A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions HERE.
ANNOUNCEMENT: Register today for our Fifth Annual Mid-South Agricultural and Environmental Law Conference in Memphis, TN / June 7-8. CLE credit available! Additional information available here.
JUDICIAL: Includes renewable energy, water rights, urb & ag, and landowner liability.
In Michael A. MULLETT and Patricia N. March, Appellants–Intervenors, v. DUKE ENERGY INDIANA, LLC, Nucor Steel–Indiana, Indiana Office of Utility Consumer Counselor, Appellees (Applicant/Petitioner, Intervenor, Statutory Party), No. 93A02–1710–EX–2468, 2018 WL 2293647 (Ind. Ct. App. May 21, 2018), appellee (Duke) entered into a contract to buy power from a wind farm operation and following a dispute, failed to buy any energy Wind farm filed suit claiming Duke owed money for “lost production” under the contract. The parties settled and Duke went to the Indiana Utility Regulatory Commission to recover its costs from ratepayers. Commission approved Duke’s request to recover costs and here, appellees argued the Commission’s order “is contrary to law because the damages are ‘liquidated’ and ‘hypothetical’ and it amounts to impermissible retroactive ratemaking.” Appellate court concluded “substantial evidence supports the Commission’s order,” and affirmed.
The JIM HUTTON EDUCATIONAL FOUNDATION, a Colorado non-profit corporation, Plaintiff-Appellant v. Kevin REIN, in his capacity as the Colorado State Engineer; David Nettles, in his capacity as Division Engineer in and for Water Division No. 1, State of Colorado; Colorado Division of Water Resources; and Colorado Division of Parks and Wildlife, Defendants-Appellees And Yuma County Water Authority Public Improvement District; Colorado Ground Water Commission; and Marks Butte, East Cheyenne, Frenchman, Sandhills, Central Yuma, Plains, W-Y, and Arikaree Ground Water Management Districts, Defendants-Intervenors-Appellees And Republican River Water Conservation District; City of Wray; City of Holyoke; Harvey Colglazier; Lazier, Inc.; Marjorie Colglazier Trust; Mariane U. Ortner; Timothy E. Ortner; Protect Our Local Community’s Water, LLC; Saving Our Local Economy, LLC; the “North Well Owners”; Tri-State Generation and Transmission Association, Inc.; Dirks Farms Ltd; Julie Dirks; David L. Dirks; Don Andrews; Myrna Andrews; Nathan Andrews; Happy Creek, Inc.; J&D Cattle, LLC; 4M Feeders, Inc.; May Brothers, Inc.; May Family Farms; 4M Feeders, LLC; May Acres, Inc.; Thomas R. May; James J. May; Steven D. Kramer; Kent E. Ficken; Carlyle James as Trustee of the Chester James Trust; Colorado Agriculture Preservation Association; Colorado State Board of Land Commissioners; and the City of Burlington, Defendants-Well Owners-Appellees, No. 17SA5, 2018 WL 2295547 (Colo. May 21, 2018) involved a surface-water rights dispute and the issue was whether the water at issue was, in fact, “designated groundwater.” Here, an amendment to the statutory process to challenge the designation of a groundwater basin prohibited “any challenge that would alter a designated groundwater basin’s boundaries to exclude a well that has already received a permit.” Plaintiff argued the amendment “deprives surface-water users of the ability to petition the Commission to redraw the NHP Basin’s boundaries to exclude permitted well users upon a showing that groundwater was improperly designated. Water court dismissed plaintiff’s suit, reasoning it must first be determined that the water at issue “is designated groundwater before subject matter jurisdiction will vest in the water court.” Plaintiff appealed and State Supreme Court affirmed, finding that “because jurisdiction does not vest in the water court until the Commission first determines that the water at issue is not designated groundwater, the water court properly dismissed the claim.”
In Lisa WILLIAMS et al., Plaintiffs and Appellants, v. MOULTON NIGUEL WATER DISTRICT et al., Defendants and Respondents, G053002, 232 Cal.Rptr.3d 356 (Cal. Ct. App. May 18, 2018) homeowners filed class action against water districts, claiming water districts’ addition of chloramines to tap water damaged copper piping in their homes. Lower court found for districts and homeowners appealed. Appellate court found districts’ addition of chloramines to tap water “was done under authority of statute, and thus districts had immunity from homeowners’ nuisance claim.” Court also determined that homeowners’ inverse condemnation claim “was in fact a claim for tort liability, precluding recovery under just compensation provision of state constitution.” Affirmed for districts.
