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

JUDICIAL: Includes urb & ag, food labeling, climate change, and environmental issues.

Marshall Municipal Utilities, petitioner, Respondent, v. Donald J. DeLanghe, et al., Appellants, A17-0267, 2017 WL 5661578 (Minn. Ct. App. November 27, 2017) concerned a condemnation action wherein farm and cattle landowners appealed a ruling assessing fair market value of their land and dismissal of their damages claim. The property at issue is located above two water aquifers and the district court found that the “highest and best use of the property, both pre- and post-condemnation, was and is agricultural.” Appellants argued that there is a “commercial market” for well sites in the area from businesses that require “large quantities of water for their operations,” and that these businesses are “public competitor[s] of [petitioner] for the acquisition of well sites and water.” Issue was whether “other potential purchasers could acquire a well permit . . . to drill water wells in the . . . Aquifer.” Appellate court noted evidence that petitioner had the only permit for a well on the site and concluded lower court “did not clearly err in determining that the highest and best use of the property, prior to condemnation, was agricultural.” Affirmed.

In NUTRITION DISTRIBUTION, LLC, Plaintiff and Appellant, v. SOUTHERN SARMS, INC., Defendant and Respondent, B278132, 2017 WL 5712760 (Cal. Ct. App. November 28, 2017), a nutritional supplement company sought injunction after suing a rival company for unfair competition and false advertising. Claims centered on products containing pharmaceutical ingredient Ostarine, a “selective androgen receptor modulator.” Trial court dismissed and on appeal, plaintiff sought to halt “all production and sales of any product containing selective androgen receptor modulators” by defendant. Appellate court observed that “an injunction must be directed to the unlawful or unfair acts or practices prohibited by the UCL [unfair competition law] or the false advertising law.” Court found plaintiff’s requested injunction “vastly overbroad and in no way tethered to the wrongful conduct alleged,” and affirmed trial court’s dismissal.

In ASSOCIATION OF IRRITATED RESIDENTS et al., Plaintiffs and Appellants, v. KERN COUNTY BOARD OF SUPERVISORS et al., Defendants and Respondents; Alon USA Energy, Inc., et al., Real Parties in Interest and Respondents, F073892, 2017 WL 5590096 (Cal Ct. App. November 21, 2017), plaintiffs challenged defendant’s certification of environmental impact report (EIR) issued under California Environmental Quality Act (CEQA) and approval of a project to modify an oil refinery. Plaintiffs claimed CEQA was violated because the EIR “erroneously used the refinery’s operational volume,” and the EIR “incorrectly relied upon the refinery’s participation in California’s cap-and-trade program to conclude the project’s greenhouse gas emissions would be less than significant.” Superior court denied plaintiff’s writ of mandate. Appellate court found evidence “supported county’s finding that existing physical conditions of oil refinery included an operating refinery, in determination of appropriate baseline for use in EIR.” The court also agreed that “compliance with state cap-and-trade program could be considered in evaluation, preparation, and approval of EIR.” Reversed and remanded.

In WILDEARTH GUARDIANS, OREGON WILD, THE SIERRA CLUB, and GREAT OLD BROADS FOR WILDERNESS, Plaintiffs, v. STACEY FORSON, in her official capacity as Ochoco National Forest Supervisor; and UNITED STATES FOREST SERVICE, Defendants. CENTRAL OREGON LANDWATCH, an Oregon nonprofit corporation, Plaintiff, v. STACEY L. FORSON, in her official capacity as Ochoco National Forest Supervisor; JAMES M. PEÑA, in his official capacity as Regional Forester for Region 6 of the United States Forest Service; and UNITED STATES FOREST SERVICE, a federal agency of the United States Department of Agriculture, Defendants. OREGON HUNTERS ASSOCIATION, an Oregon nonprofit corporation Plaintiff, v. UNITED STATES FOREST SERVICE, an agency of the United States Department of Agriculture; and STACY FORSON, Ochoco National Forest Supervisor, in her official capacity, Defendants, No. 2:17-cv-01004-SU, Case No. 2:17-cv-01091-SU, Case No. 2:17-cv-01366-SU, 2017 WL 5710440 (D. Or. November 27, 2017), plaintiffs sought injunctive relief under the Administrative Procedure Act (APA), the National Environmental Policy (NEPA), and the National Forest Management Act (NFMA), after defendants approved some “off-highway vehicle trails and a 137-mile motorized trail system in the Ochoco National Forest.” Plaintiffs claim the trails will harm “wildlife, vegetative, water, and other natural resources by allowing motorized vehicle traffic.” Here, a third party (Ochoa Trail Riders) moved to intervene as intervenor-defendants. Court observed that the proposed intervenors “have relevant interests in the Summit Trail System Project,” including “recreational and aesthetic interests.” Court determined that intervenors’ interests “are legally protected, and an injunction against the Project would immediately impact them.” Motion to intervene granted.

