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, May 16th: U.S. Agriculture Trade:  Overview and Update on Current and Emerging Issues. Details available here.


JUDICIAL: Includes administrative law, pesticides, land sale, and urb & ag issues.

In EDDIE SLAUGHTER, Plaintiff-Appellant v. UNITED STATES, Defendant-Appellee, 2018-1129, 2018 WL 2094345 (Fed. Cir. May 7, 2018), plaintiff was a prevailing claimant in a class action brought by African-American farmers against USDA for discrimination in connection with “farm loans and other credit and benefit programs.” The parties to that action agreed to a consent decree and plaintiff was awarded a settlement amount, but “not granted any debt relief.” Here, plaintiff alleged he was entitled to full debt relief and that “failure to provide this relief constituted a ‘breach’ of the consent decree.” Claims Court dismissed and plaintiff appealed. Plaintiff maintained the consent decree was a “contract with the government,” but government argued plaintiff’s only basis for debt relief was based on some incorrect 1099-C tax forms, but that “1099-C tax forms are not contracts.” Appellate court agreed with defendant and affirmed.

In MONSANTO COMPANY, Plaintiff and Appellant, v. OFFICE OF ENVIRONMENTAL HEALTH HAZARD ASSESSMENT et al., Defendants and Respondents; California Citrus Mutual et al., Interveners and Appellants; Center for Food Safety et al., Interveners and Respondents, F075362, 231 Cal.Rptr.3d 537 (Cal. Ct. App. April 19, 2018), plaintiff sued Office of Environmental Health Hazard Assessment to challenge statute delegating authority to the agency after an international cancer research agency declared glyphosate a carcinogen. Lower court granted judgment on the pleadings for defendants. Issue on appeal was “whether Proposition 65’s reliance on the International Agency for Research on Cancer to identify known carcinogens violates various provisions and doctrines of the California and United States Constitutions.” Appellate court found Proposition 65 “did not constitute unconstitutional delegation of rulemaking authority,” and that the statute “did not give rise to justiciable claim under Guarantee Clause.” Affirmed.

In MARK T. NELSON and JO MARIE S. NELSON, Plaintiffs and Appellees, v. LAYNE STUART DAVIS and MARY JO DAVIS as Trustees of the Layne Stuart Davis and Mary Jo Davis Revocable Trust Dated 8-2-2011; ANTHONY M. PALESE, JR.; and CHRISTINA L. FISCHER, and all other persons unknown, claiming or who might claim any right, title, estate, or interest in, or lien or encumbrance upon, the real property described in the Complaint, or, any part thereof, adverse to Plaintiffs’ ownership, or any could upon Plaintiffs’ title thereto, whether such claim or possible claim be present or contingent, inchoate or accrued, Defendants and Appellees, and GEORGE SALITURO, JR.; ROSE M. SALITURO; the heirs and devisees, if any, of George Salituro, Defendants and Appellants, DA 17-0341, 2018 WL 2111457 (Mont. May 8, 2018), plaintiffs purchased property from defendants and the deed purported to sell plaintiffs the property “in its entirety, [but for a] portion of the mineral estate reserved in defendants Davis and Palese.” After years of farm use, the parties leased the property for oil and gas development and plaintiffs’ counsel “uncovered possible remote heirs with an interest in the property,” during a title search. Plaintiffs sought to quiet title and district court “quieted surface title and a one-half interest in the mineral estate in the Nelsons, with the remaining half interest in Davis and Palese.” Defendant Salitoruo appealed. Court reasoned that “because they entered under a recorded deed that purported to convey to them the entirety of the Property, Davis and Palese’s initial entry of the Property was ‘obviously consistent with the disclaimer and disavowal of other tenants’ interests.’” Lower court affirmed.

