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

ANNOUNCEMENT: Mark your calendar for the next Agricultural & Food Law Consortium webinar, Tuesday, January 16th, 2018: “The New Deal: Understanding and Negotiating Dairy Supply Contracts.” Details available here.

JUDICIAL:  Includes water law, bankruptcy, and food labeling issues. 

Brenda M. ASH, Individually and as Trustee of the Brenda M. Ash Revocable Trust, Plaintiff and Appellee, v. John B. MERLETTE, Individually and as Trustee of the John B. Merlette, Sr. Living Trust; Gladys A. Merlette, Individually and as Trustee of the Gladys A. Merlette Living Trust, Defendants and Appellants, DA 17-0160, 2017 WL 6334977 (Mont. December 12, 2017) involved an ownership dispute over certain land between the “high-and low-water marks” of a small lake in Montana. Plaintiff installed a dock on the lake and defendant (neighbor) claimed he owned “all of the land below the high-water mark around the lake.” State Supreme Court recognized that “conveyances of land bordering navigable waters, as defined by federal law, cannot convey title below the high-water mark unless otherwise authorized by state law. On appeal, defendant claimed, contrary to lower court’s interpretation, that “the specific metes and bounds description of the Parker Lake boundary line . . .  and the resulting Ash deed expressly limit the property to the high-water mark.” Appellate court, however, found that “the specific metes and bounds description of the riparian boundary of the Ash Property . . . was a meander line description establishing the riparian boundary of the Ash Property at least to the low-water mark of [the lake].” Summary judgment for plaintiff affirmed.

IN RE: CHRISTOPHER LEE SMITH Debtor(s) EDMONTON STATE BANK Plaintiff(s) v. CHRISTOPHER LEE SMITH, et al. Defendant(s), NO. 17-10067(1)(12), AP NO. 17-1010, 2017 WL 6372471 (Bankr. W.D. Ky. December 6, 2017), debtor gave plaintiff a mortgage on a property where debtor then constructed two tobacco pole barns. The barns were destroyed by a wind storm and debtor collected insurance proceeds on the barns. Debtor then defaulted on the mirtgage. Plaintiff argued it was  entitled to insurance proceeds because the pole barns were “permanent improvements to the Debtor’s realty and covered by [plaintiff’s] mortgage.” Issue was whether the pole barns were “permanent improvements to the realty . . . or were movable farm equipment.” Court noted that “[i]n Kentucky, a permanent fixture is something that is properly fixed to the realty so that it becomes a part or parcel of the realty, giving the owner of the realty the same rights to it as the soil itself.” Court concluded the pole barns were “permanent fixtures that became part of the real estate upon which [plaintiff] had a valid real estate mortgage.”

In SI03, INC., Plaintiff, v. MUSCLEGEN RESEARCH, INC., et al., Defendants, No. 1:16CV274 RLW, 2017 WL 6375636 (E.D. Mo. December 12, 2017), plaintiff, a protein powder manufacturer, asserted defendant’s claims about its protein powder product “and its use of the term ‘medical grade’ are likely to mislead and cause confusion among consumers.” Plaintiff sought a permanent injunction to halt defendant from selling its competing product. Court noted “there is no ‘medical grade’ protein standard provided by the protein powder industry or the FDA.” The court also acknowledged that plaintiff “faces irreparable harm, as the continuing false advertising of MuscleGen’s products that compete with SI03’s products poses a risk to SI03’s sales and reputation.” Plaintiff’s request for permanent injunction granted.

LEGISLATIVE: 

S. 2232: A bill to amend the Public Utility Regulatory Policies Act of 1978 to provide for the integration of distributed energy resources, to modernize electricity grid infrastructure, to provide for the consideration of non-wires alternatives. Bill referred to the Senate Committee on Energy and Natural Resources which will consider it before sending it to the Senate floor for consideration.

S. 2238: A bill to amend the Ohio & Erie Canal National Heritage Canalway Act of 1996 to repeal the funding limitation. Bill referred to the Senate Committee on Energy and Natural Resources.

H.R. 4633: To amend title 10, United States Code, to permit individuals who are eligible for assistance under a Department of Defense educational assistance program or authority to use such tuition assistance for licensing and certification programs. Bill’s text is now available.

H.R. 1733: To direct the Secretary of Energy to review and update a report on the energy and environmental benefits of the re-refining of used lubricating oil. Bill’s text for status Referred to Senate Committee (Dec 13, 2017) is now available.

H.R. 2872: Promoting Hydropower Development at Existing Nonpowered Dams Act. Bill’s text for status Referred to Senate Committee (Dec 13, 2017) is now available.

H.R. 2880: Promoting Closed-Loop Pumped Storage Hydropower Act. Bill’s text for status Referred to Senate Committee (Dec 13, 2017) is now available.

H.J.Res. 124: Making further additional continuing appropriations for fiscal year 2018. Resolution added to the House’s schedule for the coming week.

H.R. 3979: Keep America’s Refuges Operational Act. Bill added to the House’s schedule for the coming week, according to the House Majority Leader.

H.R. 4647: To amend the Pittman-Robertson Wildlife Restoration Act to make supplemental funds available for management of fish and wildlife species of greatest conservation need as determined by State fish and wildlife agencies. Bill referred to the House Committee on Natural Resources which will consider it before sending it to the House floor for consideration.

H.R. 4654: To amend the Agricultural Act of 2014 to require the Secretary of Agriculture to use certain data in determining an actual or benchmark county yield. Bill referred to the House Committee on Agriculture which will consider it before sending it to the House floor for consideration.

H.R. 4644: To withdraw certain National Forest System land in the Emigrant Crevice area located in the Custer Gallatin National Forest, Park County, Montana, from the mining and mineral leasing laws of the United States. Bill was referred to the House Committee on Natural Resources.

REGULATORY: Includes AMS, EPA, NASS, and NOAA rules and notices.

AGRICULTURAL MARKETING SERVICE: Rule sets forth USDA’s intention to withdraw the Organic Livestock and Poultry Practices (OLPP) final rule published in the Federal Register on January 19, 2017, by AMS. The OLPP final rule amends the organic livestock and poultry production requirements in the USDA organic regulations by adding new provisions for livestock handling and transport for slaughter and avian living conditions; and expands and clarifies existing requirements covering livestock care and production practices and mammalian living conditions. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is approving Vermont’s Regional Haze Five-Year Progress Report (Progress Report), submitted on February 29, 2016 as a revision to its State Implementation Plan. Info here.

Rule EPA is proposing to approve several different revisions to the State Implementation Plan (SIP) submitted to EPA by the Vermont Department of Environmental Conservation. Details here.

NATIONAL AGRICULTURAL STATISTICS SERVICE: Notice NASS will request approval to revise and extend a currently approved information collection, the Milk and Milk Products Surveys. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS announces that the Commonwealth of Virginia is transferring a portion of its 2017 commercial summer flounder quota to the Commonwealth of Massachusetts. Info here.

Notice NMFS Southeast Region, in collaboration with the Gulf of Mexico Fishery Management Council, intends to prepare a DEIS to describe and analyze management alternatives to be included in Amendment 9 to the Fishery Management Plan (FMP) for the Coral and Coral Reef Resources of the Gulf of Mexico: Coral Habitat Areas Considered for Management in the Gulf of Mexico. Details here.