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2013 ANNUAL REPORT AFBF LEGAL ADVOCACY PROGRAM LLC 速

Introduction As the Voice of Agriculture® in the courts, AFBF engages in litigation to shape many of the laws that affect farmers’ and ranchers’ ability to conduct their operations – laws concerning federal environmental regulatory programs, the availability of crop protection and biotechnology products, private property and privacy rights. The program is funded by AFBF, which in turn is funded by Farm Bureau membership dues. Contributions from state or county Farm Bureau organizations and the public are also welcomed.*

The AFBF Legal Advocacy Annual Report serves two purposes. One is to facilitate the AFBF Board of Directors’ review and assessment of the program and its results. Another is to share information with Farm Bureau staff, Farm Bureau members, and the public about AFBF’s recent and ongoing litigation on behalf of America’s farmers and ranchers.

INSIDE THIS REPORT 2013 Highlights______________1 2013 By the Numbers__________3 Docket Overview_____________4 Cost of Current Cases__________8 Historical Case Expenses________8 Case Summaries_____________9

*Contributions to the AFBF Legal Advocacy Program LLC are not tax deductible.

Photo by Lindsey Hochhalter

2013 Highlights This was a year of court decisions for AFBF’s Legal Advocacy Program, with federal courts issuing important rulings in 12 of our 21 active litigation matters. All told, AFBF helped secure eight favorable decisions reining in regulatory overreach, preserving access to crop protection and biotechnology products, and strengthening private property rights.

rainwater runoff from Mrs. Alt’s farmyard.

A federal district court ruled that ordinary stormwater from the farmyard at Mrs. Alt’s farm – which is a “concentrated animal feeding operation” or “CAFO” as defined by EPA – is “agricultural stormwater” exempt from Clean Water Act regulation.

Unfortunately, not all of the results have been positive. But when we face setbacks in the courts, we do the same thing farmers and ranchers do. We stand up, dust off, and keep trying. When you know you’re in the right, and you remember who you’re working for, perseverance comes naturally.

Of course, AFBF has also engaged in some new efforts in 2013, including a new suit aimed at protecting farmer and rancher personal information from unlawful public disclosure by the government. Some of the year’s highlights include:

OPPOSING REGULATORY OVERREACH AFBF v. EPA — AFBF and its allies lost round one of our challenge to EPA’s so-called “pollution diet” or “total maximum daily load” (TMDL) for the Chesapeake Bay watershed.

The federal district court in Pennsylvania upheld EPA’s authority to set nutrient and sediment caps for farms, home builders, towns and other economic activities across the 64,000 square mile watershed. We have appealed to the Third Circuit, not only for the future of agriculture in the Bay watershed, but to prevent a similar power grab across the Mississippi River basin and beyond.

Alt v. EPA — West Virginia poultry farmer Lois Alt, AFBF, and the West Virginia Farm Bureau defeated EPA’s effort to regulate ordinary

Lois and Tony Alt with their grandchildren at the Eight Is Enough Farm.

Coalition for Responsible Regulation v.

EPA — The U.S. Supreme Court agreed to consider whether EPA has the authority to set limits for greenhouse gas (GHG) emissions from “stationary sources” under the Clean Air Act. In 2014, the Supreme Court will determine whether EPA’s decision to set standards for GHG emissions from cars and light duty trucks also allows it to set standards for non-mobile sources such as power plants, large industrial sources or, conceivably, farms.

Decker v. Northwest Environmental Defense Center — The U.S. Supreme Court ruled that stormwater generated from the harvesting of trees is not an “industrial activity” regulated under the Clean Water Act’s industrial stormwater permit program.

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Food & Water Watch v. EPA — AFBF intervened to defend the right of state governments to allow water quality “trading” as a cost effective means of achieving water quality goals.

filing a narrower, but similarly flawed, amended complaint, and the litigation continues.

Gulf Restoration Network v. EPA — A federal district court in Louisiana agreed that EPA may consider a broad range of technical, social and economic factors when determining whether federal numeric nutrient criteria are “necessary” to achieve the Clean Water Act’s goals for waters within the vast Mississippi River basin watershed. While the controversy is far from over, the court sent the question back to EPA with all the flexibility the agency needs to determine that federal standards are not necessary to meet the basin’s water quality goals.

AFBF v. EPA — AFBF filed suit in federal district court in Minnesota to stop EPA from publicly disclosing personal information about livestock and poultry farmers and ranchers in response to Freedom of Information Act (FOIA) requests. The lawsuit seeks to enforce FOIA’s requirement that the government protect personal information – such as individual names, residential addresses, email addresses, and phone numbers – that has nothing to do with the government transparency goals of the FOIA law.

