessment on grounds that appellees “did not adequately grapple with potential ecological problems caused by transferring treatment-resistant biota.” Appellate court found appellant’s issuance of the Environmental Impact Statement (EIS) constituted a “significant change … in factual conditions” that “renders continued enforcement of the judgment detrimental to the public interest.” Court remanded to district court after concluding that, “North Dakota met its burden of presenting two significant changed circumstances that warranted modifying the 2005 injunction.”

In BOARD OF COMMISSIONERS OF THE SOUTHEAST LOUISIANA FLOOD PROTECTION AUTHORITY – EAST; ORLEANS LEVEE DISTRICT; LAKE BORGNE BASIN LEVEE DISTRICT; EAST JEFFERSON LEVEE DISTRICT, Plaintiffs–Appellants, v. TENNESSEE GAS PIPELINE COMPANY, L.L.C.; ALTA MESA SERVICES, L.P.; ANADARKO E&P ONSHORE, L.L.C.; APACHE CORPORATION; ATLANTIC RICHFIELD COMPANY; BEPCO, L.P.; BOARDWALK PIPELINE PARTNERS, L.P.; BOPCO, L.P.; BP AMERICA PRODUCTION COMPANY; BP OIL PIPELINE COMPANY; CALLON OFFSHORE PRODUCTION, INCORPORATED; CALLON PETROLEUM COMPANY; CASKIDS OPERATING COMPANY; CENTERPOINT ENERGY RESOURCES CORPORATION; CHEVRON PIPELINE COMPANY; CHEVRON USA, INCORPORATED; CLAYTON WILLIAMS ENERGY, INCORPORATED; CLOVELLY OIL COMPANY, L.L.C.; COASTAL EXPLORATION AND PRODUCTION, L.L.C.; COLLINS PIPELINE COMPANY; CONOCOPHILLIPS COMPANY; CONTINENTAL OIL COMPANY; COX OPERATING, L.L.C.; CRAWFORD HUGHES OPERATING COMPANY; DALLAS EXPLORATION, INCORPORATED; DAVIS OIL COMPANY; DEVON ENERGY PRODUCTION COMPANY, L.P.; ENERGEN RESOURCES CORPORATION; ENTERPRISE INTRASTATE, L.L.C.; EOG RESOURCES, INCORPORATED; EP ENERGY MANAGEMENT, L.L.C.; EXXON MOBIL CORPORATION; EXXON MOBIL PIPELINE COMPANY; FLASH GAS & OIL NORTHEAST, INCORPORATED; GRAHAM ROYALTY, LIMITED; GREKA AM, INCORPORATED; GULF PRODUCTION COMPANY, INCORPORATED; GULF SOUTH PIPELINE COMPANY, L.P.; HELIS ENERGY, L.L.C.; HELIS OIL & GAS COMPANY, L.L.C.; HESS CORPORATION, A Delaware Corporation; HILLIARD OIL & GAS, INCORPORATED; HKN, INCORPORATED; INTEGRATED EXPLORATION & PRODUCTION, L.L.C.; J.C. TRAHAN DRILLING CONTRACTOR, INCORPORATED; J.M. HUBER CORPORATION; KENMORE OIL COMPANY, INCORPORATED; KEWANEE INDUSTRIES, INCORPORATED; KOCH EXPLORATION COMPANY, L.L.C.; KOCH INDUSTRIES, INCORPORATED; LIBERTY OIL ; GAS CORPORATION; LLOG EXPLORATION COMPANY; MANTI OPERATING COMPANY; MARATHON OIL COMPANY; MOEM PIPELINE, L.L.C.; MOSBACHER ENERGY COMPANY; NATURAL RESOURCES CORPORATION OF TEXAS; NEWFIELD EXPLORATION GULF COAST, L.L.C.; NOBLE ENERGY, INCORPORATED; O’MEARA, L.L.C.; P. R. RUTHERFORD; PLACID OIL COMPANY; PLAINS PIPELINE, L.P.; REPUBLIC MINERAL CORPORATION; RIPCO, L.L.C.; ROZEL OPERATING COMPANY; MURPHY EXPLORATION & PRODUCTION COMPANY, USA; SHELL OIL COMPANY; SOUTHERN NATURAL GAS COMPANY, L.L.C.; SUN OIL COMPANY; SUNDOWN ENERGY, L.P.; UNION OIL COMPANY OF CALIFORNIA; WHITING OIL & GAS CORPORATION; WILLIAMS EXPLORATION COMPANY; YUMA EXPLORATION AND PRODUCTION COMPANY, INCORPORATED; MERIDIAN RESOURCE & EXPLORATION, L.L.C.; PICKENS COMPANY, INCORPORATED; ESTATE OF WILLIAM G. HELIS; LOUISIANA LAND AND EXPLORATION COMPANY, L.L.C. MARYLAND; KAISER-FRANCIS OIL COMPANY; BP PIPELINES NORTH AMERICA, INCORPORATED; VINTAGE PETROLEUM, L.L.C., Delaware; ENLINK LIG, L.L.C., Defendants–Appellees, No. 15-30162, 2017 WL 874999 (5th Cir. March 3, 2017), plaintiff sued companies involved in the exploration and production of oil reserves off the coast of the United States, claiming defendants’ exploration methods “caused infrastructural and ecological damage to coastal lands overseen by the Board that increased the risk of flooding due to storm surges and necessitated costly flood protection measures.” Defendants removed to federal court and district court denied plaintiff’s motion to remand, finding the case raised a federal issue. Defendants then moved to dismiss for failure to state a claim and district court granted the motion. Appellate court noted that plaintiff “is incorrect to interpret the relevant law to require nothing more than a ‘causal nexus’ between the offending property and the damage done,” and affirmed district court ruling.

