Agricultural Law Weekly Review—February 20, 2020

Pesticides/Herbicides: Missouri Federal Jury Returns $265 Million Verdict in Dicamba Drift Trial
On February 14 and 15, 2020, a jury empaneled in the case of Bader Farms, Inc. v. Monsanto Company and BASF Corporation, (Case No. 1:16-cv-00299-SNL) in the U.S. District Court for the Eastern District of Missouri returned verdicts in favor of Plaintiffs and against Defendants, awarding $15 million in compensatory damages and $250 million in punitive damages.  The case appears to be the first U.S. jury trial and verdict in a cause of action for property damage to a neighboring landowner caused by drift of the herbicide dicamba.  Both Defendants Bayer (current owner, manufacturer and marketer of the Monsanto-developed dicamba-based herbicide ExtendiMax) and BASF (manufacturer of the dicamba-based herbicide Engenia), have made post-verdict statements denying all legal liability and affirming their intent to appeal the trial result and continue to manufacture and market their dicamba-based products.

Dairy Policy: Dean Foods Discloses Proposed Agreement of Sale with Dairy Farmers of America
On February 17, 2020, Chapter 11 Bankruptcy Debtor-in-Possession Dean Foods announced it has reached an agreement with the dairy producer cooperative Dairy Farmers of America (DFA) to purchase forty-four of the dairy processor’s dairy processing plants across the nation, as well as certain other assets.  The proposed DFA sale does not include all Dean Foods’ processing plants and assets.  The agreement of sale was attached to a notice, and the proposed procedures were attached to a motion, filed by Dean Foods in the bankruptcy action.  Dean Foods seeks approval of a court-supervised auction process whereby other parties can also submit higher bids than DFA on the same set of bankruptcy estate assets.  The first step will be a March 12, 2020, hearing to approve the process and timetable for completing the sale by April 27, 2020.  In addition, any sale to DFA would need antitrust clearance from the United States Department of Justice.  For more on the Dean Foods bankruptcy, see the November 14, 2019, Agricultural Law Weekly Review entry titled, “Dean Foods Files Chapter 11 Bankruptcy Petition and Discloses Sale Negotiations to Dairy Farmers of America.”

Water Quality: Ohio Releases Report Disclosing Intent to Develop TMDL for Western Lake Erie
On February 13, 2020, the Ohio Environmental Protection Agency (OEPA) announced the release of a draft 2020 report required by the Clean Water Act listing impaired waters within the state requiring Total Maximum Daily Load (TMDL) development.  For the first time, Ohio has stated its intent to develop a TMDL for Western Lake Erie due to algal blooms.  Ohio’s failure to previously do so is the subject of a lawsuit pending in federal court in which both OEPA and the U.S. Environmental Protection Agency (EPA) have denied the necessity and legal requirement to develop such a TMDL.  For more on this issue, see the November 21, 2019, Agricultural Law Weekly Review entry titled “Water Quality: Federal Judge Allows Lawsuit Seeking EPA Action on Lake Erie TMDL.”

Water Quality: New Interim Rule on Regional Conservation Partnership Program
On February 13, 2020, USDA’s Natural Resources Conservation Service (NRCS) and the Commodity Credit Corporation (CCC) published notice in the Federal Register of an immediately-effective Interim Rule, and accompanying public comment period ending April 13, 2020, which will bring regulations for the Regional Conservation Partnership Program (RCPP) into conformity with changes to the program made in the 2018 Farm Bill.  Notable was an increase in funding to $300 million annually and many simplifications of the program from its initial form authorized in the 2014 Farm Bill.  RCPP provides a mechanism for funding conservation coordination between NRCS and state, local and non-governmental partners to help producers and landowners increase the restoration and sustainable use of soil, water, and wildlife on a regional or watershed scale.

From National Ag Law Authorities & Sources:
Paul Goeringer, 2018 Farm Bill decision between ARC and PLC may not always be clear for Maryland producers (February 6, 2020).
Brigit Rollins, The Deal With Dicamba: Part Three (Feb. 12, 2020).
Roger McEowen, Conservation Easements and the Perpetuity Requirement (Feb. 10, 2020)

Penn State Research & News:
Gail McCormick, Local genetic adaption helps sorghum crop hide from witchweed (Feb. 11, 2020).
Francisco Tutella, Forest soils release more carbon dioxide than expected in rainy season (Feb. 12, 2020).

AGENCY PRESS RELEASES—STATE/FEDERAL
Pennsylvania Department of Agriculture Press Releases:
Ag Secretary Reminds Dog Owners of Licensing Responsibilities During ‘Love Your Dog Month’ (Feb. 12, 2020).

