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


ANNOUNCEMENT: Join us Wednesday, October 4th, at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: “Legal Issues with Data (Big and Small).” Details available here.


JUDICIAL: Includes urb & ag, environmental law,  CWA, labor, and water law issues.

In A-W LAND CO., LLC; VERNON JESSER; MARY JESSER; KENT J. McDANIEL; DEANNA R. McDANIEL; and MARVIN BAY and MILDRED BAY, Co-Trustees of the Bay Family Trust, Plaintiffs, v. ANADARKO E&P COMPANY LP f/k/a RME PETROLEUM COMPANY; and ANADARKO LAND CORPORATION f/k/a RME LAND CORP., Defendants, No. 09-cv-02293-MSK-MJW, 2017 WL 4161278 (D. Colo. September 20, 2017), plaintiffs owned two parcels of land used for agricultural purposes, and defendants hold the subsurface mineral estate underlying the property. Defendant drilled seven vertical gas wells on the property and plaintiff sued for trespass, arguing that “by choosing to drill seven vertical wells instead of two multi-directional horizontal wells, [defendant] exceeded the scope of its rights to reasonably occupy the surface estate.” Plaintiff sought damages for loss of use of the property during the trespass and the court observed that “[f]or trespasses on agricultural lands, the loss of use is often measured by the value of crops that could not be grown during the trespass.” Court ruled that plaintiff would be allowed to “measure loss of use damages by use of a hypothetical model.”

Igor Zbitnoff, Eileen Andreoli, Jeffrey Frost, Richard Joseph, Juliet Beth Buck, Ray Gonda, Stop the F35 Coalition, Plaintiffs – Appellants, David Deslauriers, Sr., Plaintiff, v. Deborah Lee James, Secretary of the Air Force, Defendant – Appellee. 16-3309-cv, 2017 WL 4176222 (2d Cir. September 21, 2017) involved a challenge to the Air Force’s decision to locate aircraft at a National Guard station and “the Secretary’s Environmental Impact Statement’s (EIS) compliance with the National Environmental Policy Act (NEPA).” Issue was whether defendant “failed to apprise the public of the information she necessarily considered when reaching her determination.” Plaintiffs argued the EIS must discuss “non-environmental impacts,” but court concluded that “NEPA requires the EIS to address the environmental impacts of the proposed project and cannot be read in the broader meaning that plaintiffs urge.” Summary judgment for defendant affirmed.

In NORTHWEST ENVIRONMENTAL ADVOCATES, Plaintiff, v. U.S. DEPARTMENT OF COMMERCE, et al., Defendants, NO. C16-1866-JCC, 2017 WL 4168251 (W.D. Wash. September 19, 2017), an environmental group claimed defendants “failed to meet their obligations under the Clean Water Act (CWA), the Coastal Zone Management Act (CZMA), and the Endangered Species Act (ESA) to protect Washington’s coastal waters and the creatures that live in its waters from nonpoint source pollution.” Plaintiffs argued Defendants provided no incentives “to reduce Washington’s sources of nonpoint pollution by withholding portions of Program Assistance Grants as required by law.” Defendants argued that plaintiff’s claims amount to “a speculative prediction that [Defendants’] actions will encourage [Washington] to act.” Court ruled, however, that plaintiff “need only show that the procedural step the agency failed to take ‘could protect [its] economic interests.’” Motion to dismiss denied.

In Jimmy R. NICKS and James Earl Patrick, individually and on behalf of all persons similarly situated, Plaintiffs, v. KOCH MEAT CO., INC., d/b/a Koch Foods, Koch Foods of Mississippi, LLC, and Jet Poultry Services, Inc., Defendants, No. 16–cv–6446, 2017 WL 4122743 (N.D. Ill. September 18, 2017), plaintiffs, members of a “live-haul chicken catching” group, filed class action alleging defendants (chicken processing company), violated the Fair Labor Standards Act (FLSA) concerning minimum wage and overtime pay. Here, plaintiffs sought “conditional certification and authorization to facilitate notice.” Defendants argued plaintiffs failed to show that defendants’ use of third-party contractors “was a scheme to avoid FLSA liability and they have failed to show that the potential claimants were subjected to a vertical reporting structure in which they were required to work unpaid overtime.” Court concluded that “it is sufficient that [plaintiffs] have provided multiple declarations indicating that Defendants had a de facto practice at more than one Complex of not paying for overtime hours.” Plaintiffs’ motion for conditional certification granted.

