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

JUDICIAL: Includes taxation, landowner liability, CWA and agritourism issues.

In Donald V. CAIN, Jr., appellant, v. CUSTER COUNTY BOARD OF EQUALIZATION, appellee, No. S-17-370, 298 Neb. 834 (Neb. February 2, 2018), plaintiff filed petition with Tax Equalization and Review Commission (TERC) challenging the tax assessor’s increased valuation of his agricultural land. Plaintiff sought to have TERC determine actual value of real property, “based on assessor’s failure to have provided taxpayer with timely notice of increased valuation.” TERC denied petition and taxpayer appealed. Appellate Court reversed and on remand, TERC affirmed assessor’s valuation. Taxpayer appealed once again. State Supreme Court held taxpayer established “by preponderance of evidence that irrigated grassland agricultural property was not comparable to vast majority of high quality farming land within market area.” Reversed and remanded.

In PHYLLIS WRUBEL, Plaintiff-Appellant, v. THE BIG GREEN BARN, LLC, and MIKE WRUBEL, Defendants-Appellees, No. 335487, 2018 WL 1020674 (Mich. Ct. App. February 22, 2018), plaintiff sued after getting injured falling from a hayloft of a barn on defendant’s property. Plaintiff attempted to feed some horses in the barn and defective railing played a part in plaintiff’s fall. The parties disputed the duty of care owed by defendants to plaintiff. Plaintiff argued she was an “invitee” and defendants maintained she was a “trespasser” or a “licensee.” Lower court granted summary judgment for defendant after finding plaintiff “failed to demonstrate a genuine issue of material fact regarding whether defendants knew or should have known that Plaintiff would be in the hayloft.” Appellate court observed a landowner has a duty to warn a licensee of a hazard “only if he may be expected to encounter it in the exercise of his license.” Evidence showed that plaintiff “had never taken several of the actions that she took that morning,” and that “[n]o one directed plaintiff to feed the horses or to retrieve hay that morning.” Summary judgment for defendant affirmed.

In CRAIG BARROW, III v. RICHARD E. DUNN et al., A17A1385, 2018 WL 1061468 (Ga. Ct. App. February 27, 2018), a farmer challenged a permit issued by Georgia’s Department of Natural Resources to City for a wastewater treatment facility. Plaintiff argued surface water and groundwater traveling from the facility “would pollute and degrade the waters on his property and harm the wetlands and various plant and animal life.” Court observed Administrative Law Judge upheld the permit by interpreting the antidegradation rule “as not requiring the EPD to undertake an antidegradation analysis for ‘nonpoint source’ discharges.” Appellate court, however, agreed with plaintiff and stated “the proper interpretation of the antidegradation rule . . . is that before a permit can be issued that allows lower water quality, the EPD must find that degradation of the water quality is necessary to accommodate important economic or social development in the relevant area.” The court also noted the antidegradation rule “does not limit its application to point source discharges.” Reversed.

In Therese DULLMAIER, as the Wrongful Death Representative of Karl-Heinz Phillip Dullmaier, Plaintiff-Appellant, v. XANTERRA PARKS & RESORTS; John Does, I-IV, Defendants-Appellees, Nos. 16-8017, 16-8049, 2018 WL 1056654 (10^th Cir. February 27, 2018), husband died after falling from a galloping horse while on a ride and wife sued horseback ride company for wrongful death. Lower court considered claims for negligence and ruled for defendant. Appellat4e court observed that “[h]orseback riding undoubtedly carries some inherent risk that the rider will fall off the horse and get injured.” Court further reasoned that there was a “causal connection between [plaintiff’s] harm and an inherent risk of . . . a guided horseback ride through a wilderness area.” Court held that pursuant to the Wyoming Recreation Safety Act, “husband’s injuries stemmed from inherent risks, and . . . provider had no duty to protect against those risks.” Affirmed.

LEGISLATIVE:

H.R. 5122: To amend the Food and Agriculture Act of 1977 to provide mandatory funding for grants to upgrade agricultural and food sciences facilities at 1890 land-grant colleges, including Tuskegee University. Referred to the House Committee on Agriculture.

