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AFBF v. Environmental Protection Agency

United States Court of Appeals for the Third Circuit; Case No. 13-4079

Case Summary: On September 13, 2013, the District Court for the Middle District of Pennsylvania upheld EPA’s 2010 TMDL imposing caps on nitrogen, phosphorus, and sediment loadings for waters throughout the entire 64,000-square-mile Chesapeake Bay watershed. While the Bay TMDL only directly affects farmers, home builders, towns, and others within the Bay watershed, the court’s decision leaves an open path for EPA to take similar actions to assign pollution caps across other watersheds – including potentially the entire Mississippi River Basin.

The court deferred to EPA’s interpretation that the Clean Water Act term “total maximum daily load” is ambiguous and allows the agency to set detailed “allocations” setting pollution caps for sources throughout a watershed, including poultry, livestock and row crop farms, builders, and towns. The court also upheld EPA’s demand of “reasonable assurances” that EPA’s caps will be achieved on EPA’s timeline – without regard to cost, technical feasibility, or whether the Bay’s water quality goals are even achievable. The court also deferred to EPA’s technical expertise in the modeling that served as a basis for its “allocations,” despite AFBF’s demonstration that EPA arbitrarily relied on admittedly false data. Finally, the court found no harm in EPA’s failure to provide the public with complete information on the proposed TMDL during the public comment period.

AFBF and its allies filed an appeal to the U.S. Court of Appeals for the Third Circuit.
Importance to
Agricultural
Community:
To ensure that EPA cannot dictate how and when states choose to implement water quality goals, particularly where achieving those goals involves important land use and economic decisions.
AFBF Role: Plaintiff
Select Filings: 2014.10.17 Oral Argument Notice.pdf2014.09.10 Order Scheduling Oral Argument..pdf2014.08.20 AFBF Reply Brief.pdf2014.06.30 Opposition to Members of Congress Amicus Brief.pdf2014.06.20 Congressional Brief.pdf2014.04.28 MD DE and DC Amicus Brief.pdf2014.04.28 - Law Professors Amicus Brief.pdf2014.04.09 Virginia Amicus Brief.pdf2014.04.09 City of Annapolis Amicus Brief.pdf2014.04.02 EPA Response Brief.pdf2014.02.03 State Amicus Brief in Support of AFBF Appeal.pdf2014.02.03 County Amicus Brief in Support of AFBF Appeal.pdf2014.01.27 AFBF Joint Opening Brief.pdf2013.12.16 Third Circuit Scheduling Order.pdf2013.09.13 District Court Opinion.pdf2012.11.02 AFBF Reply Brief on Deference.pdf2012.10.24 Chesapeake Bay Foundation Post Argument Brief on Deference.pdf2012.10.24 EPA Post Argument Brief on Deference.pdf2012.10.17 AFBF Post Argument Brief on Deference.pdf2012.08.10 Chesapeake Bay Foundation Opposition to Oral Argument.pdf2012.07.20 Chesapeake Bay Foundation Reply Brief.pdf2012.07.18 AFBF Memo in Support of Motion to Strike.pdf2012.07.16 City of Annapolis Amicus.pdf2012.07.13 Pennsylvania Municipal Authorities Assn. Reply Brief.pdf2012.07.13 National Assn. of Clean Water Authorities Reply Brief.pdf2012.06.20 EPA Memo in Support of Cross Motion for Summary Judgment.pdf2012.05.21 AFBF Reply Brief.pdf2012.04.20 National Assn. of Clean Water Authorities Brief.pdf2012.04.20 Pennsylvania Municipal Authorities Assn. to Opposition to AFBF Motion for Summary Judgment.pdf2012.04.12 Chesapeake Bay Foundation Opposition to AFBF Motion for Summary Judgment.pdf2012.03. 27 EPA Memo in Support of Cross Motion for Summary Judgment.pdf2012.01.27 AFBF Motion for Summary Judgment.pdf2012.01.11 Amended Case Management Order.pdf2011.12.30 District Court of Pennsylvania Order Partially Granting Motion to Complete Administrative Record.pdf2011.10.11 AFBF Memo in Support of Motion to Complete Administrative Record.pdf2011.10.11 AFBF Motion to Complete Administrative Record.pdf2011.07.28 Pennsylvania Municipal Authorities Assn. Reply to Opposition to Motion to Intervene.pdf2011.07.07 Chesapeake Bay Foundation Reply to Opposition to Motion to Intervene.pdf2011.07.05 Municipal Clean Water Assn. Reply to Opposition to Motion to Intervene.pdf2011.06.27 Pennsylvania Municipal Authorities Assn. Motion to Intervene.pdf2011.06.24 National Assn. of Home Builders Complaint.pdf2011.06.20 AFBF Opposition to Motions to Intervene.pdf2011.06.02 Chesapeake Bay Foundation Motion to Intervene.pdf2011.05.25 Municipal Clean Water Assn. Motion to Intervene.pdf2011.04.04 AFBF First Amended Complaint.pdf2011.01.10 AFBF Complaint.pdf