PROTECTING ACCESS TO MODERN AGRICULTURAL TECHNOLOGIES Center for Food Safety v. Vilsack — The U.S. Court of Appeals for the Ninth Circuit affirmed the unconditional deregulation of Monsanto’s Roundup Ready Alfalfa product by the Animal and Plant Health Inspection Service (APHIS).

As AFBF and the Biotechnology Industry Organization argued in an amicus brief, the court concluded that if a technology does not pose a “plant pest” risk under the Plant Protection Act, APHIS has no legal obligation to conduct an Endangered Species Act consultation or National Environmental Policy Act environmental review.

Center for Biological Diversity v. EPA — A federal court in California dismissed a suit seeking to restrict the use of hundreds of registered pesticides pending years of Endangered Species Act “consultation” over whether (or not) the products may affect protected species. Plaintiffs responded by

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DEFENDING PRIVACY AND PROPERTY RIGHTS

Arkansas Fish & Game Commission v.

U.S. Army Corps of Engineers — The U.S. Supreme Court reversed an appellate court decision that banned property owners from seeking compensation for temporary government-induced floods. The Court held that the Takings Clause protects against all government invasions of private property, even if the government’s intrusion is only temporary.

Koontz v. St. Johns River Water Management District — The U.S Supreme Court strengthened federal takings law in ruling that property owners may seek compensation when regulatory authorities make arbitrary or unreasonable demands for property, money, or services as a condition of granting a landuse permit – even if the landowner refuses the government’s demands and the permit is denied. The Court also ruled for the first time that that federal law protects against arbitrary and excessive demands for money or services, as well as demands for real property.

2013 By the Numbers Total Number of Cases Started or Continued—21

BY SUBJECT MATTER1 Administrative Biotechnology Clean Air Act Clean Water Act Endangered Species Nat’l Envtl. Policy Act Privacy Rights Property Rights 0

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BY PARTY STATUS Petitioner/Plaintiff Intervenor Amicus

BY COURT2 U.S. Supreme Court U.S. Court of Appeals U.S. District Court

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Some cases involve more than one subject matter.

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Some cases involve activity in multiple courts over the course of the year.

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Docket Overview Case Name

Issue at Stake

Status

ADMINISTRATIVE LAW City of Arlington v. Federal Communication Comm’n (S. Ct.)

Establish that courts need not defer to a federal agency’s interpretation of the scope of its own jurisdiction.

Closed in 2013. The court ruled judges must defer to reasonable interpretations of an ambiguous statute, even if the question involves the scope of the agency’s own jurisdiction.

National Mining Ass’n v. EPA (D.C. Cir.)

Oppose EPA’s use of “guidance” to change regulations.

On-going.

BIOTECHNOLOGY Center for Food Safety v. Vilsack (9th Cir.)

Defend against efforts to impose unnecessary Endangered Species Act consultation requirements in connection with USDA deregulation of Roundup Ready Alfalfa and other biotechnology products.

Closed in 2013. The court ruled Roundup Ready Alfalfa does not pose a plant pest risk, and therefore USDA has no duty to consult.

CLEAN AIR ACT Coalition for Responsible Regulation v.

EPA (D.C. Cir., S. Ct.)

Oppose unlawful regulation of greenhouse gas emissions under the Clean Air Act.

On-going. Court affirmed EPA authority to regulate greenhouse gases. The U.S. Supreme Court granted certiorari.

CLEAN WATER ACT AFBF v. EPA (M.D. Pa., 3rd Cir.)

Alt v. EPA (N.D. W.Va.)

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Challenge unlawful EPA imposition of nutrient and sediment limits on land use activities as part of a “total maximum daily load” for the Chesapeake Bay.

On-going. District court upheld EPA’s action. Appeal filed.

Challenge EPA’s demand that poultry On-going. District court ruled CAFO farmer seek discharge permit for stormwater farmyard runoff is exempt agricultural carrying incidental amounts of dust or stormwater. EPA has until mid-December to manure from farmyard. appeal.

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Case Name

Issue at Stake

Status

CLEAN WATER ACT (CONTINUED) Decker v.

Northwest Environmental Defense Center (9th Cir., S. Ct.)

Oppose efforts to classify tree harvesting as an “industrial activity” and “point source” requiring Clean Water Act permits for stormwater.

Closed in 2013. Court ruled tree harvesting is not “industrial activity” and does not require a Clean Water Act permit for stormwater.

Ecological Rights Foundation v. PG&E and Pacific Bell Telephone (9th Cir.)

Oppose expansion of the definition of a “point source” under the Clean Water Act to include utility poles and similar structures.

Closed in 2013. Court ruled utility poles are not point sources.

Food & Water Watch v. EPA (D.D.C.)

Oppose efforts to limit water quality “trading” as a means of implementing Clean Water Act “total maximum daily loads”.

