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

ANNOUNCEMENTS:

Mark your calendar for the next Agricultural & Food Law Consortium webinar, Wednesday, June 20th: Cottage Food Laws: Adequately Addressing Food Safety and Economic Opportunity? Details available here.

REGISTER NOW for our upcoming Ag Technology & the Law conference, August 15 and 16 in Little Rock, Arkansas. Details here.

JUDICIAL: Includes crop insurance, conservation programs, urb & ag, and environmental law issues.

In J.O.C. FARMS, L.L.C., Plaintiff – Appellant, v. FIREMAN’S FUND INSURANCE COMPANY; RURAL COMMUNITY INSURANCE AGENCY, INC., d/b/a Rural Community Insurance Services, Defendants – Appellees, and WILLIAM J. MURPHY, Administrator for the Risk Management Agency, United States of America; SONNY PERDUE, Secretary of Agriculture for the United States of America; UNITED STATES DEPARTMENT OF AGRICULTURE, RISK MANAGEMENT AGENCY, Defendants, No. 15-2368, 2018 WL 2979502 (4^th Cir. June 13, 2018), plaintiff sued for breach of contract regarding adjusted claims made under several crop insurance (MPCI) policies issued per the Federal Crop Insurance Act (FCIA). Plaintiff appealed district court’s order dismissing its claims after the court ruled plaintiff “did not timely commence arbitration required by the policies or as preempted by the FCIA) and its implementing regulations.” Lower court found that plainitff’s claims were preempted by the FCIC “predetermination requirement.” Appellate court observed that “[w]hile the FCIA and FCIC regulations were not intended to completely foreclose state law claims against private insurers providing policies reinsured by the FCIC, we agree with the weight of recent authority recognizing that claims arising from an insurer’s determination under the policy are preempted.” Affirmed.

In RONALD BRUCE HARTNETT, as the Fiduciary Trustee of the other LIVING TRUST OF ARNOLD L. & BETTE M. HARTNETT, Plaintiff, v. THE FARM SERVICE AGENCY, UNITED STATES DEPARTMENT OF AGRICULTURE, et al., Defendants, No. 18-CV-01045-EFM-GEB, 2018 WL 2971692 (D. Kan. June 12, 2018), plaintiff, trustee of a living trust, sued alleging “collusion of all said individual defendants in a conspiracy to deprive the Trust of its constitutionally-protected rights.” Plaintiff claimed breach of contract after the trust at issue was denied Conservation Reserve Program benefits by the Department of Agriculture. Plaintiff further argued that the trust’s administrative appeals within the Farm Service Agency and Department of Agriculture “were ultimately unsuccessful due to Defendants’ conspiracy against the Trust.” Defendants argued for dismissal, claiming the suit was filed  “by a person who is not admitted to practice law and therefore cannot represent the trust and its beneficiaries in federal court.” Court observed plaintiff trustee was not an attorney and ruled that “[o]nly a licensed attorney . . . may represent the rights or interests of others.” Dismissed with prejudice.

HOMEOWNERS OF ASH GROVE ESTATES v. CARLA HURLEY, ET AL, No. M2016-02008-COA-R3-CV, 2018 WL 2980044 (Tenn. Ct. App. June 13, 2018) involved a dispute over restrictive covenants. Plaintiffs sought an injunction to prevent neighbors from operating a commercial horse facility. Lower court permanently enjoined defendants from using their property for a commercial horse operation and from constructing any additional buildings before they built a residence on the property.   . Appellate court considered language of the covenant at issue and observed it “does not limit the presence of or expressly prohibit commercial activity relating to horses or cows, as it does for other types of animals.” Court reversed judgment enjoining defendants from conducting a commercial horse operation.

ALLIANCE FOR the WILD ROCKIES, Native Ecosystems Council, Plaintiffs, v. Leanne MARTEN, et al., Defendants, CV 17–21–M–DLC, 2018 WL 2943251 (D. Mon. June 12, 2018) involved a disputed supplemental environmental analysis by the Forest Service (FS). Defendants sought remand by the court, without vacating, a Record of Decision (ROD) permitting FS to perform supplemental environmental analysis of a vegetation project after a wildfire. Defendants did not want delays to jeopardize a timber contract and appellate court evaluated “the seriousness of an agency’s errors and the disruptive consequences that would result from vacatur” in deciding whether to vacate the ROD. Defendants argued the wildfire “demonstrated the risks posed by heavy fuel loads in the project area” and that vacatur “will only delay this project.” Court noted the fire had already occurred and termination of the timber contract at issue was “speculative.” Remanded to FS for completion of analysis.

LEGISLATIVE:

H.R. 5294: Treating Barriers to Prosperity Act of 2018. This bill’s text for status Reported by House Committee (Jun 12, 2018) is now available.

S. 3056: A bill to establish a more uniform, transparent, and modern process to authorize the construction, connection, operation, and maintenance of international border-crossing facilities for the import and export of oil and natural gas. This bill’s text is now available.

H.R. 6078: To provide for the boundary of the Palo Alto Battlefield National Historic Park to be adjusted, to authorize the donation of land to the United States for addition to that historic park, and for other purposes. This bill’s text is now available.

H.R. 6073: To amend the Rural Electrification Act of 1936 to provide requirements on the use of assistance for broadband deployment, and for other purposes. This bill’s text is now available.

