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 water law, CWA, PACA, and FSA issues.

In BOARD OF WATER WORKS TRUSTEES OF THE CITY OF DES MOINES, IOWA, Appellant, v. SAC COUNTY BOARD OF SUPERVISORS, AS TRUSTEE OF DRAINAGE DISTRICTS 32, 42, 65, 79, 81, 83, 86, and CALHOUN COUNTY BOARD OF SUPERVISORS and SAC COUNTY BOARD OF SUPERVISORS AS JOINT TRUSTEES OF DRAINAGE DISTRICTS 2 AND 51 and BUENA VISTA COUNTY BOARD OF SUPERVISORS and SAC COUNTY BOARD OF SUPERVISORS AS JOINT TRUSTEES OF DRAINAGE DISTRICTS 19 AND 26 AND DRAINAGE DISTRICTS 64 AND 105, Appellees. No. 16-0076, 2017 WL 382402 (Iowa Jan. 27, 2017), plaintiff, a municipal waterworks, sued defendants, a group of upstream drainage districts, for money damages and other remedies to recover its costs to remove nitrates from river water. Among other issues, court considered whether the doctrine of implied immunity of drainage districts grants drainage districts unqualified immunity from all of the damage claims in plaintiff’s complaint. Court determined that drainage districts have a “limited, targeted role—to facilitate the drainage of farmland in order to make it more productive.” As such, the court noted, “Iowa law has immunized drainage districts from damages claims for over a century. “

In Minnesota Center for Environmental Advocacy, Relator, v. City of Winsted, Respondent, Minnesota Pollution Control Agency, Respondent, A16-0854, 2017 WL 393897 (Minn. Ct. App. Jan. 30, 2017), plaintiff challenged a National Pollutant Discharge Elimination System (NPDES) permit that defendant, Minnesota Pollution Control Agency (MPCA), issued to City for its wastewater treatment plant. Plaintiff asserted MPCA failed to comply with the requirements of the Clean Water Act (CWA) in issuing the permit. Plaintiff argued that without complete data for all reaches impacted by the facility, the MPCA was required to gather that data and could not issue an NPDES permit until it did so.  Court found plaintiff’s reasoning an “unreasonable interpretation of the CWA” and noted that the MPCA issues NPDES permits every five years and “does not wait indefinitely for perfect data, but instead makes its best judgment based on the data … available and requires monitoring to confirm its conclusion or to provide the basis for a permit amendment.”

In GOLDEN WEST VEG, INC., Plaintiff, v. JAMES M. BARTLEY, et al., Defendants, Case No. 16-CV-03718-LHK, 2017 WL 386254 (N.D. Cal. Jan. 27,2017), plaintiff allegedly sold over $90,000 in produce to defendant and was not paid, and moved for default judgment under the Perishable Agricultural Commodities Act (PACA). In considering the entry of a default judgment against defendant, the Court considered factors detailed in Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th Cir. 1986). Court observed that plaintiff’s complaint did not allege that it had “preserved its trust rights by including statutory language referencing the trust on its invoices,” and noted that on a motion for default judgment, pleading requirements are “enforced strictly, even when evidence outside the pleadings makes clear that a Plaintiff can state a claim.” Plaintiff’s motion denied.

UNITED STATES OF AMERICA Plaintiff, v. EDWARD B. JEWELL, Defendant, MAINE POTATO GROWERS, INC., CAVENDISH AGRI SERVICES, INC., & ME DEPT. OF LABOR – BUREAU OF UNEMPLOYMENT COMPENSATION – TAX DIVISION, Parties-in-Interest, Case No. 1:16-cv-00476-GZS, 2017 WL 384284 (D. Me. Filed 01/25/2017) involved a suit to recover the balance due on a promissory note and mortgage. Court found no genuine issue of material fact and that defendant was competent. Judgment for plaintiff, Farm Service Agency (FSA), for $254,268.93.

REGULATORY: Includes FWS and NOAA rules and notices.

FISH AND WILDLIFE SERVICE:

Notice FWS sent an Information Collection Request to OMB for review and approval. Title: Approval Procedures for Nontoxic Shot and Shot Coatings. Info here.

Notice FWS sent an Information Collection Request to OMB for review and approval. Title: Federal Fish and Wildlife Permit Applications and Reports—Native Endangered and Threatened Species. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule stays the final rule NMFS published on December 29, 2016, in accordance with the memorandum of January 20, 2017, entitled “Regulatory Freeze Pending Review.” Details here.

Rule In accordance with the memorandum of January 20, 2017, from the Assistant to the President and Chief of Staff, entitled “Regulatory Freeze Pending Review,” published in the Federal Register on January 24, 2017 (the Memorandum), this action stays the final rule NMFS published on December 30, 2016 in order to delay its effective date. Info here.

Rule in accordance with the memorandum of January 20, 2017, from the Assistant to the President and Chief of Staff, entitled “Regulatory Freeze Pending Review,” published in the Federal Register on January 24, 2017 (the Memorandum), this action stays the final rule NMFS published on December 29, 2016, in order to delay its effective date. Details here.

Rule NMFS is prohibiting directed fishing for pollock in Statistical Area 610 in the Gulf of Alaska. Info here.