September 4, 2015 Weekly Round Up

Here is the first weekly round up of September!  The year is really flying by!  Here are some ag law stories in the news this week.

*  Is New “WOTUS” Rule In Effect in Texas?  As you read last week, a North Dakota federal judge issued an injunction in a case brought by 13 states, prohibiting enforcement of the EPA’s new “waters of the United States” rule.  After the decision, all sides were claiming victory.  All sides agree that in the 13 states (including New Mexico) party to the North Dakota litigation, the new rule is not currently in effect.  The disagreement, however, arises with regard to the remaining 37 states.  Those states claim that the North Dakota injunction bars enforcement of the rule across the country, not merely in those states party to that litigation.  The EPA claims that the injunction applies only to the 13 party states and that the new rule is in effect in all other US states.  This remains an open question for now. [Read article here.]  The North Dakota judge requested and received briefing from both parties on the scope of the injunction on Tuesday, but thus far, no ruling has been announced.  Meanwhile, numerous other states have filed suits in different courts.  Texas, Missisippi and Louisiana have a case pending in Texas federal courts which is currently stayed. Cases are also pending before the Sixth Circuit Court of Appeals and cases filed in district courts in Georgia and West Virginia will be transferred to the Sixth Circuit.  So…where does that leave us?  No one is exactly sure.  In the 13 states party to the North Dakota lawsuit, the new WOTUS rule certainly does not apply to you, at least for now.  If you are in one of the other 37 states, that question remains up in the air.

Texas A&M Agrilife Extension Photo

*Texas Federal Court Finds Listing of Lesser Prairie Chicken Under Endangered Species Act Was Improper.  In a victory for landowners and the oil and gas industry, a Texas federal judge has ruled that the US Fish and Wildlife Service’s listing of the lesser prairie chicken  under the Endangered Species Act was improper.  [Read article here.]  The lawsuit, filed by the Permian Basin Petroleum Association and several New Mexico counties, claimed that the USFWS did not follow their own rule for evaluating conservation efforts in considering the need to list a species under the Act.  Specifically, the court found that the USFWS did not conduct a “rigorous” analysis as it failed to consider important questions and material information necessary to property evaluate the impact of conservation efforts on the species.  Thus, the court vacated the final rule and listing determination.  [Read order here.]

*Missouri’s Right to Farm Protection Does Not Apply to Marijuana.  You may remember from this blog post that in Missouri, a criminal defendant claimed that growing marijuana was protected by the state’s new Right to Farm Constitutional amendment.  This week, a trial judge ruled that the protections of the amendment did not apply to illegal drugs.  Specifically, the judge limited the application to “legitimate” crop cultivation practices.  “Simply put, marijuana is not considered a part of Missouri’s agriculture.” [Read article here.]

* CRS Analysis of Drones and the Fourth Amendment.  The Congressional Research Service published a report analyzing how the use of drones may impact Fourth Amendment protections.  The report does an excellent job of laying out the issues that must be considered in this complex and evolving legal issue.  [Read report here.]

* Texas A&M School of Law to Host Agricultural Law Conference.  The Texas A&M School of Law will be hosting “Farm to Table: Agricultural Law in the Era of Sustainability” on October 30, 2015 at the law school in Ft. Worth.  The conference will feature a host of nationally-known speakers and a great list of interesting topics. For more information click here.

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