October 9, 2020 Weekly Round Up

Happy Friday!  I’m here to get you caught up on some of the major agricultural law stories in the news over the past couple of weeks.

Photo by Loren King on Unsplash

*SCOTUS hears oral argument in Texas v. NM water law case in Pecos River dispute.

Texas v. New Mexico was on the docket to kick off the United States Supreme Court term this week.  This case, involving a dispute over the Pecos River between Texas and New Mexico, is the first time the Justices will rule on a decision made by a river master. The Pecos River Compact governs the apportionment of water between the two states.  This case involves a one-time event in 2014-2015 where floodwaters were temporarily stored in a federal reservoir and which state should bear the evaporation loss of about 21,000 acre-feet of water.  Because this question was not answered in the Compact, the river master made a ruling in 2018, finding that Texas should be charged with most of the evaporation losses since it was held in the reservoir per Texas’ request.   Texas sought review of this decision before the US Supreme Court. [Read summary here.]  At the oral argument, which was held via phone, Justice Breyer commented that this case involves “very technical stuff.”  Questions were posed about the level of deference that should be afforded a river master in these types of cases. [Read article here.]

*EPA shooting for mid-October decision in registration of previously cancelled dicamba products.

The Environmental Protection Agency plans to complete its registration decisions on two dicamba products (Bayer’s Xtendimax and BASF’s Engenia) by mid-October, said Administrator Andrew Wheeler.  You may recall that this Spring the registrations for these products, along with Corteva’s FeXapan, were vacated by the US Court of Appeals for the Ninth Circuit.  Corteva’s formulation is the same as Xtendimax, meaning that the registration for FeXapan is dependent on the decision on the registration for Xtendimax.  Wheeler refused to comment on the EPA’s likely decision, but did say he was “committed to try and get that decision as quickly as possible so that we may provide certainty for next year’s gowning season.” [Read article here.]

*Texas Central Railroad receives two  federal approvals.

The Texas Central Railroad, the high speed train planned from Dallas to Houston, received two federal approvals recently. The US Department of Transportation’s Federal Railroad Administration issued a final rule of particular applicability established the required safety standards for the Texas Central Railroad and issued a Record of Decision to complete the environmental analysis for the project. [Read complete rule here.]  Additional hurdles remain before construction may begin, including a federal approval from the Surface Transportation Board.  Additionally, legal disputes related to the eminent domain authority of the Texas Central Railroad are pending in state court.  [Read article here.]

*SCOTUS refuses to grant certiorari in Indiana hog farm case challenging constitutionality of IN Right to Farm law.

The United States Supreme Court has refused to consider Himsel v. Himsel, an Indiana case involving a constitutional challenge to the IN Right to Farm law in the context of a hog farm.  The Indiana Court of Appeals upheld the constitutionality of the state’s Right to Farm Act, which provides a defense for agricultural operations facing nuisance claims.  [Read summary of decision here.]  Given that both the Indiana Supreme Court and the US Supreme Court have declined to review the case, this appellate court decision will stand.  [Read article here, but note that title of “Supreme Court upholds Indiana’s Right to Farm Act” is misleading because the court did not uphold it, but merely voted not to grant review of the case.]

* Upcoming overview of drought risk management tools and programs.

Dr. Justin Benavidez will be posting a weekly blog series this month about the risk management tools and government programs available to operators during drought conditions.  Be sure to check out his Amarillo Ag Econ blog starting next week for overviews of Pasture Range and Forage Insurance, Livestock Forage Program, and Livestock Indemnity Program.


Upcoming Presentations

Next week, I will be guest lecturing in DeDe Jones’ Agribusiness Management class at West Texas A&M University in Canyon.  The following week, on October 21, I’ll be in Perryton, TX for an Extension beef cattle meeting where I will be talking about legal considerations for direct-to-consumer beef marketing.  This will be a new topic for me, and I’ve been diving into the research to be prepared.

To see my full list of upcoming presentation, click here.

Don’t forget–you can see my face and hear my voice anytime you’d like on our Online Ranchers Leasing Workshop course.  This three-hour course features video from Dr. Greg Kaase and me talking about economic and legal issues related to grazing, hunting, and livestock leases.  Registration is easy and you can watch the course at your own pace from the comfort of your home.  Click here for more information.

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