AFBF v. EPA

United States District Court for the District of Minnesota; Case No. 13-cv-01751

Case Summary: AFBF filed a lawsuit in the U.S. District Court for the District of Minnesota in order to stop EPA from violating the privacy rights of farmers and ranchers by disclosing personal information in response to several pending Freedom of Information Act (FOIA) requests. AFBF asked the court for a temporary restraining order to swiftly enjoin EPA’s imminent release of personal information in response to the FOIA requests. More broadly, the lawsuit seeks to clarify the legal obligations of federal agencies to protect the privacy interests of citizens in response to FOIA requests. AFBF's goal is to make favorable law establishing that the privacy protections provided in FOIA’s “Exemption 6” extend to the name, personal home address, email and phone number of individual farm families. The National Pork Producers Council joined with AFBF in filing the lawsuit.
Importance to
Agricultural
Community:
To ensure that EPA and other federal agencies do not disclose personal information about farmers, ranchers and their families in response to FOIA requests.
AFBF Role: Plaintiff
Select Filings: 2014.12.01 Intervenors Reply Brief.pdf2014.12.01 EPA Reply Brief.pdf2014.11.14 AFBF Reply in Support of Summary Judgment.pdf2014.10.15 EPA Opening Brief.pdf2014.10.15 Environmental Intervenors Opening Brief.pdf2014.08.15 AFBF Memorandum of Law in Support of Summary Judgment.pdf2014.01.10 Scheduling Order.pdf2013.07.10 Letter Withdrawing Motion for Temporary Restraining Order.pdf2013.07.05 AFBF Complaint.pdf2013.07.05 AFBF Motion for Temporary Restraining Order.pdf2013.07.05 AFBF Memorandum in Support of Temporary Restraining Order.pdf

Catskill Mountains Chapter of Trout Unlimited, Inc., et al. v. EPA

United States Court of Appeals for the Second Circuit; Case No. 14-1823

Case Summary: AFBF joined with the Florida Farm Bureau Federation in filing an amicus brief urging the U.S. Court of Appeals for the 2nd Circuit to uphold EPA’s 2008 Water Transfer Rule. The brief defended this favorable EPA rule interpreting the Clean Water Act (CWA) to not require NPDES permits for transfers of water (containing pollutants) from one jurisdictional water body into another. The rule provides that unless there is an intervening municipal, industrial or agricultural use, the transfer of water containing pollutants from one body of navigable water to another is not an “addition” of a pollutant “to navigable waters” within the meaning of the CWA. In other words, transferring pollutants between jurisdictional water bodies is not an addition of pollutants to navigable waters within the meaning of the CWA. EPA’s reasoning is based on its interpretation of the CWA to mean that all waters that fall within the Act’s definition of “navigable waters” should be viewed as a unitary whole for NDPES permitting purposes.

