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

JUDICIAL: Includes CAFO, contract, secured transactions, CWA, and water rights issues.

In In the Matter of: Trenton Farms Re, LLC Permit No. MOGS10500, Appellant, v. Missouri Department of Natural Resources, Hickory Neighbors United, Inc., Respondent, WD 79527, 2016 WL 6871554 (Mo. Ct. App. Nov. 22, 2016), plaintiff appealed Missouri Clean Water Commission (“CWC”) decision denying their permit for a swine concentrated animal feeding operation (CAFO). Plaintiff claimed CWC erred in finding their application “did not adequately prove that the CAFO operation was protected from a one hundred-year flood” as required by statute. Plaintiff’s engineer certified the operation, but court noted engineer’s documentation only spoke to the “manure management and containment system.” The applicable statute required evidence that “manure storage structures be protected, but also that there be protection for “confinement buildings, open lots, composting pads, and other manure storage areas in the production area.” Plaintiff failed to provide sufficient evidence to overturn CWC denial. Decision for defendant affirmed.

Farmers’ Ethanol LLC, Plaintiff–Appellant, v. Bounty Minerals, LLC, Defendant–Appellee, No. 16–3419, 2016 WL 6936525 (6^th Cir. Nov. 28, 2016) concerned parties that agreed to and signed letters of intent involving “proposed transactions” in which defendant would purchase oil and gas interests from plaintiff. Defendant later claimed a civil judgment and lien prevented closing. Plaintiff sued for enforcement and appealed after district court found no binding agreement. On appeal, plaintiff argued letters of intent created a binding contract and that the “initial review period” clause was a “satisfaction clause” requiring defendant to fill out the deeds and purchase the oil and gas interests “unless it was dissatisfied with the title or the properties.” Examining the evidence, the court noted that, “A review of the language of the letters of intent makes clear that what they embody is merely an offer of sale.” Court ruled that no enforceable contract was formed and district court decision affirmed.

Silver Creek Seed, LLC, an Idaho limited liability company, Plaintiff-Counterdefendant-Respondent, v. Sunrain Varieties, LLC, a Delaware limited liability company, Defendant-Counterclaimant-Appellant, Docket No. 43078, 2016 WL 6995376 (Idaho Nov. 30, 2016) involved a contract dispute arising from development of “bacterial ring rot” in two potato varieties grown by plaintiff for defendant. After the discovery of ring rot in the potatoes grown by plaintiff, defendant agreed to sell them as cattle feed, but never compensated plaintiff. Plaintiff sued alleging defendant breached the contract and was awarded damages at trial. Defendant appealed claiming trial court erred in denying defendant’s motion to reconsider. Appellate court observed the contract had “detailed language pertaining to the seed quality standards agreed to by the parties, but there is no language requiring [plaintiff] to provide seed that was recertifiable for future generations of seed potatoes.”  Court also found the uninfected potatoes “conformed to the terms of the contract, and the district court correctly concluded there was no genuine issue of material fact.” Affirmed for plaintiff.

In Waste Action Project, Plaintiff, v. Astro Auto Wrecking, LLC, Defendant, CASE NO. C15-0796-JCC, 2016 WL 7103414 (W.D. Wash. Dec. 6, 2016), plaintiff alleged defendant violated requirements of its Clean Water Act (CWA) permit and sought summary judgment on defendant’s violation of the reporting requirements of the National Pollutant Discharge Elimination System (NPDES) permit. Court observed that, “’The [CWA] explicitly allows private citizens to bring enforcement actions against any person alleged to be in violation of federal pollution control requirements,’ including the conditions of an NPDES permit.” Plaintiff alleged defendant failed to submit discharge monitoring reports, sample stormwater discharges, or note its compliance status. Partial summary judgment for plaintiff.

