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 1st, at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: “From Farm Fields to the Courthouse: Legal Issues Surrounding Pesticide Use.” Details available here.

JUDICIAL: Includes finance & credit, biosecurity, environmental, and urb & ag issues.

In MARK ANDERSON, Plaintiff, v. UNITED STATES DEPARTMENT OF AGRICULTURE and FARM SERVICE AGENCY and its employees, servants, and agents acting on its behalf, Defendants, No. 3:17-cv-531-JPG-RJD, 2017 WL 4791776 (S.D. Ill. October 24, 2017), a cattle farmer lost several cows to illness and blamed the loss on his neighbor for the “viral contaminiation.” Plaintiff fell  behind on a loan from the Farm Services Agency (FSA) and said the delinquency arose “from expenses he incurred when disposing of the dead cattle.” Plaintiff sued USDA, alleging the “USDA violated plaintiff’s civil rights by failing to act upon or prevent the allegations centered on [neighbor], leading to the death of [plaintiff’s] cattle.” Court observed that plaintiff “is attempting to sue the USDA—a federal agency—via § 1983. . . [which] authorizes suits against ‘persons’ acting ‘under color of state law’ to deprive the ‘rights, privileges, or immunities’ of another.” Court concluded “[t]he USDA is not a person acting under color of state law,” and granted defendant’s motion to dismiss.

In Robert RAMIREZ, Plaintiff–Appellant, v. UNITED OF OMAHA LIFE INSURANCE COMPANY, Defendant–Appellee, No. 16-11660, 872 F.3d 721 (5^th Cir. October 6, 2017), plaintiff bought Employee Retirement Income Security Act (ERISA) action against defendant (insurer) “seeking to recover accidental death and dismemberment benefits after he contracted a fungal infection that ultimately resulted in the removal of one of his eyes.” Appellate court found that plaintiff’s injury from a fungus “was not independent of sickness, and so was not covered by the plan.” The court also declared that even though the plan “did not cover bacterial or viral infection did not mean that a covered accident included other microbial sources of infection.” Affirmed for defendant.

In TEN LAKES SNOWMOBILE CLUB; MONTANANS FOR MULTIPLE USE, North Lincoln County Chapter; CITIZENS FOR BALANCED USE; GLEN LAKE IRRIGATION DISTRICT; BACKCOUNTRY SLED PATRIOTS; IDAHO STATE SNOWMOBILE ASSOCIATION; and BLUE RIBBON COALITION, Plaintiffs, v. UNITED STATES FOREST SERVICE; U.S. FOREST SERVICE, Northern Region; KOOTENAI NATIONAL FOREST; IDAHO PANHANDLE NATIONAL FORESTS; LEANNE MARTEN, Regional Forester, Northern Region; CHRIS SAVAGE, Forest Supervisor, Kootenai National Forest; MARY FARNSWORTH, Forest Supervisor, Idaho Panhandle National Forests, Defendants, And THE WILDERNESS SOCIETY, HEADWATERS MONTANA, IDAHO CONSERVATION LEAGUE, MONTANA WILDERNESS ASSOCIATION, PANHANDLE NORDIC SKI AND SNOWSHOE CLUB, and WINTER WILDLANDS ALLIANCE, Defendant-Intervenors, CV 15–148–M–DLC, 2017 WL 4707536 (D. Mont. October 18, 2017), plaintiffs claimed defendants violated the National Forest Management Act, (NFMA); the Wilderness Act, and the Wild and Scenic Rivers Act (WSRA), (among other statutes) when the Forest Service (FS) adopted a revised forest plan. Here, plaintiff’s challenged the forest plan’s “identification of certain rivers as eligible under the WSRA.” Plaintiffs argued that under the WSRA, defendants did not properly designate rivers in the forest plan because they made “eleventh hour changes to its suitability determinations, literally adding stream segments to the Final ROD which were not previously disclosed to the public, not available for comment, and outside any of the formally presented action alternatives.” Court observed that “[t]here is no dispute that only Congress can designate rivers under the WSRA,” and concluded that plaintiffs’ claims identified specific rivers and creeks, making the case ripe for adjudication. Case remanded.

