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


JUDICIAL: Includes ESA, renewable energy, labor, agritourism, and water law issues.

WILDWEST INSTITUTE; ALLIANCE FOR THE WILD ROCKIES, Plaintiffs-Appellants, v. JIM KURTH, in his official capacity as Acting Director of the U.S. Fish and Wildlife Service, an agency of the U.S. Department of Interior; RYAN ZINKE, in his official capacity as Secretary of the Department of Interior, Defendants-Appellees, STATE OF WYOMING, Intervenor-Defendant-Appellee, No. 14-35431, 2017 WL 1526406 (9th Cir. April 28, 2017) concerned the Endangered Species Act. Environmental groups challenged US Fish and Wildlife’s (FWS) finding that listing the whitebark pine as a threatened or endangered species is “warranted but precluded.” A panel affirmed district court’s summary judgment for FWS and plaintiffs appealed decision that listing the whitebark pine was “warranted but precluded” satisfied the Endangered Species Act. Court rejected plaintiff’s appeal, concluding that “FWS is not bound to list species based solely on the degree of threat they face as demonstrated by the assigned Listing Priority Number (LPN), that instead it could properly consider factors outside of those listed in the guidelines, and further that FWS’s decision contained a sufficient ‘description and evaluation of the reasons and data on which the finding is based’ to satisfy the ESA.” Affirmed.

Hudson Enterprises, Inc., doing business as River Valley Marina Plaintiff – Appellant v. Certain Underwriters at Lloyd’s London Insurance Companies, Subscribing to Policy #10NCG01559 and Agreement Numbers NPPI1011456 and NPPI09112456 Defendant – Appellee, No. 16-2846, 2017 WL 1521536 (8th Cir. April 28, 2017) concerned a marina that lost five of its docks during a rainstorm. The docks were covered by an insurance policy that excluded losses “caused directly or indirectly by flood,” and the underwriters denied coverage based on the flood exclusion. Marina sued alleging that they breached the policy as the loss of marina docks was due to strong winds. District court ruled for underwriters after concluding the docks were lost to flood. Appellate court affirmed after finding that “the damage was caused by the strong current in waters which were ‘above the highest line of the ordinary flow’ of the river.”

Adolfo HERNANDEZ, Rogelio Flores–Escobar, Francisco Silva–Garcia, Martin Perez–Medel, Gustavo Arellano–Olmos, Luis Leon–Salinas, and Manuel Morales, Plaintiffs, v. RAY DOMENICO FARMS, INC., Gregory L. Domenico, and Theresa M. Domenico, Defendants, No. 16–cv–1929–WJM–CBS, 2017 WL 1364696 (D. Col. April 14, 2017) involved a labor dispute in which plaintiffs (agricultural workers) alleged they never received overtime pay during their employment. Plaintiffs claimed defendant employed them in non-agricultural tasks, and argued they should have received pay under the Migrant and Seasonal Agricultural Worker Protection Act. Issue was whether the Colorado Wage Claim Act (CWCA), authorizes an employee “to sue for all past-due wages owed regardless of how long ago those wages should have been paid, and regardless of whether the statute of limitations has run on the cause of action that the employee normally would bring to recover those wages.” Defendant argued that the Fair Labor Standards Act (FLSA) “preempts the CWCA, at least to the extent the CWCA provides for a longer limitations period.” Court not persuaded by defendant’s analysis and denied their motion to dismiss.

SANTA MONICA BEACH PROPERTY OWNERS ASSOCIATION, INCORPORATED, Joe Bailey, Lew James, Cindy Dood, Janet Dick–Grace, Adrian Holman, Joyce Hoskins, John Hunter, Mark Jamison, Barbara Ramlow, Gary Salter, Steve Sanders, and Bob Whitson, Appellants, v. David ACORD and Wife, Virginia Acord, and William C. Alford, Appellees, NO. 1D16–4782, 2017 WL 1534769 (N.D. Fla. April 28, 2017) involved a homeowners association alleging that the use of defendants’ properties as short-term vacation rentals “violates the covenants restricting the properties’ use to residential purposes only and prohibiting their use for business purposes.” Appellate court reasoned that “in determining whether short-term vacation rentals are residential uses of the property, the critical issue is whether the renters are using the property for ordinary living purposes such as sleeping and eating, not the duration of the rental.” Court affirmed prior dismissal of the case and concluded that “the use of Appellees’ properties as short-term vacation rentals is not prohibited by the applicable restrictive covenants.”

In HIGHLANDS-IN-THE-WOODS, L.L.C., a Florida Limited Liability Company, Appellant, v. POLK COUNTY, Appellee, No. 2D15-2801, 2017 WL 1547939 (M.D. Fla.  April 28, 2017), defendant (County) conditioned plaintiff’s permit for development of a subdivision “on the installation of a reclaimed water use system in the subdivision and the dedication of the system to the County.” Plaintiff filed suit contending County’s actions “constitute an unlawful taking,” and sought a judgment declaring County’s conditioning of the permits on “the reuse improvements was an unlawful exaction and regulatory taking and that Highlands is entitled to compensation from the County.” Court reasoned that, “In evaluating whether an unconstitutional taking has occurred . . . a court must first ‘determine whether the essential nexus exists between the legitimate state interest and the permit condition exacted’ by the government.” Summary judgment for County affirmed.


REGULATORY: Includes USDA, ITA, NOAA, and RBCS rules and notices.

AGRICULTURE DEPARTMENT:

Notice USDA has submitted information collection requirement(s) to OMB for review. Title: Research Education Extension Project Online Reporting Tool. Info here.

Notice USDA published a document in the Federal Register of April 24, 2017, to request a renewal to a currently approved information collection for race, ethnicity, and gender along with comments. The document contained the wrong OMB number. Info here.

INTERNATIONAL TRADE ADMINISTRATION:

Notice Department of Commerce rescinds administrative review of the antidumping duty order on tow-behind lawn groomers from the China for the period August 1, 2015, through July 31, 2016. Details here.

Notice Office of Trade and Economic Analysis of the ITA has received an application to amend an Export Trade Certificate of Review. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

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

Notice Department of Commerce will submit to OMB for clearance a proposal for collection of information. Title: West Coast Region Vessel Monitoring System and Pre-Trip Reporting System Requirements. Details here.

RURAL BUSINESS COOPERATIVE SERVICE:  Notice to improve applicants’ awareness of the Guarantee Fee rates for Guaranteed Loans for Fiscal Year (FY) 2017, Maximum Portion of Guarantee Authority Available for FY 2017, Annual Renewal Fee for FY 2017 when applying for guaranteed loans. Info here.