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


ANNOUNCEMENT: 

Join is TOMORROW for the next Agricultural & Food Law Consortium webinar: Commercial Shellfish Aquaculture Permitting under Nationwide Permit 48. Details available here.

REGISTER NOW for our upcoming Ag Technology & the Law conference, August 15 and 16 in Little Rock, Arkansas. Details here.


JUDICIAL: Includes landowner liability, land use, and environmental issues.

Lori Leann MANLEY, Individually and as Special Administrator for the Estate of Darren R. Manley, Deceased, Amanda Tubbs, and Derrick Manley, Appellants, v. Steven B. HALLBAUER and Kathie M. Hallbauer, Appellees, No. 115,531, 2018 WL 3798380 (Kan. August 10, 2018) involved landowner liability issues after a deadly car accident at a rural intersection. Estate of the deceased sued owners of property located at one corner of the intersection, alleging “an overgrowth of trees and vegetation obstructed the view at the intersection and contributed to the accident.” Issue for State Supreme Court was “whether the landowners owed a common-law duty to passing drivers to correct a natural condition on their property.” Court noted that Kansas law “recognizes landowners have some duty to maintain their property,” but found that the responsibility for determining whether a traffic hazard exists “falls to the secretary of transportation or a local authority.” Court concluded that a landowner “whose property abuts a rural intersection owes no duty to passing drivers to trim or remove trees or other vegetation on the property.” Affirmed.

In GREG KRUEGER, ANNETTE KRUEGER, DON CRAMER, MARY SUE CRAMER, WILLARD SCHULD AND GINNY SCHULD, PLAINTIFFS-APPELLANTS-CROSS-RESPONDENTS, V. ALLENERGY HIXTON, LLC, DEFENDANT-RESPONDENT-CROSS-APPELLANT, Appeal No. 2017AP1802, 2018 WL 3814523 (Wis. Ct. App. August 9, 2018), a group of landowners sought injunction to stop defendant from constructing a frac sand mine. Issue on appeal was whether landowners’ complaint stated a claim. Court considered “whether an anticipated private nuisance claim . . . is a recognized claim in Wisconsin.” On appeal, defendant argued that per case law, “a claim must allege some currently harmful activity.” The court acknowledged that Wisconsin recognizes an “anticipated private nuisance,” but here, found the landowners failed to allege “’inevitable and undoubted’ specific harms to their specific properties from this specific mine, once in operation.” Affirmed for defendants.

HIGH COUNTRY CONSERVATION ADVOCATES, WILDEARTH GUARDIANS, CENTER FOR BIOLOGICAL DIVERSITY, SIERRA CLUB, and WILDERNESS WORKSHOP, Plaintiffs, v. UNITED STATES FOREST SERVICE, U.S. DEPARTMENT OF AGRICULTURE, DANIEL JIRÓN, in his official capacity as Acting Under Secretary of Agriculture for Natural Resources and Environment, U.S. Department of Agriculture, SCOTT ARMENTROUT, in his official capacity as Supervisor of the Grand Mesa, Uncompahgre, and Gunnison National Forests, UNITED STATES DEPARTMENT OF THE INTERIOR, BUREAU OF LAND MANAGEMENT, and KATHARINE MACGREGOR, in her official capacity as Deputy Assistant Secretary, Land and Minerals Management, U.S. Department of the Interior, Defendants, and MOUNTAIN COAL COMPANY, LLC, Defendant-Intervenor, No. 17-cv-03025-PAB, 2018 WL 3804099 (D. Col. August 10, 2018) involved a dispute wherein environmentalists challenged the US Forest Service’s approval of changes to a lease involving a coal mining company. The new lease allowed for “exploration activities, including road construction, with a view toward expanded mining operations.” Plaintiffs maintained that per the National Environmental Policy Act (NEPA), agencies must “[r]igorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated.” Appellate court observed that per NEPA, “the Agencies need only disclose effects of a project that are ‘reasonably foreseeable.’” Court observed that the agencies at issue considered “relevant greenhouse gas emissions” and “baseline environmental data” and was satisfied with their analysis. Case dismissed.


REGULATORY: Includes USDA, EPA, FWS, FDA, FSIS, FS, NOAA and RBCS rules and notices.

AGRICULTURE DEPARTMENT: Notice USDA has submitted the following information collection requirement(s) to OMB for review. Title: Consumer Complaint Monitoring System. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is approving elements of the State Implementation Plan (SIP) submission from New Jersey regarding the infrastructure requirements of section 110 of the Clean Air Act (CAA) for the 2012 annual fine particulate matter National Ambient Air Quality Standard. Info here.

Rule EPA is approving a Clean Air Act (CAA) section 111(d)/129 negative declaration for the United States Virgin Islands, for Commercial and industrial solid waste incineration (CISWI) units. Details here.

Rule EPA is proposing to approve a state submission concerning the Cross-State Air Pollution Rule (CSAPR) that was submitted by Indiana on November 27, 2017 as a revision to the Indiana State Implementation Plan. Info here.

FISH AND WILDLIFE SERVICE:

Rule prescribes the hunting seasons, hours, areas, and daily bag and possession limits for migratory game birds. Info here.

Notice FWS received an application from Headwaters Wind Farm LLC, for an incidental take permit under the Endangered Species Act of 1973, as amended (ESA), for its Headwaters Wind Farm. Details here.

Notice FWS seeks comment on Federally-listed American burying-beetle incidental take permit (ITP) applications. The applicants anticipate American burying-beetle take as a result of impacts to Oklahoma habitat the species uses for breeding, feeding, and sheltering. Info here.

FOOD AND DRUG ADMINISTRATIONNotice FDA is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995. Title: Food and Drug Administration Food Safety, Health, and Diet Survey. Info here.

FOOD SAFETY AND INSPECTION SERVICE:

Notice FSIS will renew the approved information collection regarding certificates of medical examination. Info here.

Notice FSIS will collect information from state and territorial government partners on ways to strengthen collaborative response to illness outbreaks associated with FSIS-regulated food products. Details here.

FOREST SERVICE: Notice provides a technical correction to the NOI published in the Federal Register on August 3, 2018 to provide the correct website and also clarifies and extends the scoping comment period. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS implements accountability measures for the commercial hook-and-line component for golden tilefish in the exclusive economic zone (EEZ) of the South Atlantic. Info here.

Rule that beginning August 15, 2018, through December 31, 2018, Federal Illex squid vessel permit holders are prohibited from fishing for, catching, possessing, transferring or landing more than 10,000 lb (4,535 kg) on Illex squid per trip per calendar day. Details here.

Rule NMFS proposes to modify the subsistence use regulations for the Eastern Pacific stock of northern fur seals in response to a petition from the Aleut Community of St. Paul Island, Tribal Government. Info here.

RURAL BUSINESS-COOPERATIVE SERVICENotice RBCS Notice of Solicitation of Applications (NOSA) is being issued prior to passage of a final appropriations act to allow potential applicants time to submit applications for financial assistance under Rural Energy for America Program (REAP) for Federal Fiscal Year (FY) 2019, and give the Agency time to process applications within the current FY. Info here.