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

Judicial: Environmental, Livestock Liability, Agritourism, Water Law, NEPA, APA

AGROLIPETSK, LLC, Plaintiff, v. MYCOGEN SEEDS, et al. Defendants. Additional Party Names: Agrigenetics, Dow AgroSciences, No. 116CV03414SEBMPB, 2018 WL 4574335 (S.D. Ind. Sept. 25, 2018); 

Plaintiff Agrolipetsk (“Agrolipetsk”), a Russian limited liability company, sued Defendants Dow AgroSciences (“Dow”), a Delaware limited liability company, and Agrigenetics (doing business as “Mycogen Seeds”), a Delaware corporation, both having their principal places of business in Indiana, in connection with the sale by Defendants to Agrolipetsk of an allegedly defective variety of hybrid sunflower seed, “Variety 341.” Following dismissal without prejudice of its first amended complaint on Defendants’ motion for judgment on the pleadings, see Fed. R. Civ. P. 12(c), Agrolipetsk moved for leave to file a second amended complaint. See Fed. R. Civ. P. 15(a)(2). Court referred the motion to Magistrate Judge Matthew P. Brookman, who found that Agrolipetsk’s proposed complaint (“Proposed Complaint” or “PC”) would not survive a motion to dismiss for failure to state a claim on which relief could be granted, see Fed. R. Civ. P. 12(b)(6). He therefore denied the motion as futile. (“Entry”). Agrolipetsk has now appealed from that ruling by timely objection. See Fed. R. Civ. P. 72.  Court upheld part of the decision, and overruled other.  
Dilley v. Holiday Acres Properties, Inc., No. 17-2485, 2018 WL 4571932 (7th Cir. Sept. 25, 2018);
Judy Dilley and Abigail Brown were injured while horseback riding in Wisconsin. Both women are citizens of other states, so they sued the trail and stable operators in federal court in western Wisconsin asserting claims of negligence. They lost at summary judgment and on the pleadings, respectively. Their appeals, which we have consolidated for decision, require us to interpret and apply Wisconsin’s equine-immunity statute. With certain exceptions, the statute blocks recovery for injuries that result from “an inherent risk of equine activities.” WIS. STAT. § 895.481(2). The courts below held that the equine-immunity statute bars their claims.
Court affirmed. Dilley’s claims fall within the scope of the statutory immunity because a trail operator’s negligence is an “inherent risk of equine activities” as that phrase is defined in the statute. And no exception to immunity applies. The trail operators reasonably assessed Dilley’s ability to ride a horse and to safely manage the particular horse they assigned to her; they did not act in willful or wanton disregard of her safety; and the tack they provided was not faulty. Brown concedes that her claim falls within the scope of immunity but invokes an exception that applies if the defendant provided a horse for the plaintiff. Because Brown rode her own horse, that exception is unavailable.
Roosevelt Irrigation Dist., Plaintiff, v. United States of Am., et al., Defendants. Salt River Project Agric. Improvement & Power Dist., et al., Counter-Claimants/ Cross-Claimants,, No. CV-15-00448-PHX-JJT, 2018 WL 4568745 (D. Ariz. Sept. 24, 2018); At issue are the following Motions: (1) Defendants and Counterclaimants Salt River Project Agricultural Improvement and Power District (“the District”) and Salt River Valley Water Users’ Association’s (“the Association”) (collectively “SRP”)1Motion for Partial Summary Judgment, to which Plaintiff and Counterdefendant Roosevelt Irrigation District (“RID”) filed a Response, and SRP filed a Reply; and (2) RID’s Motion for Partial Summary Judgment, to which SRP filed a Response (Doc. 323, SRP Resp.), and RID filed a Reply. The Court additionally will resolve SRP’s Motion to Exclude the Testimony of Scott Snyder.
Court granting in part and denying RID’s Motion for Summary Judgment (Doc. 314). The Court grants RID partial summary judgment on Count III of SRP’s Counterclaim, as articulated in this Order. Additionally, the Court dismisses Count V of SRP’s Counterclaim without prejudice. The Court will defer ruling on RID’s Motion as to Count VI of SRP’s Counterclaim until its resolves the pending Motions in the parallel proceeding. The Court denies the balance of RID’s Motion.
Court granting in part SRP’s Motion for Summary Judgment (Doc. 312). SRP is entitled to partial summary judgment on RID’s Complaint, in particular RID’s request for a declaration that it has a permanent right to withdraw water pursuant to A.R.S. § 45-494. The Court further grants SRP summary judgment on Count IV of its Counterclaim. The Court will defer ruling on SRP’s Motion as to Count VI of its Counterclaim until it resolves the pending Motions in the parallel proceeding.
IT IS FURTHER ORDERED denying as moot SRP’s Motion to Exclude the Testimony of Scott Snyder (Doc. 268).
In re: CRANBERRY GROWERS COOPERATIVE, Debtor., No. 17-13318-11, 2018 WL 4586178 (Bankr. W.D. Wis. Sept. 21, 2018); Debtor Cranberry Growers Cooperative (“Debtor” or “CranGrow”) filed for relief under Chapter 11. The United States Trustee (“UST”) claims additional quarterly fees are due. CranGrow objects to the Administrative Claim of the Office of the United States Trustee. The UST opposes Debtor’s Objection. The parties submitted an extensive stipulation of facts and agreed no evidentiary hearing was required.
The majority view holds all Direct Revolver Payments as “disbursements” under section 1930(a)(6). The great weight of case law broadly defines “disbursements” in a way that almost always benefits the UST. But it would be inequitable to apply UST fees to Direct Revolver Payments made only because of the need to draw on the Direct Revolver Loan to pay UST fees in the first place. Under this theory, a certain portion of Direct Revolver Payments are not “disbursements.”
This decision shall constitute findings of fact and conclusions of law pursuant to Bankruptcy Rule 7052 and Rule 52 of the Federal Rules of Civil Procedure.
W.A. MONCRIEF, JR., Plaintiff, v. UNITED STATES DEPARTMENT OF INTERIOR, & JAMIE E. CONNELL, in her official capacity as State Dir., Montana Dakotas Office, Bureau of Land Mgmt., Defendants., No. CV 17-609 (RJL), 2018 WL 4567136 (D.D.C. Sept. 24, 2018);
and Related Case
Solenex LLC v. Jewell, No. CV 13-0993 (RJL), 2018 WL 4567132 (D.D.C. Sept. 24, 2018)
 Plaintiff the holder of a federal oil and gas lease in Montana, brings suit against the Secretary of the Interior, the Secretary of Agriculture, the Director of the Bureau of Land Management, the Chief of the Forest Service, and several other subordinate federal officials (collectively, “federal defendants” or “the Government”) relating to the Government’s cancellation of its lease after suspending all oil and gas drilling and extraction activity on that lease for more than thirty years. Plaintiff sought declaratory and injunctive relief, including that this Court vacate the cancellation and reinstate the lease, based on federal defendants’ alleged violations of the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq. Before the Court are the parties’ Cross-Motions for Summary Judgment. The Court grants the plaintiff’s motion for summary judgment and denies the defendant’s cross-motion for summary judgment.
     Plaintiff seeks declaratory and injunctive relief for federal defendants’ alleged violations of the Administrative Procedure Act(“APA”), 5 U.S.C. § 551 et seq., by cancelling the plaintiff’s lease after holding it in suspension for more than thirty years. Plaintiff raises several independent reasons for finding that federal defendants acted unlawfully: (1) federal defendants lack authority to cancel the lease both because the Secretary exceeded his authority and because his cancellation was arbitrary and capricious, (2) the cancellation is time barred by a statutory limitations period or, alternatively, the doctrine of laches, (3) defendants are estopped from cancelling the lease by a pattern of conduct treating the lease as valid, and (4) the lease was properly issued in compliance with NEPA and the NHPA. A brief overview of these is in order.
The court found that defendants’ decision to cancel the lease was arbitrary and capricious. Plaintiff’s Motion for Summary Judgment was granted, defendants’ Cross-Motion for Summary Judgment was denied, and this case was remanded to the Department of Interior with the order that the lease be reinstated.

