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


ANNOUNCEMENT: Join us TOMORROW at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: “Water Law Update.” Details available here.


JUDICIAL: Includes aquaculture, conservation programs, and agritourism issues.

ALFA INTERNATIONAL SEAFOOD, et al., Plaintiffs, v. Wilbur L. ROSS, Jr., et al., Defendants, No. 1:17–cv–00031 (APM), 2017 WL 3726984 (D.C.C. August 28, 2017) concerned the “Seafood Import Monitoring Program” aimed at addressing  “illegal, unreported, and unregulated” (IUU) fishing and seafood fraud. Plaintiffs argued the National Marine Fisheries Service (NMFS) violated federal law in promulgating the rule and that businesses suffer because of it. Plaintiffs claim NMFS acted without proper authority in issuing “an overly expansive and highly burdensome regulatory regime and relying on insufficient evidence to do so.” Court determined the rule’s issuance did not run afoul of the Magnuson–Stevens Fishery Conservation and Management Act (MSA) and that Congress granted NMFS authority “to issue regulations to combat seafood fraud.” Defendants’ motion for summary judgment granted.

In SURAT FARMS, LLC, Plaintiff and Appellant, v. BRULE COUNTY BOARD OF COMMISSIONERS, Defendant and Appellee, 27966, 2017 WL 3746581 (S.D. August 30, 2017), defendant determined plaintiff had “impermissibly altered an intermittent watercourse” after a neighbor filed a complaint alleging the blockage caused flooding on his property. Lower court ruled for defendant. On appeal, plaintiff relied on the “reasonable use” rule and argued he was “legally privileged to make reasonable use of its land, even though the flow of the surface waters is altered and causes some harm to [neighbor].” Defendant countered that the downstream property is burdened “with an easement under which the dominant, or upper property owner may reasonably discharge surface water over the servient estate through natural watercourses.” Appellate court affirmed, concluding plaintiff’s drain system improperly interfered with neighbor’s drainage rights.

Paul MARSHALL and Julie Marshall v. CHARLESTOWN TOWNSHIP BOARD OF SUPERVISORS and Cameron J. Cloeter and Nancy H. Cloeter, Appeal of: Charlestown Township Board of Supervisors, No. 1591 C.D. 2016, 2017 WL 3707506 (Pa. Cmwlth. August 29, 2017) concerned a zoning board’s appeal of a trial court’s approval of a conditional use application proposing use of a property for farm-to-table activities at nighttime. The permit applicants’ proposed use was for a “Culinary Institute/Farm to Table Agricultural Use,” and the court considered Board’s findings “to determine if [plaintiffs] met the criteria of an ‘educational use’” under the zoning laws. Court reasoned that, “While we acknowledge that there are educational aspects to the proposed use . . . we cannot say that the Board erred or abused its discretion in concluding that the educational aspects were accessory to the main use, which the Board said was similar to a ‘restaurant” use.’” Trial court decision reversed.


LEGISLATIVE: 

H.R. 3668: To provide for the preservation of sportsmen’s heritage and enhance recreation opportunities on Federal land, and for other purposes. Bill referred to the House Committee on Agriculture, House Committee on Energy and Commerce, and 4 other committees.


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

AGRICULTURAL MARKETING SERVICE:

Rule implements a recommendation from the Tart Cherry Industry Administrative Board (Board) to increase the portion of assessments allocated to research and promotion activities from $0.005 to $0.0065 per pound of tart cherries and decrease the portion allocated to administrative expenses from $0.0025 to $0.001 per pound of tart cherries handled under the marketing order. Info here.

Rule AMS is amending the Cotton Board Rules and Regulations, increasing the value assigned to imported cotton for the purposes of calculating supplemental assessments collected for use by the Cotton Research and Promotion Program. Details here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE:

Rule amending the black stem rust quarantine and regulations by adding 15 varieties to the list of rust-resistant Berberis species and varieties and 2 varieties to the list of rust-resistant Mahonia species and varieties. Info here.

Notice advising the public of our decision to amend cold treatment schedule T107-d-3 in the Plant Protection and Quarantine Treatment Manual to include grapefruit from Australia. Details here.

ENVIRONMENTAL PROTECTION AGENCY: Rule EPA is finalizing action on a revision to the Imperial County Air Pollution Control District (ICAPCD or District) portion of the California State Implementation Plan. Info here.

FISH AND WILDLIFE SERVICE: Notice FWS seeks comment on federally listed American burying beetle incidental take permit applications. The applicants anticipate American burying beetle take as a result of impacts to habitat the species uses for breeding, feeding, and sheltering in Oklahoma. Info here.

GRAIN INSPECTION, PACKERS AND STOCKYARDS ADMINISTRATION:

Notice GIPSA is amending Mid-Iowa Grain Inspection, Inc.’s (Mid-Iowa) geographical territory to include the area previously designated to Central Illinois Grain Inspection, Inc. Info here.

Notice GIPSA is announcing the designation of the Montana Department of Agriculture (Montana) to provide official services under the United States Grain Standards Act. Details here.

Notice seeking comments on the quality of services provided by the following designated agency: Grain Inspection, Inc. (Jamestown). Info here.

Notice seeking comments on the quality of services provided by the following designated agency: Lincoln Grain Inspection Service, Inc. (Lincoln). Details here.

Notice comments on the quality of services provided by the following designated agency: Midsouth Grain Inspection Service (Midsouth). Info here.

Notice GIPSA is proposing that 11 stockyards now operating subject to the P&S Act be posted. Details here.

INTERNATIONAL TRADE ADMINISTRATION:

Notice the Renewable Energy and Energy Efficiency Advisory Committee (REEEAC) will hold a conference call on Thursday, September 28, 2017 at 4:00 p.m. EDT. Info here.

Notice the Renewable Energy and Energy Efficiency Advisory Committee (REEEAC) will hold a meeting on Thursday, November 16, 2017 at the U.S. Department of Commerce Herbert C. Hoover Building in Washington, DC. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is reallocating the projected unused amount of Pacific cod from vessels using jig gear and catcher vessels greater than or equal to 60 feet (18.3 meters) length overall (LOA) using hook-and-line gear to catcher vessels less than 60 feet (18.3 meters) LOA using hook-and-line or pot gear in the Bering Sea and Aleutian Islands management area. Details here.

Notice NMFS will prepare an Environmental Assessment (EA) to analyze the environmental impacts of issuing annual incidental harassment authorizations (IHAs) pursuant to the Marine Mammal Protection Act (MMPA) for the taking of marine mammals incidental to anthropogenic activities in the waters of Cook Inlet, Alaska, for the 2018 season. Info here.

Notice that the NMFS Office of Protected Resources, Marine Mammal Health and Stranding Response Program, 1315 East West Highway, Silver Spring, MD 20910, has applied for an amendment to Scientific Research Permit No. 18786-01. Info here.

RURAL HOUSING SERVICE: Notice RHS announces the timeframes to submit pre-applications to participate in a demonstration program to preserve and revitalize existing Multi-Family Housing (MFH) projects currently financed under Section 514, Section 515, and Section 516 of the Housing Act of 1949. Details here.