In Geraldine Adolph and Barth Adolph, Plaintiffs and Appellants, v. Grant County Board of Adjustment and Dustin Nelson, Defendants and Appellees, 27884, 2017 WL 840592 (S.D. March 1, 2017), plaintiffs appealed decision approving defendant’s application for construction of a concentrated animal-feeding operation (CAFO). Plaintiffs argued the project violates a zoning ordinance and that zoning board’s decision was illegal. Plaintiffs also claimed defendant presented a new waste-disposal plan at the public hearing that denied them due process. Court observed that zoning board “considered the proposed CAFO’s plan for disposing of waste water,” and determined that, “Whether the Board correctly decided that the CAFO would not be a significant contributor of pollution is outside the scope of our review.” Court also found waste-disposal plan did not offer new information. Court ruled plaintiffs were not denied due process, but remanded case.

In UNITED STATES OF AMERICA, Plaintiff, v. NAVISTAR INTERNATIONAL CORP., and NAVISTAR, INC., Defendants, No. 15 CV 6143, 2017 WL 839496 (N.D. Ill. March 1, 2017), government sued alleging violations of Clean Air Act, claiming defendants “introduced on-highway engines into commerce without first obtaining a Certificate of Conformity for those engines.” Government argued language of the EPA regulations established liability, while defendants claimed regulations do not address “whether an engine that was not fully assembled by the end of 2009 could still be covered by a 2009 certificate.” Court reasoned that “the applicable on-highway regulations in fact do clearly describe when a group of parts are considered a produced engine for purposes of complying with the act’s certification requirement.” Court determined EPA’s interpretation of regulations at issue was reasonable and granted plaintiff’s motion for summary judgment on issue of liability.


REGULATORY: Includes AMS, FSIS, and OAO notices.

AGRICULTURAL MARKETING SERVICE: Notice AMS will request approval for an extension without change of a currently approved information collection titled Data Collection for Container Availability. Info here.

FOOD SAFETY AND INSPECTION SERVICE:

Notice FSIS is sponsoring a public meeting on April 6 to provide information and draft United States positions to be discussed at the 23rd Session of the Codex Committee on Food Import and Export Inspection and Certification Systems. Details here.

Notice FSIS is sponsoring a public meeting on April 4 to provide information and draft United States positions to be discussed at the 49th Session of the Codex Committee on Pesticide Residues of the Codex Alimentarius Commission. Details here.

OFFICE OF ADVOCACY AND OUTREACH: Notice the Secretary of Agriculture is soliciting nominations for membership to fill six positions on the Advisory Committee on Beginning Farmers and Ranchers. Details here.