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, Wednesday, February 21st: Agricultural Nutrient Management: State Innovations and Local Responsibility. Details available here.

JUDICIAL: Includes CWA, SNAP, urb & ag, and landowner liability issues.

CENTRAL SIERRA ENVIRONMENTAL RESOURCE CENTER, et al., Plaintiffs, v. STANISLAUS NATIONAL FOREST, et al., Defendants, 1:17-cv-00441-LJO-SAB, 2018 WL 746381 (E.D. Cal. February 7, 2018) involved cattle grazing on three forest allotments and issues under the Clean Water Act (CWA). Plaintiffs alleged Forest Service (FS) permitted grazing on its land, “resulting in the discharge of waste into streams in the allotments without obtaining a state waste discharge permit or seeking a waiver from any state water board.” Defendants countered that plaintiffs’ suit addresses “neither the sufficiency of an [Environmental Impact Statement] EIS nor the permits themselves but instead challenge[s] the Forest Service’s ‘administration of grazing.’” Court observed “[t]here is no requirement that the government itself be the discharger, only that it undertake an activity that “may result” in the discharge or runoff of pollutants.” Court concluded plaintiffs’ claims “fall within the waiver of sovereign immunity,” under the CWA and noted that “[i]ssuing a permit to allow cattle grazing is an activity that may result in the discharge or runoff of pollutants.”

In Mazin KAJJY, et al., Plaintiffs, v. UNITED STATES, et al., Defendants, No.: 17-cv-51-L(NLS), 2018 WL 747676 (S.D. Cal. February 6, 2018), a liquor store owner received notice from Food and Nutrition Service that it was disqualified from participating in the Supplemental Nutrition Assistance Program (SNAP program due to trafficking violations. Plaintiffs alleged they were denied due process and defendant acted in violation of the Administrative Procedures Act (APA). Defendants argued the Food and Nutrition Act (Act) “provides an adequate remedy, thus precluding review under the APA.” Plaintiffs maintained the government’s decision “to permanently disqualify the store rather than impose a monetary penalty, should be reviewed under the APA’s arbitrary and capricious standard.” Court concluded that since judicial review of Plaintiffs’ claim is available under the Act, it is not available under the APA. Defendants’ motion to dismiss plaintiff’s APA claim granted.

In DAN’S MOUNTAIN WIND FORCE, LLC, et al. v. ALLEGANY COUNTY BOARD OF ZONING APPEALS, No. 804, Sept. Term, 2016, 2018 WL 774760 (Md. Ct. Spec. App. February 5, 2018), plaintiff sought variances to some setback and separation distance requirements for his wind farm. Board denied plaintiff’s requests for a variance and plaintiff appealed. Court found that the local zoning board “did not properly apply the uniqueness test or the practical hardship test necessary for an applicant to prove eligibility for a variance.” Court considered the zoning board’s “uniqueness” analysis after observing that “[t]he purpose of the uniqueness or unusual element of the variance test is to determine whether the zoning law’s effect on a property is particularized to that given property.” Court concluded that the zoning board relied on “generalizations” regarding the parcels at issue. Remanded.

In John Y. WESTMAS Individually and as Special Administrator of the Estate of Jane L. Westmas and Jason Westmas, Plaintiffs-Appellants, v. CREEKSIDE TREE SERVICE, INC., Defendant-Respondent-Petitioner, Selective Insurance Company of South Carolina and ABC Insurance Company, Defendants-Respondents, No. 2015AP1039, 2018 WL 739222 (Wis. February 7, 2018), a woman was killed when a tree branch fell on her as she walked along a trail at a retreat center. The administrator of her estate (plaintiff), sued a tree trimmer and its insurer for damage. Lower court granted defendant summary judgment on “recreational immunity” grounds. Plaintiffs appealed. Appellate court reversed and tree trimmer sought review. State Supreme Court considered whether tree trimmer was an “agent” of the retreat center. Court concluded he was not an “agent” under the relevant recreational activities statute and not entitled to recreational immunity. Court also ruled defendant was not an “occupier” of the retreat center’s property and not entitled to recreational immunity as “statutorily-defined property ‘owner.’” Affirmed for plaintiff.

LEGISLATIVE:

H.R. 4968: To permanently reauthorize the Rio Puerco Management Committee and the Rio Puerco Watershed Management Program. Referred to the House Committee on Natural Resources.