U.S. Department of Agriculture Press Releases:
USDA Names Participants in 2020 Future Leaders in Agriculture Program (Feb. 13, 2020).
USDA Invests $9 Million in Broadband for Rural Tennessee Communities (Feb. 13, 2020).
Secretary Perdue Proclaims February 16-22 as Grain Bin Safety Week (Feb. 14, 2020).
USDA Invests $3.4 Million in Broadband for Rural Illinois Communities (Feb. 14, 2020).

STATE ACTIONS—EXECUTIVE/LEGISLATIVE
Pennsylvania Executive Agencies—Actions and Notices:
Environmental Quality Board
50 Pa.B. 1011 “Administration of the Land Recycling Program [ 25 PA. CODE CH. 250 ]” Proposed Rulemaking (Feb. 15, 2020).

Pennsylvania Legislature
The House will reconvene on Monday, March 16, 2020 at 1:00PM
The Senate will reconvene on Monday, March 16, 2020 at 1:00PM unless sooner recalled by the Pres. Pro Temp.

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE
Federal Executive Agencies—Actions and Notices:
Agricultural Department
85 FR 7917 “Submission for OMB Review; Comment Request [National Agricultural Statistics Service (NASS): Field Crops Objective Yield—Substantive Change]” Notice—Comments Requested (Feb. 12, 2020)
85 FR 8245 “Submission for OMB Review; Comment Request [Agricultural Marketing Service: Application for Plant Variety Protection Certificate and Objective Description of Variety—Asexually Reproduced Varieties]” Notice—Comments Requested (Feb. 13, 2020).
85 FR 8537 “Submission for OMB Review; Comment Request [Forest Service: Special Use Administration]” Notice—Comments Requested (Feb. 14, 2020).
85 FR 8538 “Submission for OMB Review; Comment Request [Rural Utilities Service: 7 CFR 1783, Revolving Fund Program]” Notice—Comments Requested (Feb. 14, 2020).
85 FR 8805 “Submission for OMB Review; Comment Request [Food Safety and Inspection Service: Specified Risk Materials]” Notice—Comments Requested (Feb. 18, 2020).
85 FR 8805  “Submission for OMB Review; Comment Request [National Agricultural Statistics Service: Poultry Litter Nutrient Distribution Producer Survey]” Notice—Comments Requested (Feb. 18, 2020).

Agricultural Marketing Service
85 FR 8536 “Grain Fees for Official Inspection and Weighing Services Under the United States Grain Standards Act (USGSA)” Notice (Feb. 14, 2020).

Agricultural Research Service
85 FR 8537 “Notices of Prospective Exclusive, Co-Exclusive or Partially Exclusive Domestic or Foreign Licenses of Government-Owned Inventions” Notice (Feb. 14, 2020).

Animal and Plant Health Inspection Service
85 FR 8539 “Privacy Act of 1974; [Notice of new] System of Records” Notice (Feb. 14, 2020).
85 FR 8542 “Notice of Request for Revision to and Extension of Approval of an Information Collection; Plum Pox Compensation” Notice—Comment Period (Feb. 14, 2020).

Commodity Credit Corporation
85 FR 8131 “Regional Conservation Partnership Program” Rule—Comment Period (Feb. 13, 2020).

Federal Emergency Management Agency
85 FR 7902 “Revisions to Publication Requirements for Community Eligibility Status Information Under the National Flood Insurance Program” Proposed Rule—Comment Period (Feb. 12, 2020).
85 FR 8886 “Proposed Flood Hazard Determinations [Colorado]” Notice—Comment Period (Feb. 18, 2020).
85 FR 8884 “Proposed Flood Hazard Determinations [Michigan]” Notice—Comment Period (Feb. 18, 2020).

Food and Drug Administration
85 FR 8599 “Mitigation Strategies To Protect Food Against Intentional Adulteration; Draft Guidance for Industry; Availability” Notice—Comment Period (Feb. 14, 2020).

Food and Nutrition Service.
85 FR 7853 “Delayed Implementation of Grains Ounce Equivalents in the Child and Adult Care Food Program” Rule (Feb. 12, 2020).

Foreign Agricultural Service
85 FR 8806 “Notice of a Request for Revision of a Currently Approved Information Collection [issuance of certificates of quota eligibility (CQEs) to enter sugar and sugar-containing products under tariff-rate quotas (TRQs) into the U.S.]” Notice—Comment Period (Feb. 18, 2020).

Forest Service
85 FR 8180 “Conveyance of Small Tracts” Rule (Feb. 13, 2020).

Internal Revenue Service
85 FR 8344 “Income Tax Withholding From Wages” Notice—Comment Period (Feb. 13, 2020).

Rural Business-Cooperative Service
85 FR 8549 “Notice of Solicitation of Applications for Inviting Applications for the Rural Business Development Grant Program To Provide Technical Assistance for Rural Transportation Systems” Notice (Feb. 14, 2020).

