A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions HERE.
JUDICIAL: Includes environmental, landowner liability, renewable energy, and urb & ag issues.
In NEW MEXICO DEPARTMENT OF GAME AND FISH, Petitioner – Appellee, v. UNITED STATES DEPARTMENT OF THE INTERIOR; RYAN ZINKE,* in his official capacity as Secretary of the United States Department of the Interior; UNITED STATES FISH AND WILDLIFE SERVICE; JIM KURTH,† in his official capacity as Acting Director of the United States Fish and Wildlife Service; DR. BENJAMIN TUGGLE, in his official capacity as Southwest Regional Director for the United States Fish and Wildlife Service, Respondents, and DEFENDERS OF WILDLIFE; CENTER FOR BIOLOGICAL DIVERSITY; WILDEARTH GUARDIANS; NEW MEXICO WILDERNESS ALLIANCE, Defendants Intervenors – Appellants, and FOUNDATION TO PROTECT NEW MEXICO WILDLIFE; NEW MEXICO FARM AND LIVESTOCK BUREAU; NEW MEXICO CATTLE GROWERS ASSOCIATION, SPUR RANCH CATTLE CO. LLC; MOUNTAIN STATES LEGAL FOUNDATION; ASSOCIATION OF FISH AND WILDLIFE AGENCIES; STATE OF COLORADO; STATE OF ALABAMA; STATE OF ALASKA; STATE OF ARIZONA; STATE OF ARKANSAS; STATE OF IDAHO; STATE OF KANSAS; STATE OF MICHIGAN; STATE OF MONTANA; STATE OF NEBRASKA; STATE OF NEVADA; STATE OF NEW HAMPSHIRE; STATE OF OKLAHOMA; STATE OF SOUTH DAKOTA; STATE OF TEXAS; STATE OF UTAH; STATE OF WISCONSIN; STATE OF WYOMING; ROCKY MOUNTAIN ELK FOUNDATION; SAFARI CLUB INTERNATIONAL, Amici Curiae, Nos. 16-2189, 16-2202, 2017 WL 1455947 (10th Cir. April 25, 2017), the US Fish and Wildlife Service (FWS) appealed district court’s grant of a preliminary injunction to the New Mexico Department of Game and Fish (Department). The injunction came after the release of two Mexican gray wolf pups on federal land in New Mexico by FWS. FWS appealed contending the district court abused its discretion in granting a preliminary injunction. Appellate court concluded that the Department “failed to establish FWS’s anticipated releases pose a significant risk of irreparable injury to its wildlife management efforts,” and did not demonstrate that FWS’s anticipated releases “pose a significant risk of harm to New Mexico’s sovereignty.” District court’s entry of a preliminary injunction reversed and vacated.
LECREASE JACKSON, INDIVIDUALLY AND AS SURVIVING PARENT OF XX, A DECEASED MINOR, AND CEDRIC CORBIN, INDIVIDUALLY AND AS SURVIVING PARENT OF XX, A DECEASED MINOR, Appellants, v. THE CITY OF TEXAS CITY, TEXAS, Appellee, NUMBER 13-16-00179-CV, 2017 WL 1455091 (Tex. App. April 20, 2017) concerned a recreational use statute after a child drowned in a pond at a public park owned by City. Trial court granted City governmental immunity and plaintiff appealed, arguing they demonstrated City’s “gross negligence and that the trial court therefore erred in dismissing this claim.” Court observed that a “government unit retains its immunity unless it is guilty of gross negligence, malicious intent, or bad faith.” Appellate court concluded plaintiff “produced no evidence that Texas City was subjectively aware of perils at the pond that were beyond the cognizance of a reasonable recreational user.” Affirmed for defendant.
PORTLAND GENERAL ELECTRIC COMPANY, PETITIONER v. FEDERAL ENERGY REGULATORY COMMISSION, RESPONDENT NORTHWEST & INTERMOUNTAIN POWER PRODUCERS COALITION, ET AL., INTERVENORS, No. 15-1237, 2017 WL 1458862 (D.C. April 25, 2017) concerned how much power a utility was required to purchase from an Oregon wind farm. The Federal Energy Regulatory Commission (FERC) ruled that under the Public Utility Regulatory Policies Act (PURPA) and a power-purchase agreement between the parties, the utility must purchase all of the wind farm’s power. Wind farm also argued, however, that the utility violated FERC’s standards of conduct “when [its] Merchant personnel directed [its] Transmission [personnel] to deny dynamic scheduling services to [wind farm].” The Commission rejected the wind farm’s argument that the utility “do so by utilizing a technology known as dynamic scheduling.” Appellate court dismissed utility’s petition for lack of jurisdiction.
In Golf Enterprises, Inc., Appellant v. Newberry Township Board of Supervisors v. Valley Green Residents Organization, Anthony Miller, Mary Miller, LeeAnn Menut, Kenneth Menut, William Hendrickson, Edna Hendrickson, LeAnn Pague, Edward Pague, Stanley Olejarczyk, Nancy Olejarczyk, John Elliott, and Amy Elliott, No. 97 C.D. 2016, 2017 WL 1465120 (Pa. Commw. Ct. April 25, 2017), plaintiff appealed decision denying an application for a “curative amendment of a zoning ordinance” filed by plaintiff. In the application, plaintiff wanted to change the zoning designation of 100 acres of land it owns “from the Open Space (OS) district to the Residential Growth (RG) district on the basis that the 2006 rezoning of the Property as OS was invalid spot zoning and arbitrary and irrational.” Court observed that “spot zoning” is the “singling out of one lot or a small area for different treatment from that accorded to similar surrounding land indistinguishable from it in character, for the economic benefit of the owner of that lot or to his economic detriment.” Court was not persuaded that the property in question was “spot zoned” and concluded that “the rezoning of the Property in the OS district in 2006 was not arbitrary or irrational because this rezoning was in accordance with the Township’s comprehensive plan, which was the result of a lengthy, considered process, involving input from professionals and residents.” Court ruled Board did not abuse its discretion and affirmed.
REGULATORY: Includes USDA, FWS, FS, ITA, NOAA and USPTO rules and notices.
AGRICULTURE DEPARTMENT: Notice USDA submitted information collection requirement(s) to OMB for review. Title: Dairy Tariff-Rate Import Quota Licensing Program. Info here.
FISH AND WILDLIFE SERVICE:
Notice FWS seeks comment on applications for a permit to conduct activities intended to enhance the survival of endangered or threatened species. Details here.
Notice FWS issued permits to conduct activities with endangered and threatened species under the authority of the Endangered Species Act. Details here.
Notice FWS seeks comment on applications for a permit to conduct activities intended to recover endangered species. Details here.
FOREST SERVICE:
Notice the Little Boulder project was released for public scoping in November 2014. Details here.
Notice FS is revising the Gila National Forest’s Land Management Plan through development of an associated National Environmental Policy Act Environmental Impact Statement. Info here.
INTERNATIONAL TRADE ADMINISTRATION: Notice Department of Commerce preliminarily determines that critical circumstances exist for imports of softwood lumber from certain producers and exporters from Canada. Info here.
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:
Rule that the Regulatory Flexibility Act section 610 requires that NOAA Office review existing regulations that have a significant economic impact on a substantial number of small entities, such as small businesses. Details here.
Notice NMFS received a request from the City of San Diego for authorization to take marine mammals incidental to Coast Boulevard improvements in La Jolla, California. Info here.
PATENT AND TRADEMARK OFFICE: Notice USPTO will submit to OMB for clearance a proposal for collection of information. Title: Patent Trial Appeal Board Actions. Info here.