H.R. 5127: To establish a grant program for the funding of water recycling and reuse projects. Referred to the House Committee on Natural Resources and House Committee on Transportation and Infrastructure.

H.R. 5128: To authorize the Secretary of Agriculture to award grants to tribal health programs located on reservations impacted by uranium mining or milling. Referred to the House Committee on Agriculture.

S. 2461: A bill to allow for judicial review of certain final rules relating to national emission standards for hazardous air pollutants for brick and structural clay products. Referred to the Senate Committee on Environment and Public Works which will consider it before sending it to the Senate floor for consideration.

REGULATORY: Includes AMS, EPA, ITA, and NOAA rules and notices.

AGRICULTURAL MARKETING SERVICE:

Rule would implement a recommendation from the California Desert Grape Administrative Committee (Committee) to decrease the assessment rate established for the 2018 fiscal period and subsequent fiscal periods. Info here.

Rule invites comments on a proposed amendment to Marketing Order No. 959, which regulates the handling of onions grown in south Texas. Details here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is making an interim final determination to defer imposition of sanctions based on a proposed determination that the California Air Resources Board (CARB) has submitted rules on behalf of the Bay Area Air Quality Management District that satisfy the requirements of part D of the Clean Air Act permitting program for areas under the jurisdiction of the BAAQMD. Info here.

Rule EPA is taking final action to find that the St. Louis-St. Charles-Farmington, Missouri- Illinois (MO-IL) area is attaining the 2008 ozone National Ambient Air Quality Standard. Details here.

Rule EPA is approving the 2011 base year inventory for the Maryland portion of the Philadelphia-Wilmington-Atlantic City marginal nonattainment area for the 2008 8-hour ozone national ambient air quality standard. Info here.

Rule establishes time-limited tolerances for residues of the fumigant methyl bromide, including its metabolites and degradates in or on post-harvest imported/domestic agricultural commodities. Info here.

Rule EPA is proposing to approve revisions to the Bay Area Air Quality Management District portion of the California State Implementation Plan. Details here.

Rule EPA is proposing to approve elements of New Jersey’s State Implementation Plan (SIP) revision submitted regarding the infrastructure requirements of section 110(a)(1) and (2) of the Clean Air Act. Details here. Info here.

Rule EPA is proposing to approve a state implementation plan (SIP) revision submitted by the Commonwealth of Virginia that changes reliance on the Clean Air Interstate Rule (CAIR) to reliance on the Cross-State Air Pollution Rule to address certain regional haze requirements. Info here.

INTERNATIONAL TRADE ADMINISTRATION:

Notice ITA determines that imports of biodiesel from Argentina are being, or are likely to be, sold in the United States at less than fair value (LTFV), as provided in section 735 of the Tariff Act of 1930. Info here.

Notice ITA determines that imports of biodiesel from Indonesia are being, or are likely to be, sold in the United States at less than fair value (LTFV), as provided in section 735 of the Tariff Act of 1930. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS announces final 2018 and 2019 harvest specifications, apportionments, and Pacific halibut prohibited species catch limits for the groundfish fishery of the Gulf of Alaska. Info here.

Rule NMFS implements longfin squid, Illex squid, and butterfish specifications for the 2018 fishing year and projected specifications for fishing years 2019 and 2020. Info here.

Rule that the Regulatory Flexibility Act (RFA) section 610 requires that NOAA Office of National Marine Sanctuaries (ONMS) periodically review existing regulations that have a significant economic impact on a substantial number of small entities, such as small businesses, small organizations, and small governmental jurisdictions. This plan describes how ONMS will perform this review and describes the regulations proposed for review in 2018. Info here.

Notice NMFS has received a request from the St. George Reef Lighthouse Preservation Society (Society) for authorization to take marine mammals incidental to conducting aircraft operations, lighthouse renovation, light maintenance activities, and tour operations on the St. George Reef Lighthouse Station on Northwest Seal Rock (NWSR) in the northeast Pacific Ocean. Details here.