AFBF urged the court to uphold the rule not in deference to EPA’s interpretation of the CWA, but because the plain language of the CWA does not authorize the NPDES regulation of water transfers. EPA should not have any discretion to require permits for water transfers in the future, particularly as EPA seeks to redefine “waters of the U.S.” to include ditches and ephemeral drains located in and around farmland.
Importance to
Agricultural
Community:
To ensure that NPDES permits are not required for transfers of water on and off the farm.
AFBF Role: AmicusAmicus is Latin for “friend of the court”, a person who is not a party to a lawsuit and petitions the court or is requested by the court to file a brief in the action because that person has a strong interest in the subject matter. 
Select Filings: 2014.09.19 AFBF FFBF Amicus Brief.pdf

Center for Biological Diversity v. EPA

United States District Court for the Northern District of California; Case No. 3:11-cv-293

Case Summary: AFBF and ten agricultural pesticide user and applicator groups intervened to oppose a lawsuit seeking to impose use restrictions, if not outright bans, on hundreds of registered pesticides. In its 2011 complaint, Center for Biological Diversity (CBD) alleged that EPA violated Endangered Species Act (ESA) §7(a)(2) by failing to consult with national wildlife agencies over the potential effects of 381 pesticides on 214 threatened and endangered species in 49 states (as well as Puerto Rico). The complaint cited stormwater runoff, aerial and groundwater application, and spray drift as sources of potential injury to listed species. AFBF intervened in the lawsuit as part of a “growers group” to guard against interim restrictions on pesticide use that are not justified by evidence of likely harm to protected species. After protracted and ultimately unsuccessful settlement negotiations, the district court agreed with arguments made by EPA and industry intervenors and dismissed the lawsuit. On April 22, 2013, the court’s ruling rejected plaintiffs’ claims on several grounds, concluding that the plaintiffs’ complaint challenged existing pesticide registrations outside of the appropriate legal forum and failed to identify affirmative agency actions by EPA that would trigger ESA consultation requirements or confer standing to the plaintiffs, but allowed CBD to refile and correct several deficiencies. CBD filed a narrower second amended complaint (naming fewer pesticides) in January 2014.

On August 13, 2014, the district court partially granted EPA’s and industry’s motions to dismiss, issuing three distinct rulings. First, the court found that it lacked jurisdiction to review 31 of the 74 claims, dismissing those claims without affording CBD another chance to re-file its complaint on those claims. That dismissal is final, and CBD has filed an appeal to the Ninth Circuit. Second, the district court will allow CBD to again re-file its complaint on some claims, asking the plaintiffs again to correct several deficiencies noted by the court. Finally, the court denied motions to dismiss on 11 claims, which will remain in the lawsuit before the district court. The parties agreed to stay the pending district court case (for claims not dismissed and claims dismissed with leave to amend) while the plaintiffs pursue an appeal.
Importance to
Agricultural
Community:
To avoid unnecessary restrictions on pesticides that many farmers depend on for crop protection purposes.
AFBF Role: IntervenorThe entry into a lawsuit by a third party who, despite not being named a party to the action, has a personal stake in the outcome. 
Select Filings: 2014.09.19 CBD Motion for Entry of Final Judgment.pdf2014.08.13 Order Partially Granting Motions to Dismiss.pdf2014.07.10 Industry Intervenors Reply in Support of Motion to Dismiss.pdf2014.07.10 EPA Reply in Support of Motion to Dismiss.pdf2014.06.26 CBD Opposition to Motion to Dismiss.pdf2014.05.12 Intervenors' Motion to Dismiss.pdf2014.05.05 Government Motion to Dismiss Second Amended Complaint.pdf2014.01.21 Second Amended Complaint.pdf2013.11.25 Order for More Definitive Statement.pdf2013.08.29 Plaintiffs' Opposition to Government Motion for More Definitive Statement.pdf2013.08.28 Intervenors Motion for More Definitive Statement.pdf2013.06.05 Amended Complaint.pdf2013.04.22 Court Opinion Granting Motion to Dismiss.pdf2013.01.18 Industry Intervenors Reply in Support of Motion to Dismiss.pdf2013.01.18 EPA Reply in Support of Motion to Dismiss.pdf2012.12.21 Center for Biological Diversity Opposition to Motion to Dismiss.pdf2012.11.16 AFBF Motion to Dismiss.pdf2012.11.16 Industry Intervenors Motion to Dismiss.pdf2012.11.16 EPA Motion to Dismiss.pdf2012.11.16 Grower Group Brief in Support of Industry Intervenors Motion to Dismiss.pdf2012.10.24 EPA Notice of Failure to Reach Settlement.pdf2012.09.14 Intervenor-Defendant Joint Status Report.pdf2012.02.21 CropLife America Motion to Dismiss.pdf2012.02.21 AFBF Motion to Dismiss.pdf2011.06.03 District Court Hearing Transcript.pdf2011.01.19 Center for Biological Diversity Complaint.pdf

Center for Food Safety, et al. v. Jewell, et al.

