A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions to: camarigg at uark.edu

ANNOUNCEMENT: This is the final AG & FOOD LAW UPDATE post for 2016. The UPDATE resumes its daily schedule next month. Happy Holidays!

JUDICIAL: Includes regulatory taking, FSA, cooperative, and right to farm issues.

In KLAMATH IRRIGATION, et al., and JOHN ANDERSON FARMS, INC., et al., Plaintiffs, v. UNITED STATES, Defendant, v. PACIFIC COAST FEDERATION OF FISHERMEN’S ASSOCIATIONS, Defendant-Intervenor, Nos. 1-591L, 2016 WL 7385039 (Fed. Ct. Dec. 21, 2016), plaintiffs (landowners) allege defendant, via the U.S. Bureau of Reclamation, effected a taking of their alleged water rights. Plaintiffs use water in the Klamath River Basin. The property rights claimed by plaintiffs concern water “diverted out of the Upper Klamath Lake and the Klamath River and then conveyed through canals and laterals to individual farms and ranches in both states for irrigation use.” Issue was whether plaintiffs’ takings claims should be analyzed as “regulatory takings,” or, as argued by plaintiff, analyzed as “physical takings.” Court observed that, “Decisions of the Supreme Court have drawn a clear line between physical and regulatory takings. The former involve a physical occupation or destruction of property, while the latter involve restrictions on the use of the property.” Here, the court found that “the government has taken an action that had the effect of preventing plaintiffs from enjoying the right to use water provided by an irrigation project, to the extent they held such rights.” Ultimately, the court concluded that the government’s actions “should be analyzed under the physical takings rubric.”

In Timothy Cleveland, Plaintiff, v. Thomas C. Hunton, et al., Defendants, Case No. 1:16-cv-01732-AWI-SAB, 2016 WL 7374600 (E.D. Cal. Dec. 19, 2016), plaintiff founded Chocolate Equity Investments to establish an African American agricultural industry in Kern County. Plaintiff failed to get an operational farm loan from the United States Department of Agriculture (USDA) and was told by Farm Service Agency (FSA) it does not “fund pie in the sky ideas.” Plaintiff filed suit alleging FSA discriminated against him on the basis of his race. Court found that “Plaintiff’s complaint is devoid of any factual allegations from which the Court could infer that his credit application was denied due to his membership in a protected class.” Furthermore, plaintiff did not “state a cognizable claim for discrimination in violation of the Equal Credit Opportunity Act.” Case dismissed.

In LOOKOUT STOCK ASSOCIATION, Plaintiff and Appellant, v. PETER GERIG et al., Defendants and Respondents, C076886, 2016 WL 7373837 (Cal. Ct. App. Dec. 20, 2016), plaintiff, a cooperative cattle grazing association, held timberland leases and a grazing permit from the United States Forest Service (USFS). After serious disputes among members of the cooperative, plaintiff’s USFS grazing permit and leases were replaced by individual permits and leases. Plaintiff sued and defendants were granted summary judgment. At issue on appeal was the scope of plaintiff’s allegations. Plaintiff argued their allegations were broad and encompassed additional wrongful acts. Regarding cattle grazing permits and leases, defendant claimed “the only wrongful act alleged was a misrepresentation of cattle numbers (which resulted in [defendant] receiving more than their fair share of the permits and leases).” Appellate court determined “as to cattle grazing permits and leases, the allegations of the applicable complaint are limited to misrepresentation.” Court further concluded plaintiff lacked standing “to pursue this claim on a representative basis because its members lack a community of interest.” Judgment affirmed.

In DENISE EMERSON, Plaintiff and Respondent, v. WILLIAM POWERS, Defendant and Appellant, 2d Civil No. B269529, 2016 WL 7368641 (Cal. Ct. App. Dec. 20, 2016), defendant appealed an order denying his motion to strike a civil harassment petition under the “anti-SLAPP (strategic lawsuit against public participation) statute.” Plaintiff filed a temporary restraining order (TRO) against defendant, her neighbor, for harassment. In turn, defendant filed anti-SLAPP motion, claiming the TRO sought to enjoin him “from playing his music while farming,” and that “he has a constitutional and statutory right to pursue his farming profession and the right to farm is an issue of public importance.” Court found that defendant failed to demonstrate “how these actions involve a public issue or an issue of public interest,” and that although defendant “contends that the public interest is the threat to his farming activities . . . respondent’s petition does not seek to stop these activities.” Judgment for plaintiff affirmed.

REGULATORY: Includes USDA, APHIS, CCC, EPA, FWS, FDA, FNS, ITA, and NOAA rules and notices.

AGRICULTURE DEPARTMENT: Notice USDA has submitted information collection requirement(s) to OMB for review. Title: Scrapie in Sheep and Goats; Interstate Movement Restrictions and Indemnity Program. Details here.


Notice APHIS requests an extension of approval of an information collection associated with regulations for permanent, privately owned horse quarantine facilities. Info here.

Notice APHIS requests a revision to and extension of approval of an information collection to evaluate service delivery by the National Import Export Services to the public. Details here.

COMMODITY CREDIT CORPORATIONNotice the Farm Service Agency (FSA), on behalf of CCC, announces availability of $12.5 million per year for fiscal year (FY) 2017 and 2018 under the Organic Certification Cost Share Program for eligible certified organic and transitional producers and handlers. Details here.

ENVIRONMENTAL PROTECTION AGENCY: Rule establishes time-limited tolerances for residues of bifenthrin in or on avocado and pomegranate. Info here.


Rule FWS reopens comment period on proposed rule to remove the Hualapai Mexican vole from the Federal List of Endangered and Threatened Wildlife. Info here.

Notice FWS has established the Bear River Watershed Conservation Area, the 565th unit of the National Wildlife Refuge System. Details here.

FOOD AND DRUG ADMINISTRATION: Notice FDA announces a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review. Title: Reporting Associated with Designated New Animal Drugs for Minor Use and Minor Species. Info here.


Rule issuing document containing technical corrections to the Code of Federal Regulations regarding the final rule published in the Federal Register on July 29, 2016, “Local School Wellness Policy Implementation Under the Healthy, Hunger-Free Kids Act of 2010.” Info here.

Notice FNS seeks nominations for 9 vacancies on the National Advisory Council on Maternal, Infant and Fetal Nutrition. Info here.

INTERNATIONAL TRADE ADMINISTRATION: Notice that on November 25, 2016, the Department of Commerce received a countervailing duty petition concerning imports of softwood lumber from Canada, on behalf of the Committee Overseeing Action for Lumber International Trade Investigations or Negotiations. Details here.


Rule NMFS issues revised final 2017 and 2018 specifications for the summer flounder fishery. Details here.

Notice NMFS announces its intent to conduct 5-year reviews for the black abalone and the white abalone under the Endangered Species Act. Details here.

Notice the Pacific Fishery Management Council’s Groundfish Management Team will hold a week-long work session open to the public. Info here.