On-going.

Gulf Restoration Network v. EPA (E.D. La., 5th Cir.)

Oppose efforts by activists to force EPA imposition of federal numeric nutrient standards for waters across the Mississippi River basin.

On-going. Court ruled EPA must respond to activists’ petition on the merits. EPA has filed notice of appeal.

Hawkes Co. v.

Allow landowners to seek immediate judicial U.S. Army Corps review of assertions of federal Clean Water of Engineers Act jurisdiction over purported “navigable (8th Cir.) waters.”

On-going.

Mingo Logan Mine v. EPA (D.C. Cir., S. Ct.)

Oppose EPA’s assertion of authority to retroactively veto Clean Water Act “dredge and fill” permits.

On-going. Court ruled that EPA has Clean Water Act authority to retroactively veto “dredge and fill” permits. Petition for certiorari filed.

Northwest Environmental Defense Center v. EPA (9th Cir.)

Defend EPA regulation providing that timber harvesting activities do not require stormwater permits under the Clean Water Act.

Closed. Suit voluntarily dismissed.

Sierra Club v.

ICG Hazard Inc. (6th Cir.)

Ensure that facilities holding general Clean Water Act permits are appropriately protected from liability by a “permit shield”.

On-going.

ENDANGERED SPECIES ACT Aransas Project v. Shaw (S.D. Tex., 5th Cir.)

Oppose claim that state’s “failure to regulate” the use of vested private water rights is a “take” of species under the Endangered Species Act.

On-going. District court ruled Texas’ failure to use regulatory authorities to protect species was an unlawful “take” of species.

Texas has appealed.

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Case Name

Issue at Stake

Status

ENDANGERED SPECIES ACT (CONTINUED) Center for Biological Diversity v. EPA (N.D. Cal.)

Oppose unnecessary “interim restrictions” on the use of registered pesticide products pending Endangered Species Act consultation.

On-going. Court dismissed the complaint on procedural grounds. Amended complaint filed.

NATIONAL ENVIRONMENTAL POLICY ACT American Independence Mines v. USDA (S. Ct.)

Seek reversal of 9th Circuit ruling that only those who suffer environmental, as opposed to economic, injuries may challenge U.S. noncompliance with the National Environmental Policy Act.

Closed in 2013. The U.S. Supreme Court declined to consider the issue.

PRIVACY RIGHTS AFBF v. EPA (D. Minn.)

Challenge EPA release of farmers’ and ranchers’ personal information in response to Freedom of Information Act (FOIA) requests.

On-going.

PROPERTY RIGHTS Arkansas Fish & Game Commission v.

U.S. Army Corps of Engineers (S. Ct.)

Protect landowners’ ability to seek compensation for temporary intentional flooding by the government that destroys soils.

Closed in Dec. 2012. U.S. Supreme Court ruled that temporary floods may constitute a compensable taking.

Brandt v.

United States (S. Ct.)

Oppose United States’ claim to “implied reversionary interest” entitling it to ownership of abandoned railroad right-ofway that bisects private property.

On-going.

Koontz v.

St. Johns River Water Management District (S. Ct.)

Allow landowners to seek compensation for takings of property resulting from arbitrary and excessive permit conditions.

Closed in 2013. Court ruled that landowners may seek compensation for excessive and arbitrary permit conditions, including requests for money or services.

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Case Summaries 1. AFBF v. EPA, No. 1:11-cv-00067, U.S. District Court, Middle District of Pennsylvania; No. 13-4079, U.S. Court of Appeals, Third Circuit (Chesapeake Bay TMDL) AFBF Involvement: AFBF, the Pennsylvania Farm Bureau, and several agricultural trade associations filed suit challenging EPA’s total maximum daily load (TMDL) for the Chesapeake Bay watershed.

Court Decision: 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 action 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.

Status: AFBF and its allies have filed an appeal to the U.S. Court of Appeals for the Third Circuit, which should reach a decision in 2014.

Photo by Lindsey Hochhalter

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2. AFBF v. EPA, No. 0:13-cv-01751, U.S. District Court, District of Minnesota (FOIA, Privacy Rights)

more personal data about farmers and ranchers in six more states in response to newly filed FOIA requests.

AFBF Involvement: AFBF filed a lawsuit along with the National Pork Producers Council to protect the privacy rights of farmers and ranchers when federal agencies respond to Freedom of Information Act (FOIA) requests.

Status: EPA agreed not to respond to the pending FOIA requests for information about farmers and ranchers, or future requests for the same information, until the court rules on the lawsuit.

Three environmental activist groups with pending FOIA requests before EPA asked the court for permission to intervene. AFBF did not oppose the groups’ intervention, but filed a response objecting to their inflammatory and false statements about poultry and livestock farmers.