United States District Court for the District of Columbia; Case No.14-cv-00360

Case Summary: AFBF joined with allies in filing an amicus brief in support of the U.S. Fish & Wildlife Service in Center for Food Safety, et al. v. Jewell, et al. The U.S. district court for the District of Columbia will determine whether the U.S. Fish & Wildlife Service’s decision to authorize the cultivation of genetically engineered (GE) crops and the use of certain pesticides (2,4-D, dicamba and neonicotinoids) in certain Midwestern National Wildlife Refuges (NWR) violated the National Environmental Policy Act (NEPA). This is the second lawsuit filed by the plaintiffs seeking a ban on the planting of GE crops in Midwestern NWRs.
Importance to
Agricultural
Community:
Through its continued opposition to these claims, AFBF seeks to maintain a level of certainty in the USDA deregulatory process and minimize potential disruptions to farmers’ ability to utilize GE products.
AFBF Role: AmicusAmicus is Latin for “friend of the court”, a person who is not a party to a lawsuit and petitions the court or is requested by the court to file a brief in the action because that person has a strong interest in the subject matter. 
Select Filings: 2014.06.27 AFBF Joint Amicus Brief.pdf

Community Association for Restoration of the Environment v. Cow Palace, LLC, et al.

United States District Court for the Eastern District of Washington; Case No. 2:13-cv-03016

Case Summary: In February of 2013, the Center for Food safety (CFS) brought separate citizen suits against five dairies located in Washington’s Yakima Valley. CFS contends that manure is a “discarded” “solid waste” under the Resource Conservation and Recovery Act (RCRA) when applied to agricultural fields at above-agronomic levels and leaked from lagoons storing liquid manure. CFS alleges that this action is a violation of RCRA because (1) it causes an imminent and substantial danger to public health and the environment by causing levels of nitrates in groundwater drinking sources above federal maximum contaminant levels, and (2) it constitutes illegal open dumping. While CFS seeks extensive injunctive relief against the dairies, its primary goal is to establish novel legal precedent imposing RCRA liability on livestock and poultry operations as if the farms were solid waste landfills. The case against one of the dairies, Cow Palace, is scheduled for trial in February of 2015. Before the trial can begin, the court must resolve several legal issues that will shape how the judge will examine the facts raised at trial. AFBF joined with the National Cattlemen’s Beef Association (NCBA) and two Washington cattlemen groups in filing an amicus brief providing legal arguments supporting the dairy’s defense.
Importance to
Agricultural
Community:
To ensure that farmers and ranchers do not face Resource Conservation and Recovery Act liability for actions already regulated under the Clean Water Act and Safe Drinking Water Act.
AFBF Role: AmicusAmicus is Latin for “friend of the court”, a person who is not a party to a lawsuit and petitions the court or is requested by the court to file a brief in the action because that person has a strong interest in the subject matter. 
Select Filings: 2014.12.02 AFBF Joint Amicus Brief.pdf

Defenders of Wildlife v. Jewell

United States District Court for the District of Columbia; Case No. 1:14-cv-01025

