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

JUDICIAL: CAFO

In Garrison v. New Fashion Pork LLP, No. 21-0652, 2022 WL 2347783 (Iowa June 30, 2022), the plaintiff sued the neighboring confined animal feeding operation (CAFO) twice. The first lawsuit was in federal court and was dismissed on summary judgment for lack of expert testimony supporting the plaintiff’s claims that the CAFO’s manure runoff caused excessive nitrate levels in an ongoing violation of federal law. The federal court declined supplemental jurisdiction over his state law claims. The plaintiff then refiled his lawsuit in Iowa district court alleging common law nuisance, trespass, and drainage law violations. The CAFO defendants moved for summary judgment based on the statutory immunity under Iowa Code. The plaintiff, relying on Gacke, argued section 657.11 as applied to him was unconstitutional under Iowa’s inalienable rights clause. The district court rejected the plaintiff’s constitutional challenge after determining he failed to satisfy the three-part test in Gacke because his own CAFO had benefited from the immunity. The court then granted the defendants’ motion for summary judgment because the plaintiff lacked expert testimony or other evidence to support any exception to the statutory immunity defense or to prove causation or damages.

The Supreme Court of Iowa reviewed the decision. On their review, they affirmed the summary judgment. The Court overruled Gacke’s three-part test and applied rational basis review to reject the plaintiff’s constitutional challenge to section 657.11 under the inalienable rights clause. The Court concluded that the plaintiff failed to preserve error on his takings claim under article I, section 18 of the Iowa Constitution and failed to generate a question of fact precluding summary judgment on statutory nuisance immunity or causation for his trespass and drainage claims. The Court did not address the plaintiff’s constitutional challenge to the damages limitations in section 657.11A(3).

REGULATORY: EPA, FWS, NOAA

ENVIRONMENTAL PROTECTION AGENCY

Notice announcing a proposed consent decree that resolves Center for Food Safety, et al. v. U.S. Environmental Protection Agency, a case in the United States District Court for the Northern District of California (3:21-cv-09640-JSC) that alleges EPA unreasonably delayed responding to a petition for rulemaking relating to the regulatory exemption of pesticide treated seed. Info here.

FISH AND WILDLIFE SERVICE

Final rule announcing that FWS has determined that the Canoe Creek clubshell (Pleurobema athearni), a freshwater mussel species endemic to a single watershed in north-central Alabama, is an endangered species under the Endangered Species Act. Info here.

Final rule announcing that FWS reclassified smooth coneflower (Echinacea laevigata) from endangered to threatened under the Endangered Species Act, due to improvements in the species’ overall status since the original listing in 1992. Info here.

Proposed rule announcing FWS’s findings that three species are not warranted for listing as endangered or threatened species under the Endangered Species Act. Info here.

NATIONAL OCEANIC ATMOSPHERIC ADMINISTRATION

Notice announcing that NOAA/NMFS has issued an Incidental Harassment Authorization to Scripps Institution of Oceanography to incidentally harass marine mammals during marine geophysical surveys in the southeastern Gulf of Mexico. Info here.