S. 2391: A bill to prohibit the United States Government from using or contracting with an entity that uses certain telecommunications services or equipment. Referred to the Senate Committee on Homeland Security and Governmental Affairs.

S. 2388: A bill to amend the Atomic Energy Act of 1954 to provide for consultation with State, tribal, and local governments, the consideration of State, tribal, and local concerns. Referred to the Senate Committee on Environment and Public Works.

H.R. 2371: Western Area Power Administration Transparency Act. Passed in the House on February 7, 2018 and goes to the Senate next for consideration.

S. 1438: Gateway Arch National Park Designation Act. Passed by Congress on February 7, 2018 and goes to the President next.

S. 2404: A bill to amend the Food, Agriculture, Conservation, and Trade Act of 1990 to reauthorize the organic agriculture research and extension initiative. Referred to the Senate Committee on Agriculture, Nutrition, and Forestry.

S. 2414: A bill to transfer administrative jurisdiction over certain Bureau of Land Management land from the Secretary of the Interior to the Secretary of Veterans Affairs for use as a national cemetery, Referred to the Senate Committee on Energy and Natural Resources.

H.R. 4984: To amend the National Agricultural Research, Extension, and Teaching Policy Act of 1977 to allow for 1890 institutions to carry over an increased percentage of extension funding received during the previous fiscal year. Referred to the House Committee on Agriculture.

REGULATORY: Includes AMS, APHIS, CCC, EPA, FWS, NOAA, and RHS rules and notices.

AGRICULTURAL MARKETING SERVICE: Rule that a referendum be conducted among eligible domestic (U.S.) manufacturers and importers of softwood lumber to determine whether they favor continuance of AMS regulations regarding a national softwood lumber research and promotion program. Info here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE: Rule amending the phytosanitary treatment regulations to establish generic criteria that would allow for the approval of new cold treatment facilities in the Southern and Western States of the United States. Details here.

COMMODITY CREDIT CORPORATION: Notice CCC are requesting comments from all interested individuals and organizations on an extension and revision of a currently approved information collection that supports CCC and FSA loan programs. Details here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is finalizing an approval of a revision to the Arkansas State Implementation Plan (SIP) submitted by the State of Arkansas through the Arkansas Department of Environmental Quality (ADEQ) that addresses regional haze for the first planning period. Info here.

Rule EPA is amending a Federal Implementation Plan (FIP) that addresses regional haze for the first planning period for Arkansas that was published in the Federal Register on September 27, 2016, as it applies to the nitrogen oxide requirements for the Arkansas Electric Cooperative Corporation Bailey Plant Unit 1. Details here.

Rule EPA is taking final action to approve a revision to the Mojave Desert Air Quality Management District (MDAQMD) portion of the California State Implementation Plan (SIP). Info here.

Rule EPA is taking final action to approve and conditionally approve revisions to the Mojave Desert Air Quality Management District portion of the California State Implementation Plan (SIP). Details here.

Rule EPA is approving the Reasonably Available Control Measures/Reasonably Available Control Technology and Reasonable Further Progress (RFP) elements of California’s Moderate area plan for the 2006 24-hour fine particulate matter National Ambient Air Quality Standards in the Los Angeles–South Coast nonattainment area. Details here.

Rule establishes tolerances, including tolerances with regional registration, for residues of rimsulfuron in or on multiple commodities that are identified and discussed later in this document. Info here.

Rule EPA is granting the State of Ohio Final Authorization of the requested changes to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA), as set forth below. Details here.

FISH AND WILDLIFE SERVICE: Rule FWS is issuing this final rule, in accordance with the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Inflation Adjustment Act) and Office of Management and Budget (OMB) guidance, to adjust for inflation the statutory civil monetary penalties that may be assessed for violations of Service-administered statutes and their implementing regulations. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION: Rule announcing the reapportionment of 41,000 metric tons (mt) of Pacific whiting from the tribal allocation to the non-tribal commercial fishery sectors via automatic action on September 15, 2017, in order to allow full utilization of the Pacific whiting resource, and the reapportionment of 47 mt of widow rockfish in the Pacific whiting fishery via automatic action on August 30, 2017. Info here.

RURAL HOUSING SERVICE: Notice RHS will request a revision of a currently approved information collection in support of RHS regulations. Details here.