Summary: AFBF’s suit seeks to prevent the disclosure of personal information about farmers and ranchers in six states in response to several pending FOIA requests. More broadly, the suit seeks to clarify the obligations of federal agencies to protect personal information about farmers and ranchers from public disclosure when government agencies respond to FOIA requests.

This controversy began in early 2013, after EPA responded to several FOIA requests by unlawfully disclosing the names, home addresses and phone numbers, personal emails, GPS coordinates and spousal information of tens of thousands of livestock and poultry farmers and ranchers. EPA had collected the data from 29 state government authorities as part of an earlier settlement agreement with environmental organizations to gather information about concentrated animal feeding operations (CAFOs).

AFBF strenuously objected to the public disclosure of personal information, but EPA took the position that it has no obligation under FOIA to protect certain personal information held in government records. EPA claims that personal information need not be protected: (1) when the information is already accessible by the public through other channels (such as a FOIA request to the state, or a search of a state website), and (2) when farmers and ranchers do business as a separate legal entity, such as a corporation or family partnership, even when that entity is family owned and operates out of the family home. AFBF filed suit on July 5 and sought a temporary restraining order when it learned that EPA was set to disclose

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3. Alt v. EPA, No. 2:12-cv-00042, U.S. District Court, Northern District of West Virginia (Agricultural Stormwater) AFBF Involvement: AFBF and the West Virginia Farm Bureau intervened alongside poultry farmer and Farm Bureau member Lois Alt in challenging an EPA order requiring permit coverage for ordinary rainwater runoff from a farmyard.

Court Decision: On October 23, 2013, the U.S. District Court for the Northern District of West Virginia became the first court to decide whether ordinary stormwater runoff from a CAFO farmyard – carrying incidental amounts of dust, feathers and manure – is “agricultural stormwater” exempt from federal regulation under the CWA. The court soundly rejected EPA’s position that the “agricultural stormwater” exemption does not apply to CAFOs other than land application areas where crops are grown. The court also rejected EPA’s argument that such CAFO farmyard runoff is “industrial stormwater” subject to EPA’s industrial stormwater regulations. The court found that runoff from Mrs. Alt’s CAFO farmyard is “agricultural stormwater,” exempt from CWA regulation.

The court found that it should interpret the statutory language based on the words’ common meaning and common sense. Despite efforts by EPA and the environmental intervenors to paint Alt’s farm as an “industrial” operation, the court concluded that CAFOs are “agricultural” and precipitationinduced runoff containing incidental amounts of pollutants from the farmyard is “stormwater”. The court distinguished the CAFO “production areas” – where animals, feed, and manure are maintained or stored – from the farmyard outside those areas. The court found stormwater runoff from the farmyard is exempt from federal CWA regulation so long as the discharge is caused by rainfall and not by improper practices.

This lawsuit arose in 2012 when EPA inspected Lois Alt’s farm and issued an Administrative Compliance Order compelling her to seek coverage under a CWA National Pollutant Discharge Elimination System (NPDES) permit or face fines of up to $37,500 a day. Alt’s farm is considered a large CAFO, consisting of eight poultry houses with approximately 200,000 broilers.

Status: EPA and the environmental intervenors have until mid-December to appeal the decision.

If no appeal is filed, this decision will be binding in West Virginia and will be persuasive precedent for other courts that may consider the same issue.

If an appeal is filed, the case will go to the U.S. Court of Appeals for the Fourth Circuit.

4. American Independence Mines v.

USDA, No. 12-935, U.S. Supreme Court (National Environmental Policy Act Standing) AFBF Involvement: AFBF joined with industry allies to file an amicus brief urging the U.S. Supreme Court to grant certiorari to decide whether plaintiffs who have suffered economic injury (as opposed to environmental injury) can sue to challenge unlawful federal agency actions under the National Environmental Policy Act (NEPA).

Court Decision: The U.S. Supreme Court declined to consider the case, and a harmful decision by the U.S. Court of Appeals for the Ninth Circuit remains in place. Under the Ninth Circuit’s ruling, parties with solely economic injuries may not challenge government noncompliance with NEPA. The case concerned a mining company’s challenge to the Forest Service’s 2005 Travel Management Rule, claiming that the rule violated NEPA in closing to motor vehicles many of the forest roads the company used in Idaho’s Payette National Forest. The Ninth Circuit ruled that the company lacked “standing” to sue because its interests in enforcing NEPA are purely economic – not environmental – and are therefore not within NEPA’s “zone of interests”. The court also held that if a party has an interest in environmental

Photo by Ken Kashian, ILFB

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protection that is “intertwined” with an economic interest, that party may have standing to sue under NEPA, so long as the environmental protections lack economic motivations.