Case Summary: AFBF joined with the Colorado, Kansas, New Mexico and Texas Farm Bureaus in seeking to intervene in legal challenges to the FWS listing of the Lessor Prairie Chicken (LPC) as a “threatened” species under the ESA. In 2014, FWS listed the LPC as a “threatened” species and issued a rule under ESA §4(d) exempting certain agricultural and conservation practices on private lands from the ESA’s §9 ban on the “take” of the LPC. The 4(d) rule also authorized continued actions taken as part of voluntary and cooperative conservation agreements between government and landowners, providing strong incentives to further the conservation of the species without the stringent restrictions imposed by the ESA’s “take” prohibitions. Environmental groups challenged the listing, claiming that the LPC warrants an elevated “endangered” listing and that FWS lacks discretion to issue a 4(d) rule authorizing actions that otherwise result in the “take” of the species.
Importance to
Agricultural
Community:
AFBF’s participation in this case focuses on defending the legal basis for the 4(d) rule and preserving broad discretion for federal wildlife agencies to authorize agricultural activities in 4(d) rules. AFBF’s goal is to support cooperative strategies to conserve listed species while avoiding undue restrictions on agricultural production imposed by the ESA’s “take” liability.
AFBF Role: IntervenorThe entry into a lawsuit by a third party who, despite not being named a party to the action, has a personal stake in the outcome. 
Select Filings: 2014.10.31 Farm Bureau Declarations.pdf2014.10.31 Joint Motion to Intervene.pdf

Environmental Integrity Project, et al. v. EPA, et al.

United States District Court for the District of Columbia; Case No.1:13-cv-1306

Case Summary: AFBF filed an amicus brief supporting EPA’s decision to withdraw its proposed Clean Water Act Section 308 concentrated animal feeding operation reporting rule (CAFO Reporting Rule). If finalized, the CAFO Reporting Rule would have unlawfully used the Clean Water Act’s information collection authority to impose additional regulatory reporting requirements on all CAFOs. The reporting requirements would have mandated all CAFOs to file information with EPA about the owners and the farm on a regular basis or face administrative fines. These requirements would have applied to all CAFOs, including those that do not discharge or cannot discharge. In addition to AFBF’s legal concerns, AFBF opposed the rule because it would have been unduly burdensome on farmers and ranchers and the information sought by EPA was already available from many state regulatory authorities. AFBF’s brief supported EPA’s decision to withdraw the rule as a lawful exercise of the agency’s discretion.
Importance to
Agricultural
Community:
To ensure that EPA cannot use the Clean Water Act’s information collection authority to impose a new, burdensome and unnecessary CAFO regulation.
AFBF Role: AmicusAmicus is Latin for “friend of the court”, a person who is not a party to a lawsuit and petitions the court or is requested by the court to file a brief in the action because that person has a strong interest in the subject matter. 
Select Filings: 2014.10.10 EPA Reply.pdf2014.08.08 AFBF Amicus Brief.pdf2014.08.01 EPA Cross Motion for Summary Judgment.pdf2014.06.16 Plaintiffs' Motion for Summary Judgment.pdf2013.08.28 Complaint.pdf

Front Range Equine Rescue v. USDA

United States Court of Appeals for the Tenth Circuit; Case No. 13-2187

Case Summary: AFBF, the New Mexico Farm and Livestock Bureau and the National Cattlemen’s Beef Association joined in an amicus brief opposing HSUS’s lawsuit seeking to expand the National Environmental Policy Act (NEPA) to USDA’s meat processing approvals and inspection directives. HSUS and its allies argued that USDA violated NEPA in approving the “grant of inspection” for a new New Mexico equine slaughterhouse. HSUS also claimed that USDA’s drug residue testing protocols used to approve equine processing facilities violated NEPA. The District Court rejected the lawsuit, concluding that NEPA does not apply and deferring to USDA’s judgment in approving meat processing facilities for equines. HSUS filed an appeal to the 10th Circuit and oral argument is scheduled for October 1, 2014.
Importance to
Agricultural
Community:
AFBF’s brief seeks to prevent the expansion of NEPA to meat processing facilities.
AFBF Role: AmicusAmicus is Latin for “friend of the court”, a person who is not a party to a lawsuit and petitions the court or is requested by the court to file a brief in the action because that person has a strong interest in the subject matter. 
Select Filings: 2014.05.02 AFBF NCBA amicus brief.pdf2013.11.01 District Court decision.pdf2013.08.02 Order Granting TRO.pdf2013.07.19 HSUS First Amended Complaint.pdf

