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


JUDICIAL: Includes urb & ag, bankruptcy, crop insurance and environmental issues.

SABAL TRAIL TRANSMISSION, LLC, Plaintiff, v. +/- 18.27 ACRES OF LAND IN LEVY COUNTY, Florida, et al., Defendants, No. 1:16cv93–MW/GRJ, 2017 WL 5494552 (N.D. Fla. November 15, 2017) involved eminent domain issues after plaintiff was granted right to condemn an easement through defendants’ property to build a natural gas pipeline. The pipeline was constructed and plaintiff had to compensate defendant for the taking. Construction of the pipeline allegedly damaged trees and prevented several defendants from leasing their pastures, creating lost income. Issue was whether a jury could “consider evidence of these losses in reaching its determination of ‘full compensation.’” Plaintiff argued defendants were not entitled to recover all of their losses, but court ruled jury was entitled to hear totality of evidence. Plaintiff’s summary judgment motion denied regarding crop-income losses.

In Mark and Marilyn LONG, Arnie and Shirley Van Voorst, Tim and Sara Doyle, Timothy and Jane Griffith and Michael and Karen Taylor, Plaintiffs and Appellants, v. STATE of South Dakota, Defendant and Appellee, 27381, 2017 WL 5624239 (S.D. November 21, 2017), plaintiffs sought “reasonable attorney, appraisal and engineering fees, and other related costs” after winning inverse condemnation suit against the State. Lower court denied plaintiffs’ request and they appealed. Appellate court analyzed South Dakota’s Uniform Relocation Assistance (URA) statute and concluded the law “does not create a private cause of action in state courts for payment of litigation expenses in inverse condemnation cases unless mandated by state statute or implementing regulations.” Plaintiff’s request for attorney’s fees denied.

In re: JAMES S. OLAYER, Debtor, UNITED STATES OF AMERICA, Movant, v. JAMES S. OLAYER, Respondent, No. 17-23386-GL, 2017 WL 5636266 (Bankr. W.D. Pa. November 22, 2017) involved a Motion for Relief from Automatic Stay filed by Farm Service Agency (FSA) after the agency sought a foreclosure sale of debtor’s real property. FSA alleged debtor “engaged in a scheme to delay, hinder, or defraud [FSA] by filing five bankruptcy petitions affecting the Property over the past twenty-one years.” Court considered “totality of the circumstances” and found that “in rem relief is not warranted and ‘cause’ for relief exists . . . only to the extent [debtor] failed to maintain adequate insurance coverage on the Property.”

In METABANK, Plaintiff, v. INTERSTATE COMMODITIES, INC., Defendant, 3:16-CV-03007-RAL, 2017 WL 5633104(D.S.D. November 21, 2017), plaintiff sued defendant for conversion and breach of subordination agreement regarding the construction of an agreement between the parties. Plaintiff provided a third party some agricultural financing and acquired a “perfected first position lien” in the third party’s crops. Defendant later purchased farm products from third party and plaintiff and defendant entered into a subordination agreement. Court observed that defendant was not “an innocent third-party purchaser,” and was aware of plaintiff’s security interests. Court further concluded that defendant’s business operation as “a grain dealer does not entitle it to ignore and evade security interests when engaged in financing arrangements with farmers.” Plaintiff’s motion for summary judgment granted.

In WILDEARTH GUARDIANS, Plaintiff, v. UNITED STATES ARMY CORPS OF ENGINEERS, Federal Defendant, No. CV 14-0666 RB/SCY, 2017 WL 5634112 (D.N.M. November 22, 2017), environmental group sued Army Corps of engineers alleging the agency’s “diversion structures” on the Middle Rio Grande violated the Endangered Species Act (ESA), harming the silvery minnow and the southwestern willow flycatcher species. Here, plaintiff filed motion to “add documents to the administrative record” compiled by defendant. Court considered a number of plaintiff’s arguments, “extra-record documents,” the law, and determined that “absent clear evidence that the Corps’ record is inadequate, the Court follows the presumption of administrative regularity and declines to admit the documents.” Plaintiffs’ motion denied.


REGULATORY: Includes AMS, EPA, FWS, ITA, and NOAA rules and notices. 

AGRICULTURAL MARKETING SERVICE:

Rule implements a recommendation made by the American Pecan Council (Council) to establish reporting requirements under the Federal marketing order for pecans. Details here.

Rule USDA is adopting, as a final rule, without change, an interim rule that implemented a recommendation from the California Walnut Board (Board) to decrease the assessment rate established for the 2017-18 and subsequent marketing years from $0.0465 to $0.0400 per kernelweight pound of assessable walnuts. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is withdrawing the direct final rule for “Approval of Missouri Air Quality Implementation Plans; Infrastructure SIP Requirements for the 2008 Ozone National Ambient Air Quality Standard” published in the Federal Register on October 6, 2017. Info here.

Rule EPA is withdrawing the direct final rule for “Approval of Missouri Air Quality Implementation Plans; Infrastructure SIP Requirements for the 2010 Sulfur Dioxide National Ambient Air Quality Standard” published in the Federal Register on October 6, 2017. Info here.

Rule EPA is withdrawing the direct final rule for “Approval of Nebraska’s Air Quality Implementation Plan, Operating Permits Program, and 112(l) Program; Revision to Nebraska Administrative Code,” published in the Federal Register on October 5, 2017. Details here.

Rule establishes an exemption from the requirement of a tolerance for residues of polyethyleneimine when used as an inert ingredient in a pesticide chemical formulation on growing crops and raw agricultural commodities after harvest. Details here.

FISH AND WILDLIFE SERVICE:

Rule FWS revises previous proposal to revise regulations governing the annual Migratory Bird Hunting and Conservation Stamp Contest. Info here.

Notice FWS, as the lead Federal agency, along with the Bureau of Reclamation as a cooperating agency and the implementing agency for the Lower Colorado River Multi-Species Conservation Program (LCR MSCP), announces the availability of a draft environmental assessment (EA) under the National Environmental Policy Act. Details here.

INTERNATIONAL TRADE ADMINISTRATION: Notice ITA preliminarily determines that countervailable subsidies are being provided to producers and exporters of ripe olives from Spain. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS announces the re-opening of the recreational sector for red snapper in the exclusive economic zone (EEZ) of the South Atlantic through this temporary rule. Details here.

Rule NMFS announces that the Commonwealth of Virginia is transferring a portion of its 2017 commercial bluefish quota to the State of Rhode Island. Info here.

Rule NMFS announces that the Commonwealth of Virginia is transferring a portion of its 2017 commercial summer flounder quota to the State of Rhode Island. Details here.

Rule NMFS is issuing regulations under the Tuna Conventions Act to implement Resolution C-16-05 (Resolution on the Management of Shark Species) of the Inter-American Tropical Tuna Commission (IATTC) adopted in July 2016. Info here.

Rule NMFS proposes to implement annual harvest specifications and management measures to establish the allowable catch levels for Pacific mackerel in the U.S. exclusive economic zone (EEZ) off the West Coast for the fishing years 2017-2018 and 2018-2019. Info here.