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


ANNOUNCEMENT: Join us today at 12 noon (ET) for the next Agricultural & Food Law Consortium webinar: Agricultural Nutrient Management: State Innovations and Local Responsibility. Details available here.


JUDICIAL: Includes water law, FWS, FSA, administrative law, and bankruptcy issues.

In Jerome MOVRICH and Gail Movrich, Plaintiffs–Respondents, v. David J. LOBERMEIER and Diane Lobermeier, Defendants–Appellants–Petitioners, No. 2015AP583, 905 N.W.2d 807 (Wis. January 23, 2018), owners of property upland of creek flowage sued owners of waterbed property, seeking “declaration of their riparian rights incident to their property ownership and their ability to access the flowage and to install a pier or dock.” Lower court ruled against waterbed property owners and they appealed. Supreme Court found upland property owners “were not entitled to riparian rights incidental to property ownership,” and that the “public trust doctrine conveyed no private property rights to upland property owners.” Reversed in part.

In IN THE MATTER OF MONIKA M. DERRIEN, CBCA 5901-TRAV (A.S.B.C.A.), 2018 WL 928249 (CBCA February 13, 2018), a graduate student had a fellowship with the Fish and Wildlife Service (FWS) and was entitled to the travel reimbursement. She disputed the disallowance of $2111.89 in costs “related to the use of her personal vehicle, lodgings, and meals traveling to and from her temporary duty stations.” FWS employee amended or rejected multiple vouchers based on erroneous information. The agency argued there can be “no equitable recovery for relying on the bad advice of a government employee, when the advice is unauthorized by statute or regulation.” Court determined facts do not limit claimant’s ability to recover the “actual expenses that she was authorized and relied on receiving when traveling in the interest of the Government.”

In UNITED STATES of America v. Willie Charles KENNEDY and Barbara W. Kennedy, No. 17-0396, 2018 WL 934624 (W.D. La. February 16, 2018), government sought in rem judgment on three promissory notes executed by defendants covering property in Louisiana. Defendant sought dismissal of government’s claims and a discharge of all his debts by relying on his status as a class member in Pigford v. Glickman. Court ruled for the government and noted the plaintiff “established the elements of its claim for judgment on the Notes and mortgages based on the undisputed facts in this case, which were properly supported with affidavits from the FSA Executive Director and employees.”

In DAVID MILLER PLAINTIFF v. MISSISSIPPI RESOURCES, LLC DEFENDANT, No. 5:17-CV-41-DCB-MTP, 2018 WL 934827 (S.D. Miss. February 16, 2018), plaintiff owned 500 acres of property subject to oil and gas production by defendant. Plaintiff sued in county court alleging negligence and punitive damages relating to defendant’s activities. Issue was whether landowner had to present his grievance to the Oil and Gas Board before suing operator. Court observed that “[b]efore a plaintiff sues for activity subject to administrative agency review, she must seek relief from the agency charged with regulating the activity.” Court stayed action after concluding that the “exhaustion” requirement “applies to a landowner’s suit against an operator when the landowner alleges conduct or damage placing the suit within the Board’s jurisdiction.”

IN RE: Anthony M. MORTELLITE, Jr. and Colleen Mortellite, Debtors, Blues Brothers, LLC, Debtor, No.: 17–21818–ABA Jointly Administered, Case No.: 17–21820–ABA, 2018 WL 388966 (Bankr. D.N.J. January 11, 2018) involved a Chapter 12 bankruptcy of a blackberry farm wherein debtors argued their creditor’s “allowed secured claim” against the farm should be fixed at $600,000. Creditor argued “the farm’s replacement value is $2,300,000 determined by its appraisal expert [via] a sales comparison approach.” The court observed that “[t]he Chapter 12 debtor bears the burden of proving that his proposed plan satisfies all of the requirements for confirmation.” Court found the testimony of the creditor’s expert more compelling “as it reflects the value of the Debtors’ property as an on-going farm operation whereas the Debtors’ appraisal value is not a true reflection of its value in the market when used as its intended use.” Case dismissed.


REGULATORY: Includes AMS, USDA, EPA, FSIS, and NOAA rules and notices.

AGRICULTURAL MARKETING SERVICE: Rule implements a recommendation made by the American Pecan Council to establish reporting requirements under the Federal marketing order for pecans. Info here.

AGRICULTURE DEPARTMENT: Notice USDA has submitted  information collection requirement(s) to OMB for review. Title: Self Certification Medical Statement. Details here.

ENVIRONMENTAL PROTECTION AGENCY: Rule EPA is announcing its decision to not issue final regulations on its proposed regulations for financial responsibility requirements applicable to hardrock mining facilities that were published on January 11, 2017. Details here.

FOOD SAFETY AND INSPECTION SERVICE: Notice FSIS is sponsoring a public meeting on March 15, 2018 to provide information and receive public comments on agenda items and draft United States positions to be discussed at the 50th Session of the Codex Committee on Pesticide Residues of the Codex Alimentarius Commission, taking place in Haikou, China between April 9 and 14, 2018. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule the Gulf of Mexico Fishery Management Council has submitted Amendment 36A to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico for review, approval, and implementation by NMFS. Info here.

Notice is hereby given that Waikiki Aquarium, 2777 Kalakaua Avenue, Honolulu, HI 96815 (Dr. Andrew Rossiter, Responsible Party), has applied in due form for a permit to conduct research on and enhancement of captive Hawaiian monk seals. Info here.

Notice is hereby given that Shannon Atkinson, Ph.D., University of Alaska Fairbanks, 17101 Point Lena Loop Road, Juneau, AK 99801 has applied in due form for a permit to import, export, and receive marine mammal parts for scientific research. Info here.