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, urb & ag, and food labeling issues.

In PAMELA STONE, a citizen of the United States, TWYLA RUSAN, a citizen of the United States, M. JAMIE MORROW, a citizen of the United States, THE SOUTH PARK COALITION, INC., a non-profit 501(c)(4) Colorado corporation, and BE THE CHANGE USA, a non-profit 501(c)(4) Colorado corporation, Plaintiffs, v. HIGH MOUNTAIN MINING COMPANY, LLC, a Wyoming limited liability company, and JAMES R. MURRAY, a citizen of the United States, Defendants, No. 17-cv-01295-RM-KMT, 2018 WL 1175039 (D. Colo. March 5, 2018), plaintiffs sued under the Clean Water Act (CWA) and alleged defendant “discharged pollutants from its lands” into a river without a National Pollution Discharge Elimination System permit or “dredge and fill” permit. Defendant moved to dismissed and attacked validity of plaintiff’s notice letter (NOI). Court agreed with the defendants that plaintiffs’ NOI “fails to explain how the elements listed in the NOI are connected to [defendant’s] operations.” Court also noted that “[a] notice letter fails when it states only that ‘Defendants have violated the CWA and regulations and permits thereunder.’ Case dismissed.

NORTHWEST ENVIRONMENTAL ADVOCATES, Plaintiff, v. UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants, NO. C16-1866-JCC 2018 WL 1182245 (W.D. Wash. March 7, 2018) involved a Clean Water Act (CWA) lawsuit wherein Washington State Farm Bureau Federation’s (WFB) and the Washington Cattlemen’s Association’s (WCA) sought to intervene. Proposed intervenors claimed farmers and ranchers they represent “will be directly affected by a loss of CZMA and CWA grant funds that support Washington’s nonpoint source pollution programs and the development of best management practices.” Court noted presence of the State of Washington as an existing intervenor in the lawsuit and stated that “Washington has intervened to defend the validity of its nonpoint pollution control program, as well as its receipt of ‘the funding Ecology relies on to implement Washington’s nonpoint pollution control programs.’” Court concluded that “[a]ny parochial or specialized knowledge Proposed Intervenors would offer, do[es] not rebut Washington’s comparable (and likely superior) Ecology-related expertise.” Motion to intervene denied.

In JOHN WENDELL WOODS, RONALD WOODS, C&W FARMS and WOODS CONSTRUCTION, INC, JAMES RICHARD COSTELLO and CITY OF FAIRBANK, Plaintiffs-Appellees, vs FAYETTE COUNTY ZONING BOARD OF ADJUSTMENT, CATHERINE MILLER AS FAYETTE COUNTY ZONING ADMINISTRATOR, DANTE WIND 6, L.L.C., GALILEO WIND 1 L.L.C., VENUS WIND 4 L.L.C., MASON WIND L.L.C., OPTIMUM RENEWABLES L.L.C., and THOMAS G. ROURKE and KIMBERLY K. ROURKE, Defendants-Appellants, No. 17-0090, 2018 WL 1099008 (Iowa Ct. App. February 21, 2018), zoning administrator granted applications for construction of wind turbines on agricultural land. Board of adjustment denied appeals and later, district court ruled zoning administrator “acted illegally in granting the applications.” Appellate court examined language of the ordinance and considered whether wind turbines “’transmit’ and ‘regulate’ electricity within the meaning of the ordinance.” In affirming lower court decision, appellate court concluded the court “did not err in excluding wind turbines from ‘electrical transmission and regulating facilities.’”

In IN RE: KIND LLC “HEALTHY AND ALL NATURAL” LITIGATION, 15–MD–2645 (WHP), 15–MC–2645 (WHP), 2018 WL 1156009 (S.D.N.Y. March 2, 2018), plaintiffs alleged defendant “deceptively marketed its [KIND bars] as ‘natural’ and ‘non-GMO’ despite containing genetically modified ingredients.” Court previously stayed plaintiff’s “natural” claim and defendant moved to dismiss or stay the “non-GMO” claim. Plaintiffs argued that “indefinitely staying the ‘natural’ claim will result in undue delay and prejudice.” Court ruled it would “continue staying the ‘natural’ claim, but will limit its duration through the date on which the USDA is expected to define and promulgate the ‘non-GMO’ standard.”


S. 97: Nuclear Energy Innovation Capabilities Act of 2017. Passed Senate with amendments by Voice Vote.

S. 2512: A bill to amend the Agricultural Act of 2014 to require producers to elect to receive price loss coverage or agriculture risk coverage under that Act or Federal crop insurance under the Federal Crop Insurance Act. Referred to the Senate Committee on Agriculture, Nutrition, and Forestry.

S. 2514: A bill to amend title 35, United States Code, to provide that a patent owner may not assert sovereign immunity as a defense in certain actions before the United States Patent and Trademark Office. Referred to the Senate Committee on the Judiciary.

S. 2508: A bill to amend title 40, United States Code, to promote regional economic and infrastructure development. Referred to the Senate Committee on Environment and Public Works.

S. 2509: A bill to establish the National Park Restoration Fund. Referred to the Senate Committee on Energy and Natural Resources.