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 PACA, environmental, crop insurance, landowner liability, and climate change issues.

In IN RE: CHERRY GROWERS, INC., Debtor, No. 17–04127–swd, 2017 WL 4990443 (W.D. Mich. November 1, 2017), a chapter 11 debtor in possession (DIP) sought order Authorizing Debtor’s Use of Cash Collateral and for Adequate Protection with bank. Bank supported the motion, but Farm Fresh First, (a supplier) opposed, arguing the motion violates it rights as beneficiaries of a statutory trust arising under the Perishable Agricultural Commodities Act(PACA). Supplier argued all income derived during the case from any of the property in the DIP’s possession “would constitute proceeds of the voracious PACA trust, and that the DIP may not use any of the property because (as trust property) it belongs to Farm Fresh, not the bankruptcy estate.” Court granted DIP’s motion after concluding it “met its burden of showing that Farm Fresh will be adequately protected notwithstanding the proposed use of the property of the estate.”

In SACRAMENTO GRAZING ASS’N, INC., et al., Plaintiffs, v. THE UNITED STATES, Defendant, No. 04-786 L, 2017 WL 5029063 (Fed. Cl. November 3, 2017), plaintiff sued regarding its right to “beneficial use of stock water sources” within a National Forest, “that pre-date federal control.” Appellate court affirmed earlier ruling that plaintiff’s Fifth Amendment Takings Clause claims “are not barred by the statute of limitations.” Court also found that plaintiff established a property interest “to make beneficial use of stock water sources in the Sacramento Allotment of the Lincoln National Forest.” The court reasoned that a small, family-owned cattle ranch “should not be forced to ‘bear’ the entire financial burden of the United States Forest Service’s management choices, where they interfere with property rights, recognized by state law.”

GREAT AMERICAN INSURANCE COMPANY, Appellant, v. ROSS WAHL, Appellee, No. 117,176, 2017 WL 5014883 (Kan. Ct. App. November 3, 2017) considered interpretation of a crop insurance policy. Insurance company withheld proceeds on the policy at issue, claiming it overpaid appellee “in previous policy years for crop losses as a new producer when he did not qualify as a new producer.” District court ruled for policy holder, finding that he was a “new soybean producer,” and insurance company appealed. On appeal, insurance company argued the Federal Crop Insurance Act and the crop insurance policy “preempt conflicting state law.” Issue was whether conflict preemption applied and appellate court affirmed for policy holder, noting that insurance company failed go show “an applicable federal statute of limitations.”

In ADRIANA GREENIA, a Minor, by Next Friend, CATHY GREENIA, Plaintiff-Appellee, v. MICHAEL PFEIFFER, Defendant-Appellant, No. 332841, 2017 WL 5013360 (Mich. Ct. App. November 2, 2017), plaintiff suffered spinal cord injury while riding a motorcycle and jumping hills on defendant’s property. Court observed that Michigan’s Recreational Land Use Act (RUA) forecloses liability “unless the injuries were caused by the gross negligence or willful and wanton misconduct of the owner.” Circuit court found that facts established a “triable issue” regarding defendant’s gross negligence and defendant appealed. Appellate court, however, found that plaintiff accepted the risk and that defendant had “no duty to warn” her of the risk of jumping the hills. Reversed and summary judgment granted for defendant.

HILLS FOR EVERYONE et al., Plaintiffs and Respondents, v. OSLIC HOLDINGS LLC, Real Party in Interest and Appellant, G053160, 2017 WL 4640128 (Cal. Ct. App. October 17, 2017) concerned the proposed development of 162 homes on canyon hillsides, wherein City approved the project and certified a final environmental impact report. Plaintiffs (environmental groups) challenged City’s decision and lower court issued writ of mandate directing City to vacate its resolutions approving the project. Developer appealed. Appellate court considered City’s general plan that includes “a woodlands policy that makes the management, protection, and preservation of oak and walnut trees and woodlands a policy goal and describes large oak trees as a unique natural and visual resource.” Appellate court affirmed for plaintiffs, noting the development “would result in the destruction of over 10 acres of oak and oak woodland, damage to another 15.16 acres of walnut and walnut woodland, and removal of over 1,400 native specimen trees.”

LEGISLATIVE:

S. 2078: A bill to maximize land management efficiencies, promote land conservation, generate education funding. Bill referred to the Senate Committee on Energy and Natural Resources.

REGULATORY: Includes FWS, FNS, ITA, NIFA, NOAA, and RBCS rules and notices.

FISH AND WILDLIFE SERVICE:

Rule FWS will increase the hunting activities available at nine refuges, open one refuge to sport fishing for the first time, and add pertinent refuge-specific regulations for other NWRs that pertain to migratory game bird hunting, upland game hunting, big game hunting, and sport fishing for the 2017-2018 season. Info here.

Notice FWS seeks comment on applications to conduct certain activities with endangered species, marine mammals, or both. Details here.

Notice the U.S. Department of the Interior (DOI) is establishing and seeking nominations for the International Wildlife Conservation Council. Details here.

FOOD AND NUTRITION SERVICE: Notice invites the public and public agencies to comment on the proposed information collection. Title: User Access Request Form. Info here.

INTERNATIONAL TRADE ADMINISTRATION: Notice ITA determines that countervailable subsidies are being provided to producers and exporters of certain softwood lumber products (softwood lumber) from Canada. The period of investigation is January 1, 2015, through December 31, 2015. Info here.

NATIONAL INSTITUTE OF FOOD AND AGRICULTURE: Notice NIFA is publishing this notice on behalf of the Carbon Cycle Interagency Working Group (CCIWG)/U.S. Carbon Cycle Science Program and the United States Global Change Research Program to announce the availability of a draft assessment, the 2nd State of the Carbon Cycle Science Report, for a 60-day public review. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NOAA is adjusting the 2017 fishing year Georges Bank cod allocation for the common pool and making minor corrections to the 2017 sector carryover and annual catch entitlement. Info here.

Rule NMFS implements accountability measures for commercial gray triggerfish in the exclusive economic zone (EEZ) of the South Atlantic. Info here.

Rule NMFS announces that the State of Maine is transferring a portion of its 2017 commercial summer flounder quota to the State of Connecticut. Details here.

RURAL BUSINESS-COOPERATIVE SERVICE: Notice announces the intention of RBCS to request an extension for the currently approved information collection in support of the servicing of Community and Direct Business Programs Loans and Grants. Info here.