Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., No. 17-71, 2018 WL 6174253 (U.S. Nov. 27, 2018); The Fish and Wildlife Service administers the Endangered Species Act of 1973 on behalf of the Secretary of the Interior. In 2001, the Service listed the dusky gopher frog as an endangered species. That required the Service to designate “critical habitat” for the frog. The Service proposed designating as part of that critical habitat a site in St. Tammany Parish, Louisiana, which the Service dubbed “Unit 1.” The frog had once lived in Unit 1, but the land had long been used as a commercial timber plantation, and no frogs had been spotted there for decades. The Service concluded that Unit 1 met the statutory definition of unoccupied critical habitat because its rare, high-quality breeding ponds and distance from existing frog populations made it essential for the species’ conservation. The Service then commissioned a report on the probable economic impact of its proposed critical-habitat designation. With regard to Unit 1, the report found that designation might bar future development of the site, depriving the owners of up to $33.9 million. The Service nonetheless concluded that the potential costs were not disproportionate to the conservation benefits and proceeded to designate Unit 1 as critical habitat for the dusky gopher frog.
An area is eligible for designation as critical habitat under § 1533(a)(3)(A)(i) only if it is habitat for the species. That provision, the sole source of authority for critical-habit designations, states that when the Secretary lists a species as endangered he must also “designate any habitat of such species which is then considered to be critical habitat.” It does not authorize the Secretary to designate the area as critical habitat unless it is also habitat for the species. The definition allows the Secretary to identify a subset of habitat that is critical, but leaves the larger category of habitat undefined. The Service does not now dispute that critical habitat must be habitat, but argues that habitat can include areas that, like Unit 1, would require some degree of modification to support a sustainable population of a given species. Weyerhaeuser urges that habitat cannot include areas where the species could not currently survive. The Service, in turn, disputes the premise that the administrative record shows that the frog could not survive in Unit 1. The Court of Appeals, which had no occasion to interpret the term “habitat” in § 1533(a)(3)(A)(i) or to assess the Service’s administrative findings regarding Unit 1, should address these questions in the first instance.
2. The Secretary’s decision not to exclude an area from critical habitat under § 1533(b)(2) is subject to judicial review. The Administrative Procedure Act creates a “basic presumption of judicial review” of agency action. Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 18 L.Ed.2d 681. The Service contends that the presumption is rebutted here because the action is “committed to agency discretion by law,” 5 U.S.C. § 701(a)(2), because § 1533(b)(2) is one of those rare provisions “drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion,” Lincoln v. Vigil, 508 U.S. 182, 191, 113 S.Ct. 2024, 124 L.Ed.2d 101.
*2 Section 1533(b)(2) describes a unified process for weighing the impact of designating an area as critical habitat. The provision’s first sentence requires the Secretary to “tak[e] into consideration” economic and other impacts before designation, and the second sentence authorizes the Secretary to act on his consideration by providing that he “may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of “ designation. The word “may” certainly confers discretion on the Secretary, but it does not segregate his discretionary decision not to exclude from the mandated procedure to consider the economic and other impacts of designation when making his exclusion decisions. The statute is, therefore, not “drawn so that a court would have no meaningful standard against which to judge the [Secretary’s] exercise of [his] discretion” not to exclude. Lincoln, 508 U.S., at 191. Weyerhaeuser’s claim—that the agency did not appropriately consider all the relevant statutory factors meant to guide the agency in the exercise of its discretion—is the sort of claim that federal courts routinely assess when determining whether to set aside an agency decision as an abuse of discretion. The Court of Appeals should consider in the first instance the question whether the Service’s assessment of the costs and benefits of designation and resulting decision not to exclude Unit 1 was arbitrary, capricious, or an abuse of discretion.
OAKDALE GROUNDWATER ALLIANCE, et al., Plaintiffs & Respondents, v. OAKDALE IRRIGATION DISTRICT, Defendant & Appellant; SAN LUIS & DELTA-MENDOTA WATER AUTHORITY et al., Real Parties in Interest. Additional Party Names: Louis F. Brichetto, Robert N. Frobose, State Water Contractors, No. F076288, 2018 WL 6178238 (Cal. Ct. App. Nov. 27, 2018):
Oakdale Irrigation District (District) appeals from a judgment of the Stanislaus County Superior Court granting the writ petition of Oakdale Groundwater Alliance and the court’s order denying a motion to vacate said judgment.
