A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions HERE.
ANNOUNCEMENT: REGISTER NOW for our upcoming Ag Technology & the Law conference, August 15 and 16 in Little Rock, Arkansas. Details here.
JUDICIAL: Includes crop insurance, renewable energy, urb & ag, and environmental issues.
Jeffrey J. GORDON and Vicki Gordon, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee, No. 16-35867, 2018 WL 3120294 (9th Cir. June 26, 2018) involved a potato farmer indicted for fraud and conspiring to make false statements regarding his submissions to insurance companies reinsured by the federal crop insurance program. Here, plaintiff alleged the USDA and one of its agents provided “incomplete, false, and misleading testimony to the grand jury that indicted [plaintiff].” Court concluded plaintiff failed to point to any of the agent’s testimony that could be considered “false or misleading,” and also determined that the agent’s conduct “in investigating [plaintiff’s] alleged fraudulent activity is protected by the FTCA’s discretionary function exception.” District court ruling for defendant affirmed.
In GLACIAL PLAINS COOPERATIVE, formerly known as United Farmers Elevator, Respondent, v. CHIPPEWA VALLEY ETHANOL COMPANY, LLLP, successor to Chippewa Valley Ethanol Company, LLC, Appellant, A16-1626, 912 N.W.2d 233 (Minn. June 6, 2018), an operator of a grain-processing facility sued operator of ethanol plant to stop the operator from terminating a grain-handling contract. Lower court ruled plant operator wrongfully terminated the contract and appellate court affirmed. State Supreme Court found that the grain-handling contract at issue “did not unambiguously express intent to form contract of perpetual duration, and thus was contract of indefinite duration that was terminable at will upon reasonable notice once reasonable time had passed.” Reversed and remanded.
DONALD HILL, et al., Respondents, v. MISSOURI DEPARTMENT OF CONSERVATION, et al., Appellants, No. SC 96739, 2018 WL 3235854 (Mo. July 3, 2018) concerned the regulatory authority of the Missouri Conservation Commission after the agency proposed regulatory amendments for the captive cervid industry, banning importation of cervids and imposing fencing requirements. Here, plaintiffs sued to prevent the amended regulations from going into effect and circuit court declared the regulations invalid. The court concluded cervids are not “game” or “wildlife resources of the state” subject to regulation by the Commission. Appellate court disagreed with lower court and reasoned the terms “game” and “wildlife” are “unambiguous.” Per the court, “’wildlife’ means species that are wild by nature, and ‘game’ means wildlife species that are often pursued for sport, food, or other lawful ends.” Appellate court reversed, ruling the Commission has authority “to regulate Respondents’ captive cervids as ‘wildlife’ and ‘game.’”
In Casey Voigt and Julie Voigt, Plaintiffs, v. Coyote Creek Mining Company, LLC, a North Dakota Corporation, Defendant, No. 1:15-cv-00109, 2018 WL 3244408 (D.N.D. July 3, 2018), ranchers claimed defendant (coal mining operation) did not obtain the correct type of Clean Air Act permit for the construction of its mine and argued the mine “needed a ‘major source’ construction permit instead of the ‘minor source’ permit it sought and received.” Court observed that the “EPA made a policy choice . . . when it decided not to adopt a rule that would require consideration of fugitive emissions of PM [particulate matter] from coal mines for the purpose of determining whether coal mines are major sources.” Court concluded plaintiffs failed to meet their burden “of demonstrating an ability of being able to prove that the . . . major source threshold can be reached even if the court was to accept the PTE [potential to emit]estimates of their expert and resolve the other disputed issues with respect to what emission points need to be included in their favor.” Defendant’s motion to dismiss granted.
S. 215: A bill to authorize the Federal Energy Regulatory Commission to issue an order continuing a stay of a hydroelectric license for the Mahoney Lake hydroelectric project in the State of Alaska. This bill’s text for status Referred to House Committee (Jul 3, 2018) is now available.
S. 490: A bill to reinstate and extend the deadline for commencement of construction of a hydroelectric project involving the Gibson Dam. This bill’s text for status Referred to House Committee (Jul 3, 2018) is now available.
H.R. 3777: Juab County Conveyance Act of 2017. This bill’s text for status Reported by House Committee (Jul 3, 2018) is now available.
H.R. 5875: To amend the Pittman-Robertson Wildlife Restoration Act and the Dingell-Johnson Federal Aid in Sport Fish Restoration Act, to provide parity for United States territories and the District of Columbia, to make technical corrections to such Acts. This bill’s text for status Reported by House Committee (Jul 3, 2018) is now available.
H.R. 6307: To authorize the Secretary of the Interior to conduct a study to assess the suitability and feasibility of designating certain land as the Finger Lakes National Heritage Area, and for other purposes. This bill was referred to the House Committee on Natural Resources which will consider it before sending it to the House floor for consideration.
H.R. 6302: To enact as law certain regulations relating to the taking of double-crested cormorants. This bill was referred to the House Committee on Natural Resources which will consider it before sending it to the House floor for consideration.
REGULATORY: Includes AMS, USDA, EPA, and NOAA rules and notices.
AGRICULTURAL MARKETING SERVICE:
Rule AMS published a final rule in the Federal Register on January 4, 2011, amending the Code of Federal Regulations (CFR) governing inspection and certification of processed fruits, vegetables, and miscellaneous products regarding Country of Origin Labeling (COOL) of Packed Honey. Details here.
Rule implements a recommendation from the Citrus Administrative Committee (Committee) for an increase of the assessment rate established for the 2017-18 and subsequent fiscal periods. Info here.
Rule implements a recommendation from the Cherry Industry Administrative Board (Board) to revise the exemption provisions for tart cherries grown in Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin. Info here.
Rule invites comments on proposed amendments to Marketing Order No. 981, which regulates the handling of almonds grown in California. Details here.
Rule invites comments on a recommendation to change the container requirements under the marketing order for oranges and grapefruit grown in the Lower Rio Grande Valley in Texas. Info here.
Rule would adjust the number of members on the United Soybean Board (Board) to reflect changes in production levels that have occurred since the Board was last reapportioned in 2015. Details here.
AGRICULTURE DEPARTMENT: Notice USDA will submit the following information collection requirement(s) to OMB for review. Title: Contractor Labor Survey. Details here.
ENVIRONMENTAL PROTECTION AGENCY:
Rule EPA is taking final action to approve a State Implementation Plan (SIP) submission, submitted by the State of Alabama, through the Alabama Department of Environmental Management (ADEM), on October 24, 2017, and a portion of a December 9, 2015, infrastructure SIP submission. Info here.
Rule EPA is proposing to approve State Implementation Plan (SIP) revisions submitted by the State of New Hampshire. Details here.
Rule EPA is proposing to approve revisions to the State Implementation Plan (SIP) for Oklahoma submitted by the State of Oklahoma designee with a letter dated February 14, 2017. Info here.
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:
Rule NMFS issues regulations to implement Amendment 117 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (BSAI FMP), implement Amendment 106 to the Fishery Management Plan for Groundfish of the Gulf of Alaska (GOA FMP), and update the species code tables for octopus. Details here.
Rule NMFS proposes to modify the baseline annual U.S. quota and subquotas for Atlantic bluefin tuna (BFT) and the baseline annual U.S. North Atlantic albacore (northern albacore or NALB) quota. Info here.
Notice the Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections. Details here.