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


ANNOUNCEMENT:  Join us Wednesday, September 20, at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: “Tackling the Challenge of Invasive Species to Reduce Impacts to Agriculture.” Details available here.


JUDICIAL: Includes environmental, biosecurity, water law, landowner liability, and renewable energy issues.

In UNITED STATES of America, Plaintiff–Appellee, v. Max SPATIG, aka John Spatig, aka John Serge Spatig, Defendant–Appellant, No. 15–30322, 2017 WL 4018398 (9th Cir. September 13, 2017), defendant was convicted of storing hazardous waste in his yard without a permit, in violation of the Resource Conservation and Recovery Act (RCRA). On appeal, appellate court found that RCRA provision defendant violated was a “general-intent crime,” negating a “diminished-capacity defense.” The court also ruled that a sentence enhancement was in order because “cleanup of defendant’s property required a substantial expenditure.”

In Rembrandt Enterprises, Inc., Plaintiff, v. Illinois Union Insurance Company, Defendant, No. 15-2913 (RHK/HB), 2017 WL 4022404 (D. Minn. September 12, 2017), plaintiff sued its insurer to recover losses due to an outbreak of bird flu. Plaintiff sought to recover expenses under the insurance policy’s provision for “remediation costs,” including money spent to “repopulate its flocks,” and “money spent to heat its barns once the flocks had been depopulated.” Court ruled that “repopulation expenses are reimbursable, but heating expenses are not.”

In Herman L. FOX, Plaintiff and Appellant, v. BHCC II, INC., a Montana Corporation, doing business as The Billings Hotel & Convention Center, Respondent and Appellee, DA 17-0069, 2017 WL 3867601 (Mont. September 5, 2017), plaintiff held a secondary easement in an irrigation ditch on hotel property and hotel also claimed water rights to the ditch. Plaintiff sued hotel over its “placement of foliage and decorative items that allegedly interfered with [plaintiff’s] right to distribute irrigation water and maintain the ditch.” Lower court ruled hotel was “not unreasonably infringing on the secondary easement rights,” and that hotel “would continue to be responsible for using reasonable efforts to maintain the ditch.” Plaintiff appealed and State Supreme Court ruled that “hotel did not unreasonably interfere with easement and water rights regarding the ditch.” Court also found that “trial court did not abuse its discretion by accepting judicial admission and tender by hotel of its legal duty to clean and maintain the ditch.”

BEAVERTAIL, INC., et al., Plaintiff, v. UNITED STATES of America, Defendant, No. 4:12-cv-610-BLW, 2017 WL 3749446 (D. Idaho August 29, 2017) involved a suit by some ranchers after the government began constructing a perimeter dike around a lake, but never completed it. Per plaintiffs, the part of the dike that was completed “failed to impound the water inside the dike and also failed to dry up the area outside the dike.” Plaintiffs contended the partially constructed dike makes spring flooding on their properties worse and sued under the Federal Tort Claims Act (FTCA) and the Quiet Title Act. Government argued decision to leave the partially constructed dikes in place helps maintain the water storage facility and the wildlife refuge and is therefore a “policy based” decision. Court observed that “[i]t is not sufficient for the government merely to waive [sic] the flag of policy as a cover for anything and everything it does that is discretionary in nature.” Court denied government’s motion to dismiss plaintiffs’ tort claims based on the “discretionary-function exception.”

In IN RE Petition of NEW HAVEN GLC SOLAR, LLC, for a Certificate of Public Good, Pursuant to 30 V.S.A. §§ 219a and 248, to Install and Operate a 500kW Group Net–Metered Solar Electric Generation Facility in New Haven, Vermont (Town of New Haven, Appellant), NO. 2016–125, 2017 WL 3668583 (Vt. August 25, 2017), a town appealed decision of the Public Service Board issuing a “certificate of public good” (CPG) for construction of a net-metered solar array within the town limits. On appeal, Supreme Court held that the Board was required to hold a technical hearing to consider the “project’s ability to interconnect with existing system,” but was not required to hold hearing based on town’s objections regarding the “orderly development of region.” Reversed and remanded.


LEGISLATIVE:

S. 1447: Diesel Emissions Reduction Act of 2017. This bill’s text for status Reported by Senate Committee (Sep 13, 2017) is now available.

H.R. 3768: To encourage recycling and reduction of disposable plastic bottles in units of the National Park System, and for other purposes. This bill was referred to the House Committee on Natural Resources which will consider it before sending it to the House floor for consideration.

H.R. 3354: Department of the Interior, Environment, and Related Agencies Appropriations Act, 2018. Passed 211/198.


REGULATORY: Includes AMS, EPA, FDA, NIFA and NOAA rules and notices.

AGRICULTURAL MARKETING SERVICE: Rule implements a recommendation from the Washington Apricot Marketing Committee (Committee) for a decrease in the assessment rate established for the 2017-2018 and subsequent fiscal periods from $1.40 to $1.00 per ton of apricots handled. Details here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is taking direct final action to approve revisions to the Iowa State Implementation Plan (SIP), the 111(d) plan, and the Operating Permits Program. Details here.

Rule EPA is taking direct final action to approve the Clean Air Act section 111(d)/129 negative declaration for the United States Virgin Islands, for other solid waste incineration units. Details here.

Rule EPA is taking final action to amend the Standards and Practices for All Appropriate Inquiries to update an existing reference to a standard practice revised by ASTM International. Info here.

Rule EPA is withdrawing the direct final rule for the Amendment to Standards and Practices for All Appropriate Inquiries published on June 20, 2017. Info here.

FOOD AND DRUG ADMINISTRATION:

Notice FDA is announcing the availability of draft guidance for industry #210 entitled “The Index of Legally Marketed Unapproved New Animal Drugs for Minor Species.” Info here.

Notice FDA is announcing the availability of the draft guidance entitled “Utilizing Animal Studies to Evaluate Organ Preservation Devices.” Details here.

NATIONAL INSTITUTE OF FOOD AND AGRICULTURE: Notice NIFA announces its stakeholder listening initiative “NIFA Listens: Investing in Science to Transform Lives.” Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS announces that the Pacific Fishery Management Council (Council) has submitted Amendment 5 to the Fishery Management Plan for U.S. West Coast Fisheries for Highly Migratory Species (HMS FMP) for review by the Secretary of Commerce. Info here.

Notice the Gulf of Mexico Fishery Management Council (Council) will hold a four-day meeting to consider actions affecting the Gulf of Mexico fisheries in the exclusive economic zone. Details here.

Notice the New England Fishery Management Council (Council) is scheduling a public meeting of its Habitat Committee to consider actions affecting New England fisheries in the exclusive economic zone. Info here.