Created in 1909, District holds water rights to and diverts water from the Stanislaus River for distribution and use within its 64,000-acre service area. It operates and maintains over 330 miles of laterals and pipelines; 110 miles of drains; 40 miles of main canals; 22 deep well pumps; and 43 reclamation pumps. On March 15, 2016, District approved the “One-Year Pilot On-Farm Water Conservation Program and Transfer of Consumptive Use Water” (Project). Pursuant to the Project, participating landowners within District’s service area would fallow up to 3,000 acres of farmland during the 2016 irrigation season, potentially conserving up to 9,000 acre-feet of water. This water would be transferred to the real parties in interest—San Luis & Delta-Mendota Water Authority and State Water Contractors—in exchange for funds to finance the implementation of water conservation measures on the fallowed land. District concluded the Project would have no significant effect on the environment.
Alliance, an unincorporated association, petitioned for a peremptory writ of mandamus directing District to vacate and set aside its approval of the Project and prepare an environmental impact report (EIR) in accordance with the California Environmental Quality Act (CEQA) and its accompanying Guidelines. Following a hearing on the matter, the court granted the petition and entered a judgment in favor of Alliance. District unsuccessfully moved to vacate the judgment on the basis of mootness.
On appeal, District argues it did not need to prepare an EIR because there was no substantial evidence in the administrative record supporting a fair argument that the Project may have a significant effect on the environment; its initial study/negative declaration adequately described the Project and baseline physical conditions; and the superior court erroneously denied its motion to vacate the judgment. We reject these contentions and affirm the judgment. There was substantial evidence in the record supporting a fair argument that the Project may have a significant effect on biological resources and air quality. In addition, District’s initial study/negative declaration was defective: it did not sufficiently describe the Project as a whole or baseline physical conditions. Finally, the court’s denial of District’s motion to vacate judgment was not improper according to the appellate court.
ARMANDO CARDENAS, JOSE F. CARDENAS, JUANITA SENTENO, VERONICA SIMMONS BAILEY, ISAIAH ALEXANDER, KATHY ALEXANDER, & SHONDA TATE, on behalf of themselves & all others similarly situated, Plaintiffs, v. A.J. PIEDIMONTE AGRICULTURAL DEVELOPMENT, LLC, JAMES J. PIEDIMONTE & SONS, INC., JAMES J. PIEDIMONTE & SONS, LLC, MAGC, INC., ANTHONY JOSEPH PIEDIMONTE, in his individual capacity, & SCOTT JAMES BENNETT, in his individual capacity, Defendants., No. 18-CV-881-EAW-MJR, 2018 WL 6177271 (W.D.N.Y. Nov. 27, 2018):
Presently before the Court is plaintiffs’ motion for conditional certification of a Fair Labor Standards Act (“FLSA”) collective action. The Court heard oral argument on the motion on November 19, 2018. Plaintiffs’ motion for conditional certification was granted.
Plaintiffs bring this action on behalf of themselves and all other similarly situated individuals seeking relief for alleged willful violations of the FLSA overtime compensation requirements by defendants A.J. Piedimonte Agricultural Development, LLC, James J. Piedimonte & Sons, Inc., James J. Piedimonte & Sons, LLC, MAGC, Inc., Anthony Joseph Piedimonte, and Scott James Bennett. Since the filing of the complaint, several other individuals have “opted in” to the lawsuit by filing “consent to sue” forms with the Clerk of Court.
For the foregoing reasons, plaintiffs’ motion for conditional certification of an FLSA collective action was granted.
