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

JUDICIAL: Includes renewable energy, ESA, bankruptcy, and environmental issues.

In AKSAMIT RESOURCE MANAGEMENT LLC et al., appellants, v. NEBRASKA PUBLIC POWER DISTRICT, appellee, No. S-17-333, 299 Neb. 114 (Neb. February 23, 2018), defendant refused public records request from potential competitors for documents. Requested documents revealed cost and revenue information for each of defendant’s generation units. Lower court declined a writ of mandamus compelling disclosure and appellate court considered whether the relevant statute “require[s] public records useful to an energy policy debate to be released despite an advantage flowing to a competitor[.]” Appellate court acknowledged that the defendant “is not a typical governmental body,” In reversing the lower court and granting the writ, the appellate court conclude, “The Legislature has not included in the lengthy statutes governing public power districts any provision purporting to deny the public access to its books and records.”

In FRIENDS OF THE RIVER, Plaintiff, v. NATIONAL MARINE FISHERIES SERVICE, et al., Defendants, No. 2:16-cv-00818-JAM-EFB, 2018 WL 1014453 (E.D. Cal. February 22, 2018), plaintiff sued alleging violations of the Endangered Species Act (ESA) and Administrative Procedures Act (APA) regarding “three species of threatened fish and two federally-managed dams in the Yuba River.” Plaintiff alleged “flow from the dams’ existences” harms the threatened fish. Court considered the term “agency action” and found the dams’ existences “do not constitute a present or continuing ‘agency action.’” Court ultimately determined that “[b]ecause the Corps has not affirmatively engaged in a discretionary activity that had prohibited impact on the Listed Species, Plaintiff has not proven a violation of Section 9.”

IN RE: Blake Lawrence KRETCHMAR, Debtor. Susan Manchester, Trustee and Farm Credit of Enid, PCA, Plaintiffs, v. Blake Lawrence Kretchmar, Danny Kretchmar, Debbie Kretchmar, Kretchmar Farms, Defendants, No. 16–14337–JDL, Adv. Proc. No. 17–01026–JDL, 579 B.R. 924 (Bankr. W.D. Okla. February 5, 2018) involved a Chapter 7 bankruptcy wherein trustee and creditor sought to consolidate “non-debtor parents and family farm operation into the bankruptcy estate of debtor-son.” Creditors claimed debtor and his relatives, through the entity Kretchmar Farms, “operated as general partners and/or joint venturers and held themselves out to customers as Kretchmar Farms, when dealing with certain creditors.” The Non-debtor parents filed motion to dismiss. Court ruled “consolidation of individual debtor with individual non-debtors was not appropriate.” Bankruptcy court also observed that it lacked “’related to’ jurisdiction over creditor’s state law claims against non-debtors.” Motion to dismiss granted.

In NATIVE ECOSYSTEMS COUNCIL; Alliance for the Wild Rockies, Plaintiffs–Appellants, v. Leanne MARTEN, Regional Forester of Region One of the U.S. Forest Service; United States Forest Service, an agency of the U.S. Department of Agriculture; United States Fish and Wildlife Service, an agency of the U.S. Department of the Interior, Defendants–Appellees, No. 16-35571, 2018 WL 1003778 (9^th Cir. February 22, 2018), environmental groups sued Forest Service (FS) challenging a logging project that includes thinning 2,500 acres of forest land to reduce wildfires. Plaintiffs sued under Endangered Species Act (ESA), alleging the project threatened the Canada lynx habitat, and under the National Forest Management Act (NFMA), and National Environmental Policy Act (NEPA). Initially, district court enjoined the project, but eventually granted motion to halt the injunction. Plaintiffs appealed. Regarding the threat to the Canada lynx, appellate court found ESA regulations did not require FS “to reevaluate its approval of project.” Court further found that FS “complied with NFMA forest plan obligation to monitor management indicator species.” District court affirmed and injunction dissolved.

LEGISLATIVE:

H.R. 835: To update the map of, and modify the maximum acreage available for inclusion in, the Florissant Fossil Beds National Monument. Text for status Reported by House Committee (Feb 26, 2018) is now available.

H.R. 4134: Cecil D. Andrus-White Clouds Wilderness Redesignation Act. Text for status Reported by House Committee (Feb 26, 2018) is now available.

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

AGRICULTURE DEPARTMENT: Notice USDA and Health and Human Services solicit written comments on the topics and questions to be examined in the review of scientific evidence supporting the development of the 2020-2025 Dietary Guidelines for Americans. Details here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is approving a revision to the Illinois state implementation plan to amend requirements applicable to certain coal-fired electric generating units. Info here.

Rule corrects codification errors for New Source Review and Prevention of Significant Deterioration rules in the Indiana State Implementation Plan. Details here.

Rule establishes an exemption from the requirement of a tolerance for residues of titanium dioxide in pre-harvest crops when used as an inert ingredient at a concentration of not more than 45% in foliar applications of pesticide formulations containing anthraquinone. Info here.

FISH AND WILDLIFE SERVICE: Notice FWS is proposing to revise an existing information collection. Title: Policy for Evaluation of Conservation Efforts When Making Listing Decisions (PECE). Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is prohibiting directed fishing for Pacific cod by catcher vessels using trawl gear in the Western Regulatory Area of the Gulf of Alaska. Info here.

Rule NMFS is prohibiting directed fishing for pollock in Statistical Area 620 in the Gulf of Alaska. Info here.

Rule NMFS is reducing the Atlantic mackerel possession limit for Federal limited access Atlantic mackerel permitted vessels based on a projection that the 2018 river herring and shad catch cap for that fishery has been reached. Details here.

Notice Commerce will submit to OMB for clearance a proposal for collection of information. Title: National Centers for Environmental Information Send2NCEI Web Application. Details here.

Notice requesting extension of a currently approved information collection to obtain information from individuals in the seven United States jurisdictions containing coral reefs. Details here.