A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions to: camarigg at uark.edu

JUDICIAL: Includes energy, landowner liability, and eminent domain issues.

Warrenton Fiber Company, Petitioner-Respondent Cross-Appellant, v. Department of Energy, Respondent-Appellant Cross-Respondent, A155371, 283 Or.App. 270 (Or. Ct. App. Dec. 29, 2016) concerned Oregon Department of Energy (ODOE)’s ruling that petitioner was not eligible for a biomass tax credit for tree bark it stripped from pulp logs sold as “hog fuel.” Circuit court ruled ODOE relied on an invalid rule in rejecting petitioner’s application for a tax credit certification. ODOE argued it had authority to enact the rule, which excluded “[s]awdust or other residual wood waste from mill operations” from the definition of “biomass.” Appellate court found rule valid and reversed grant of summary judgment to petitioner.

Jo Ellen HENDRICKSON, et al., Plaintiffs–Appellants, v. Randall D. GRIDER, et al., Defendants–Appellees, No. 16CA3537, 2016 WL 7626329 (Ohio Ct. App. Dec. 14, 2016) concerned a car accident involving two horses on a roadway. Issue as to whether defendants were “owners and/or keepers of horses” per statute and that they negligently allowed the horses to escape. Trial court found no genuine issue of material fact and ruled for defendants. Appellate court found that “any indirect interaction [defendants] may have had with the horses was far too tenuous to demonstrate some degree of management, control, custody, or possession.”  Court also rejected notion that the existence of a lease between [defendants] demonstrated that defendant exercised control or dominion over the horses and stated, “The mere existence of a lease does not, by itself, sufficiently demonstrate dominion or control so as to impose liability as a ‘keeper.’” Ruling for defendants affirmed.

In State of OHIO, DEPARTMENT OF NATURAL RESOURCES, Plaintiff-Appellant, v. Nelda G. THOMAS, et al., Defendants–Appellees, No. 10–16–05, 2016 WL 7626213 (Ohio Ct. App. Dec. 27, 2016), Ohio Department of Natural Resources (ODNR) appealed award of $515,970 to defendants for ODNR’s “appropriation of a permanent flowage easement” on defendants’ farm. Defendants owned farmland that incurred repeated flooding due to a “spillway modification” to a nearby lake. Issue arose regarding the property’s appraisal value. ODNR argued that “since the inception of this case it had obtained a new appraisal of the flowage easement based on ‘new’ historical and hydrological data related to the appellees’ farm,” and wanted to introduce the “new” data and appraisal at trial. Trial court excluded the evidence and ODNR challenged the exclusion. Appellate court stated that, “It would be ‘absurd’ . . . to allow an appropriating agency to just repeatedly attempt to introduce new, lower appraisals based on no ‘new’ information that had occurred since filing the appropriation petition in an attempt purely to undermine the ‘good-faith’ offer that initiated the action.” Trial court ruling affirmed.

LEGISLATIVE:

S. 32: A bill to provide for conservation, enhanced recreation opportunities, and development of renewable energy in the California Desert Conservation Area. Bill referred to the Senate Committee on Energy and Natural Resources. Sponsor: Sen. Dianne Feinstein [D-CA].

S. 33: A bill to provide for congressional approval of national monuments and restrictions on the use of national monuments, to establish requirements for the declaration of marine national monuments. Bill referred to the Senate Committee on Energy and Natural Resources. Sponsor: Sen. Lisa Murkowski [R-AK].

S. 49: A bill to provide a leasing program within the Coastal Plain, and for other purposes. Bill referred to the Senate Committee on Energy and Natural Resources. Sponsor: Sen. Lisa Murkowski [R-AK].

H.R. 339: To amend Public Law 94-241 with respect to the Northern Mariana Islands. Bill referred to the House Committee on Natural Resources and House Committee on the Judiciary. Sponsor: Rep. Gregorio Sablan [D-MP0].

H.R. 344: To amend the Forest Legacy Program of the Cooperative Forestry Assistance Act of 1978 to authorize States to allow certain entities to acquire, hold, and manage conservation easements under the program. Bill referred to the House Committee on Agriculture. Sponsor: Rep. Elise Stefanik [R-NY21].

H.R. 337: To transfer administrative jurisdiction over certain Bureau of Land Management land from the Secretary of the Interior to the Secretary of Veterans Affairs for inclusion in the Black Hills National Cemetery. Bill referred to the House Committee on Natural Resources and House Committee on Veterans’ Affairs. Sponsor: Rep. Kristi Noem [R-SD0]

H.R. 316: To protect investors in futures contracts. Bill referred to the House Committee on Agriculture. Sponsor: Rep. Michael Capuano [D-MA7].

H.R. 310: To withdraw certain land located in Curry County and Josephine County, Oregon, from all forms of entry, appropriation, or disposal under the public land laws. Bill referred to the House Committee on Natural Resources. Sponsor: Rep. Peter DeFazio [D-OR4].

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

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is adding a subsurface intrusion component to the Hazard Ranking System. Details here.

Rule EPA’s Consolidated Rules of Practice governing administrative assessment of civil penalties and administrative adjudicatory hearings. Details here.

FISH AND WILDLIFE SERVICE: Notice FWS announces availability of the Polar Bear Conservation Management Plan. Info here.

FOOD AND DRUG ADMINISTRATION: Rule FDA issue final rule describing circumstances in which a product made or derived from tobacco intended for human consumption will be subject to regulation as a drug, device, or a combination product under the Federal Food, Drug, and Cosmetic Act. Info here.

FOOD AND NUTRITION SERVICE: Rule titled Local School Wellness Policy Implementation Under the Healthy, Hunger-Free Kids Act of 2010 was published on July 29, 2016. Info here.

GRAIN INSPECTION, PACKERS AND STOCKYARDS ADMINISTRATION: Rule that in rule document 2016-30424, make the following correction: On page 92566, in the first column, in the DATES section, the first sentence, “This interim final rule is February 21, 2017.” should read, “This interim final rule is effective February 21, 2017.” Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NOAA wants to designate approximately 52 square miles of waters encompassing and surrounding Maryland’s Mallows Bay as the Mallows Bay–Potomac River National Marine Sanctuary. Info here.

Rule NOAA wants to an area of 1,075 square miles of Wisconsin state waters as the Wisconsin–Lake Michigan National Marine Sanctuary. Info here.

Notice requesting extension of an information collection. NMFS requires that vessels apply for fishing permits, that vessels and certain gear be marked for identification purposes and that permit holders report their fishing effort and catch. Details here.

Notice seeking extension of a current information collection. The Coastal Zone Management Act of 1972 provides for the designation of estuarine research reserves representative of various regions and estuarine types in the United States to provide opportunities for long-term research, education and interpretation. Details here.

RURAL UTILITIES SERVICE: Notice RUS is accepting applications for fiscal year (FY) 2017 for the Rural Broadband Access Loan and Loan Guarantee program. Details here.