NEW MEXICO GARLIC GROWERS COALITION AND EL BOSQUE FARM, Plaintiffs, QINGDAO TIANTAIXING FOOD CO., LTD., Consol. Plaintiff, & SHANDONG JINXIANG ZHENGYANG IMPORT & EXPORT CO., LTD. AND JINING ALPHA FOOD CO., LTD., Plaintiff-Intervenors, v. UNITED STATES, Defendant, & ZHENGZHOU HARMONI SPICE CO., LTD., HARMONI INTERNATIONAL SPICE, INC., FRESH GARLIC PRODUCERS ASSOCIATION, CHRISTOPHER RANCH, L.L.C., THE GARLIC COMPANY, VALLEY GARLIC, AND VESSEY AND COMPANY, INC., Defendant-Intervenors., No. 17-00146, 2018 WL 6177165 (Ct. Int’l Trade Nov. 26, 2018):
In this consolidated action, Plaintiffs New Mexico Garlic Growers Coalition and El Bosque Farms (collectively “NMGGC”), Consolidated Plaintiff, Qingdao Tiantaixing Foods Co., Ltd. (“QTF”), and Plaintiff-Intervenors, Shandong Jinxiang Zhengyang Import & Export Co., Ltd. (“Zhengyang”) and Jining Alpha Food Co., Ltd. (“Alpha”) (together with Zhengyang, “separate rate respondents”), challenge the U.S. Department of Commerce’s (“Commerce” or the “agency”) final results and partial rescission of the 21st administrative review (“AR 21”) of the antidumping duty order on fresh garlic from the People’s Republic of China (“PRC” or “China”). The court found that the Final Results are sustained.
IN RE JOSEPH DEREK TINGLE, CHELSEY BROOKE TINGLE DEBTORS FARM CREDIT MID-AMERICA, PCA PLAINTIFF v. JOSEPH DEREK TINGLE, CHELSEY BROOKE TINGLE DEFENDANTS, No. 17-30531, 2018 WL 6173427 (Bankr. E.D. Ky. Nov. 21, 2018):
Derek and Chelsey Tingle obtained loans from Farm Credit between 2009 and 2011 to support Derek’s cattle and tobacco operations. The first loan was made on August 14, 2009, in the amount of $202,500 (“Note 7200”). [Note 7200 is secured by a lien on all equipment and crops. As part of the application process, the Tingles provided a balance sheet dated June 24, 2009, that valued investments in growing crops at $478,125 and equipment at $134,550.
Farm Credit made another loan to the Tingles on April 8, 2010, for $86,000 is secured by a lien on crop insurance proceeds, livestock, equipment and crops. [Id.] As part of the application process, the Tingles provided a balance sheet dated December 31, 2009, that valued various cattle at $150,250, tobacco at $80,100, and equipment at $143,916. [
On September 30, 2011, Farm Credit made a third loan to the Tingles for $25,000. Note 6600 is secured by a lien on livestock, equipment, and crops. As part of the application process, the Tingles provided a balance sheet dated December 31, 2010, that valued various cattle at $198,200, tobacco at $148,750, and equipment at $204,666.
Farm Credit sued the Tingles in Henry Circuit Court after they defaulted on the notes and was granted judgment in the amount of $305,159.82 on September 12, 2014. The Tingles then filed a chapter 13 petition on October 7, 2014, which was dismissed without a discharge in 2016. Derek ceased his farming operations while the chapter 13 case was active. He testified that he liquidated his remaining farming assets after the case was dismissed.
The Tingles filed the current chapter 7 case on November 22, 2017. The schedules list Farm Credit as an unsecured creditor with a claim for $180,000.00. Farm Credit filed this adversary proceeding seeking a determination that the Tingles’ obligations are non-dischargeable pursuant to 11 U.S.C. § 523(a)(2)(A), (2)(B), (4), and (6). In the alternative, Farm Credit seeks denial of a discharge in the chapter 7 proceeding pursuant to 11 U.S.C. § 727(a)(3), (4), (5), and (7).
The court found that Farm Credit has demonstrated that there are no genuine disputes as to material facts, and it is entitled to judgment as a matter of law, pursuant to § 727(a)(3) and (a)(5). Farm Credit has not proven that it is entitled to judgment as a matter of law on the remaining claims. A judgment will be entered in conformity with this opinion.
Motion to Invoke Cloture on Stephen Alexander Vaden, of Tennessee, to be General Counsel of the Department of Agriculture: Stephen Alexander Vaden, of Tennessee, to be General Counsel of the Department of Agriculture Info HERE