In COLUMBIA GAS TRANSMISSION, LLC, Plaintiff, v. AN EASEMENT TO CONSTRUCT, OPERATE AND MAINTAIN A 20-INCH GAS TRANSMISSION PIPELINE ACROSS PROPERTIES IN WASHINGTON COUNTY AND ALLEGHENY COUNTY, PA., OWNED BY MCC INTERNATIONAL, INC., et al., Defendants, No. 17-1297, 2018 WL 2111239 (W.D. Penn. May 8, 2018), plaintiff brought eminent domain action under the Natural Gas Act seeking possession of easements on defendant’s property. Plaintiff wanted to replace “a segment of Plaintiff’s interstate natural gas pipeline,” and holds a “certificate of public convenience and necessity from the Federal Energy Regulatory Commission (FERC) authorizing replacement.” Court observed the Natural Gas Act makes eminent domain proceedings available “only when the Certificate holder ‘cannot acquire by contract, or is unable to agree with the owner of the property to the compensation to be paid for’ the necessary rights.” Defendant maintained plaintiff’s rights to the easements were “already acquired by contract.” Court disagreed and found evidence the existing agreemtn between the parties provided plaintiff with the “right to lay a new line of pipe wherever it pleases.” Plaintiff granted “access and possession” of the easements.


LEGISLATIVE:

S. 995: Spokane Tribe of Indians of the Spokane Reservation Equitable Compensation Act. Text for status Reported by Senate Committee (May 7, 2018) is now available.

H.R. 4300: Admiral Lloyd R. ‘Joe’ Vasey Pacific War Commemorative Display Establishment Act. Signed by President.

H.R. 4910: Veterans Cemetery Benefit Correction Act. Text for status Passed the House (May 7, 2018) is now available.

S. 2800: A bill to provide for the conservation and development of water and related resources, to authorize the Secretary of the Army to construct various projects for improvements to rivers and harbors of the United States. Referred to the Senate Committee on Environment and Public Works.

S. 2804: A bill to provide for the reform and continuation of agricultural and other programs of the Department of Agriculture for Indian Country. Referred to the Senate Committee on Indian Affairs.

S. 2803: A bill to amend the Energy Policy Act of 2005 to improve the conversion, use, and storage of carbon dioxide produced from fossil fuels. Referred to the Senate Committee on Energy and Natural Resources.

H.R. 5706: To establish the Pearl Harbor National Memorial in the State of Hawai’i and the Honouliuli National Historic Site in the State of Hawai’i. Referred to the House Committee on Natural Resources.

H.R. 5697: To support wildlife conservation, improve anti-trafficking enforcement, provide dedicated funding for wildlife conservation at no expense to taxpayers. Referred to the House Committee on Natural Resources and House Committee on the Judiciary.

H.R. 2: Agriculture and Nutrition Act of 2018. Added to the House’s schedule for the coming week.


REGULATORY: Includes EPA, FS, NOAA and RHS rules and notices.

ENVIRONMENTAL PROTECTION AGENCY: Rule EPA is taking the following five actions: Approving the portion of Ohio’s November 30, 2016 State Implementation Plan submittal seeking to change from reliance on the Clean Air Interstate Rule to reliance on Cross-State Air Pollution Rule for certain regional haze requirements. Details here.

FOREST SERVICE: Notice the Ketchikan Resource Advisory Committee (RAC) will meet in Ketchikan, Alaska. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS publishes its final Annual Determination (AD) for 2018, pursuant to its authority under the Endangered Species Act. Info here.

Rule NMFS is adjusting the commercial aggregated large coastal shark and hammerhead shark management group retention limit for directed shark limited access permit holders in the Atlantic region from 25 LCS other than sandbar sharks per vessel per trip to 3 LCS other than sandbar sharks per vessel per trip. Details here.

Rule NMFS seeks comments on this proposed rule issued under authority of the Western and Central Pacific Fisheries Convention Implementation Act. Info here.

RURAL HOUSING SERVICE: Notice Section 6025 of the Agricultural Act of 2014 provides the Secretary of Agriculture the authority to give priority to projects that support strategic economic development or community development plans. Info here.