This case is negative for ranchers or others who depend on federal licensing or the use of federal lands in states within the Ninth Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington). Government decisions concerning licensing or other activity on federal lands often involve NEPA obligations.

A favorable ruling would have strengthened the ability of farmers and ranchers to challenge federal action that violates NEPA and results in economic harm, consistent with the law in other courts of appeals.

5. Arkansas Fish & Game Commission v.

U.S. Army Corps of Engineers, No. 11-597, U.S. Supreme Court (Property Takings) AFBF Involvement: AFBF, American Forest Resource Council, Center for Constitutional Jurisprudence, National Association of Home Builders, and National Federation of Independent Business filed a joint amicus brief in support of the State of Arkansas’ lawsuit seeking compensation for a taking of property that resulted from temporary, but recurring, intentional flooding by the U.S. Army Corps of Engineers.

Court Decision: On December 4, 2012, a unanimous U.S. Supreme Court reversed a ruling by the U.S. Court of Appeals for the Federal Circuit that had required any governmentinduced flooding to be permanent in order for the landowner to seek compensation for a “taking” under the Takings Clause of the U.S. Constitution.

The Court clarified that under federal takings law, a government-induced flood, even if only temporary, may constitute a taking of private property for public use. The Court explained that a temporary flood of private property is similar to a regulatory

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taking, and government liability to the landowner for the taking is based on the particular factual circumstances of each case (e.g., foreseeability, causation, extent of property damage). Although the Court did not agree with AFBF and its allies that the physical invasion of land is categorically compensable under the Takings Clause, the decision removes the Federal Circuit’s outright bar to establishing a takings claim for temporary floods. As a result, farmers and ranchers may have the right to seek compensation when farmland is flooded and soils are destroyed due to government-induced floods.

This case arose after the Court of Federal Claims awarded Arkansas $5.7 million in “just compensation” for the Corps’ temporary, but annual, flooding of 23,000 acres of valuable timber and recreational lands. The Court of Federal Claims concluded that the Corps’ intentional flooding resulted in a physical “taking” of property, compensable under the Takings Clause. The Federal Circuit reversed, ruling that temporary flooding is not a compensable taking.

6. Brandt v. United States, No.12-1173, U.S. Supreme Court (Rails to Trails) AFBF Involvement: AFBF joined with the National Cattlemen’s Beef Association and other industry allies in filing an amicus brief in support of a Wyoming family’s effort to stop the federal government from taking possession of an abandoned railroad right-of-way that bisects the family’s land.

Summary: In this case, the federal government is asserting ownership rights to an abandoned strip of land that bisects the Brandt family property.

Until recently, the strip of land served as a railroad right-of-way, or easement, originally granted to the railroad in 1908 under the General Railroad Right-of-Way Act of 1875. The underlying property was deeded by the federal government to the Brandt family in 1976, subject to the easement

for use as a railroad right-of-way, but without any express or implied future interest in the land by the federal government. The U.S. Court of Appeals for the Tenth Circuit agreed with the government’s position that it retains an “implied reversionary interest,” in the right-of-way, allowing the government to take possession of the strip of land once the right-of-way is abandoned by the railroad in order to construct a recreational trail across the Brandt family’s property. The U.S. Supreme Court will examine whether the government retains an implied reversionary interest in rights-of-way issued under the 1875 Act once the underlying lands are deeded into private ownership. The outcome of this case will determine the property interests of thousands of landowners across the nation, particularly in the West, where railroad rights-of-way were routinely issued under the federal government’s program to encourage the expansion of our nation’s railway system.

Status: The coalition amicus brief was filed on November 22. A decision is expected by the end of June 2014.

7. Center for Biological Diversity v. EPA, No. 03-11-cv-293, U.S. District Court, Northern District of California (ESA Consultation on Registered Pesticides) AFBF Involvement: AFBF, National Agricultural Aviation Association, National Corn Growers Association, National Alliance of Forest Owners, National Cotton Council, National Council of Farmer Cooperatives, National Potato Council, Oregonians for Food and Shelter, USA Rice Federation, and Washington Friends of Farms and Forests (“grower group”) intervened to defend a lawsuit against EPA. Summary: The Center for Biological Diversity (CBD) filed a lawsuit seeking to impose use restrictions, if not outright bans, on hundreds of pesticides based on the possibility that they may affect threatened or endangered species or their critical habitat. In its 2011 complaint, 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 hundreds of pesticides on hundreds of 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. CBD asked the court to: (1) declare EPA’s failure to consult unlawful under the ESA, (2) order consultation on all of the identified

Photo by Laurie Link, MOFB

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pesticides, and (3) apply interim restrictions on pesticides where they may affect listed species until the consultations have been completed and the product registrations are in compliance with the ESA. The legal issue of whether ESA consultation is required in connection with pesticide registrations has been addressed in several prior lawsuits in the U.S. Court of Appeals for the Ninth Circuit. With this so-called “megasuit,” CBD seeks to capitalize on these prior court decisions and impose restrictions on pesticide products pending decades of “consultation” and pesticide label revisions.

