A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions to: camarigg at uark.edu

ANNOUNCEMENT: Join us TOMORROW at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: “Digesting the FSMA Animal Food Rule.” Details available here.

JUDICIAL: Includes water rights, environmental, CERCLA, water law, and food safety issues.

Bradley B. Ware, Appellant v. Texas Commission on Environmental Quality, Appellee, NO. 03-14-00416-CV, 2017 WL 875307 (Tex. App. March 3, 2017) involved a water rights dispute wherein appellant owned 261 acres of land along a river and wanted to grow crops with irrigation water diverted from the river. He sought a permit authorizing him to divert, but review board determined there was “insufficient water available at Ware’s location even to support renewing his term permit, let alone to increase his authorized usage or to make his right perpetual,” and denied his application.  He appealed, arguing board’s decision disregarded “existing evidence of record concerning water availability in favor of outdated evidence known to be inaccurate.” Board’s water-availability analysis did not “conclusively established that the same return flows would be available to [appellant],” and affirmed district court’s judgment.

OREGON WILD, an Oregon non-profit corporation; Friends of Living Oregon Waters, an Oregon non-profit corporation; and Western Watersheds Project, an Oregon non-profit corporation, Plaintiffs, v. CONSTANCE CUMMINS, Forest Supervisor, Fremont–Winema National Forests; U.S. Forest Service, a federal agency; Laurie R. Sada, Field Supervisor, Klamath Falls Office, U.S. Fish & Wildlife Service; and U.S. Fish & Wildlife Service, a federal agency, Defendants, Ed Garrett Ranch, Inc., an Oregon Corporation; Philip Grohs, dba Grohs Ranch; Matt Owens, an individual; Adam Owens, an individual; Kness Cattle, Inc., an Oregon Corporation; Steve Simmons, an individual; Holiday Ranches, Inc., a California Corporation; and C & A Vogt Community Property Trust, a California Trust, Intervenor–Defendants, Case No. 1:15–cv–01360–CL, 2017 WL 923917 (D. Or. March 8, 2017) involved issuance of grazing permits by the Forest Service. Plaintiffs sought to protect the critical habitat of sucker fish and challenged the agency’s decision to continue to approve livestock grazing on eight allotments. Defendants moved for summary judgment claiming plaintiffs lacked standing and failed to prove use of any of “the vast public lands within the challenged allotments—or any lands adjacent to the allotments.” Plaintiffs supplied numerous affidavits showing their members “are people who use the affected area and are persons ‘for whom the aesthetic and recreational values of the area will be lessened’ by the challenged activity.” Court found plaintiffs established standing.

In NEAL BLANKENSHIP; EMMA GAY BLANKENSHIP, Plaintiffs – Appellants, v. CONSOLIDATION COAL COMPANY, a Delaware Corporation; ISLAND CREEK COAL COMPANY, a Delaware Corporation, Defendants – Appellees, and CONSOL ENERGY, INC., a Delaware Corporation, Defendant. DIANNA L. GRAHAM; ANNA PEARL RATLIFF; IRA GORDON RATLIFF; CONNIE RATLIFF, Plaintiffs – Appellants, v. CONSOLIDATION COAL COMPANY, a Delaware Corporation; ISLAND CREEK COAL COMPANY, a Delaware Corporation, Defendants – Appellees, and CNX GAS COMPANY, LLC, a Virginia Limited Liability Company; CONSOL ENERGY, INC., a Delaware Corporation, Defendants, No. 15-2480, No. 15-2482, 2017 WL 937467 (4th Cir. March 9, 2017), plaintiffs, owners of land over a mine, alleged defendant filled the mine with water and damaged the plaintiffs’ property interests in the mine and unjustly enriched itself. Plaintiffs sought millions in damages, punitive damages, and injunctive relief. District court granted defendants’ motions for summary judgment based on Virginia’s statutes of limitations, and barred plaintiffs’ claims under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Plaintiffs argued on appeal that CERCLA’s discovery rule “preempts” Virginia’s statutes of limitations and that the statutes of limitations began to run when the plaintiffs “knew or should have known of their alleged injury.” In rejecting plaintiffs CERCLA claim, the appellate court reasoned, “CERCLA uses preemption to modify state statutes of limitations with respect to state causes of action by imposing a federal discovery rule in some circumstances.’ Court further noted that plaintiffs failed to allege any possible CERCLA claims and affirmed district court ruling.