Gulf Restoration Network v. EPA

United States Court of Appeals for the Fifth Circuit; Case No. 13-31214

Case Summary: On September 20, 2013 a federal district court in Louisiana issued a mixed ruling – partially favorable and partially unfavorable – in litigation brought to force EPA to establish numeric nutrient criteria (NNC) for all waters within the entire Mississippi River basin. Although the court ruled in favor of plaintiffs that EPA’s 2011 denial of their petition to set federal NNC was unlawful, the decision also provides EPA with a legal basis for concluding that federal NNC are not “necessary” under the Clean Water Act. AFBF, 15 state Farm Bureau organizations and dozens of other groups and state governments intervened in the suit to oppose the imposition of arbitrary federal nutrient caps across 40 percent of the contiguous United States. The court held that EPA’s denial of the plaintiffs’ petition unlawfully failed to answer the essential question posed by the petition: whether federal NNC are “necessary” within the meaning of the Clean Water Act. Importantly, however, the court rejected the plaintiffs’ arguments that the Clean Water Act confines EPA to considering only scientific and technical factors in answering that question. The court agreed with AFBF and its allies in concluding that EPA can consider a broad range of factors in making its determination, including the primary role of states in setting and meeting water quality standards under the Clean Water Act. Nothing in the court’s ruling precludes EPA from determining that federal NNC are not “necessary” based on the very same factors it relied on in denying the petition previously (e.g., collaborative federal-state efforts, EPA’s policy preference for states to take the lead, etc.). The court remanded the matter, instructing EPA to make a decision on the plaintiffs’ original petition within 180 days. EPA has filed an appeal and this case is fully briefed.
Importance to
Agricultural
Community:
To ensure that costly, scientifically indefensible, and overly stringent federal numeric nutrient criteria are not imposed by a court on 40 percent of the U.S. land mass.
AFBF Role: IntervenorThe entry into a lawsuit by a third party who, despite not being named a party to the action, has a personal stake in the outcome. 
Select Filings: 2014.04.29 EPA Reply Brief.pdf2014.04.08 Environmental Groups Opening Brief.pdf2014.02.27 EPA Opening Appellate Brief.pdf2013.09.20 District Court Opinion.pdf2013.05.10 EPA Reply Brief.pdf2013.05.10 AFBF Joint Reply Brief.pdf2013.04.03 Plaintiffs' Reply in Support of Motion for Summary Judgment.pdf2013.05.10 State Intervenors' Reply Brief.pdf2013.03.04 Joint Intervenor Brief.pdf2012.11.19 Plaintiffs' Motion for Summary Judgment.pdf2012.09.20 Case Management Order.pdf2012.07.13 State Governments Motion to Intervene.pdf2012.05.29 Mosaic Motion to Intervene.pdf2013.01.18 EPA Motion to Dismiss and for Summary Judgment.pdf2012.05.21 EPA Answer.pdf2012.05.23 National Association of Clean Water Agencies Motion to Intervene.pdf2012.05.10 AFBF Joint Motion to Intervene.pdf2012.03.13 Complaint.pdf2012.05.10 AFBF Joint Memorandum in Support of Motion to Intervene.pdf2008.07.30 Petition for Rulemaking for Numeric Nutrient Criteria and Total Maximum Daily Loads.pdf2011.07.29 EPA Denial of Petition for Rulemaking.pdf

Hawkes Co., Inc., et al. v. United States Army Corps of Engineers

United States Court of Appeals for the Eighth Circuit; Case No. 13-3067

Case Summary: AFBF joined with industry allies in an amicus brief supporting a Minnesota landowner's lawsuit seeking judicial review of the Corps of Engineers' assertion of jurisdiction over private land. In this case, the landowner filed suit after the Corps asserted Clean Water Act jurisdiction over wetlands on a 537-acre parcel of land. The Corps claimed that the wetlands had a “significant nexus” to a distant navigable waterway. The district court dismissed the landowner’s case, concluding that the Corps’ assertion of jurisdiction over private property under the Clean Water Act does not generate sufficient legal consequences to create a right to judicial review. Throughout the history of the Clean Water Act, landowners have been denied the right to challenge agency assertions of jurisdiction unless they first go through the expensive and time-consuming permitting process.
Importance to
Agricultural
Community:
The AFBF amicus brief urged the U.S. Court of Appeals for the Eighth Circuit to recognize the serious legal and financial consequences that flow from an agency’s assertion of Clean Water Act jurisdiction and allow the landowner to seek immediate judicial review.
AFBF Role: AmicusAmicus is Latin for “friend of the court”, a person who is not a party to a lawsuit and petitions the court or is requested by the court to file a brief in the action because that person has a strong interest in the subject matter. 
Select Filings: 2013.11.15 AFBF Joint Amicus Brief in Support of Hawkes.pdf

