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

ANNOUNCEMENT: Join us next Wednesday, November 15th, at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: “Estate Planning: Preparing to Plan.”  Details available here.

JUDICIAL: Includes conservation programs, insurance, and agritourism issues.

In ST. BERNARD PARISH GOVERNMENT, Plaintiff, v. The UNITED STATES, Defendant, No. 15–637C, 2017 WL 4675686 (Fed. Cl.  October 18, 2017), plaintiff sued Government claiming it breached an agreement with the Parish “by not paying it all the money it was due for the removal of sediment in the Bayou Terre Aux Beoufs in the aftermath of Hurricane Katrina.” Government countered the agreement at issue is not a contract but rather a “Cooperative Agreement,” and also the agreement lacked consideration on the part of the Government. Specifically, government argued that the “purpose of the Cooperative Agreement in this case was not for NRCS to purchase or lease anything from the Parish,” but rather that, “the agreement stated that NRCS was ‘authorized to assist the Parish’ pursuant to the EWP program.” Court found the agreement at issue was a cooperative agreement and therefore, “damages cannot be implied.” Government’s motion to dismiss granted.

In Oscar ORTIZ, Appellant v. STATE FARM LLOYDS, Appellee, No. 04-17-00252-CV, 2017 WL 5162315 (Tex. App. November 8, 2017), plaintiff suffered damage to his property after a wind and hail storm and submitted an insurance claim to defendant. Insurance company made no payment on the claim after concluding the damage did not exceed plaintiff’s deductible. Plaintiff sued for breach of contract and bad faith, and defendant eventually made an appraisal payment. Insurance company then filed a motion for summary judgment “asserting its payment of the appraisal award estopped Ortiz from maintaining a breach of contract claim.” Trial court granted summary judgment for insurance company and plaintiff appealed. Appellate court affirmed after concluding that “[b]ecause State Farm promptly paid the appraisal award in the instant case and Ortiz did not raise any ground for setting aside the appraisal award, summary judgment was properly granted on Ortiz’s breach of contract claim.”

In CITIZEN’S VOICE ST. HELENA et al., Plaintiffs and Appellants, v. CITY OF ST. HELENA et al., Defendants and Respondents; HUGH DAVIES et al., Real Parties in Interest, A146887, 2017 WL 5167817 (Cal. Ct. App. November 8, 2017), City approved the application for a conditional use permit for operation of a wine production facility within city limits of St. Helena. Defendants later approved, over plaintiffs’ objections, an amended use permit allowing for expansion of the project. Plaintiffs sued regarding the amended use permit, lost that suit, and appealed. On appeal, plaintiffs argued City failed to properly prepare a required Environmental Impact Report (EIR), and stated that “[i]nstead of investigating … and disclosing the impacts to the public, the City pushed CEQA’s [California Environmental Quality Act] requirements aside in order to push the Project forward.” Issue was whether “there is substantial evidence to support the determinations of the planning commission and the city council that the potentially significant environmental effects could be mitigated.” Appellate court detailed substantial evidence and concluded plaintiff failed to meet its burden of proof “to demonstrate by citation to the record the existence of substantial evidence supporting a fair argument of significant environmental impact.”

LEGISLATIVE:

S. 2105: A bill to modify the presumption of service connection for veterans who were exposed to herbicide agents while serving in the Armed Forces in Thailand during the Vietnam era, and for other purposes. Bill referred to the Senate Committee on Veterans’ Affairs.

S. 2102: A bill to clarify the boundary of Acadia National Park. Bill referred to the Senate Committee on Energy and Natural Resources.

S. 2096: A bill to amend the Federal Crop Insurance Act to prohibit payments of premium subsidy for harvest price policies. Bill referred to the Senate Committee on Agriculture, Nutrition, and Forestry.

S. 2099: A bill to provide for the management by the Secretary of Agriculture of certain Federal land. This bill was referred to the Senate Committee on Agriculture, Nutrition, and Forestry.

H.R. 4260: To amend the Internal Revenue Code of 1986 to establish a new tax credit and grant program to stimulate investment and healthy nutrition options in food deserts. Bill’s text is now available.

H.R. 4257: To maximize land management efficiencies, promote land conservation, generate education funding. Bill’s text is now available.

H.R. 1900: National Veterans Memorial and Museum Act. Bill’s text is now available.

H.R. 4305: To amend the Federal Crop Insurance Act to prohibit payments of premium subsidy for harvest price policies. Bill referred to the House Committee on Agriculture.

H.R. 4316: To provide for the reform and continuation of the beginning farmer and rancher program. Bill referred to the House Committee on Agriculture and House Committee on Appropriations.

H.R. 4299: To provide for the indefinite duration of certain military land withdrawals, to improve the management of lands currently subject to such withdrawals and to make the management of such lands more transparent. Bill referred to the House Committee on Armed Services and House Committee on Natural Resources.

H.R. 4298: To amend the Food Security Act of 1985 to allow grazing as a mid-contract management practice in the conservation reserve program. Bill referred to the House Committee on Agriculture.

H.R. 4306: To reauthorize and amend the National Sea Grant College Program Act. Bill referred to the House Committee on Natural Resources.

H.R. 4308: To provide for grants to finance broadband transmission in certain rural areas. Bill referred to the House Committee on Agriculture and House Committee on Energy and Commerce.

REGULATORY:  Includes EPA, FWS, FDA, NIFA, NOAA, and OPPM rules and notices.

ENVIRONMENTAL PROTECTION AGENCY: Rule EPA is proposing to approve a state implementation plan (SIP) revision submitted by the State of Maryland. Info here.

FISH AND WILDLIFE SERVICE: Rule FWS announces that a Candidate Conservation Agreement (CCA) has been prepared for Chorizanthe parryi var. fernandina (San Fernando Valley spineflower). Details here.

FOOD AND DRUG ADMINISTRATION: Rule FDA is amending food additive regulations for food additives permitted in feed and drinking water of animals to provide for the safe use of formic acid and ammonium formate. Details here.

NATIONAL INSTITUTE OF FOOD AND AGRICULTURE: Notice NIFA withdraws the Notice of Proposed Rulemaking (RIN 0524-AA25) published on April 29, 2003. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS implements accountability measures for commercial gray triggerfish in the exclusive economic zone (EEZ) of the Gulf of Mexico (Gulf) through this temporary rule. Info here.

Rule NMFS announces that the State of North Carolina is transferring a portion of its 2017 commercial bluefish quota to the State of Rhode Island. Info here.

Notice Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance a proposal for collection of information. Title: Alaska Prohibited Species Donation Program. Details here.

Notice Department of Commerce seeks comment on proposed and/or continuing information collections. Title: Alaska Chinook Salmon Economic Data Report (EDR). Info here.

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

PROCUREMENT AND PROPERTY MANAGEMENT OFFICE: Notice OPPM will request an extension of a currently approved information collection for Guidelines for the Transfer of Excess Computers or Other Technical Equipment Pursuant to Section 14220 of the 2008 Farm Bill. Details here.