CBD strongly opposed intervention by growers and pesticide manufacturers (“industry intervenors”) and largely refused to directly negotiate with industry intervenors during protracted and ultimately unsuccessful settlement negotiations.

The grower group’s purpose is primarily to guard against interim restrictions on pesticide use that are not justified by evidence of likely harm to protected species.

Status: On April 22, 2013, the court dismissed CBD’s lawsuit, but allowed an opportunity for CBD to re-file. The court agreed with arguments made by EPA and industry intervenors that CBD’s 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 on the plaintiffs.

In June, CBD filed a lengthy amended complaint, focusing on a narrower group of pesticides, but restating the same arguments rejected by the court’s earlier order. On November 25, the court partially granted EPA and industry intervenors’ motions for a more specific complaint, instructing CBD to again re-file with specific information about each EPA action that allegedly violated the ESA.

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8. Center for Food Safety v. Vilsack, No. 12-15052, U.S. Court of Appeals, Ninth Circuit (Roundup Ready Alfalfa) AFBF Involvement: AFBF joined with the Biotechnology Industry Organization in filing an amicus brief in support of USDA’s 2011 deregulation of the genetically engineered plant variety Roundup Ready Alfalfa (RRA).

Court Decision: The U.S. Court of Appeals for the Ninth Circuit upheld the Animal and Plant Health Inspection Service’s (APHIS) unconditional deregulation of RRA. The court concluded that: (1) APHIS correctly determined that RRA is not a “plant pest” under the Plant Protection Act, and (2) APHIS’s deregulation of RRA did not require ESA consultation or a NEPA analysis because the agency lacks jurisdiction over organisms that are not plant pests. The decision should help in opposing future efforts to stall deregulation of biotechnology products.

This lawsuit is the second attempt by the Center for Food Safety (CFS) to vacate a USDA decision to deregulate RRA. In the first lawsuit, plaintiffs prevailed in their arguments that USDA failed to comply with NEPA. (Geertson Seed Farms v.

USDA.) USDA then completed a court-mandated environmental impact statement and issued a new deregulation decision in 2011. CFS again filed a lawsuit challenging the deregulation under the ESA.

9. City of Arlington v. Federal Communications Commission, No. 11-1545, U.S. Supreme Court (Agency Deference) AFBF Involvement: AFBF joined with several national trade associations in an amicus brief on the question of whether courts owe deference to federal agency interpretations of their own jurisdiction.

Court Decision: This case arose when several cities and municipalities challenged action taken by the Federal Communications Commission (FCC) under the 1934 Federal Communications Act. The court of appeals upheld the FCC’s action, deferring to the agency’s interpretation of the statute. The U.S. Supreme Court granted review to determine what standard of review federal courts must use when reviewing a federal agency’s interpretation of the scope of its own jurisdiction.

On May 20, 2013, the U.S Supreme Court ruled that courts must defer to a federal agency’s reasonable interpretation of an ambiguous provision in a statute that the agency is charged with administering, even if the question involves the scope of the agency’s own jurisdiction. In a 5-4 decision, the majority concluded that no meaningful distinction can be drawn between the scope of an agency’s authority (its “jurisdiction”) and the application of that authority granted by Congress, and courts need only ask “whether the agency has gone beyond what Congress has permitted it to do”.

The Court’s majority rejected arguments made

by AFBF and its allies that reviewing courts should independently interpret statutory questions concerning the scope of an agency’s jurisdiction, so as to curb the tendency of agencies to continually expand their regulatory authority.

10. Coalition for Responsible Regulation v. EPA, Nos. 12-1146, 12-1248, 12-1254, 12-1268, 12-1269, 12-1272, U.S. Supreme Court (GHG Regulations) AFBF Involvement: AFBF and roughly 80 other groups petitioned for review of a four-part EPA scheme to regulate greenhouse gases (GHG) under the Clean Air Act (CAA).

Summary: The U.S Supreme Court granted six of the nine petitions filed by industry groups asking the Court to review a June 26, 2012 decision by the U.S. Court of Appeals for the D.C. Circuit upholding EPA’s GHG regulations. The EPA regulations under review set GHG emission standards for cars and light-duty vehicles (mobile sources) and required permits for power plants and large industrial sources of GHGs (stationary sources).

The appellate court’s 2012 decision established important precedent interpreting the CAA and EPA’s statutory mandate to establish emission standards for both mobile and stationary sources.