Concerning the Application of Busk-Ivanhoe, Inc., a Colorado corporation in Adams, Arapahoe, Chaffee, Douglas, Jefferson,Lake, Pitkin, and Weld Counties, Colorado, GRAND VALLEY WATER USERS ASSOCIATION; Orchard Mesa Irrigation District; Ute Water Conservancy District acting by and through the Ute Water Activity Enterprise; Colorado River Water Conservation District; Basalt Water Conservancy District; Board of County Commissioners of Eagle County; Board of County Commissioners of Pitkin County; Dick Wolfe, P.E., State Engineer; David L. Nettles, P.E., Division Engineer for Water Division 1; Steve Witte, P.E., Division Engineer for Water Division 2; and Alan Martellaro, P.E., Division Engineer for Water Division 5, Opposers–Appellants, And High Line Canal Company; Southeastern Colorado Water Conservancy District; and The City and County of Denver, acting by and through its Board of Water Commissioners, Opposers–Appellees, And Board of Water Works of Pueblo, Colorado, And Centennial Water and Sanitation District, Opposer, Opposer–Appellant/ Opposer–Appellee, v. BUSK-IVANHOE, INC., a Colorado corporation, Applicant–Appellee, No. 14SA303, 2016 WL 7077633 (Colo. Dec. 5, 2016) involved “historic consumptive use quantification of transmountain water rights.” Appellants (Busk-Ivanhoe Inc.) own a one-half interest in water rights to a transmountain diversion from the Colorado River Basin. At issue was appellant’s application to change “the type and place of use” of its water rights. The court considered whether storage of water “prior to use was lawful and therefore could be included in the water court’s historic use quantification,” and whether volumes of water “paid to rent such storage could be included in the quantification.” Court found that storage of the subject water rights was part of an earlier appropriation and declared, “the water court properly included the stored water in its historic consumptive use quantification.”  In addition, the court found that “payment for storage in volumes of water was a reasonable and efficient practice to accomplish the lawful use of the subject water rights.”

LEGISLATIVE: 

S. 3508: A bill to prohibit the Secretary of Energy and the Administrator of the Environmental Protection Agency from considering the social cost of carbon, the social cost of methane, and the social cost of nitrous oxide. Bill text is now available.

H.R. 875: Cross-Border Trade Enhancement Act of 2015. Bill’s text for status Passed the House (Engrossed) (Dec 6, 2016) and is now available.

H.R. 4680: National Park Service Centennial Act. This bill’s text for status Passed the House (Engrossed) (Dec 6, 2016) and is now available.

H.R. 6442: To amend the National Trails System Act to direct the Secretary of the Interior to conduct a study on the feasibility of designating the Chief Standing Bear National Historic Trail. Bill text is now available.

REGULATORY: Includes EPA, FS, ITA, NIFA, NOAA, and OAO rules and notices. 

ENVIRONMENTAL PROTECTION AGENCY: Rule establishing tolerances for residues of dicamba in or on cotton, gin byproducts; cotton, undelinted seed; soybean, forage; and soybean, hay. Monsanto Company requested these tolerances under the Federal Food, Drug, and Cosmetic Act. Details here.

FOREST SERVICE: Notice M. Earl Stewart, the Forest Supervisor for the Tongass National Forest, Alaska Region, signed the final Record of Decision for the Tongass National Forest Land and Resource Management Plan Amendment. Details here.

INTERNATIONAL TRADE ADMINISTRATION: Notice Department of Commerce finds revocation of the antidumping duty order on glycine from China may lead to continuation or recurrence of dumping at the rate identified in the “Final Results of Review” section of this notice. Info here.

NATIONAL INSTITUTE OF FOOD AND AGRICULTURE: Notice NIFA seeks nominations of veterinary service shortage situations for the Veterinary Medicine Loan Repayment Program for FY 2017, as authorized under the National Veterinary Medical Services Act. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS announces a 12-month finding and listing determination on a petition to list the Gulf of Mexico Bryde’s whale as threatened or endangered under the Endangered Species Act. Details here.

Notice NMFS received a revised application for ITRs from the Bureau of Ocean Energy Management, on behalf of oil and gas industry operators. Info here.

OFFICE OF ADVOCACY AND OUTREACH: Notice OAO will host a meeting of the Beginning Farmers and Ranchers Advisory Committee. Details here.