LEGISLATIVE:

S. 2166: A bill to maintain annual base funding for the Upper Colorado and San Juan fish recovery programs through fiscal year 2023, to require a report on the implementation of those programs. Bill referred to the Senate Committee on Energy and Natural Resources.

H.R. 995: 21st Century Respect Act. Bill’s text for status Reported by House Committee (Nov 28, 2017) is now available.

H.R. 4475: To provide for the establishment of the National Volcano Early Warning and Monitoring System. Bill referred to the House Committee on Natural Resources.

H.R. 4465: To maintain annual base funding for the Upper Colorado and San Juan fish recovery programs through fiscal year 2023, to require a report on the implementation of those programs. Bill referred to the House Committee on Natural Resources which will consider it before sending it to the House floor for consideration.

H.R. 2615: Gulf Islands National Seashore Land Exchange Act of 2017. Bill passed in the House on November 28, 2017.

H.R. 1491: Santa Ynez Band of Chumash Indians Land Affirmation Act of 2017. Bill passed in the House on November 28, 2017.

H.R. 2768: Fowler and Boskoff Peaks Designation Act. Bill passed in the House on November 28, 2017.

H.R. 3115: Superior National Forest Land Exchange Act of 2017. Bill passed in the House on November 28, 2017.

REGULATORY: Includes EPA, FWS, FNS, FS, and NOAA rules and notices.

ENVIRONMENTAL PROTECTION AGENCY:

Rule establishes a tolerance for residues of boscalid in or on vegetable, legume, edible-podded subgroup 6A. BASF Corporation requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA). Info here.

Rule establishes tolerances for residues of nitrapyrin in or on almond hulls and the tree nut group 14-12. Dow AgroSciences requested these tolerances under the Federal Food, Drug, and Cosmetic Act. Details here.

FISH AND WILDLIFE SERVICE: Notice FWS seeks comment on applications to conduct certain activities with endangered species, marine mammals, or both. With some exceptions, the Endangered Species Act (ESA) and Marine Mammal Protection Act (MMPA) prohibit activities with listed species unless Federal authorization is acquired that allows such activities. Info here.

FOOD AND NUTRITION SERVICE: Rule extends through school year 2018-2019 three menu planning flexibilities currently available to many Child Nutrition Program operators, giving them near-term certainty about Program requirements and more local control to serve nutritious and appealing meals to millions of children nationwide. Info here.

FOREST SERVICE:  Notice FS proposes to modify the Wightman Fork to Lookout Roadless Area boundary on the Rio Grande National Forest to include parcels of non-federal land and remove federal land for the Summitville Interchange land exchange. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is closing the U.S. pelagic longline fishery for bigeye tuna in the western and central Pacific Ocean because the fishery will reach the 2017 allocation limit for the Commonwealth of the Northern Mariana Islands. Info here.

Notice NMFS publishes standard prices and fee percentages for cost recovery for the Amendment 80 Program, the American Fisheries Act (AFA) Program, the Aleutian Islands Pollock (AIP) Program, and the Western Alaska Community Development Quota (CDQ) groundfish and halibut Programs. Details here.

Notice NMFS Pacific Islands Fisheries Science Center [Responsible Party: Michael Seki, Ph.D.], 1845 Wasp Boulevard, Honolulu, Hawaii, 96818, has applied in due form for a permit to take green, hawksbill (Eretmochelys imbricata), leatherback, loggerhead, and olive ridley sea turtles for purposes of scientific research. Info here.