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

JUDICIAL: includes renewable energy, ag lease, forestry, and landowner liability issues.

In WINDING CREEK SOLAR LLC, Plaintiff, v. MICHAEL PEEVEY, et al., Defendants, No. 13-cv-04934-JD, 2017 WL 6040012 (N.D. Cal. December 6, 2017), plaintiff sought a declaration that three orders by the California Public Utilities Commission (CPUC) conflict with federal law and violate the Supremacy Clause. The CPUC orders established a procurement program that regulated the terms “on which utility companies . . . must purchase power from alternative energy power production facilities like small wind farms and solar projects.” Plaintiff seeks to build a solar project in California and wants to sell the energy from their proposed facility to a utility. Plaintiff maintained the CPUC orders “prevented it from getting a contract entitlement under the Public Utility Regulatory Policies Act (PURPA).” Court considered the evidence and determined that plaintiff “does not, as the law mandates, have access to an uncapped program offering, at its election.” Summary judgment for plaintiff.

In ROYALTY FARMS, LLC, Plaintiff and Counterdefendant–Appellant, v. The FOREST PRESERVE DISTRICT OF COOK COUNTY, Illinois, Defendant and Counterplaintiff–Appellee, Nos. 1–16–1409 & 1–17–0377 (Cons.), 2017 IL App (1st) 161409 (Ill. App. Ct. December 5, 2017), court considered “what happens to a judgment for eviction when ownership of the property awaits determination in a separate lawsuit for mortgage foreclosure.” Lower court granted defendant summary judgment on a complaint to foreclose a mortgage on land owned by third party and leased to plaintiff. Appellate court reversed the foreclosure judgment, but the circuit court awarded possession of the property to defendant, “despite the reversal of the foreclosure judgment. Court held that the reversal of the foreclosure judgment “voids the sale of the property to defendant.” Appellate court then reversed award of possession of the property to defendant and stayed the eviction proceedings “pending resolution of the foreclosure action.”

In HAHNENKAMM, LLC, Plaintiff, v. UNITED STATES, Defendant, No. 17–855C, 2017 WL 6047174 (Fed. Cl. December 7, 2017), plaintiff claimed the Santini–Burton Act and the Southern Nevada Public Land Management Act require the Forest Service (FS) to pay fair market value for the acquisition of any “environmentally sensitive lands.” Plaintiff claimed the fair market value of the parcel at issue is approximately $20,000,000, and sought damages in the amount of the difference between the purchase price “and the fair market value as determined by an appraisal conducted in conformity with federal land appraisal standards.” FS filed motion to dismiss, arguing neither statute requires the agency “to pay fair market value, but rather, fair market value must only be determined by an appraisal that follows certain procedures.” Motion to dismiss denied.

BRIDGEVILLE RIFLE & PISTOL CLUB, LTD.; MARK HESTER; JOHN R. SYLVESTER; MARSHALL KENNETH WATKINS; BARBARA BOYCE, DHSc RDN; ROGER T. BOYCE, SR.; and the DELAWARE STATE SPORTSMEN’S ASSOCIATION, Plaintiffs Below, Appellants, v. DAVID SMALL, SECRETARY OF THE DELAWARE DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL; DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL; ED KEE, SECRETARY OF DELAWARE DEPARTMENT OF AGRICULTURE; and DELAWARE DEPARTMENT OF AGRICULTURE, Defendants Below, Appellees, No. 15, 2017, 2017 WL 6048843 (Del. December 7, 2017) involved an appeal challenging “two regulations adopted by two different State agencies” creating a ban of firearms in Delaware’s state parks and forests. Appellants sought to carry firearms on State properties and argued the regulations are “unconstitutional.” Court considered whether “unelected officials from [Delaware’s] parks and forest departments . . . can ban (except for a narrow exception for hunting) the possession of guns in state parks and forests.” Court ruled that unelected officials “lack such authority” under constitutional laws, “and the regulations completely eviscerate a core right to keep and bear arms for defense of self and family outside the home.”


MEETING: Senate Committee on Agriculture, Nutrition, and Forestry. Business meeting to consider the nomination of Stephen Alexander Vaden, of Tennessee, to be General Counsel of the Department of Agriculture. Dec. 11 @ 5:45 p.m. (Location: S-216).

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


Rule AMS is adopting a final rule to amend the definition of “judge” in the rules of practice and procedure to formulate or amend a marketing agreement, marketing order, or certain research and promotion orders. Info here.

Rule a public hearing is being held, on an emergency basis, to consider a proposal submitted by Southeast Milk, Inc., Dairy Farmers of America, Inc., Premier Milk, Inc., Maryland and Virginia Milk Producers Cooperative Association, Inc., and Lone Star Milk Producers, L.C. Details here.

Rule would implement a recommendation from the Florida Tomato Committee (Committee) for a decrease in the assessment rate established for the 2017-18 and subsequent fiscal periods of tomatoes grown in Florida, handled under the marketing order. Details here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE: Notice APHIS received a petition from Nuseed Americas Inc. seeking a determination of nonregulated status of canola designated as event B0050-027, which has been genetically engineered to accumulate the long chain omega-3 fatty acid known as docosahexaenoic acid in seed. Info here.


Rule EPA is taking final action to find that three states have failed to submit timely revisions to their state implementation plans (SIPs) as required to satisfy certain requirements under the Clean Air Act (CAA) for implementation of the 2008 ozone National Ambient Air Quality Standards. Details here.

Rule EPA is withdrawing the October 13, 2017, direct final rule that would have approved changes to the Florida Department of Environmental Protection (FDEP) State Implementation Plan (SIP) to revise Florida’s requirements and procedures for emissions monitoring at stationary sources. Info here.

Rule EPA is approving a May 26, 2016, State Implementation Plan (SIP) submission from Minnesota that is intended to demonstrate that the Minnesota SIP meets certain interstate transport requirements of the Clean Air Act (CAA) for the 2008 ozone National Ambient Air Quality Standards (NAAQS). Details here.

Rule EPA is taking direct final action to modify the use conditions required for use of three flammable refrigerants, isobutane (R-600a), propane (R-290), and R-441A, in new household refrigerators, freezers, and combination refrigerators and freezers under the Significant New Alternatives Policy (SNAP) program. Info here.

Rule EPA is proposing to amend the federal regulations to withdraw certain human health (water and organisms) water quality criteria and certain freshwater acute and chronic aquatic life water quality criteria, applicable to certain waters of California because California adopted, and EPA approved, criteria for these parameters that are considered protective of the uses for the waterbodies. Info here.

FISH AND WILDLIFE SERVICE: Notice FWS seeks comment on applications for permits to conduct activities intended to enhance the propagation or survival of endangered species. Info here.


Rule NMFS specifies annual catch limits (ACLs) for Pacific Island crustacean, precious coral, and territorial bottomfish fisheries, and accountability measures (AMs) to correct or mitigate any overages of catch limits. The ACLs and AMs will be effective for fishing year 2017. Info here.

Rule NMFS proposes status quo commercial quotas for the Atlantic surfclam and ocean quahog fisheries for 2018 and projected status quo quotas for 2019 and 2020. Details here.

Notice Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information. Title: Billfish Certificate of Eligibility. Info here.

Notice the National marine sanctuary regulations at 15 CFR part 922 list specific activities that are prohibited in national marine sanctuaries. These regulations also state that otherwise prohibited activities are permissible if a permit is issued by the Office of National Marine Sanctuaries. Details here.

Notice announcing 2018 fishing opportunities in the Northwest Atlantic Fisheries Organization (NAFO) Regulatory Area. Details here.