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

ANNOUNCEMENT: Join us TODAY at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: “Legal Issues with Data (Big and Small).” Details available here.

JUDICIAL: Includes water law, urb & ag, SNAP, and CWA issues. 

In LONNY BALEY, et al.,1 and JOHN ANDERSON FARMS, INC., et al., For Themselves, and as Representatives of a Class of Similarly Situated People, Plaintiffs, v. UNITED STATES, v. Defendant, PACIFIC COAST FEDERATION OF FISHERMEN’S ASSOCIATIONS, Defendant-Intervenor, Nos. 1-591L, 2017 WL 4342771 (Fed. Cl. September 29, 2017), plaintiffs claimed they held a right to receive water from the Bureau of Reclamation’s Klamath River Basin project. In 2001, defendant “temporarily terminated water deliveries to the plaintiffs in order to meet the requirements of the Endangered Species Act.” Here, plaintiffs alleged defendant’s actions constituted “compensable takings of their property under the Fifth Amendment . . . by depriving them of their alleged rights to use Klamath Project water.” Court observed “the government’s diversion of water away from the plaintiffs in 2001 was not temporary and should be analyzed as a permanent physical taking.” After extensive analysis, the court concluded plaintiffs did not provide “any specific evidence in the record which casts doubt on the scientific conclusions of the FWS Biological Opinion,” upon which the Bureau of reclamation based its decisions. Court ruled the government’s actions in 2001 did not constitute a taking of plaintiffs’ property.

In FRANK J. MULTERER, KATHLEEN MULTERER, RYAN F. WALDSCHMIDT, SARA A. WALDSCHMIDT AND D & D SCHMIDT FARMS, LLC, PLAINTIFFS-APPELLANTS, v. WISCONSIN DEPARTMENT OF REVENUE AND RICHARD CHANDLER, DEFENDANTS-RESPONDENTS, Appeal No. 2016AP1076, 2017 WL 4341251 (Wis. Ct. App. September 28, 2017), plaintiffs owned land subject to permanent wetland conservation easements under federal law. Department of Revenue excluded the property from the definition of “agricultural use.” Court noted that land classified as “agricultural” is “assessed according to the income that could be generated from its rental for agricultural use.” On appeal, plaintiffs argued that the tax code is “unconstitutional as applied to them and that it was not promulgated in compliance with the Wisconsin Environmental Policy Act.” Court found that the land at issue did not meet the definition of “agricultural use” and could not be classified “agricultural” for tax assessment purposes. Summary judgment for defendants affirmed.

In YAREIDY R. GARCIA-RODRIGUEZ d/b/a GARCIA CANDY & TOBACCO, Plaintiff, v. UNITED STATES OF AMERICA and THOMAS VILSACK, SECRETARY, UNITED STATES DEPARTMENT OF AGRICULTURE, Defendants, No. 16-7487 (ES) (JAD), 2017 WL 4317389 (D.N.J. September 28, 2017), Food and Nutrition Service (FNS) determined plaintiff was not “operating as a retail food store or as a co-located wholesale food concern,” per Supplemental Nutrition Assistance Program (SNAP) regulations, and disqualified plaintiff from participating in SNAP. Plaintiff sought to reverse its disqualification from SNAP and claimed the USDA “failed to consider additional evidence or conduct an additional on site visit.” Upon review, court concluded that “[p]laintiff cannot be considered a co-located wholesale food concern because it is not ‘a legitimate retail food outlet.’” Cased dismissed.

In Conservation Law Foundation, Inc., Plaintiff v. Pease Development Authority; David R. Mullen; George M. Bald; Peter J. Loughlin; Robert A. Allard; Margaret F. Lamson; John Bohenko; Franklin Torr; and Robert Preston, Defendants, No. 16-cv-493-SM, 2017 WL 4310997 (D.N.H. September 26, 2017), plaintiffs sued under the Clean Water Act alleging defendant continues to “discharge pollutants into waters of the United States without the proper permit.” Defendant operated an airport and trading port that generated stormwater runoff. Here, defendant argued it was “shielded” form liability as “its individual Industrial Permit comprehensively covers its stormwater discharges, ‘including what is now called municipal stormwater and stormwater from industrial activities, before the 2003 Small MS4 Permit even existed.’” Court concluded defendant’s discharge permit “does not obviate the Clean Water Act’s requirement that PDA also obtain a permit for municipal stormwater discharges.” Defendant’s motion to dismiss denied.

REGULATORY: Includes EPA, FCIC, FWS, FSIS, and NOAA rules and notices.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is finalizing approval of a State Implementation Plan (SIP) revision submitted by the State of Georgia, Department of Natural Resources, through the Georgia Environmental Protection Division (GA EPD) on January 8, 2014. Details here.

Rule EPA is approving North Carolina’s December 9, 2015, State Implementation Plan (SIP) submission pertaining to the Clean Air Act’s “good neighbor” provision for the 2008 8-hour ozone National Ambient Air Quality Standards. Info here.

FEDERAL CROP INSURANCE CORPORATION: Notice FCIC requests an extension to a currently approved information collection for the submission of policies, provisions of policies, rates of premium, and non-reinsured supplemental policies under section 508(h) of the Federal Crop Insurance Act. Info here.

FISH AND WILDLIFE SERVICE:

Rule announces a 12-month finding on a petition to list three species, the holiday darter, the trispot darter, and the bridled darter, all freshwater fish native to Alabama, Georgia, and Tennessee, as endangered or threatened under the Endangered Species Act of 1973. Info here.

Rule announces a 12-month finding on a petition to list the candy darter as a threatened or endangered species under the Endangered Species Act, and to designate critical habitat. Info here.

FOOD SAFETY AND INSPECTION SERVICE: Notice the Office of the Deputy Under Secretary for Food Safety, U.S. Department of Agriculture (USDA), and the Food and Drug Administration (FDA), are sponsoring a public meeting on November 7, 2017. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule the coastal migratory pelagic (CMP) fisheries in the Gulf and the Atlantic, the spiny lobster fishery of the Gulf and Atlantic, and the snapper-grouper and dolphin-wahoo fisheries in the South Atlantic, the Regional Administrator, Southeast Region, NMFS (RA) has determined that Hurricane Irma has caused catastrophic conditions in the following Florida counties: Manatee, Sarasota, DeSoto, Charlotte, Lee, Collier, Monroe, Miami-Dade, and Broward. Info here.

Rule NMFS is opening directed fishing for Pacific ocean perch in the Bering Sea subarea of the Bering Sea and Aleutian Islands management area. Info here.

Rule NMFS proposes regulations to implement Amendment 17B to the Fishery Management Plan for the Shrimp Fishery of the Gulf of Mexico U.S. Waters, (FMP), as prepared and submitted by the Gulf of Mexico (Gulf) Fishery Management Council. Details here.

Rule giving advanced notice of proposed rulemaking provides information on a request by the Pacific Fishery Management Council to announce deliberations of potential accumulation limits for Catcher Processor Permit use or ownership in the Pacific Coast groundfish fishery. Info here.

Notice NMFS announces, in consultation with U.S. Customs and Border Protection, a test of the International Trade Data System involving the electronic submission of data, related to importation of fish products regulated by NMFS under the Seafood Import Monitoring Program, using the import Partner Government Agency data set via the Automated Commercial Environment Secure Data Portal. Details here.