Regulatory; USDA-APHIS, USDA-RD, EPA

Notice: Animal Plant and Health Inspection Service Title: Emergency Management Response System (EMRS).  Info Here

Notice: USDA Notice of Request for Extension and Revision of a Currently Approved Information Collection: Advisory Committee and Research and Promotion Background Information. Info Here

Notice: USDA Rural Development Guarantee Fee Rates for Guaranteed Loans for Fiscal Year 2019; Maximum Portion of Guarantee Authority Available for Fiscal Year 2019; Annual Renewal Fee for Fiscal Year 2019. Info Here

Notice: EPA, EPA is withdrawing significant new use rules (SNURs) promulgated under the Toxic Substances Control Act (TSCA) for 145 chemical substances, which were the subjects of premanufacture notices (PMNs). EPA published these SNURs using direct final rulemaking procedures, which requires EPA to take certain actions if an adverse comment is received. EPA received adverse comments regarding the SNURs identified in this document. Therefore, the Agency is withdrawing the direct final rule SNURs identified in this document, as required under the direct final rulemaking procedures. Info Here

Final Rule: EPA, This final rule amends the Environmental Protection Agency’s (“EPA”) responsibility of the NEPA Official under its existing regulations for “Implementing the National Environmental Policy Act and Assessing the Environmental Effects Abroad of EPA Actions.” This amendment is a result of an agency reorganization that only impacts a title change of the designated NEPA Official under the existing regulations. This amendment is procedural in nature and none of these changes are intended to substantively alter the Agency’s compliance with the National Environmental Policy Act for the EPA’s actions. Info Here

Proposed Rule: EPA, The Environmental Protection Agency (EPA) is issuing a proposed rule to address scientific integrity requirements in the creation of a contract clause for inclusion in solicitations and contracts when the contractor may be required to perform, communicate, or supervise scientific activities or use scientific information to perform advisory and assistance services. This clause will complement the EPA scientific integrity policy to ensure all scientific work developed and used by the Government is accomplished with scientific integrity. Info Here

Notice: EPA Soil and Non-Soil Fumigant Risk Mitigation. Info Here

Notice: EPA, The Environmental Protection Agency is announcing plans to hold an information session on Thursday, October 11, 2018 in Seattle, Washington. The purpose of this session is to provide prospective borrowers with a better understanding of the Water Infrastructure Finance and Innovation Act (WIFIA) program requirements, application process, and to hear from WIFIA’s first borrower, King County, about their experience. More information sessions and webinars will be announced soon. Info Here

Notice and Request of Comment: USDA, This notice announces the U.S. Department of Agriculture’s (USDA) intention to request an extension and a revision to the currently approved Advisory Committee and Research and Promotion Background Information AD-755 Supplemental List—Agricultural Marketing Service Commodity Specific Questionnaire. The revised form will now require applicants to indicate their U.S. citizenship status. The primary objective is to determine the qualifications, suitability, and availability of a candidate to serve on advisory committees and/or research and promotion boards. Info Here