In GREG HILL OF FURNAS COUNTY ET AL., APPELLANTS, v. STATE OF NEBRASKA AND NEBRASKA DEPARTMENT OF NATURAL RESOURCES, A STATE AGENCY, APPELLEES, Nos. S-16-558, S-16-560, 296 Neb. 10 (Neb. March 10, 2017), Nebraska Department of Natural Resources (DNR) sent closing notices to holders of surface water permits for “natural flow and storage” in the Republican River Basin. Appellants, representing farmers who irrigate with water delivered by an irrigation district, “subject to Nebraska’s allocation of water under the Republican River Compact (Compact),” sued alleging takings claims against both Nebraska and the DNR. District court dismissed the claims and appellate court found that the Compact, as federal law, superseded the appropriators’ property interests. Court also ruled that the DNR does not have a duty to regulate ground water and any failure to regulate ground water pumping that affects the Basin “does not give rise to a cause of action for inverse condemnation.” Dismissal of suit affirmed.

In SUSIE ONG, individually and on behalf of all others similarly situated, et al., Plaintiffs, v. CHIPOTLE MEXICAN GRILL, INC., et al., Defendants, 16 Civ. 141 (KPF), 2017 WL 933108 (S.D.N.Y. March 8, 2017), plaintiffs filed class action on behalf of purchasers of the common stock of Chipotle “for the period between February 5, 2015, and January 5, 2016,” alleging the company violated the Securities Exchange Act in public statements made throughout 2015. Defendants moved to dismiss for failure to state a claim. Court noted the history of E.coli outbreaks at Chipotle throughout 2015, but reasoned the class action suit failed to “plead adequately both the existence of a material misrepresentation or omission by Defendants and scienter.” In dismissing the suit without prejudice, the court observed, “Plaintiffs’ Complaint may be long on text, but it is short on adequately-pleaded claims.”

REGULATORY: Includes USDA, FDA, ITA, NIST, and NOAA rules and notices.


Notice USDA has submitted information collection requirement(s) to OMB for review. Title: Supplemental Nutrition Assistance Program (SNAP), State Law Enforcement Bureau (SLEB) Fraud Investigations. Details here.

Notice the National Institute of Food and Agriculture has submitted a Generic Information Collection Request: “Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery ” to OMB. Info here.


Rule FDA is classifying the continuous glucose monitor secondary display into class II. Details here.

Notice FDA is establishing a public docket to solicit input on ongoing efforts to enhance mechanisms for patient engagement at the Agency. Details here.

INTERNATIONAL TRADE ADMINISTRATION: Notice sets forth proposed agenda of a meeting of the Environmental Technologies Trade Advisory Committee. Details here.

NATIONAL INSTITUTE OF STANDARDS AND TECHNOLOGY: Notice NIST requests comments on the Draft Strategic Plan for the National Windstorm Impact Reduction Program. Info here.


Rule transferring unused quota of Georges Bank and Southern New England/Mid-Atlantic yellowtail flounder from the Atlantic scallop fishery to the Northeast multispecies fishery for the remainder of the 2016 fishing year. Info here.

Rule NMFS is adjusting the commercial per-trip possession limits for the skate wing and skate bait fisheries for the remainder of the 2016 fishing year, through April 30, 2017, based on revised projection. Info here.

Notice NMFS will prepare a Programmatic Environmental Impact Statement to analyze the environmental impacts of the continued authorization and management of U.S. Pacific Island deep-set tuna longline fisheries under the Fishery Ecosystem Plan for Pelagic Fisheries of the Western Pacific. Details here.

Notice the Caribbean Fishery Management Council’s Scientific and Statistical Committee will hold a 5-day meeting in San Juan, Puerto Rico. Info here.

Notice NMFS issued an incidental harassment authorization to the Maine Department of Transportation (ME DOT) to incidentally harass marine mammals during in-water pile driving construction activities from the Eastport Breakwater Replacement Project in Eastport, ME. Info here.