December 13, 2013 Weely Round Up

**This article is not a substitute for the advice of an attorney.**

Earlier this week I was able to head south to Refugio to speak to producers about water law at a tri-county CEU Day with participants from Refugio, Bee and Goliad Counties.  Welcome to the new readers from the presentation!  It has been a busy week for ag law news.  Here are some of the stories making headlines.

Federal Rule Will Prevent Prosecution of Wind Companies for Killing Birds.  In response to the Duke Energy settlement (which you read about earlier this week), the Obama Administration has announced a rule that will allow wind companies that obtain a permit to kill birds, including eagles, without liability or prosecution.  The rule allows wind companies to obtain a permit to kill  a specified number of eagles over the next 30 years.  [Read article here.]


Del Rio v. San Antonio in Battle Over Water.  The mayor of Del Rio announced this week that he will “use every legal means” to block a pipeline project proposed to pump water from Val Verde County to San Antonio.  “It is our opinion that robbing Peter to pay Paul is not a solution to the state’s water problem,” said Mayor Roberto Fernandez.  The San Antonio Water System is examining competing plans and will likely determine which of the three finalist plan to select in early 2014. [Read article here.]

South Dakota Court to Decide Motion to Dismiss in “Pink Slime” Defamation Suit.  Next week a South Dakota state court will hear arguments on ABC News’ motion to dismiss a defamation lawsuit brought by Beef Products Inc.  BPI filed suit alleging defamation after ABC News reported that the company’s signature product, lean, finely textured beef, called “pink slime” by ABC, was unsafe.  BPI seeks $1.2 million in damages.  [Read article here.]

Jensen Brothers Assign Lawsuit To Victims.  As was previously reported on this blog, cantaloupe farmers Eric and Ryan Jensen filed suit against the audit firm that gave their operation a passing grade just weeks before a listeria outbreak killed and sickened people across the US.  This week, the brothers assigned their lawsuit against the firm to the victims.  Essentially, the brothers will no longer be involved and the lawsuit will be handled by counsel for the victims and any monetary recovery will be shared among the victims.  [Read article here.]

More Fracking Ban Litigation.  Shortly after a lawsuit was filed over a fracking ban in New Mexico, lawsuits have now been filed against voter-approved bans in Colorado.  The suits were filed against three cities–Ft. Collins, Lafayette, and Broomfield–that recently passed fracking bans in the November elections.  The suits claim that local governments have no authority over oil and gas production, which is regulated by the State.  [Read article here.]

Federal Court Deems Flooding a Taking.  The Federal Circuit Court of Appeals issued a decision in Arkansas Game & Fish Commission v. United States.  In 2012, the United States Supreme Court found that increased flooding, even if temporary in nature, could constitute a taking and remanded this case back for determination of whether a taking had occurred.  The court found in favor of the plaintiffs that the water control practices of the COE, which caused increased flooding on the plaintiff’s property constituted a compensable taking.  [Read opinion here.]

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