The court concluded that EPA had substantial evidence to conclude that GHGs endanger human health and welfare. As a result, the CAA requires EPA to set emission standards for mobile sources and, according to the court, triggers an EPA obligation to require permits for stationary sources.

The court also upheld EPA’s so-called “Tailoring Rule,” which raised the statutory emission thresholds to avoid the need to regulate millions of smaller sources of GHG emissions. The full U.S. Court of Appeals for the D.C. Circuit reconsidered and reached the same result (en banc review), with the majority concluding that while the policy issues surrounding the regulation of GHGs are of exceptional importance, the CAA and prior U.S. Supreme Court precedent dictate the result.

The single question now before the Supreme Court is whether EPA permissibly determined that its decision to regulate GHG emissions from new motor vehicles also triggered CAA permitting requirements for non-mobile sources, such as power plants and industrial sources that also emit GHGs. Status: AFBF will file a joint brief with the U.S. Chamber of Commerce and the State of Alaska.

A ruling is expected by the end of June 2014.

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11. Decker v. Northwest Environmental Defense Center, No. 11-347, U.S. Supreme Court (Clean Water Act Permits for Tree Harvesting) AFBF Involvement: AFBF was joined by the National Pork Producers Council and the National Association of Farmer Cooperatives in an amicus brief urging the U.S. Supreme Court to reverse the Ninth Circuit’s controversial “forest roads” decision.

Court Decision: On March 20, 2013, the U.S. Supreme Court upheld EPA’s interpretation of its long-standing industrial stormwater regulation to provide that logging (harvesting trees) is not an “industrial activity” subject to CWA permitting for stormwater discharges. This decision reverses a controversial Ninth Circuit ruling that would have required National Pollutant Discharge Elimination System (NPDES) permit coverage for channeled stormwater from forest roads or areas where trees are harvested. In reaching its conclusion, the Court agreed that it was reasonable for EPA to conclude that the system of culverts and ditches that discharge stormwater from forest roads are directly related to the harvesting of trees as raw materials. The channeled runoff is not related to the “manufacturing” or “processing” of raw materials at a fixed industrial plant

Photo by Brenda Hastings, OHFB

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and therefore not associated with “industrial activities”. The Court concluded that it owed a high level of deference to EPA’s interpretation of its own regulations, particularly where that interpretation has been consistently held for decades. Importantly, this decision confirms that states, with assistance from EPA, have the primary responsibility and requisite knowledge and expertise to establish best management practices that minimize stormwater runoff from forestry activities.

Status: The case has been remanded back to the lower court for further proceedings. Plaintiff NEDC continues to pursue litigation seeking to require NPDES permits for forest roads as “point sources” in this case.

12. Ecological Rights Foundation v. PG&E and Pacific Bell Telephone Co., No. 1116042, U.S. Court of Appeals, Ninth Circuit (Definition of a “Point Source”) AFBF Involvement: AFBF joined with a coalition of trade associations in an amicus brief in support of PG&E.

Court Decision: The U.S. Court of Appeals for the Ninth Circuit rejected efforts to expand the historical understanding of a “point source” and the universe of activities that require CWA permits. The court ruled that wood preservatives that may seep from chemically treated utility poles do not require NPDES permits because utility poles are not “point sources” and do not generate stormwater “associated with industrial activity”.

The court rejected the plaintiff’s argument that when rainwater falls on and around the utility poles, the resulting stormwater contaminated with wood preservative becomes a “point source” discharge. Absent additional channelization, the stormwater is a non-point source and an NPDES permit is not required. The court also rejected the plaintiff’s contention that utility poles themselves are point sources, concluding that EPA has not made such a determination and utility poles are not intended to convey pollutants to waters.

The issue is important to farmers and ranchers because federal CWA permit requirements for the use of treated wood poles would risk triggering permit requirements for fencing and other uses of such materials in agricultural operations and farmlands.

13. Food & Water Watch v. EPA, No. 12cv-1639, U.S. District Court, District of Columbia (Water Quality Trading) AFBF Involvement: AFBF and the National Association of Home Builders joined to intervene in a lawsuit challenging EPA’s authority to allow state water quality trading programs as a means of implementing the Chesapeake Bay TMDL. Summary: In the Bay TMDL, EPA established “allocations” or caps of allowable nutrient and sediment loading from various existing pollutant sources throughout the Chesapeake Bay watershed. The Bay TMDL did not, however, provide allocations to accommodate future economic development and expansion of

nutrient and sediment sources in the watershed, such as construction or expansion of a CAFO, housing development, waste treatment plant or manufacturing facility. Instead, the Bay TMDL provided that states may allow the trading of pollution “credits” through state-administered water quality trading programs, subject to EPA oversight and approval. These state water quality trading programs would allow states to meet the TMDL’s goals by assigning pollutant loading allocations for new and expanding sources of pollutants so long as the new loadings are offset by reductions in pollutant loading allocations from existing sources.

