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: “Tackling the Challenge of Invasive Species to Reduce Impacts to Agriculture.” Details available here.

JUDICIAL: Includes water law, renewable energy, and agritourism issues. 

In JERRY PREECE, JR., et al., Plaintiffs and Respondent, v. IMPERIAL IRRIGATION DISTRICT, Defendant and Appellant, D069497, 2017 WL 4112253 (Cal. Ct. App. September 18, 2017), plaintiff’s property suffered flood damage after a rainstorm and he sued defendant (District) and the State of California (State) for “dangerous condition of public property, nuisance, and inverse condemnation.” Trial court found District liable for inverse condemnation and on appeal, District argued it should not be liable because its facilities were not a “substantial cause” of the flooding on plaintiff’s property. District argued that its failure to upgrade its facilities to provide greater flood protection” was not a substantial cause of plaintiff’s damage. Appellate court agreed with defendant’s reasoning and found “no basis for inverse condemnation.” Judgment for plaintiff reversed.

In William P. HONEYCUTT, Jr. v. Elvin CARMENA, 2017 CA 0171, 2017 WL 4082082 (La. Ct. App. September 15, 2017), plaintiff claimed defendant interrupted the natural drainage flow of water on his property after adding dirt to a driveway adjacent to a common property line. Plaintiff alleged that “as a result of the build-up to the driveway, excessive water remained on his property, causing it to flood.” Plaintiff appealed ruling allowing defendant to continue to use the driveway provided he installed “additional PVC pipe on his property to drain plaintiff’s land.” Appellate court found lower court judgment constituted an “improper substantive amendment,” and vacated and set aside earlier ruling.

UNITED STATES of America, Plaintiff, v. OSAGE WIND, LLC; Enel Kansas, LLC; Enel Green Power North America, Inc., Defendants-Appellees. Osage Minerals Council, Movant to Intervene-Appellant, Nos. 15-5121 & 16-5022, 2017 WL 4109940 (10^th Cir. September 18, 2017) concerned whether an excavation project constituted “mining” under federal regulations involving mineral development on Indian land. Here, defendant allegedly mined minerals owned by the Osage Nation tribe without obtaining a federally approved lease. Appellate court broadly interpreted the term “mineral development” as including “action upon the extracted minerals for the purpose of exploiting the minerals themselves on site.” Court held that defendant’s “extraction, sorting, crushing, and use of minerals as part of its excavation work constituted ‘mineral development,’ thereby requiring a federally approved lease which [defendant] failed to obtain.” Summary judgment for defendant reversed on appeal.

In Adrienne Renee YOCHES, Individually and as Next Friend to Samuel James Yoches, Plaintiff-Appellee, and Troy Gibson, Jodi Jergovich, and Steve Jergovich, Plaintiffs, v. CITY OF DEARBORN, Defendant-Appellant, and Adam Forehand, Defendant. Laura Jo Lubeck and Ronald Lubeck, Plaintiffs-Appellees, v. City of Dearborn, Defendant-Appellant. Troy Gibson, Jodi Jergovich, and Steve Jergovich, Plaintiffs-Appellees, v. City of Dearborn and Camp Dearborn, Defendants-Appellants, and Adam O’Brien Forehand, Defendant. Lauren Marie Calvin and Troy Ray Gibson, Plaintiffs-Appellees, v. City of Dearborn, doing business as Camp Dearborn, Defendant-Appellant, and Adam O’Brien Forehand, Defendant. Charlotte Bader, Plaintiff-Appellee, v. City of Dearborn, Defendant-Appellant, and Adam Forehand, Defendant. Cynthia Cialone Individually and as Next Friend to Emmanuele Soufane, Plaintiff-Appellee, v. City of Dearborn, Defendant-Appellant, and Adam Forehand, Defendant. Adrienne Renee Yoches, Individually and as Next Friend to Samuel James Yoches, Plaintiff-Appellee, and Troy Gibson, Jodi Jergovich, and Steve Jergovich, Plaintiffs, and Cynthia Cialone, Individually and as Next Friend to Emmanuelle Soufane, Plaintiff/Counter-Defendant/Appellee, v. City of Dearborn, Defendant/Counter-Plaintiff/Third-Party Plaintiff-Appellant, and Adam Forehand, Defendant, and Henry Ford Community College Support Staff Association, Third-Party Defendant-Appellee, No. 330998, No. 331137, No. 331139, No. 331144, No. 331147, No. 331149, No. 331630, 2017 WL 2989063 (Mich. Ct. App. July 13, 2017), passengers sued City for negligence after a City-run hayride wagon tipped over. City claimed governmental immunity and counter-sued labor organization. Lower court denied City’s motion for summary judgment and dismissed City’s counter-suit. Appellate court found that the tractor and wagon hayride assembly was a “’motor vehicle’ for purposes of motor vehicle exception to statutory governmental immunity from tort liability.” Court also found agreement between City and labor organization was unenforceable for lack of consideration.

