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


JUDICIAL: Includes CWA, renewable energy, water law, and CAFO issues.

In THE UNITED STATES OF AMERICA ex rel. MICHELE COFFMAN, Plaintiff-Relator, v. THE CITY OF LEAVENWORTH, KANSAS, Defendant, No. 14-2538-JAR, 2018 WL 1456428 (D. Kan. March 23, 2018), plaintiff alleged City discharged raw sewage and improperly dumped septage on the ground near a wastewater treatment plant in violation of the Clean Water Act and the Resource Conservation and Recovery Act (RCRA). Plaintiff further claimed the defendant committed fraud by filing false claims for reimbursement and that defendant’s monthly sewage bill to the Veterans Administration, the Bureau of Prisons, and the Army “impliedly certified that it had complied with all environmental laws as required by its contracts with these agencies.” City countered that plaintiff failed to demonstrate that the “implied certifications were material for payment or that the City submitted these bills with the requisite scienter.” Court found no evidence the government agencies “considered regulatory compliance a condition of payment,” and denied plaintiff’s motion for summary judgment.

ALTERNATIVE CARBON RESOURCES, LLC, Plaintiff, v. The UNITED STATES, Defendant, No. 15–155T, 2018 WL 1440567 (Fed. Cl. March 22, 2018) involved a dispute of nearly $20 million in refundable alternative fuel mixture credits plaintiff claimed under the Internal Revenue Code (I.R.C.). Internal Revenue Service (IRS) determined plaintiff did not quality for the credits and “sought to recover the payments it made to plaintiff, along with various penalties and interest.” In theory, plaintiff could qualify for the credit “by blending liquid fuel derived from biomass and at least 0.1% diesel fuel into a mixture that was used or sold for use as a fuel, provided that the taxpayer was properly registered.” Here, court concluded plaintiff could not demonstrate that its alternative fuel mixtures “were used as a fuel—an element essential to plaintiff’s claim and an issue on which plaintiff bears the burden of proof.” Court found plaintiff was not entitled to the alternative fuel mixture credits at issue.

In CAW EQUITIES, L.L.C., a Colorado limited liability company, Plaintiff–Appellant, v. CITY OF GREENWOOD VILLAGE, Colorado, a home rule municipality, Defendant–Appellee, No. 17CA0212 (Colo. App. March 22, 2018), plaintiff sued city seeking condemnation of an entire public trail “that bisected two of its adjacent properties for a right-of-way to access water.” Plaintiff was not interested in an easement and lower court ruled for city. Appellate court found “the prior public use rule applies to taking public property for a right-of-way to construct a water ditch.” Court also concluded plaintiff, an LLC, “lacked legal authority under the prior public use rule to condemn trail.” Affirmed for defendant.

In Cameron ARNEGARD and Mary Susan Arnegard, Plaintiffs, Appellants, and Cross-Appellees v. ARNEGARD TOWNSHIP, Defendant, Appellee, and Cross-Appellant, No. 20170242, 2018 WL 1416262 (S.D. March 22, 2018), plaintiffs sought a conditional use permit (CUP) to construct a “man-camp” on their agriculturally-zoned land. They were granted the permit, but per the zoning board, the permit expired before plaintiff constructed their camp. Plaintiffs filed suit, alleging breach of contract. Lower court determined a CUP is not a contract and dismissed. Appellate court observed that “[c]onditional use permits are ministerial, administrative or discretionary procedures of governments relating to land use.” On appeal, plaintiffs maintained “no authority in North Dakota affirmatively states a CUP is not a contract.” State Supreme Court agreed with lower court ruling and concluded that “[b]ecause a CUP is issued under zoning ordinances, an issuing body is not free to give its consent in the required sense of a contract.”


LEGISLATIVE:

S. 269: A bill to provide for the conveyance of certain property to the Tanana Tribal Council located in Tanana, Alaska, and to the Bristol Bay Area Health Corporation located in Dillingham, Alaska. Text for status Referred to House Committee (Mar 26, 2018) is now available.

S. 607: Native American Business Incubators Program Act. Text for status Referred to House Committee (Mar 26, 2018) is now available.

S. 943: Johnson-O’Malley Supplemental Indian Education Program Modernization Act. Text for status Referred to House Committee (Mar 26, 2018) is now available.

S. 1116: Indian Community Economic Enhancement Act of 2017. Text for status Referred to House Committee (Mar 26, 2018) is now available.

S. 1223: Klamath Tribe Judgment Fund Repeal Act. Text for status Referred to House Committee (Mar 26, 2018) is now available.

H.R. 5411: To amend the Agricultural Research, Extension, and Education Reform Act of 1998 with respect to grants for certain areawide integrated pest management projects. Referred to the House Committee on Agriculture.


REGULATORY:  Includes APHIS, EPA, FWS, FDA, FS, NOAA, and RUS rules and notices.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE: Notice APHIS determined that the State of Chihuahua, excluding the municipalities of Guadalupe y Calvo and Morelos, is free from fever ticks. Details here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule that on April 29, 2011, EPA published a direct final rule in the Federal Register redesignating a section in the air quality planning and management regulations for Indian Country; and on January 17, 2012, February 13, 2012, July 2, 2012, June 14, 2017, and June 21, 2017, the EPA published final rules in the Federal Register approving certain revisions to the California State Implementation Plan (SIP). Details here.

Rule EPA is approving the Illinois Environmental Protection Agency’s request to redesignate the Chicago and Granite City nonattainment areas to attainment for the 2008 national ambient air quality standards for lead, also identified as Pb. Info here.

Rule EPA is approving state implementation plan (SIP) revisions submitted by the State of Maryland. Details here.

Rule EPA is taking final action to approve State Implementation Plan (SIP) revisions submitted by the state of Montana on September 11, 2013. Info here.

FISH AND WILDLIFE SERVICE: Notice FWS seeks comment on applications to conduct certain activities with endangered species. Details here.

FOOD AND DRUG ADMINISTRATION:

Notice FDA is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995. Title: Calorie Labeling of Articles of Food in Vending Machines and Nutrition Labeling of Standard Menu Items in Restaurants and Similar Retail Food Establishments. Details here.

Notice FDA is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (PRA), Federal Agencies are required to publish notice in the Federal Register concerning each proposed collection of information and to allow 60 days for public comment in response to the notice. Title: National Agriculture and Food Defense Strategy Survey. Info here.

FOREST SERVICE: Notice FS is preparing a Supplemental Environmental Impact Statement for the AP Loblolly Pine Removal and Restoration Project. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is prohibiting directed fishing for species that comprise the deep-water species fishery by vessels using trawl gear in the Gulf of Alaska. Info here.

Rule the National Marine Fisheries Service is issuing regulations under the Tuna Conventions Act to revise trip limits on the commercial catch of Pacific bluefin tuna applicable to 2018. Info here.

RURAL UTILITIES SERVICE: Notice RUS is accepting applications for fiscal year (FY) 2018 for the Rural Broadband Access Loans and Loan Guarantees Program. Info here.