H.R. 6077: Recognizing the National Comedy Center in Jamestown, New York. This bill’s text is now available.

H.R. 5895: Energy and Water, Legislative Branch, and Military Construction and Veterans Affairs Appropriations Act, 2019. This bill’s text for status Placed on Calendar in the Senate (Jun 13, 2018) is now available.

S. 3072: An original bill making appropriations for the Departments of Commerce and Justice, Science, and Related Agencies for the fiscal year ending September 30, 2019, and for other purposes. This bill was referred to the Senate Committee on Appropriations.

S. 3071: An original bill making appropriations for the Legislative Branch for the fiscal year ending September 30, 2019, and for other purposes.This bill was referred to the Senate Committee on Appropriations which will consider it before sending it to the Senate floor for consideration.

3069: A bill to amend the Omnibus Public Land Management Act of 2009 to modify the terms of the Jackson Gulch rehabilitation project in Colorado. This bill was referred to the Senate Committee on Energy and Natural Resources which will consider it before sending it to the Senate floor for consideration.

S. 3073: An original bill making appropriations for the Department of the Interior, environment, and related agencies for the fiscal year ending September 30, 2019. This bill was referred to the Senate Committee on Appropriations.

H.R. 6121: To modernize the authority of the Commodity Futures Trading Commission to conduct research, development, demonstration, and information programs. Referred to the House Committee on Agriculture.

H.R. 6118: To direct the Secretary of the Interior to annually designate at least one city in the United States as an “American World War II Heritage City”, and for other purposes. Referred to the House Committee on Natural Resources which will consider it before sending it to the House floor for consideration.

H.R. 6107: To clarify that Bureau of Land Management shall not require permits for oil and gas activities conducted on non-Federal surface estate to access subsurface mineral estate that is less than 50 percent Federally owned. Referred to the House Committee on Natural Resources.

H.R. 6106: To amend the Energy Policy Act of 2005 to clarify the authorized categorical exclusions and authorize additional categorical exclusions to streamline the oil and gas permitting process. This bill was referred to the House Committee on Natural Resources.

H.Res. 941: Recognizing the importance of public park and recreation facilities and activities and expressing support for the designation of the month of July as “Park and Recreation Month”. This resolution was referred to the House Committee on Natural Resources which will consider it before sending it to the House floor for consideration.

H.R. 6119: To remove the red wolf from the list of endangered and threatened wildlife for North Carolina. 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. 6112: To amend the Food and Nutrition Act of 2008 to make institutions of higher education eligible for assistance for community food projects. This bill was referred to the House Committee on Agriculture which will consider it before sending it to the House floor for consideration.

H.R. 6104: To require the sale of distressed notes and other obligations. Referred to the House Committee on Agriculture and House Committee on Transportation and Infrastructure which will consider it before sending it to the House floor for consideration.

REGULATORY: Includes EPA, FCIC, FWS, FDA, FS, ITA ans NOAA rules and notices.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is approving most elements of State Implementation Plan (SIP) submissions from Maine regarding the infrastructure requirements of the Clean Air Act for the 2008 lead (Pb), 2008 ozone, and 2010 nitrogen dioxide National Ambient Air Quality Standards. Info here.

Rule EPA is proposing to approve a state implementation plan (SIP) revision submitted by the State of West Virginia. This revision pertains to changes to West Virginia’s minor New Source Review (NSR) permit program. Details here.

FEDERAL CROP INSURANCE CORPORATION: Notice Farm Service Agency (FSA) and Risk Management Agency (RMA) are requesting comments from all interested individuals and organizations on a revision of a currently approved paperwork package associated with the Acreage and Crop Reporting Streamlining Initiative. Info here.

FISH AND WILDLIFE SERVICE: Notice FWS is initiating 5-year status reviews of 50 species in California, Nevada, and the Klamath Basin of Oregon under the Endangered Species Act. Details here.

FOOD AND DRUG ADMINISTRATION: Notice FDA is announcing a public meeting entitled “Foods Produced Using Animal Cell Culture Technology.” FDA is holding the public meeting to provide the public with an opportunity to provide comments related to the production of foods using animal cell culture technology. Info here.

FOREST SERVICE: Notice FS is seeking comments from all interested individuals and organizations on the extension with minor revision of a currently approved information collection, Grazing Permit Administration Forms. Details here.

INTERNATIONAL TRADE ADMINISTRATION:

Notice ITA determines that countervailable subsidies are being provided to producers and exporters of ripe olives from Spain. Details here.

Notice ITA initiated the sunset review of the antidumping duty order on solid agricultural grade ammonium nitrate from Ukraine. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMNINSTRATION:

Rule NMFS reopens the exclusive economic zone (EEZ) off South Carolina in the South Atlantic to trawling for penaeid shrimp, i.e., for brown, pink, and white shrimp. Details here.

Rule NMFS apportions amounts of the non-specified reserve to the initial total allowable catch (ITAC) of Bering Sea and Aleutian Islands (BSAI) Alaska plaice. Details here.

Notice NMFS has received an application for a new Enhancement of Survival Permit and a request for entry into an associated proposed Safe Harbor Agreement (Agreement) between the applicant and NMFS. Info here.