Rural Utilities Service
85 FR 8554 “Cardinal-Hickory Creek 345-kV Transmission Line Project [Dane County, Wisconsin to Dubuque County, Iowa]” Notice (Feb. 14, 2020).

Susquehanna River Basin Commission
85 FR 8088 “Commission Meeting [March 13, 2020, Harrisburg, Pennsylvania]” Notice (Feb. 12, 2020).
85 FR 8089 “Grandfathering Registration Notice [January 1-31, 2020]” Notice (Feb. 12, 2020).

U.S. House Agriculture Committee Actions:
H.R.5841 “To decrease the incidence of food waste, and for other purposes” Referred to Committees on Agriculture; Ways and Means; Education and Labor; Energy and Commerce; Oversight and Reform; and House Administration (Feb. 11, 2020).
H.R.5848 “To eliminate asset limits employed by certain Federally-funded means-tested public assistance programs, and for other purposes” Referred to Committees on Agriculture; Ways and Means; Education and Labor; and Energy and Commerce  (Feb. 11, 2020).
H.R.5850 “To expedite and streamline the deployment of affordable broadband service on Tribal land, and for other purposes” Referred to Committees on Agriculture; Energy and Commerce; and Natural Resources (Feb. 11, 2020).
H.R.5859 “To establish forest management, reforestation, and utilization practices which lead to the sequestration of greenhouse gases, and for other purposes” Referred to Committees on Agriculture; Foreign Affairs; Ways and Means; and Natural Resources (Feb. 12, 2020).
H.R.5861 “To address the impact of climate change on agriculture, and for other purposes” Referred to Committees on Agriculture; Ways and Means; Education and Labor; Energy and Commerce; Oversight and Reform; and House Administration (Feb. 12, 2020).
H.R.5705 “Increasing Access and Multiple Use Act of 2020” Referred to Subcommittee on Conservation and Forestry (Feb. 13, 2020).
H.R.5715 “Petfax Act of 2020 [To improve honesty in pet sales, and for other purposes]” Referred Subcommittee on Livestock and Foreign Agriculture (Feb. 13, 2020).
H.R.5719 “CLOSE Act [To amend the Food and Nutrition Act of 2008 to modify the standards to determine eligibility to receive supplemental nutrition assistance program benefits, and for other purposes]” Referred to the Subcommittee on Nutrition, Oversight, and Department Operations (Feb. 13, 2020).
H.R.5762 “Transforming Hiring in Rural Industries and Vital Economies Act of 2020” Referred to the Subcommittee on Commodity Exchanges, Energy, and Credit (Feb. 13, 2020).
H.R.5915 “To amend the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 to repeal a certain disqualification to receive benefits under title IV of the Social Security Act and benefits under the Food and Nutrition Act of 2008; and to amend the Food and Nutrition Act of 2008 to provide that incarcerated individuals who are scheduled to be released from an institution within 30 days shall be considered to be a household for purposes of such Act” Referred to Committee on Agriculture and Committee on Ways and Means (Feb. 14, 2020).
H.R.5920 “To encourage and facilitate efforts by States and other stakeholders to conserve and sustain the western population of monarch butterflies, and for other purposes” Referred to Committees on Agriculture; Natural Resources; and Appropriations (Feb. 14, 2020).

U.S. Senate Agriculture, Nutrition, And Forestry Committee Actions:
S.3292 “A bill to amend the Federal Crop Insurance Act to reduce Federal spending on crop insurance, and for other purposes” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (Feb. 13, 2020).
S.3293 “A bill to amend the Richard B. Russell National School Lunch Act to establish the Food and Nutrition Education in Schools Pilot Program, and for other purposes” Read twice and referred to the Committee on Agriculture, Nutrition, and Forestry (Feb. 13, 2020).

Follow us on Twitter at PSU Ag & Shale Law (@AgShaleLaw) to receive AgLaw HotLinks
Feb. 12–18, 2020 Top Tweets:
China to halve tariffs on some U.S. imports as coronavirus risks grow, Reuters
Purple paint law goes live in Pennsylvania, Farm and Dairy
Oldest ‘ag-gag’ law struck down, Feedstuffs
Changes on dairy farms an opportunity for beef industry, Feedstuffs
FDA doubles down on regulating gene-edited animals, Feedstuffs
Hemp regulations on test drive for 2020, Feedstuffs
New project to describe ‘climate-friendly’ dairy cow, Feedstuffs
RFID lawsuit: Gotta have it or make it stop?, Meat + Poultry
U.S. ethanol woes spur new animal food focus for Green Plains -CEO, Reuters
Corteva to stop making pesticide linked to kids’ health problems, Reuters
Coronavirus causes diversion of US chicken shipments, AgriPulse
Bayer asks California court to reverse $86 million Roundup cancer verdict, Reuters

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Written by:
Brook Duer—Staff Attorney
Audry Thompson—Research Assistant