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, Tuesday, January 16th, 2018: “The New Deal: Understanding and Negotiating Dairy Supply Contracts.” Details available here.


JUDICIAL: Includes urb & ag, landowner liability, animal welfare, and ag lease issues.

In SALT POINT TIMBER, LLC, JOHN B. HOOD, TAX MATTERS PARTNER, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent, No. 18057-14, T.C. Memo. 2017-245 (Tax December 11, 2017), IRS issued a notice of final partnership administrative adjustment disallowing a $2M deduction plaintiff reported for the “charitable contribution of a conservation easement.” Tax Court observed that the “defining characteristic of a ‘qualified conservation contribution’ is that it is a contribution to a ‘qualified organization.’” Here, court noted easement in question was “initially contributed to a “qualified organization,” but “provides that if certain conditions are met, the easement will be replaced.” Plaintiff argued the possibility that the easement will be replaced is “negligible,” but court not persuaded. Court found no valid deduction because the conservation easement is not a “qualified conservation contribution.”

In ODALVIS FERNANDEZ and JULIO RODRIGUEZ, Plaintiffs, v. UNITED STATES OF AMERICA, Defendant, No. 17-cv-21422-GAYLES, 2017 WL 6343575 (S.D. Fla. December 12, 2017), plaintiff sued after anchoring his boat “just outside a designated swimming area” and injuring his foot on some rebar. Defendant argued that it is entitled to immunity under Florida’s recreational use statute “because [plaintiff’s] injuries occurred in a distinct area provided to the public for outdoor recreational purposes where no commercial activity takes place.” Plaintiff countered defendant is not entitled to immunity “because Defendant derives revenue from fees charged to patrons in other distinct areas of Biscayne National Park.” Court noted that “Florida’s recreational use statute applies to land owned by the United States within the State of Florida.” Court was most persuaded by fact that plaintiff did not allege that “a fee was charged to enter or access the designated swimming area where [plaintiff] was injured or that the United States derives revenue from patronage of the designated swimming area where Fernandez was injured.” Defendant’s motion to dismiss granted.

In KIMBERLY RENEE STOKES, Plaintiff, v. CITY OF VISALIA, Defendant, No. 1:17-cv-01350-DAD-SAB, 2017 WL 6344416 (E.D. Cal. December 12, 2017), plaintiff’s dogs were seized by animal control officers after they allegedly attacked a neighbor’s dogs. Plaintiff sought preliminary injunction fearing the dogs  would be destroyed while in custody of animal control officers. Defendant countered that it “has said all along that it will not destroy [the dog] so long as litigation is pending and [plaintiff] pays for the boarding of her own animal.” Court ruled plaintiff failed to show “irreparable harm” and noted that “the boarding fee she must pay for defendant to continue housing [the dog] . . . is a ‘mere financial injury,’” and “will not constitute irreparable harm if adequate compensatory relief will be available in the course of litigation.” Request for injunctive relief denied.

In Gardiner Farms, LLC v. Advanced Agriculture, Inc., 17-423, 2017 WL 6350579 (La. Ct. App. December 13, 2017), defendant appealed lost income damages awarded to plaintiff for defendant’s “failure to use the best farming practices to cultivate sugarcane on property it leased from the plaintiff.” Issue on appeal was interpretation of the lease between the parties and use of the terms “good and farmer-like manner” and “approved farming practices.” Appellate court noted the “explicit terms of the lease only required [defendant] to cultivate sugarcane on [plaintiff’s] property in a manner consistent with ‘approved farming practices’ and in a ‘good and farmer-like manner.’” Appellate court determined lower court misinterpreted the lease language and attempted to hold defendant “to a higher standard than required by the lease.” Reversed in part for defendant.


LEGISLATIVE:

S. 2223: A bill to amend the Agricultural Act of 2014 to clarify forest, rangeland, and watershed restoration services under good neighbor agreements. Bill referred to the Senate Committee on Agriculture, Nutrition, and Forestry.

S. 2225: A bill to reauthorize the Blue Ridge National Heritage Area. Bill referred to the Senate Committee on Energy and Natural Resources.

H.R. 2880: Promoting Closed-Loop Pumped Storage Hydropower Act. Bill’s text for status Reported by House Committee (Dec 11, 2017) is now available.

H.J.Res. 124: Making further additional continuing appropriations for fiscal year 2018. Resolution referred to the House Committee on Appropriations, House Committee on Ways and Means, and one other committee.


REGULATORY: Includes AMS, ARS, EPA, FWS, FSIS, FS, NASS, and NOAA rules and notices. 

AGRICULTURAL MARKETING SERVICE: Notice AMS is announcing the designations of Aberdeen Grain Inspection, Inc. (Aberdeen); Hastings Grain Inspection, Inc. (Hastings); and the Missouri Department of Agriculture (Missouri) to provide official services under the United States Grain Standards Act (USGSA). Info here.

AGRICULTURAL RESEARCH SERVICE:

Notice ARS will grant to Oregon State University of Corvallis, Oregon, an exclusive license to the variety of blackberry described in U.S. Plant Patent Application Serial No. 15/731,505, “BLACKBERRY PLANT NAMED ‘GALAXY’,” filed on June 20, 2017. Info here.

Notice ARS will grant to Oregon State University of Corvallis, Oregon, an exclusive license to the variety of blackberry described in U.S. Plant Patent Application Serial No. 15/731,503,  “BLACKBERRY PLANT NAMED ‘ECLIPSE’,” filed on June 20, 2017. Details here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is taking final rulemaking action to approve, as part of the State Implementation Plan (SIP) for the State of Arizona, the second 10-year maintenance plan for the San Manuel area for the 1971 National Ambient Air Quality Standards for sulfur dioxide. Details here.

Rule EPA is approving a State Implementation Plan (SIP) revision submitted by the Connecticut Department of Energy and Environmental Protection. Info here.

FISH AND WILDLIFE SERVICE:

Rule FWS proposes to update regulations for the Pittman-Robertson Wildlife Restoration and the Dingell-Johnson Sport Fish Restoration programs and subprograms. Info here.

Notice FWS seeks comment on applications for a permit to conduct activities intended to enhance the survival of endangered or threatened species. Details here.

FOOD SAFETY AND INSPECTION SERVICE:

Notice FSIS will renew an approved information collection regarding the regulatory requirements for marking, labeling, and packaging of meat, poultry, and egg products and for establishments that produce mechanically separated poultry. Details here.

Notice the Office of the Deputy Under Secretary for Food Safety, U.S. Department of Agriculture (USDA), and the Food and Drug Administration (FDA), U.S. Department of Health and Human Services are sponsoring a public meeting on February 13, 2018. Info here.

FOREST SERVICE: Notice FS is revising the Flathead National Forest’s Land and Resource Management Plan. Info here.

NATIONAL AGRICULTURAL STATISTICS SERVICE: Notice NASS will request revision and extension of a currently approved information collection, the Field Crops Objective Yield Surveys. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS announces the reduction of the commercial skate wing fishery per-trip possession limit for the remainder of the 2017 fishing year, through April 30, 2018. Info here.

Rule NMFS issues regulations to implement management measures described in Amendment 46 to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico. Info here.