In DRYDEN OAKS, LLC et al., Plaintiffs and Appellants, v. SAN DIEGO COUNTY REGIONAL AIRPORT AUTHORITY et al., Defendants and Respondents, D069161, 2017 WL 4700386 (Cal. Ct. App. October 19, 2017), plaintiff purchased two lots adjacent to an airport. Plaintiff obtained two permits to construct buildings on each lot and plaintiff agreed to hold City harmless “for any liability arising out of approval of the projects.” Plaintiff’s permit expired and by the time he sought to renew the permit, defendant had adopted an Airport Land Use Compatibility Plan (ALUCP) that designated [plaintiff’s] properties as being “within a Safety Zone that carries specific limiting recommendations for compatible land uses.” Plaintiff sued, claiming “the value of his property was depressed by [defendant’s] 2010 adoption of the ALUCP and that the decrease in value constituted a governmental taking requiring the County and the Authority to provide compensation.” Trial court found no taking by defendants and appellate court affirmed.

LEGISLATIVE:

S. 1223: Klamath Tribe Judgment Fund Repeal Act. Last Action: Committee on Indian Affairs. Ordered to be reported with an amendment favorably.

H.R. 4114: To require Federal agencies to address environmental justice, to require consideration of cumulative impacts in certain permitting decisions. Bill’s text is now available.

H.R. 2936: Resilient Federal Forests Act of 2017. Bill’s text for status Reported by House Committee (Oct 25, 2017) is now available.

H.R. 4126: To provide for the accurate reporting of fossil fuel production and emissions from public lands. Bill referred to the House Committee on Natural Resources which will consider it before sending it to the House floor for consideration.

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

AGRICULTURE DEPARTMENT:

Notice USDA published a document in the Federal Register on October 18, 2017, page number 48476 concerning a request for comments on information collection 0535—New “Fast Track Generic Clearance for Qualitative Feedback on Customer Satisfaction Surveys.” That notice was missing the comment and contact information. Details here.

Notice USDA submitted information collection requirement(s) to OMB for review. Title: Supplemental Nutrition Assistance Program Case and Procedural Case Action Review Schedule. Details here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE: Notice APHIS has received a petition from Bayer CropScience LP seeking a determination of nonregulated status of cotton designated as event GHB811, which has been genetically engineered for dual resistance to the herbicides glyphosate and isoxaflutole. Info here.

ENVIRONMENTAL PROTECTION AGENCY: Rule establishes an exemption from the requirement of a tolerance for residues of Bacillus amyloliquefaciens strain F727 in or on all food commodities when used in accordance with label directions and good agricultural practices. Details here.

FISH AND WILDLIFE SERVICE:

Rule removing the textual descriptions of critical habitat boundaries from those designations for plants on the Hawaiian Islands of Kauai, Niihau, and Hawaii for which the maps have been determined to be sufficient to stand as the official delineation of critical habitat. Info here.

Notice seeking comment on applications to conduct certain activities with endangered species. With some exceptions, the Endangered Species Act (ESA) prohibits activities with listed species unless a Federal permit is issued that allows such activities. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule would make HMS Charter/Headboat permits a non-commercial category and create a separate regulatory provision for the commercial sale of Atlantic highly migratory species (HMS) by HMS Charter/Headboat permit holders. Details here.

Notice NMFS has made a preliminary determination that an exempted fishing permit application contains all of the required information and warrants further consideration. Info here.

RURAL UTILITIES SERVICE: Notice RUS seeks comments on the following information collection for which RUS intends to request approval from the Office of Management and Budget. Title: Water and Waste Loan and Grant Program. Details here.