A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions HERE.


ANNOUNCEMENT: Join us Wednesday, May 17, at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: “AquAdvantage Salmon and Other Current Issues in GMO Regulation.” Details available here.


JUDICIAL: Includes environmental law, Urb & Ag, renewable energy, leases, and CWA issues. 

In David GOETHEL, XIII Northeast Fishery Sector, Inc., Plaintiffs, Appellants, v. U.S. DEPARTMENT OF COMMERCE; Wilbur Ross, in his official capacity as Secretary, U.S. Department of Commerce; Benjamin Friedman, in his official capacity as Acting Administrator, National Oceanic and Atmospheric Administration; National Oceanic and Atmospheric Administration; Samuel D. Rauch III, in his official capacity as Assistant Administrator for Fisheries (Acting) for the National Marine Fisheries Service; National Marine Fisheries Service,* Defendants, Appellees, No. 16-2103, 854 F.3d 106 (1st Cir. April 14, 2017), commercial fisherman argued National Marine Fisheries Service (NMFS) regulations requiring commercial fishermen to be accompanied on their vessels by at-sea monitors and to pay for them, violated statutes and were unconstitutional. Government was granted summary judgment. On appeal, court found that  plaintiffs’ “pre-enforcement challenge to regulations promulgated by NMFS was subject to Magnuson–Stevens Fishery Conservation and Management Act’s (MSA) 30-day statute of limitations.” The court also concluded that “e-mail notification, setting forth date on which fishermen would be required to pay for costs associated with at-sea monitors, was not separately reviewable agency ‘action’ within meaning of MSA’s 30-day limitations period for judicial review of actions.” Affirmed for defendants.

In Mary WHIPPLE, Monty Whipple, Donna Coleman, Phyllis Coleman, Morgan Coleman, Joe Harmon, Dee Harmon, Rita Whipple, Malcolm Whipple, Mark Wold, Sue Wold, Fred Blue, and Monica Blue, Plaintiffs–Appellants, v. The VILLAGE OF NORTH UTICA, La Salle County, Illinois, and Aramoni LLC, Defendants–Appellees, No. 3-15-0547,  2017 IL App (3d) 150547 (Ill. App. Ct. April 25, 2017), plaintiffs (property owners), sued a village and a mining company seeking to invalidate ordinances allowing the mining company “to operate a silica sand mine within township under an annexation agreement and special use permit.” Case was dismissed and appellate court found the annexation agreement “which provided that the lawful, normal operation of a silica sand mine was not a nuisance under village ordinances . . . did not single out owners of property near to mine for disparate treatment and thus did not violate equal protection.” Case affirmed in part and remanded.

In Donald W. REESE, Jr. and Marian Reese, Plaintiffs, v. TRAIL KING INDUSTRIES, INC. and Anderson Trucking Service, Inc., Defendants, NO. 3:16-cv-00723-RLM-MGG, 2017 WL 1856689 (N.D. Ind. May 9, 2017), plaintiffs sued in Indiana after a tractor-trailer accident in Colorado, claiming that due to trailer manufacturing defects, the wind turbine he was hauling came loose from the trailer and caused the accident. Plaintiff received medical treatment in Indiana, his home state, and defendant filed motion to transfer. In considering the transfer, the court considered the “convenience element” and reasoned that the “geographic spread of the arguably material events in this case through Colorado, Indiana, South Dakota, and Minnesota combined with the truly material events at the heart of Plaintiffs’ products liability and negligence claims suggest that neither Colorado nor Indiana are the clear situs of material events.” Defendants’ motion denied.

DIANNE JONES, INDIVIDUALLY AND ON BEHALF OF MCDONALD FARMS, INC., A NEBRASKA CORPORATION, APPELLANT, v. MCDONALD FARMS, INC., A NEBRASKA CORPORATION, ET AL., APPELLEES, No. A-15-777, 24 Neb.App. 649 (Neb. Ct. App. May 9, 2017) involved a minority shareholder of a closely held family farm corporation that brought an individual and derivative action against the corporation claiming “breach of fiduciary duty and misappropriation of corporate assets.” Plaintiff was disgruntled with corporation’s “failure to pay dividends, its refusal to purchase her shares at a price she thought was fair, and its payment of commodity wages to the majority shareholders.” Trial court found plaintiff failed to prove “oppressive conduct, misapplication or waste of corporate assets, or illegal conduct by the majority shareholders,” and appellate court affirmed.

In Richard PLUMP, et al., Plaintiffs, v. David J. GRAHAM, et al., Defendants, No. CV-16-00505-PHX-GMS, 2017 WL 1862140 (D. Ariz. May 9, 2017), plaintiff owned property along the banks of the Colorado River and sought a permit to renovate and improve a jetty on his property. Issue was defendant’s authorization of a “specialized permit” per plaintiff’s request, or a Nationwide Permit No. 3 (NWP 3). Court found “the administrative record indicates that the Corps weighed public safety concerns during the approval process, and ultimately found that a public safety rationale justified bringing this project under NWP 3.” Court granted defendants’ motion for summary judgment.


REGULATORY: Includes  EDA, EPA, NIST, NOAA and RHS rules and notices.

ECONOMIC DEVELOPMENT ADMINISTRATION: Notice EDA received petitions for certification of eligibility to apply for Trade Adjustment Assistance. Details here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule establishes tolerances for residues of flonicamid in or on multiple commodities. Details here.

Rule establishes a tolerance for residues of fluazinam in or on tea, dried. Details here.

NATIONAL INSTITUTE OF STANDARDS AND TECHNOLOGY:

Notice NIST invites organizations to provide products and technical expertise to support and demonstrate security platforms for the Trusted Geolocation in the Cloud Building Block. Info here.

Notice NIST is forming a technical working group to develop best practices guidelines in selecting and deploying industrial wireless solutions within industrial environments such as process control and manufacturing. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule announces inseason changes to management measures in the Pacific Coast groundfish fishery. Info here.

Notice NOAA invites comment on proposed and/or continuing information collections. Details here.

Notice NOAA is conducting research to identify economic value of the research in the Olympic Coast and Stellwagen Bank National Marine Sanctuaries. Info here.

Notice NOAA proposes to collect data on non-economic values related to subsistence salmon fishing and use in Alaska. Info here.

Notice NOAA requests new data collection to benefit the Office of National Maine Sanctuaries and policy-makers on the state and local level in Wisconsin. Info here.

RURAL HOUSING SERVICE: Notice USDA in fiscal year (FY) 2006 established the demonstration Rural Development Voucher Program (RDVP). This Notice informs the public of the general policies and procedures for the RDVP for FY 2017. Info here.