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

                                                                                                                                               

JUDICIAL: Includes water law, prior appropriation, federal Indian law

In Hawkins v. Bernhardt, No. CV 19-1498 (BAH), 2020 WL 516036 (D. D.C. Jan. 31, 2020), the United States District Court for the District of Columbia considered a case brought by a group of ranchers and landowners in the Upper Klamath Basin in Oregon challenging two protocol agreements entered into by Klamath Tribes and the Bureau of Indian Affairs (“BIA”). The agreements set out procedures for enforcement of the tribes’ water rights. The plaintiffs argue that the agreements unlawfully delegated federal power to the tribes and are a violation of the National Environmental Policy Act (“NEPA”). The defendants, officials in the BIA and the Department of Interior, moved to dismiss the case arguing that the plaintiffs lacked standing to challenge the agreements. The court agreed with the defendants, and dismissed the case based on the plaintiffs’ lack of standing.

The particular agreements challenged by the plaintiffs in this case were executed in 2013 and 2019. Both agreements established procedures for how the tribes would make calls for enforcement of their tribal water rights. A “call” allows senior water rights holders, in this case the tribes, to enforce their water rights against junior water rights holders who would not be able to enforce their own water rights until the senior right holder had been fully satisfied. For the plaintiffs in this case, this means that when the tribes put out a call for enforcement of their rights under the 2013 and 2019 agreements, the plaintiffs would have to stop using water in the Klamath Basin until it was ensured that the tribes had enough water to satisfy their senior water rights. The plaintiffs brought this case seeking to have the 2013 and 2019 agreements vacated and to prohibit the defendants from issuing further calls for enforcement.

Although the court agreed that the agreements had caused hardships to the plaintiffs by resulting in curtailment of irrigation, the court concluded that the plaintiffs were unable to bring their case because of the nature of the tribal water rights at the heart of the case. According to the court, the agreements “are not the source of the Tribes’ authority to enforce their water rights against those of junior appropriators, including plaintiffs.” Instead, the source of that authority is federal law and a treaty between the federal government and the tribes. Additionally, there is no evidence that if the court vacated the 2013 and 2019 agreements that the tribes would stop seeking to enforce their water rights. Therefore, the court dismissed the plaintiffs’ case because the agreements the plaintiffs sought to vacate were not the cause of the hardships experience by the plaintiffs, and because vacating the agreements would not prevent the tribes from enforcing their water rights.

                                                                                                                                               

REGULATORY: Includes AMS, EPA, NOAA

AGRICULTURAL MARKETING SERVICE

Referendum order among eligible growers and processors of tart cherries grown in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin to determine whether they favor continuance of the marketing order regulating the handling of tart cherries produced in the production area. Info here.

ENVIRONMENTAL PROTECTION AGENCY

Proposed rule approving a revision related to control of emissions from production of pesticides and herbicides in a State Implementation Plan submitted by Missouri on January 14, 2019. Info here.

Notice of filing of petitions and request for comment on several filings requesting the establishment or modification of regulations for residues of pesticide chemicals in or on various commodities. Info here.

Notice of filing of petitions and request for comment to establish a tolerance for residues of the insecticide, Dinotefuran, in or on soybean seed at 0.3 ppm, soybean forage at 3 ppm, soybean hay at 6 ppm, and grain aspirated fractions at 40 ppm. Info here.

Notice of filing of petitions and request for comment to establish an exemption from the requirement of a tolerance for residues of the fungicide Bacillus velezensis strain RTI301 in or on all food commodities. Info here.

Notice of filing of petitions and request for comment to establish tolerance for residues of the fungicide Benzovindiflupyr in or on the raw agricultural commodities beet, sugar, dried pulp at 0.15 ppm; beet, sugar, roots at 0.08 ppm; and beet, sugar, tops at 0.06 ppm. Info here.

Notice of filing of petitions and request for comment to establish an exemption from the requirement of a tolerance for residues of Bacillus thuringiensis strain EX 297512 whole broth, when used as an inert ingredient in pesticide formulations for use as a seed treatment only. Info here.

Notice of filing of petitions and request for comment to establish an exemption from the requirement of a tolerance for residues of magnesium sulfate, magnesium sulfate monohydrate, magnesium sulfate trihydrate, magnesium sulfate tetrahydrate, magnesium sulfate pentahydrate, magnesium sulfate hexahydrate, and magnesium sulfate heptahydrate, when used as inert ingredients in pesticide formulation at an upper limit of 4400 parts per million. Info here.

Notice of filing of petitions and request for comment to establish an exemption from the requirement of a tolerance for residues of dimethyl-2-methylglutarate when used as inert ingredients (solvent) in pesticide formulations applied to growing crops pre- and post-harvest. Info here.

Notice of filing of petitions and request for comment to establish an exemption from the requirement of a tolerance for residues of the fungicide Bacillus subtilis strain RTI477 in or on all food commodities. Info here.

Notice of filing of petitions and request for comment to amend a temporary exemption from the requirement of a tolerance for residues of the plant-incorporated protectant Bacillus thuringiensis Cry14Ab-1 protein in or on soybean. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION

Announcements of 2019 trip limit modifications and 2020 catch limit in the commercial Pacific bluefin tuna fishery. Info here.

Proposed rule to implement rebuilding plans for two overfished stocks: Klamath River fall-run Chinook salmon and Sacramento River fall-run Chinook salmon. Info here.