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

JUDICIAL: Includes urb & ag, renewable energy, ag leases, business organizations, landowner liability and environmental law issues.

In RP Golf; SB Golf, LLC, Tax Matters Partner Petitioners v. Commissioner of Internal Revenue Respondent, No. 16-3277, 2017 WL 2722460 (8th Cir. June 26, 2017), plaintiff claimed a charitable deduction of $16.4 million on its 2003 tax return for donating an easement to a land trust. Defendant disallowed the deduction, finding plaintiff did not make a “qualified contribution easement” and after trial, the tax court ruled for defendant.  Appellate court considered whether the property was donated “exclusively for a conservation purpose,” and affirmed for defendant.

In OCEANA, INC., Plaintiff, v. Penny PRITZKER, et al., Defendants, No.16-cv-06784-LHK (SVK), 2017 WL 2670733 (N.D. Cal. June 21, 2017), plaintiff challenged final rule under the Administrative Procedures Act (APA) and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson Act) setting annual catch limits for the “central subpopulation of the northern anchovy” promulgated by the National Marine Fisheries Service (NMFS). Plaintiff moved to compel defendants to “complete the administrative record” by adding additional reports and studies. Defendants opposed the motion arguing the reports “are not properly part of the administrative record because NMFS did not consider them, either directly or indirectly, when developing the Rule.” Court ordered defendants to complete the administrative record with some of the requested documents and noted defendants did not argue the items were privileged.

In In re the Estate of Anna McMullen, Deceased, A16-1854, 2017 WL 2729605 (Minn. Ct. App. June 26, 2017), appellant challenged lower court’s order denying his petition for a determination that a farm lease dated April 15, 2011, and re-signed July 19, 2013, was invalid. Appellate court ruled that since the farm lease “is a new contract and did not modify earlier, expired leases, we affirm.”

In In the Matter of: THOMAS M. GRABANSKI, MARI KAY GRABANSKI, Debtors, CROP PRODUCTION SERVICES, INCORPORATED, Appellee v. JOHN KEELEY; DAWN KEELEY, Appellants, No. 16-40830, 2017 WL 2684062 (5th Cir. June 20, 2017), creditors of a farming business obtained a default judgment against two of the business’s former partners relating to unpaid invoices. On appeal, the former partners argued that the default judgment “should not have been entered, should not have been extended to render them personally liable for the damages it recognized, and should have been vacated.” Regarding the entry of default judgment, the appellate court considered, “(1) whether the default was willful; (2) whether setting aside the default judgment would prejudice [the plaintiff]; and (3) whether [the defendant] presented a meritorious defense.” Appellate court found no abuse of discretion by lower court and affirmed default judgment.

In Petitioners: N.M., a minor child, by and through Maria Lopez, his mother and next friend, and Maria Lopez, individually, v. Respondent: Alexander S. Trujillo, No. 16SC388, 2017 WL 2729858 (Colo. June 26, 2017), plaintiff was frightened by defendant’s two pit bulls that rushed at him from behind a front-yard fence and he ran across the street and was struck by a passing van. Plaintiff sued for negligence and defendant moved to dismiss, arguing plaintiff did “not sufficiently plead the requisite element of duty.” Appellate court considered whether defendant owed plaintiff a duty of care and concluded plaintiff was “required to plead a special relationship between himself and [defendant] in order to establish the duty of care necessary to support a negligence claim.”

In COMMUNITIES FOR A BETTER ENVIRONMENT et al., Plaintiffs and Appellants, v. SAN JOAQUIN VALLEY UNIFIED AIR POLLUTION CONTROL DISTRICT, Defendant and Respondent; BAKERSFIELD CRUDE TERMINAL LLC et al., Real Parties in Interest and Respondents, F073517, 2017 WL 2705633 (Cal. Ct. App. June 23, 2017), plaintiffs challenged defendant’s (Air District) approval of permits authorizing the construction of a sewer system for a rail-to-pipeline transfer terminal. Plaintiffs argued Air District violated the California Environmental Quality Act (CEQA) by “concluding the proposed sewer system involved only ministerial actions, and was therefore exempt from environmental review.” Plaintiffs argued approval of the permits was “discretionary, not ministerial.” Trial court found Air District “exercised no discretion when it approved the authority to construct permits for the sewer system.” Appellate court reversed trial court ruling and concluded issuance of the authority to construct permits for the sewer system was a discretionary act because defendant “exercised its judgment when it conditionally approved the permits and imposed specific requirements that were not explicitly mandated by the applicable rules and statutes.”

REGULATORY: Includes EPA, FCIC, FWS, FNS, and NOAA rules and notices.

ENVIRONMENTAL PROTECTION AGENCY: Rule EPA is approving elements of State Implementation Plan submissions from Vermont regarding the infrastructure requirements of the Clean Air Act for the 1997 fine particle matter. Details here.

FEDERAL CROP INSURANCE CORPORATION: Rule finalizes the Common Crop Insurance Policy Basic Provisions and makes amendments to the final rule, with request for comment, published in the Federal Register on June 22, 2016, that clarified and revised the policy definition of “practical to replant” and “replanted crop,” and policy provisions regarding double cropping. Info here.


Notice FWS will ask the Office of Management and Budget to approve an information collection regarding International Conservation Grant Programs. Info here.

Notice FWS seeks public comment on the permit application and accompanying proposed Lakes at St. Sebastian Preserve habitat conservation plan. Info here.

FOOD AND NUTRITION SERVICE: Notice announces a meeting of the National Advisory Council on Maternal, Infant and Fetal Nutrition. Info here.


Rule NMFS is adjusting the Swordfish (SWO) General Commercial permit retention limits for the Northwest Atlantic, Gulf of Mexico, and U.S. Caribbean regions for July through December of the 2017 fishing year. Details here.

Rule correcting the DATES section and the preamble to the final regulations published on June 15, 2017, that establish a framework for authorizing the take of marine mammals incidental to the commercial fireworks displays in the Monterey Bay National Marine Sanctuary for a five-year period, 2017-2022. Info here.

Notice Commerce will submit to the Office of Management and Budget (OMB) for clearance a proposal for collection of information. Title: Reporting of Sea Turtle Entanglement in Fishing Gear or Marine Debris. Details here.

Notice requesting an extension of an approved information collection concerning the prohibited species donation program for salmon and halibut. Details here.

Notice NMFS has considered public comments for revisions of the 2016 marine mammal stock assessment reports. Details here.