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

ANNOUNCEMENT: Mark your calendar for the next Agricultural & Food Law Consortium webinar, Wednesday, February 21st: Agricultural Nutrient Management: State Innovations and Local Responsibility. Details available here.

JUDICIAL: includes landowner liability, commodity program, APA and urb & ag issues.

In RACQUEL DAVIS, APPELLANT v. THE CITY OF LUBBOCK, APPELLEE, No. 07-16-00080-CV, 2018 WL 736344 (Tex. App. February 6, 2018), two of plaintiff’s horses died after eating hay purchased from City of Lubbock. Plaintiff sued and trial court sustained City’s plea to the jurisdiction and dismissed. On appeal, City maintained that its sale of the hay “was an exercise of a governmental function.” Appellate court agreed and found plaintiff’s claim was not “within a waiver of the City’s governmental immunity.” Affirmed.

In KANSAS CORPORATION COMMISSION, Petitioner v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent South Central MCN LLC, et al., Intervenors, No. 16-1093, 16-1164, 2018 WL 722553 (D.C. February 6, 2018), plaintiff, a regulatory body over seeing public utilities, argued the Federal Energy Regulatory Commission (FERC) acted unlawfully “by approving formula rates . . . for future public utilities to use in operating electric transmission facilities.” Per the court, formula rates are used to determine electric rates charged by public utilities to consumers in FERC jurisdictions. Plaintiff claimed FERC cannot determined whether formula rates for future entities are “just and reasonable.” Appellate court held plaintiff lacked Article III standing to challenge FERC’s approval of rates as “a harm that will not occur unless a series of contingencies occurs at some unknown future time.”

In COREY LEA, Petitioner, v. UNITED STATES DEPARTMENT OF AGRICULTURE, et al., Respondents, No. 16-00735, 2018 WL 721381 (M.D. Tenn. February 6, 2018), plaintiff claimed USDA violated the 2008 farm bill legislation “by not enforcing a foreclosure moratorium to halt proceedings instituted against him.” A private bank held 90% of plaintiff’s mortgage. Plaintiff filed petition under the Administrative Procedure Act (APA) pertaining to the the USDA’s “fail[ure] [to] act on [t]he 2008 Farm Bill and the [foreclosure] moratorium relief . . . for borrowers. Lower court granted USDA’s moved to dismiss and plaintiff appealed. Appellate court found no APA violation as “claims based on an alleged failure by the USDA to enact a morato-rium on foreclosures that were not instituted by the USDA do not find relief in § 1981a(b)(1).” Affirmed for USDA.

Karen MORGAN, Respondent, v. JACKSON COUNTY, Respondent below, and Larry Perkett and Susan Perkett, Petitioners, A166034, 290 Or.App. 111 (Or. Ct. App. February 7, 2018) concerned the meaning of the phrase “lawful use” as defined by a Land Use Board of Appeals (LUBA) regarding petitioners’ auto yard. Petitioners argued “lawful use” is determined with reference to local zoning or land use regulations and that LUBA erred by “enlarging its understanding of the issue to consider whether their use was unlawful with reference to compliance with dealer-licensing statutes.” Court considered whether the phrase, “lawful use” includes “business or occupational licensing.” Court concluded that the “use” at issue here was a “use of any building, structure or land,” and therefore, LUBA erred in reversing decision of the county hearings officer “on the basis of a business licensing violation.” Reversed and remanded.

LEGISLATIVE:

H.R. 219: Swan Lake Hydroelectric Project Boundary Correction Act. Bill’s text for status Passed the House (Feb 6, 2018) is now available.

H.R. 2504: To ensure fair treatment in licensing requirements for the export of certain echinoderms. Bill’s text for status Referred to Senate Committee (Feb 6, 2018) is now available.

H.R. 2888: Ste. Genevieve National Historical Park Establishment Act. Bill’s text for status Referred to Senate Committee (Feb 6, 2018) is now available.

H.R. 4941: To amend the Animal Welfare Act to protect common household pets from harmful confinement. Bill’s text is now available.

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

AGRICULTURE DEPARTMENT: Notice USDA will submit information collection requirement(s) to OMB for review. Title: Beef Research and Promotion: Producer Request for State to Retain Checkoff Assessment Form. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule establishes tolerances for residues of cyflufenamid in or on cherry crop subgroup 12-12A, hops dried cones, and fruiting vegetable crop group 8-10; and amends the tolerance for cucurbit vegetable crop group 9. Details here.

Rule establishes tolerances for residues of zoxamide in or on banana. Gowan Company, LLC requested these tolerances under the Federal Food, Drug, and Cosmetic Act. Info here.

FISH AND WILDLIFE SERVICE: Rule FWS determine endangered species status under the Endangered Species Act for the Texas hornshell, a freshwater mussel species from New Mexico, Texas, and Mexico. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is prohibiting directed fishing for Pacific cod by non- American Fisheries Act (AFA) crab vessels that are subject to sideboard limits, and operating as catcher vessels (CVs) using pot gear, in the Central Regulatory Area of the Gulf of Alaska (GOA). Info here.

Rule NMFS announces that the State of North Carolina is transferring a portion of its 2018 commercial summer flounder quota to the State of Rhode Island. Details here.