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


JUDICIAL: Includes Urb & Ag, landowner liability, finance and credit, and aquaculture issues.

BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF WELD, a political subdivision of the State of Colorado, Petitioner-Appellee, v. DPG FARMS, LLC, Respondent-Appellant, No. 15CA1951, 2017 WL 2589519 (Colo. App. June 15, 2017) involved a condemnation action. After a valuation trial, defendant appealed regarding the proper method for determining compensation when a condemned property remains capable of producing income. Defendant argued lower court erred in finding that water storage was not the highest and best use of the property, and in excluding defendant’s lost income evidence. Defendant maintained such evidence was admissible “under its income capitalization approach to valuing the affected property.” Appellate court concluded the income valuation evidence presented by defendant’s experts was “properly excluded” and affirmed trial court.

In PETER CLARK, Plaintiff – Appellant, v. UNITED STATES OF AMERICA, Defendant – Appellee. AILEEEN O’CATHERINE; STEVEN SILVER, individually and as parents and next friends of Noah Silver, a minor, Plaintiffs – Appellants, v. UNITED STATES OF AMERICA, Defendant – Appellee, No. 15-2113, No. 15-2114, 2017 WL 2644635 (10th Cir. June 20, 2017), plaintiffs sought damages under the Federal Tort Claims Act (FTCA) for injuries sustained while sledding at a recreational area managed by the Forest Service (FS) within the Cibola National Forest. Plaintiffs maintained the Forest Service’s negligence caused their injuries. District court found the FTCA’s “discretionary-function exception” applied and granted the United States’ motion to dismiss for lack of subject-matter jurisdiction. Appellate court affirmed for defendants.

In EDDIE WISE and DOROTHY WISE, Plaintiffs, v. THE UNITED STATES DEPARTMENT OF AGRICULTURE and TOM VILSACK, Secretary and unnamed successor, Defendants, No. 4:17-CV-4-BO, 2017 WL 2633508 (E.D.N.C. June 19, 2017), plaintiff operated a livestock farm and received farm operating loans under the USDA’s Farm Loan Program. Plaintiffs sued alleging that “on at least three different occasions [plaintiffs] have requested a hearing before the Department of Agriculture’s Administrative Law Judge seeking an expedited formal hearing on the merits.” Plaintiff argued his rights under the Equal Credit Opportunity Act (ECOA) were “recklessly disregarded by their USDA-FSA loan manager” and that he suffered “actual damages and severe emotional distress.” Court found plaintiff “failed to allege any facts, much less sufficient facts to state a claim that is facially plausible,” and determined USDA did not abuse its discretion “by not holding a formal hearing as requested by [plaintiff].” Complaint dismissed.

ALLENERGY CORPORATION and AllEnergy Silica, Arcadia, LLC, Petitioners-Appellants-Petitioners, v. TREMPEALEAU COUNTY ENVIRONMENT & LAND USE COMMITTEE, Respondent-Respondent, No. 2015AP491, 895 N.W.2d 368 (Wis. May 31, 2017) concerned a sand mining company seeking review of a “county environment and land-use committee’s denial of its conditional-use permit application for non-metallic mineral mining.” Appellate court found that the land-use committee “kept within its jurisdiction,” and that “substantial evidence” supported denial of the permit. The court also concluded that the county ordinance on “non-metallic mineral mining was not unconstitutionally vague.” Affirmed for defendant.


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

AGRICULTURAL MARKETING SERVICE:

Rule implements a recommendation from the Idaho-Eastern Oregon Potato Committee to decrease the assessment rate established for the 2017-2018 and subsequent fiscal periods from $0.0025 to $0.002 per hundredweight of potatoes handled. Details here.

Rule would implement a recommendation from the California Desert Grape Administrative Committee to remove varietal exemptions from the regulations established under the California table grape marketing order and the table grape import regulation. Details here.

AGRICULTURE DEPARTMENT:

Notice USDA submitted information collection requirement(s) to OMB for review. Title: Citrus Canker; Interstate Movement of Regulated Nursery Stock and Fruit from Quarantined Areas. Info here.

Notice USDA announces a forthcoming meeting of The Council for Native American Farming and Ranching, a public advisory committee of the Office of Tribal Relations. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is approving a state implementation plan revision submitted by the State of California to meet Clean Air Act requirements applicable to the Western Mojave Desert ozone nonattainment area. Info here.

Rule EPA is taking action to correct paragraph numbering in the Incorporations by Reference (IBR) section of our regulations that specifically lists material that can be purchased from the American Society for Testing and Materials. Details here.

Rule EPA is taking direct final action to amend the National Emission Standards for Hazardous Air Pollutants From the Portland Cement Manufacturing Industry. Info here.

Rule EPA is proposing to approve a state implementation plan (SIP) revision submitted by the State of Maryland. Info here.

Rule EPA is proposing to determine that the Jefferson County nonattainment area, in Missouri, has attained the 2010 1-hour primary Sulfur Dioxide (SO2) National Ambient Air Quality Standard (NAAQS) per the EPA’s Clean Data Policy. Info here.

FIRST RESPONDER NETWORK AUTHORITY: Notice FirstNet seeks comments on proposed revisions to its procedures for implementing the National Environmental Policy Act (NEPA), categorical exclusions, and related extraordinary circumstances. Info here.

FISH AND WILDLIFE SERVICE:

Rule FWS will reestablish the Oregon silverspot butterfly within its historical range at two sites in northwestern Oregon: Saddle Mountain State Natural Area in Clatsop County, and Nestucca Bay National Wildlife Refuge in Tillamook County. Info here.

Rule FWS is removing the Hualapai Mexican vole from the Federal List of Endangered and Threatened Wildlife due to recent data indicating that the original classification is now erroneous. Info here.

Notice FWS developed draft revised marine mammal stock assessment reports for each of the two polar bear stocks in Alaska. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule proposes approval of, and regulations to implement, Framework Adjustment 56 to the Northeast Multispecies Fishery Management Plan. Info here.

Notice Commerce will submit to the Office of Management and Budget (OMB) for clearance a proposal for collection of information. Title: Nomination Process for National Marine Sanctuaries. Details here.

Notice NMFS announces that it received a letter from the Atlantic States Marine Fisheries Commission finding the State of New Jersey out of compliance with Addendum XXVIII to the Summer Flounder, Scup, and Black Sea Bass Interstate Fishery Management Plan and requesting Federal non-compliance review. Details here.

Notice NMFS announces the availability of the Programmatic Environmental Impact Statement and Restoration Plan to Compensate for Injuries to Natural Resources in Portland Harbor, Oregon. Info here.

Notice NMFS made a preliminary determination that an Exempted Fishing Permit application from the Commercial Fisheries Research Foundation and the University of Rhode Island contains all of the required information and warrants further consideration. Details here.

NATURAL RESOURCES CONSERVATION SERVICE: Notice of availability of proposed changes to the National Handbook of Conservation Practices for public review and comment. Info here.