Kent Recycling Services, LLC v. U.S. Army Corps of Engineers

United States Supreme Court; Case No: 14-493

Case Summary: AFBF joined with industry allies in an amicus brief supporting a lawsuit seeking judicial review of the U.S. Army Corps of Engineers' assertion of jurisdiction over private land. In this case, the landowner filed suit after the Corps asserted Clean Water Act jurisdiction over wetlands on a parcel of farmland the owner intended to use as a solid waste landfill. The landowner challenged the jurisdictional determination in court, but both the district court and the U.S. Court of Appeals for the Fifth Circuit concluded that the landowner could not bring his case because the Corps’ assertion of jurisdiction over private property under the Clean Water Act does not generate sufficient legal consequences to create a right to judicial review. In this case, the landowner asks the U.S. Supreme Court to review this case in order to reverse the national body of case law denying landowners the right to challenge agency assertions of jurisdiction unless they first go through the expensive and time-consuming permitting process.
Importance to
Agricultural
Community:
The AFBF amicus brief urged the U.S. Supreme Court to take this case in order to recognize the serious legal and financial consequences that flow from an agency’s assertion of Clean Water Act jurisdiction and allow the landowner to seek immediate judicial review.
AFBF Role: AmicusAmicus is Latin for “friend of the court”, a person who is not a party to a lawsuit and petitions the court or is requested by the court to file a brief in the action because that person has a strong interest in the subject matter. 
Select Filings: 2014.12.01 AFBF Joint Amicus Brief.pdf

Perez v. Mortgage Bankers Association

United States Supreme Court, Case No. 13-1041 (Consolidated)

Case Summary: AFBF and several allies filed an amicus brief urging the U.S. Supreme Court to vacate a Department of Labor “interpretive rule” issued without compliance with the Administrative Procedure Act’s (APA) notice-and-comment rulemaking procedures. AFBF argued that the interpretive rule was a substantive and definitive policy change from another recently issued interpretive rule, essentially amending federal regulations without the required public notice-and-comment. AFBF’s interest in this case is to ensure that federal agencies cannot repeatedly seek to substantively amend regulations through IRs and then ask courts to defer to their policy choices without attending to the public notice-and-comment process mandated by the APA. Absent the APA’s restrictions, federal agencies have an incentive to promulgate broad and vague rules while retaining flexibility to later substantively “clarify” those rules on a whim (or with a new presidential administration). A favorable outcome would also curb the agencies’ tendency to issue binding regulations as “guidance” to avoid the transparency and judicial review of legislative rulemaking.
Importance to
Agricultural
Community:
For AFBF, and the farmers and ranchers who are typically required to comply with federal rules and guidance, a favorable decision in this case would curb capricious agency flip-flopping and provide additional transparency and opportunity to provide public comment on regulations and policies aimed at or affecting agriculture.
AFBF Role: AmicusAmicus is Latin for “friend of the court”, a person who is not a party to a lawsuit and petitions the court or is requested by the court to file a brief in the action because that person has a strong interest in the subject matter. 
Select Filings: 2014.10.16 AFBF Joint Amicus.pdf

Rose Acre Farms v. North Carolina Department of Environment and Natural Resources

U.S. District Court for the Eastern District of North Carolina; Case No. 5:14-cv-00147

