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


ANNOUNCEMENT: Mark your calendar for the next Agricultural & Food Law Consortium webinar, Wednesday, March 21st: 2018 Farm Bill Outlook. Details available here.


JUDICIAL: includes bankruptcy, CWA, and labor issues.

IN RE: Tony Dian PERKINS, Debtor, Nos. 17–8001/8008, 2018 WL 1279252 (6th Cir. BAP March 13, 2018) involved a Chapter 12 bankruptcy wherein creditor argued bankruptcy court improperly found debtor to be a family farmer. Creditor contended defendant “both exceeded the ‘aggregate debt’ limit and did not receive more than half of her income from her farming operation.” Court considered definition of “aggregate debt” and determined that “in the context of individuals who are family farmers that ‘aggregate debt’ refers to the aggregate of their farm and non-farm debts.” Appellate court ruled bankruptcy court did not err in finding debtor “did not exceed the aggregate debt limit for Chapter 12 eligibility.”

In IDEKER FARMS, INC., et al., Plaintiffs, v. The UNITED STATES, Defendant, No. 14–183L, 2018 WL 1282417 (Fed. Cl. March 13, 2018), a group of farmers, landowners and business owners in several Midwestern states sued Corps of Engineers, claiming the agency’s actions contributed to recurring floods along the Missouri River. Court considered plaintiffs’ takings claim based on flooding in 2007, 2008, and 2010 and concluded plaintiffs showed “repeated flooding has interfered with plaintiffs’ use and enjoyment of their property and was caused by and was the foreseeable result of the Corps’ System and River Changes.”

In ALEJANDRO JORGE-CHAVELAS and ALFREDO MORENO-ABARCA Plaintiffs v. LOUISIANA FARM BUREAU CASUALTY INSURANCE COMPANY, et al. Defendants, 3:15-CV-00657-JWD-EWD, 2018 WL 1229758 (M.D. La. March 9, 2018), defendant’s employee injured plaintiffs (H-2A guest workers) when he drove a tractor into the rear of a cart on which they were riding. A dispute arose among the various defendants, including the sugar cane farmer and the planting service that allegedly employed plaintiffs. Insurance company claimed defendant “is immune from tort suit under Louisiana’s worker’s compensation laws” and issue for court was whether plaintiffs “are employees or independent contractors involved in manual labor for [defendant].” Court utilized a “ten factor test” to decide “whether a borrowed servant relationship exists for purposes of tort immunity.” Court eventually ruled for plaintiffs and concluded they were not employees of [defendant] and were not . . . independent contractors doing manual labor for [defendant].”


REGULATORY: Includes AMS, USDA, EPA, FCIC, FWS, FS, and NOAA rules and notices.

AGRICULTURAL MARKETING SERVICE: Rule directs that a referendum be conducted among eligible producers and importers of Christmas trees to determine whether they favor continuance of the Agricultural Marketing Service’s (AMS) regulations regarding a national Christmas tree research and promotion program. Info here.

AGRICULTURE DEPARTMENT:

Notice corrects an error introduced into our regulations by a final rule that was published in the February 14, 2018, Federal Register. Details here.

Notice USDA has submitted the following information collection requirement(s) to OMB for review. Title: Supplemental Nutrition Assistance Program (SNAP) Pre-Screening Tool. Details here.

Notice USDA is seeking nominations for individuals to serve on the USDA Grain Inspection Advisory Committee (Advisory Committee). Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is proposing to add hazardous waste aerosol cans to the universal waste program under the federal Resource Conservation and Recovery Act (RCRA) regulations. Details here.

Rule EPA is proposing to approve a request from the New Hampshire Department of Environmental Services (NH DES) for delegation of authority to implement and enforce the Federal Plan Requirements for Sewage Sludge Incineration Units Constructed on or before October 14, 2010. Info here.

FEDERAL CROP INSURANCE CORPORATION: Rule contains necessary amendments to address corrections in the final rule with request for comments for the Catastrophic Risk Protection Endorsement, the Area Risk Protection Insurance Basic Provisions, and the Common Crop Insurance Policy Basic Provisions which published in the Federal Register on November 24, 2017. Info here.

FISH AND WILDLIFE SERVICE: Notice FWS issued permits to conduct activities with foreign endangered and/or threatened species, marine mammals, or both, under the authority of the Endangered Species Act. Info here.

FOREST SERVICE: Notice the Helena-Lewis and Clark National Forest, Lincoln Ranger District, Montana, intends to prepare a Supplemental Environmental Impact Statement (SEIS) for the Stonewall Vegetation Project. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is prohibiting directed fishing for Pacific cod by catcher vessels greater than or equal to 50 feet length overall (LOA) using hook-and-line gear in the Central Regulatory Area of the Gulf of Alaska (GOA). Info here.

Notice NMFS will conduct a 5-year review for the threatened Gulf of Maine distinct population segment (DPS) of Atlantic sturgeon. Details here.

Notice NMFS announces the receipt of an application for an exempted fishing permit (EFP) from Salty Bones Fisheries, Inc. Details here.

Notice the Assistant Regional Administrator for Sustainable Fisheries, Greater Atlantic Region, NMFS, has made a preliminary determination that an Exempted Fishing Permit application submitted by the Northeast Fisheries Science Center contains all of the required information and warrants further consideration. Info here.

Notice NMFS is publishing its final 2017 List of Foreign Fisheries, as required by the regulations implementing the Fish and Fish Product Import Provisions of the Marine Mammal Protection Act (MMPA). Details here.

Notice NMFS Northwest Fisheries Science Center (NWFSC), 2725 Montlake Boulevard East, Seattle, WA 98112-2097, (Responsible Party: M. Bradley Hanson, Ph.D.) has applied in due form for a permit to conduct research on marine mammals. Info here.

Notice NMFS has issued an incidental harassment authorization (IHA) to the Partnership for Interdisciplinary Study of Coastal Oceans (PISCO) at the University of California Santa Cruz (UCSC) to incidentally harass, by Level B harassment only, marine mammals during rocky intertidal monitoring surveys. Details here.