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


JUDICIAL: Includes pesticides, renewable energy, water law and agritourism issues.

In TMG CATTLE COMPANY, INC. APPELLANT v. PARKER COMMERCIAL SPRAYING, LLC APPELLEE, No. CV-17-763, 2018 Ark. App. 144 (Ark. Ct. App. February 21, 2018), defendant sprayed urea fertilizer in a wheat field next to a field where plaintiff’s cattle grazed. Plaintiff later discovered eighteen dead cows on its property, “all located in and around a pond adjacent to the wheat field where [defendant] had applied the urea fertilizer.” Plaintiff sued, alleging defendant’s spraying of chemicals “was the proximate cause of the deaths of the cattle.” Defendant argued the evidence “did not definitively link the cows’ deaths to the consumption of urea fertilizer,” and lower court granted summary judgment for defendant. Appellate court, however, concluded that “[a]lthough this evidence does not prove to an absolutely certainty that the cows ate the urea, which led to their deaths, that is not the issue to be addressed at the summary-judgment stage of the proceedings.” Reversed and remanded.

In FIRST DAKOTA NATIONAL BANK, Plaintiff–Appellant v. ECO ENERGY, LLC, a Tennessee limited liability company formerly known as Eco Energy, Inc., Defendant–Appellee, No. 16-4391, 881 F.3d 615 (8th Cir. February 1, 2018), bank with an interest in a loan regarding the sale of ethanol sued the ethanol buyer. Bank claimed breach of sublease between buyer and seller for railcars to transport the ethanol. Lower court granted summary judgment for ethanol buyer and Bank appealed. Appellate court found that under Tennessee law “buyer, as sublessor, was not bound by notice-and-opportunity provision to provide notice of default to lender prior to termination of sublease.” Court also found that under North Dakota law, “bank was not entitled to damages for ethanol buyer’s breach of agreement to provide notice of producer’s default and opportunity to cure.”

State of MONTANA v. State of WYOMING and State of North Dakota, No. 137,ORIG., 2018 WL 942415 (U.S. February 20, 2018) concerned appropriative rights to the water of the Yellowstone River in Montana. Supreme Court awarded State of Montana $20,340 for the State of Wyoming’s violations of the Yellowstone River Compact “resulting from Wyoming’s reduction of the volume of water available in the Tongue River at the Stateline between Wyoming and Montana by 1300 acre feet in 2004 and 56 acre feet in 2006.” Court noted that Wyoming “shall make its payment into an account specified by Montana to be used for improvements to the Tongue River Reservoir or related facilities in Montana.”

Clayton BYRD, in his official capacity as Executive Director of the Tennessee Alcoholic Beverage Commission; Tennessee Fine Wines and Spirits, LLC, dba Total Wine Spirits Beer & More; Affluere Investments, Inc., dba Kimbrough Fine Wine & Spirits, Plaintiffs-Appellees, v. TENNESSEE WINE AND SPIRITS RETAILERS ASSOCIATION, Defendant – Appellant, No. 17-5552, 2018 WL 988931 (6th Cir. February 21, 2018) concerned a Tennessee statute regarding a retailer-alcoholic-beverages license. To obtain the license, a person “needs to be a Tennessee resident for at least two years, and to renew a license, there is a ten-year requirement.” Lower court determined “durational-residency requirements violate the dormant Commerce Clause,” and defendant appealed. Appellate court affirmed and severed the provisions at issue from the Tennessee statute.


REGULATORY: Includes EPA, FWS, FNS, and NOAA rules and notices.

ENVIRONMENTAL PROTECTION AGENCY:

Rule establishes tolerances for residues of quizalofop ethyl in or on the commodities wheat germ and milled byproducts, and increases the tolerances in or on wheat forage, hay, and straw. Details here.

Rule establishes time-limited tolerances for residues of indaziflam in or on rangeland, pastures, and areas subject to the Conservation Reserve Program (CRP). Details here.

Rule establishes an exemption from the requirement of a tolerance for residues of distillates (petroleum), solvent-dewaxed heavy paraffinic when used as an inert ingredient (carrier) in pesticide products applied to growing crops and raw agricultural commodities after harvest and to animals. Info here.

Rule EPA is proposing to approve the Oregon State Implementation Plan (SIP) as meeting infrastructure requirements for the 2010 nitrogen dioxide. Details here.

FISH AND WILDLIFE SERVICE:

Notice FWS seeks comment on applications for permits to conduct activities intended to enhance the propagation or survival of endangered or threatened species. Info here.

FOOD AND NUTRITION SERVICE: Notice the Food and Nutrition Act of 2008 limits the amount of time an able-bodied adult without dependents can receive Supplemental Nutrition Assistance Program (SNAP) benefits to 3 months in a 36-month period, unless the individual is working and/or participating in a work program half-time or more, or participating in workfare. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is proposing to revise the current closure regulations for commercial shark fisheries. Info here.

Rule NMFS issues a proposed rule that would modify regulations governing the Halibut and Sablefish Individual Fishing Quota (IFQ) Program. Details here.