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 ESA, NEPA, eminent domain, tax, and food safety issues.
In OREGON WILD, FRIENDS OF LIVING OREGON WATERS, and WESTERN WATERSHEDS PROJECT, Plaintiffs, v. CONSTANCE CUMMINS, Forest Supervisor, Fremont-Winema National Forests; U.S. FOREST SERVICE, a federal agency; LAURIE R. SADA, Field Supervisor, Klamath Falls Office, U.S. Fish & Wildlife; and U.S. FISH & WILDLIFE SERVICE, a federal agency, Defendants, ED GARRETT RANCH, INC., an Oregon Corporation; PHILIP GROHS, dba GrohsRanch; MATT OWENS, an individual; ADAM OWENS, an individual; KNESS CATTLE, INC., an Oregon Corporation; STEVE SIMMONS, an individual; HOLIDAY RANCHES, INC., a California Corporation; and C&A VOGT COMMUNITY PROPERTY TRUST, a California Trust, Intervenor- Defendants. Case No. l:15-cv-01360-CL, 2017 WL 253968 (D. Or. Jan. 18, 2017), plaintiffs contested Forest Service’s decision to continue to approve livestock grazing on plots they argued “contain designated critical habitat for shortnose [and Clear Lake] suckers and/or are upstream of habitat for both species.” Plaintiffs specifically challenged a “re-consultation’s conclusion” that grazing would not impact the suckers’ habitat. Plaintiffs argued the new evidence was a declaration the Forest Service “will neither continue to rely on the challenged ESA consultation for endangered sucker fish critical habitat nor authorize livestock grazing on” the challenged allotments. Court found fact that Forest Service must re-initiate a new ESA consultation prior to authorizing livestock grazing was not newly discovered evidence, and stated, “Plaintiffs have been, or should have been, aware of this evidence prior to filing their summary judgment motion.” Plaintiffs motion to stay proceedings denied.
GULF COAST ROD, REEL AND GUN CLUB, INCORPORATED; GILCHRIST COMMUNITY ASSOCIATION, Plaintiffs – Appellants v. UNITED STATES ARMY CORPS OF ENGINEERS; COLONEL CHRISTOPHER W. SALLESE, in his official capacity as District Engineer, Galveston District United States Army Corps of Engineers; LIEUTENANT GENERAL THOMAS P. BOSTICK, in his official capacity as Commander and Chief of Engineers, United States Army Corps of Engineers; JOHN M. MCHUGH, in his official capacity as Secretary of the Army, Defendants – Appellees, No. 16-40181, 2017 WL 243340 (5th Cir. Jan. 19, 2017) involved a challenge to the issuance of a Clean Water Act (CWA) permit under the Administrative Procedure Act (APA). Appellants disputed decision by the U.S. Army Corps of Engineers to issue a permit allowing Texas’s General Land Office to close a man-made channel. Issue was whether permitting process met the requirements of the National Environmental Policy Act (NEPA). Court noted that, “Although the relevant [NEPA] regulation does mandate the discussion of alternatives, the regulation does not require that all proposed alternatives, no matter their merit, be discussed in the EA [Environmental Assessment).” Court concluded that Corps decision to issue a permit for closing the pass “was not arbitrary or capricious,” and summary judgment for defendants affirmed.
CED PROPERTIES, LLC, PLAINTIFF-APPELLANT, v. CITY OF OSHKOSH, DEFENDANT-RESPONDENT, Appeal No. 2016AP474, 2017 WL 218343 (Wis. Ct. App. January 18, 2017) involved an eminent domain issue. Defendant (City) levied special assessments against plaintiff for installation of a roundabout intersection pursuant to City’s police power. Plaintiff challenged assessments on the grounds that City was “foreclosed from assessing “special benefits” to its property where it failed to allege special benefits in an earlier condemnation action.” City argued that “special benefits under eminent domain law and special benefits under special assessment law are two different beasts.” Court reasoned that “Condemnation and special assessments are distinct proceedings with different legal analyses.” After considering relevant statues, court found “no support for [plaintiff’s] contention that the City could not pursue a special assessment for local public improvements apart from the eminent domain proceeding.” Summary judgment for City affirmed.
In DONALD J. THOMA AND POLK PROPERTIES LLC, PETITIONERS-APPELLANTS, v. VILLAGE OF SLINGER, RESPONDENT-RESPONDENT, Appeal No. 2015AP1970, 2017 WL 218275 (Wis. Ct. App. Jan. 18, 2017), plaintiff appealed decision upholding the assessment of his subdivision properties. Plaintiff’s subdivision was subject to a restrictive covenant preventing the land from being used for agriculture. For the 2014 tax year, defendant (tax assessor) reclassified the subdivision as residential, and not agricultural, for tax purposes. Plaintiff argued the land should have remained “classified agricultural.” Court noted that, “Property must be classified as agricultural if it is primarily used for agricultural purposes.” Court found that plaintiff “denied farming the land in 2014 and repeatedly claimed he was merely ‘maintaining the ground cover,’” and made no case that “maintaining ground cover is agricultural use under the applicable statutes, rules, and guidelines.” Decision for defendant affirmed.
In Christopher Velthuysen, Plaintiff, v. Aramark Corrrectional Services, Inc., et al., Defendants, Case No. 2:14-CV-192, 2017 WL 236191 (W.D. Mich. Jan. 19, 2017) plaintiff, an inmate at the Michigan Department of Corrections (MDOC), alleged defendants violated his rights under the Eighth Amendment by serving spoiled food. Court observed that, “The Eighth Amendment is only concerned with ‘deprivations of essential food, medical care, or sanitation’ or ‘other conditions intolerable for prison confinement.’” After considering a number of prior cases, court concluded that “courts have held that a single incident of food poisoning does not amount to an Eighth Amendment violation.” Case dismissed.
LEGISLATIVE:
H.R. 594: To establish the Securities and Derivatives Commission in order to combine the functions of the Commodity Futures Trading Commission and the Securities and Exchange Commission in a single independent regulatory commission. Bill referred to the House Committee on Agriculture and House Committee on Financial Services. Sponsor: Rep. Michael Capuano [D-MA7].
H.R. 597: To take lands in Sonoma County, California, into trust as part of the reservation of the Lytton Rancheria of California, and for other purposes. Bill referred to the House Committee on Natural Resources. Sponsor: Rep. Jeff Denham [R-CA10].