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 BLM, zoning, CWA, food law, landowner liability, and credit issues.

In Gregory M. Thomas, Plaintiff, v. United States of America DefandantIn , Case No. 2:15–cv–00291–APG–NJK, 2017 WL 379425 (D. Nev. Jan. 25, 2017), plaintiff brought Federal Tort Claims Act (FTCA) suit against the U.S. seeking damages from an injury sustained from an unidentified explosive device on land administered by the Bureau of Land Management (BLM). Plaintiff claimed the government “knew of dangerous conditions at the public shooting range where the incident occurred,” and negligently failed to mitigate the risk. Defendant argued FTCA “excludes ‘discretionary functions’ from its general waiver of sovereign immunity and most of the remedial actions [plaintiff] proposes the government should have taken involve such functions.” Defendant argued Nevada law protects landowners who make their land available for recreational use, requiring a plaintiff to “prove the landowner committed ‘willful misconduct’ rather than mere negligence.” Court found no evidence government committed willful misconduct.

In First American Bank, Plaintiff-Appellant, v. Urbandale Laser Wash, L.L.C., Walnut Creek Laser Wash, L.L.C., and Steven Golden, Defendants-Appellees, No. 16-0081, 2017 WL 108312 (Iowa Ct. App. Jan. 11, 2017), plaintiff appealed decision letting defendant carve out a one-half-acre piece of land from property he owns to designate as a homestead. Bank argued ability of a homeowner to select and plat a homestead should be subject to local zoning ordinances re: division of property. Bank maintained that because defendant’s property “cannot be subdivided in compliance with the controlling city ordinances . . . [plaintiff] should not be entitled to claim a homestead exemption.” Court observed right to a homestead “is absolute and subject to but one limitation; that is, it must be set off so as to include the dwelling house or home of such debtor,” and that homestead may be “platted in any shape or form and from any part of the whole tract.” Court found defendant had right to homestead exemption.

Gulf Coast Rod, Reel and Gun Club, Incorporated; Gilchrist Community Association, Plaintiffs-Appellants v. United States Army Corps of Engineers; Colonel Christopher W. Sallese, in his official capacity as District Engineer, Galveston District United States Army Corps of Engineers; Lieutenant General Thomas P. Bostick, in his official capacity as Commander and Chief of Engineers, United States Army Corps of Engineers; John M. McHugh, in his official capacity as Secretary of the Army, Defendants-Appellees, No. 16-40181, 2017 WL 243340 (5th Cir. Jan. 19, 2017) involved a challenge to the issuance of a Clean Water Act (CWA) permit under the Administrative Procedure Act (APA). Appellants opposed decision by the U.S. Army Corps of Engineers to issue a permit allowing Texas’s General Land Office to close a man-made channel. Issue concerned whether the permitting process fulfilled the requirements of the National Environmental Policy Act (NEPA). Court examined the permit process employed and observed “the regulation does not require that all proposed alternatives, no matter their merit, be discussed in the EA.” Court noted defendants “considered and rejected a number of alternatives to closing Rollover Pass” and concluded issuance of permit was not “arbitrary or capricious.” Summary judgment for defendants affirmed.

ORLANDER D. LEGGETT, Plaintiff, v. GEORGE SOLOMON, JACKIE PARKER, CHAPLAIN HOVIS, SERGEANT JOLLY, and SERGEANT FLOYD, Defendants. NO. 5:14-CT-3228-FL, 2017 WL 421915 (E.D.N.C. Jan. 31, 2017) concerned a civil rights action brought by a prison inmate. Plaintiff claimed defendants violated his rights under the Religious Land Use of Institutionalized Persons Act of 2000 (RLUIPA) and the Free Exercise Clause of the First Amendment. Plaintiff alleged he was not provided a snack bag during Ramadan that was granted to other inmates not observing the religious holiday. Court found that plaintiff “was not forced to choose between following the DPS policy regarding the administration of snack bags or to engage in conduct which violated his religious beliefs.” Court found no First Amendment violation and ruled defendants entitled to qualified immunity.

Rochelle Patterson, Mother and Next Best Friend of Nicolette Patterson, a Minor, and Gavin Patterson, a Minor, Appellant, v. Cowley County, Kansas, Kansas Department of Wildlife, Parks and Tourism, and Bolton Township, (Elaine Selenke as Heir-at-Law of Cortney Brewer, Deceased), Appellees, Nos. 114,705, 114,707, 2017 WL 384023 (Kan. Ct. App. Jan. 27, 2017) involved wrongful death actions brought by heirs of two people killed in a car accident on a road dead ending at a river. Plaintiffs sued County for “failure to provide adequate warnings, signs, or barriers on certain portions of the road where the fatal accident occurred.” Court analyzed the Kansas Tort Claims Act (KTCA) and found County had “no duty to initiate an engineering study,” and that  the County “is immune from liability under the discretionary judgment exception of the KTCA for any failure to place an advisory speed plaque or warning signs on its portion” of the road.

United States of America, Plaintiff, v. Rodney Neil Myers, Jr., Kenneth McKenzie, Defendants, No.: 4:15-cv-04024-BHH, 2017 WL 412623 (D. S. C. Jan. 31, 2017) involved security agreements wherein defendant allegedly gave plaintiff (USDA) permission to use his tobacco farm equipment as collateral. Defendant defaulted on a promissory note and plaintiff accelerated the debt owed. Issue was whether defendant (McKenzie) actually gave his co-defendant (Myers) permission to use his equipment as collateral for the loans. Court noted that, “A security interest attaches to collateral when it becomes enforceable against the debtor with respect to the collateral,” and concluded it could not find that “McKenzie expressly allowed Myers to pledge his equipment to secure two promissory loans.” USDA’s motion for summary judgment denied.


REGULATORY: Includes ITA and NOAA rules and notices.

INTERNATIONAL TRADE ADMINISTRATION: Notice that on December 15, 2016, the Department of Commerce initiated a countervailing duty investigation on certain softwood lumber products from Canada. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Notice Department of Commerce will submit to OMB for clearance a proposal for collection of information. Title: Atlantic Mackerel, Squid and Butterfish Amendment 14 Data Collection. Info here.

Notice the SEDAR 48 assessment of Southeastern U.S. black grouper will consist of a Data Workshop; an assessment workshop and series of Assessment webinars; and a Review Workshop. Details here.

Notice the North Pacific Fishery Management Council (Council) Electronic Monitoring Workgroup will hold a public meeting on March 28, 2017 through March 29, 2017. Details here.

Notice the Pacific Fishery Management Council’s Groundfish Endangered Species Workgroup will hold a meeting. Details here.