LEGISLATIVE:

S. 129: National Sea Grant College Program Amendments Act of 2017. Bill’s text for status Referred to House Committee (Sept. 18, 2017) is now available.

S. 1824: A bill to reform the Appalachian Regional Commission, and for other purposes. Bill referred to the Senate Committee on Environment and Public Works.

H.R. 3668: SHARE Act. Bill’s text for status Reported by House Committee (Sep 18, 2017) is now available.

H.R. 3805: To authorize the Secretary of the Interior to carry out a land exchange involving lands within the boundaries of the Cape Cod National Seashore, and for other purposes. Bill referred to the House Committee on Natural Resources.

H.R. 3803: To amend the Reclamation Safety of Dams Act of 1978 to provide for certain cost allocations for the Boca Reservoir Dam, Truckee River Storage Project, California, and for other purposes. Bill referred to the House Committee on Natural Resources.

REGULATORY: Includes EPA, FWS, FDA, FS, NOAA and RHS rules and notices.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is taking final action to approve revisions to the South Coast Air Quality Management District portion of the California State Implementation Plan. Info here.

Rule EPA is taking direct final action to approve elements of a State Implementation Plan (SIP) submission, and an amended SIP submission from the State of Iowa for the 2010 Nitrogen Dioxide (NO2) National Ambient Air Quality Standard. Details here.

Rule EPA is taking direct final action to approve elements of a State Implementation Plan (SIP) submission from the State of Nebraska addressing the applicable requirements of Clean Air Act (CAA) section 110 for the 2010 Nitrogen Dioxide (NO2) and Sulfur Dioxide (SO2) National Ambient Air Quality Standards (NAAQS), and the 2012 Fine Particulate Matter (PM2.5) NAAQS, which requires that each state adopt and submit a SIP to support implementation, maintenance, and enforcement of each new or revised NAAQS promulgated by EPA. Info here.

Rule EPA is proposing to approve elements of a State Implementation Plan (SIP) submission, and an amended SIP submission from the State of Iowa for the 2010 Nitrogen Dioxide (NO2) National Ambient Air Quality Standard (NAAQS). Details here.

Rule EPA is proposing to approve elements of a State Implementation Plan (SIP) submission from the State of Nebraska addressing the applicable requirements of Clean Air Act (CAA) section 110 for the 2010 Nitrogen Dioxide (NO2) and Sulfur Dioxide (SO2) National Ambient Air Quality Standards (NAAQS), and the 2012 Fine Particulate Matter (PM2.5) NAAQS, which requires that each state adopt and submit a SIP to support implementation, maintenance, and enforcement of each new or revised NAAQS promulgated by EPA. Info here.

FISH AND WILDLIFE SERVICE:

Rule FWS determines threatened status under the Endangered Species Act of 1973 for the iiwi, a bird species from the Hawaiian Islands. Info here.

Rule FWS determines threatened species status under the Endangered Species Act of 1973 for the pearl darter, a fish whose historical range includes Mississippi and Louisiana. Info here.

Rule FWS lists the Sonoyta mud turtle, a turtle from Arizona in the United States and Sonora in Mexico, as an endangered species under the Endangered Species Act of 1973. Details here.

FOOD AND DRUG ADMINISTRATION: Rule confirming the effective date of August 3, 2017, for the final rule that appeared in the Federal Register of July 3, 2017, and that amended the color additive regulations to provide for the expanded safe use of spirulina extract to seasonally color hard-boiled shell eggs at levels consistent with good manufacturing practice. Info here.

FOREST SERVICE: Notice FS seeks comments from all interested individuals and organizations on a new information collection request through the Public Lands Corps Participant Tracking Sheet. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS removes a regulatory exemption that allowed certain large U.S. longline vessels to fish in portions of the American Samoa Large Vessel Prohibited Area. Info here.

Rule NMFS seeks comments on this proposed rule issued under authority of the Western and Central Pacific Fisheries Convention Implementation Act. Details here.

Notice the Groundfish Subcommittee of the Pacific Fishery Management Council’s Scientific and Statistical Committee (SSC) will hold a meeting via webinar to review analyses informing 2019 and 2020 groundfish harvest specifications and other matters that will be considered at the November 14-20, 2017 Pacific Council meetings in Costa Mesa, California. Info here.

Notice the South Atlantic Fishery Management Council (Council) will hold meetings of its Citizen Science Advisory Panel Projects/Topics Management; Volunteers; Communication/Outreach/Education Action Teams via webinar. Info here.

RURAL HOUSING SERVICE: Notice announces the Rural Housing Service’s intention to request an extension for a currently approved information collection in support of the program of the Agency’s use of Supervised Bank Accounts (SBA). Info here.