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 Wednesday, March 15, at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: “Digesting the FSMA Animal Food Rule.” Details available here.

JUDICIAL: Includes cooperatives, CWA, landowner liability, and condemnation issues.

IN RE MUSHROOM DIRECT PURCHASER ANTITRUST LITIGATION THIS DOCUMENT RELATES TO: ALL ACTIONS, NO. 06-0620, 2017 WL 895582 (E.D. Pa. March 6, 2017) involved antitrust litigation and plaintiffs’ claim that defendants violated the Sherman Act and Clayton Act by conspiring “to set artificially-inflated prices” for mushrooms, and “through the implementation of a supply control scheme related to the production of mushrooms.” Plaintiffs sought summary judgment against an owner of a mushroom farm and member of the Eastern Mushroom Marketing Cooperative (EMMC). Plaintiffs argued the farmer “personally participated in and furthered the EMMC’s conspiracy to fix prices and restrict the supply of mushrooms.” Court not convinced that defendant (owner) “actively and knowingly engaged in a scheme designed to achieve anticompetitive ends,” or whether he “exerted his influence to shape the EMMC’s intentions.” Motion denied.

STANDING ROCK SIOUX TRIBE, Plaintiff, and CHEYENNE RIVER SIOUX TRIBE, Plaintiff-Intervenor, v. U.S. ARMY CORPS OF ENGINEERS Defendant, and DAKOTA ACCESS, LLC, Defendant-Intervenor and Cross-Claimant, No. 16-1534 (JEB), 2017 WL 908538 (D.D.C. March 7, 2017) concerned an easement issued by the Army Corps of Engineers permitting defendant to drill under Lake Oahe. Plaintiff sought preliminary injunction arguing the easement violates the Religious Freedom Restoration Act, claiming the presence of oil in the pipeline under Lake Oahe will cause irreparable harm to its members’ religious exercise. Court concluded the “extraordinary relief requested is not appropriate in light of both the equitable doctrine of laches and the Tribe’s unlikelihood of success on the merits.” Motion denied.

In GERALD FREEMAN and JANICE FREEMAN, Plaintiffs/Appellants, v. TOWN OF CAVE CREEK, a municipal corporation of the State of Arizona; CAHAVA SPRINGS CORP., a corporation of the State of Minnesota; MORNINGSTAR ROAD PROPERTIES, INC.,1 and DONALD SORCHYCH and SHARI JO SORCHYCH, husband and wife, Defendants/Appellees, No. 1 CA-CV 15-0749, 2017 WL 897331 (Ariz. Ct. App. March 7, 2017), plaintiffs live on 30 acres in rural area and were granted an express easement by warranty deed. Defendant owns adjacent vacant land comprising of 35 acres encumbered by the easement. Plaintiff learned defendant intended to build a non-motorized recreational trail on their property that would intersect the easement in two flat, wide-open places on defendant’s property. Plaintiffs filed motion to stay construction of the trail and lost at trial court. Issue on appeal was whether the proposed trail would “unreasonably interfere” with plaintiff’s easement. Court recognized plaintiffs cited “no trial testimony supporting their arguments for declaratory judgment, and the joint pretrial statement filed shortly before trial addressed only the issue of unreasonable interference.” Appellate court determined trial court did not abuse its discretion and denied plaintiffs’ motion.

In COLUMBIA GAS TRANSMISSION, LLC, Plaintiff, v. 171.54 ACRES OF LAND, More or Less, in Fairfield, Hocking, Monroe, Morgan, Muskingum, Noble, Perry, and Vinton Counties, Ohio, et al., Defendants, No. 2:17-cv-70, 2017 WL 838214 (S.D. Ohio March 3, 2017), plaintiff sought order authorizing it to “condemn Defendant Landowners’ property interests and for a preliminary injunction allowing immediate possession of those interests.” Court questioned whether plaintiff was “authorized to condemn the properties,” and whether plaintiff was “entitled to immediate possession and use.” Court considered irreparable harm to plaintiffs “absent injunctive relief,” substantial harm to third parties, and the public interest, and ultimately granted plaintiff’s motion for condemnation.

LEGISLATIVE:

S. 529: A bill to prohibit the use of eminent domain in carrying out certain projects. Bill referred to the Senate Committee on Energy and Natural Resources.

S. 535: A bill to amend the Water Infrastructure Improvements for the Nation Act to make applicable to the State of South Dakota a provision relating to certain Bureau of Reclamation permit fees. Bill referred to the Senate Committee on Energy and Natural Resources.

H.R. 1368: To require the Secretary of Agriculture to make publicly available certain regulatory records relating to the administration of the Animal Welfare Act and the Horse Protection Act. Bill referred to the House Committee on Agriculture, House Committee on Energy and Commerce, and one other committee.

H.R. 1373: To prohibit the use of eminent domain in carrying out certain projects. Bill referred to the House Committee on Natural Resources.

H.J.Res. 44: Disapproving the rule submitted by the Department of the Interior relating to Bureau of Land Management regulations that establish the procedures used to prepare, revise, or amend land use plans pursuant to the Federal Land Policy. Resolution passed in the House on February 7, 2017 and goes to the Senate.

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

AGRICULTURAL MARKETING SERVICE:

Notice AMS will request approval for an extension of and revision to the currently approved information collection supporting voluntary grading and certification of poultry products, rabbit products, shell eggs, meat, meat products, and Quality Systems Verification Programs. Details here.

Notice AMS requests an extension of and revision to the currently approved information collection 0581-0268 the Christmas Tree Promotion, Research and Information Order. Info here.

ENVIRONMENTAL PROTECTION AGENCY: Rule EPA will approve a state implementation plan revision submitted by the State of California to meet Clean Air Act requirements applicable to the Western Mojave Desert ozone nonattainment area. Info here.

FISH AND WILDLIFE SERVICE: Notice FWS announces availability of an application from Hoopeston Wind Farm LLC for a permit to incidentally take federally endangered Indiana bats and federally threatened northern long-eared bats. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION: Rule NMFS prohibits directed fishing for Pacific cod by catcher vessels using trawl gear in the Western Regulatory Area of the Gulf of Alaska. Info here.