In The CLARK FORK COALITION, a non-profit organization with senior water rights, Katrin Chandler, an individual with senior water rights Betty J. Lannen, an individual with senior water rights, Polly Rex, an individual with senior water rights, and Joseph Miller, an individual with senior water rights, Petitioners and Appellees, v. John E. TUBBS, in his official capacity as Director of the Montana Department of Natural Resources and Conservation and the Montana Department of Natural Resources and Conservation (DNRC), an executive branch agency of the State of Montana, Respondents and Appellants, DA 15-0746, 388 Mont. 205 (Mont. July 25, 2017), plaintiffs sued challenging validity of Department of Natural Resources and Conservation (NRC) administrative rule regarding “groundwater appropriations exempt from permitting requirements.” District court invalidated rule and awarded plaintiffs attorney fees under “private attorney general doctrine.” Defendant appealed. Supreme Court reversed, holding that plaintiffs were not entitled to award of attorney fees under the private attorney general doctrine.


LEGISLATIVE:

H.R. 289: GO Act. This bill’s text for status is now available.

H.R. 825: Public Land Renewable Energy Development Act of 2017. This bill’s text for status is now available.

H.R. 3809: To amend the Food Security Act of 1985 to improve conservation compliance, and for other purposes. This bill was referred to the House Committee on Agriculture.

H.R. 3815: To amend of the Food and Nutrition Act of 2008 to authorize the Secretary of Agriculture to make grants to carry out gleaning projects. This bill was referred to the House Committee on Agriculture.


REGULATORY:  Includes EPA, FWS, FDA, NOAA, RBCS, and RUS rules and notices.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is taking direct final action to approve changes to the Georgia State Implementation Plan (SIP) to revise the Emission Reduction Credits (ERC) regulation. Info here.

Rule EPA is taking direct final action to approve the 2011 base year inventory for the Maryland portion of the Philadelphia-Wilmington-Atlantic City marginal nonattainment area for the 2008 8-hour ozone national ambient air quality standard. Details here.

Rule EPA is taking direct final action to approve two state implementation plan (SIP) revisions submitted by the State of West Virginia. Details here.

Rule EPA is approving a request from the New Jersey Department of Environmental Protection for delegation of authority to implement and enforce the Federal plan for Sewage Sludge Incineration (SSI) units. Info here.

Rule EPA is extending the compliance dates for the formaldehyde emission standards for composite wood products final rule issued pursuant to the Toxic Substances Control Act (TSCA) Title VI, and published in the Federal Register on December 12, 2016. Info here.

Rule EPA Region 5 is publishing a direct final Notice of Deletion of the Nutting Truck & Caster Co. Superfund Site, located in Faribault, Rice County, Minnesota from the National Priorities List. Info here.

FISH AND WILFLIFE SERVICE:

Notice FWS is making available for public comment an application from The Nature Conservancy (TNC) for an enhancement of survival permit under the Endangered Species Act for take of five species associated with implementation of a candidate conservation agreement with assurances (CCAA) in Montana. Info here.

Notice FWS invite the public to comment on the following applications to conduct certain activities with endangered and threatened species. Details here.

FOOD AND DRUG ADMINISTRATION: Rule FDA is announcing that Idemitsu Kosan, Cp. Ltd. has filed a petition proposing that the food additive regulations be amended to provide for the safe use of silicon dioxide as a carrier for flavors for use in animal feed. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is prohibiting retention of longnose skate in the Western Regulatory Area of the Gulf of Alaska. Info here.

Rule NMFS proposes to implement management measures described in Amendment 46 to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP), as prepared by the Gulf of Mexico Fishery Management Council. Details here.

Notice NOAA invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. Info here.

Notice the Gulf of Mexico (Gulf) Fishery Management Council has submitted Amendment 44 to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP) for review, approval, and implementation by NMFS. Details here.

Notice the Science Advisory Board (SAB) was established by a Decision Memorandum dated September 25, 1997, and is the only Federal Advisory Committee with responsibility to advise the Under Secretary of Commerce for Oceans and Atmosphere on strategies for research, education, and application of science to operations and information services. Info here.

Notice NMFS has issued an incidental harassment authorization to the University of Hawaii (UH) to incidentally take, by Level A and Level B harassment only, marine mammals during a marine geophysical survey in the Central Pacific Ocean. Info here.

RURAL BUSINESS-COOPERATIVE COUNCIL: Notice of extension of application deadline to clarify the requirement that Consortium members be located in the Delta Region. Info here.

RURAL UTILITIES SERVICE: Notice RUS invites comments on an information collection for which the Agency intends to request approval from the Office of Management and Budget (OMB). Details here.