MONO COUNTY, County Counsel, Plaintiff-Appellee, MINERAL COUNTY, Intervenor-Plaintiff-Appellant, WALKER LAKE WORKING GROUP, Defendant-Appellant, and UNITED STATES OF AMERICA, Plaintiff, WALKER RIVER PAIUTE TRIBE, Intervenor-Plaintiff, v. WALKER RIVER IRRIGATION DISTRICT; NEVADA DEPARTMENT OF WILDLIFE; FENILI FAMILY TRUST, c/o Peter Fenili and Veronica Fenili, Trustees; SIX N RANCH, INC., c/o Richard and Cynthia Nuti; MICHAEL NUTI; NANCY NUTI; RALPH E. NUTI; MARY E. NUTI; LAWRENCE M. NUTI; LESLIE NUTI; MICA FARMS, LLC, c/o Mike Faretto; JOHN AND LURA WEAVER FAMILY TRUST, c/o Lura Weaver, Trustee; SMITH VALLEY GARAGE, INC., c/o Dan Smith and Shawna Smith; DONALD GIORGI; LORIE MCMAHON; MERLE MCMAHON; CENTENNIAL LIVESTOCK; LYON COUNTY; ANNETT’S MONO VILLAGE; F.I.M. CORPORATION; R.N. FULSTONE COMPANY; JAMES T. FOUSEKIS, Trustee; CHRIS H. GANSBERG, Jr.; FAYE E. GANSBERG; TODD GANSBERG; HUNEWILL LAND & LIVESTOCK CO., INC.; DAVID SCEIRINE; PAMELA HAAS; VIRGINIA LAKE MUTUAL WATER COMPANY, Defendants-Appellees, No. 15-16342, 2018 WL 2308521 (9th Cir. MAY 22, 2018), plaintiff appealed dismissal of its claim that Nevada’s public trust doctrine “requires the modification of the 1936 Walker River Decree to ensure minimum water flows reach Walker Lake.” Here, lower court ruled plaintiff lacked standing because it sought relief “solely on behalf of the general public as parens patriae.” Appellate court considered the requirements of “injury, causation, and redressability” for Article III standing and found plaintiff’s alleged harms are “fairly traceable to the loss of water in Walker Lake, which is caused at least in part by upstream appropriators.” Court found district court erred.
REGULATORY: Includes AMS, USDA, APHIS, EPA, FWS, FDA, FS, ISB, NOAA, and RUS rules and notices.
AGRICULTURAL MARKETING SERVICE: Rule would implement a recommendation from the Colorado Potato Administrative Committee (Committee) to increase the assessment rate established for Area No. 2 for the 2018-2019 and subsequent fiscal periods. The assessment rate would remain in effect indefinitely unless modified, suspended, or terminated. Details here.
Notice USDA has submitted information collection requirement(s) to OMB for review. Title: Public Health Inspection System. Info here.
Notice USDA has determined that the suspension of the assessment of fees for supervision of official inspection and weighing services performed by delegated States and/or designated agencies under the United States Grain Standards Act will continue through June 30, 2019. Info here.
ANIMAL AND PLANT HEALTH INSPECTION SERVICE: Rule APHIS is amending the regulations that set out our National Environmental Policy Act implementing procedures. Details here.
ENVIRONMENTAL PROTECTION AGENCY:
Rule EPA is taking final action to approve a revision to the Antelope Valley Air Quality Management District portion of the California State Implementation Plan (SIP). Details here.
Rule EPA is approving a state submission as a revision to the Illinois state implementation plan. Info here.
Rule EPA is approving the Oregon State Implementation Plan as meeting infrastructure requirements for the 2010 nitrogen dioxide, 2010 sulfur dioxide, and 2012 fine particulate matter NAAQS. Info here.
Rule establishes tolerances for residues of pydiflumetofen in or on multiple commodities which are identified and discussed later in this document. Syngenta Crop Protection requested these tolerances under the Federal Food, Drug, and Cosmetic Act. Details here.
FISH AND WILDLIFE SERVICE: Notice FWS is no longer considering preparation of a programmatic environmental impact statement (PEIS) pursuant to the National Environmental Policy Act to evaluate the potential environmental impacts of a proposed rule to authorize incidental take of migratory birds under the Migratory Bird Treaty Act. Info here.
FOOD AND DRUG ADMINISTRATION:
Notice solicits comments on the information collection requirements associated with current good manufacturing practice, hazard analysis, and risk-based preventive controls for animal food. Info here.
Notice FDA is evaluating its current thinking regarding the design of studies intended to generate data to support substantial evidence of effectiveness for investigational new animal drugs intended for the prevention of heartworm disease in dogs. Details here.
Notice the Hood-Willamette Resource Advisory Committee (RAC) will meet in Salem Oregon. Info here.
Notice the Uinta-Wasatch-Cache Resource Advisory Committee (RAC) will meet in South Jordan, Utah. Details here.
INDUSTRY AND SECURITY BUREAU: Rule describes how articles the President determines no longer warrant control under United States Munitions List (USML) Category I–Firearms, Close Assault Weapons and Combat Shotguns; Category II–Guns and Armament; and Category III–Ammunition/Ordnance would be controlled under the Commerce Control List (CCL). Info here.
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:
Notice NOAA will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information. Title: Socio-Economic Survey of Hired Captains and Crew in New England and Mid-Atlantic Commercial Fisheries. Details here.
Notice NOAA will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information. Title: Application Forms for Membership on a National Marine Sanctuary Advisory Council. Info here.
RURAL UTILITIES SERVICE: Rule RUS is correcting a final rule with request for comment that appeared in the Federal Register on May 7, 2018, and is extending the comment period and delaying the effective date. Details here.