Case Summary: AFBF and United Egg Producers filed an amicus brief supporting Rose Acre Farm’s lawsuit seeking to establish that runoff carrying incidental amounts of dust and feathers from the ground outside its poultry houses is “agricultural stormwater” exempt from Clean Water Act National Pollutant Discharge Elimination System (NPDES) permit requirements. This lawsuit is the second time a federal district court has been asked to decide whether precipitation induced runoff carrying incidental amounts of pollutants (such as dust, feathers and manure) from the farmyard outside a CAFO’s “production area” is “agricultural stormwater” excluded from federal regulation under the Clean Water Act. In 2014, a West Virginia district court, in Lois Alt v. EPA, ruled already that ordinary runoff from the farmyard is not regulated by the Clean Water Act. In this case, Rose Acre Farms operates a poultry farm classified as a large CAFO in North Carolina, where it houses 4 million birds in 12 poultry houses. Rose Acre challenges the authority of the North Carolina Department of Environment and Natural Resources to require a Clean Water Act NPDES permit for stormwater carrying incidental amounts of dust and feathers blown to the ground from the farm’s poultry house ventilation fans. Rose Acre contends that the runoff is “agricultural stormwater” and is therefore exempt from NPDES permit requirements. The state’s position is identical to the legal position EPA argued, and lost, in Lois Alt v. EPA—that the Clean Water Act exemption for agricultural stormwater does not apply to runoff from the farmyard at a CAFO. EPA filed an amicus brief in support of the state’s effort to dismiss the case on procedural grounds, arguing that Rose Acre’s lawsuit fails to raise a federal question that can be redressed in federal court.
Importance to
Agricultural
Community:
This case raises important national issues about EPA’s authority to regulate livestock and poultry farms and the scope of the 40-year old exemption of “agricultural stormwater discharges” from Clean Water Act permit requirements.
AFBF Role: AmicusAmicus is Latin for “friend of the court”, a person who is not a party to a lawsuit and petitions the court or is requested by the court to file a brief in the action because that person has a strong interest in the subject matter. 
Select Filings: 2014.12.02 AFBF UEP Amicus Brief.pdf

San Luis & Delta-Mendota Water Authority, et al. v. Jewell

United States Court of Appeals for the Ninth Circuit; Case No. 11-15871

United States Supreme Court, Case. No. 14-402

Case Summary: On May 22, 2014 AFBF joined with farm lenders and other farm organizations in an amicus brief urging the full U.S. Court of Appeals for the Ninth Circuit to grant rehearing en banc and reverse a three-judge panel’s decision to restrict water deliveries to seven million acres of prime California farmland to protect the threatened delta smelt. The panel’s ruling prohibits federal wildlife agencies from considering the economic impacts of “reasonable and prudent measures” that they require federal agencies to take to avoid jeopardizing listed species. On July 23, 2014 the United States Court of Appeals for the Ninth Circuit denied rehearing en banc. Several parties filed petitions asking the U.S. Supreme Court to review this case. AFBF joined with allies to file two amicus briefs supporting two separate petitions for review.
Importance to
Agricultural
Community:
AFBF’s interest in this case is to make favorable precedent prohibiting the wildlife agencies from requiring measures to protect listed species at any and all costs to the agricultural community and society.
AFBF Role: AmicusAmicus is Latin for “friend of the court”, a person who is not a party to a lawsuit and petitions the court or is requested by the court to file a brief in the action because that person has a strong interest in the subject matter. 
Select Filings: 2014.11.03 Amicus Brief in Support of Cert_State Water Contractors.pdf2014.11.03 Amicus Brief in Support of Cert_Stewart & Jasper Orchards Petition.pdf2014.07.23 Order Denying Rehearing.pdf2014.05.22 Amicus Brief in Support of Rehearing.pdf

Sierra Club v. ICG Hazard, LLC

U.S. Court of Appeals for the Sixth Circuit, No. 13-5086

Case Summary: AFBF filed an an amicus brief urging the U.S. Court of Appeals for the Sixth Circuit court not to narrow the so-called National Pollutant Discharge Elimination System (NPDES) “permit shield” for permittees who obtain coverage under a general, as opposed to an individual, permit. AFBF argued that the scope of the permit shield applies equally to both individual and general permits.
Importance to
Agricultural
Community:
A favorable ruling will ensure that farmers and ranchers who seek coverage under a general permit are shielded from liability for discharges of pollutants not explicitly listed in a general permit.
AFBF Role:
Select Filings: 2013.05.01 AFBF Joint Amicus Brief.pdf