The plaintiffs’ lawsuit contends that EPA lacks CWA authority to allow trading against existing allocations in a TMDL. According to the plaintiffs, trading is tantamount to changing TMDL allocations, which plaintiffs argue can be accomplished only through EPA approval and modification of the TMDL itself. Although the lawsuit targets water quality trading in the Bay watershed, it also more broadly challenges the legal basis for any state-authorized water quality trading and offset program, alleging that the CWA does not authorize trading as a lawful means of implementing TMDLs. AFBF intervened in this lawsuit to preserve the ability of states to utilize water quality trading as a viable and cost-efficient means to implement TMDLs nationwide.

Status: This case is fully briefed and awaiting decision.

14. Gulf Restoration Network v. EPA, No. 2:12-cv-00677, U.S. District Court, Eastern District of Louisiana (Mississippi River Basin Nutrient Criteria) AFBF Involvement: AFBF, along with 15 state Farm Bureaus and 32 other national and state agricultural organizations, intervened in a lawsuit that seeks to impose federal numeric nutrient criteria (NNC) for all waters throughout the

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Mississippi River basin. The 15 participating state Farm Bureaus are Arkansas, Illinois, Iowa, Indiana, Kansas, Kentucky, Louisiana, Minnesota, Mississippi, Missouri, Nebraska, Oklahoma, South Dakota, Tennessee, and Wyoming.

Court Decision: This case concerns a 2008 petition in which plaintiffs asked EPA to establish NNC for all waters within the entire Mississippi River basin, encompassing more than 40% of the landmass of the contiguous United States. EPA denied the petition in 2011, and plaintiffs sought a court order forcing EPA to override existing state narrative nutrient criteria in favor of federally imposed NNC. On September 20, 2013, the court issued a mixed, but more-favorable-thannot, ruling. The court held that EPA erred when it denied the plaintiffs’ petition without answering the essential question posed by the petition: whether federal NNC are “necessary” within the meaning of the CWA. However, the court found that in making that determination, the CWA affords EPA the flexibility to consider not only scientific and technical factors, but a broad range of social and economic factors, including the primary role of states in setting and meeting water quality standards under the CWA. This is likely to be only the beginning of a long process before EPA and the courts concerning nutrient restrictions across the Mississippi River basin aimed at addressing hypoxic conditions in the Northern Gulf of Mexico. Although the plaintiffs’ petition is again before EPA, the court provided EPA with the legal authority to find 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.).

Status: The court remanded the matter, instructing EPA to make a decision on the plaintiffs’ original petition within six months. EPA has filed a

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notice of appeal. AFBF will continue to be actively engaged in this process to: (1) to preserve the limits set by Congress for federal power over state water quality policy, and (2) to avoid unwarranted restrictions on farming operations by ensuring that EPA’s decisions are rational and science-based.

15. Hawkes Co. v. U.S. Army Corps of Engineers, No. 13-3067, U.S. Court of Appeals, Eighth Circuit (Judicial Review of Jurisdictional Determinations) AFBF Involvement: AFBF joined with industry allies in support of a landowner’s suit seeking judicial review of the Corps of Engineers’ assertion of federal jurisdiction over purported “navigable waters.”

Summary: The case concerns efforts by Minnesota landowners to challenge the Corps’ unlawful assertion of federal jurisdiction over a 537-acre parcel of land. The Corps issued a jurisdictional determination (JD), finding that the plaintiffs’ land included “navigable waters” because it contained wetlands with a significant nexus to Minnesota’s Red River of the North, and therefore a CWA §404 “dredge and fill” permit would be required prior to mining the land for peat.

The plaintiffs filed suit under the Administrative Procedure Act, alleging that there is no significant nexus between the wetlands and the Red River and therefore the JD is unlawful. The district court ruled in favor of the government, concluding that although the JD is final, the Corps’ assertion of federal CWA jurisdiction over private property does not generate sufficient legal consequences to create a right to judicial review.

Throughout the history of the CWA, landowners have been denied the right to challenge agency assertions of CWA jurisdiction unless they first go through the expensive and time consuming

permitting process. A favorable ruling in this case would establish important precedent for allowing landowners to immediately challenge unlawful assertions of jurisdiction. The potential for immediate judicial review also may curb overzealous assertions of jurisdiction by the Corps.

Status: Briefing in this case is on-going.

16. Koontz v. St. Johns River Water Management District, No. 11-1447, U.S. Supreme Court (Property Takings) AFBF Involvement: AFBF joined a broad industry coalition in an amicus brief supporting a Florida landowner’s “takings” claim based on arbitrary and excessive land-use permit conditions.

Court Decision: On June 25, 2013, the U.S. Supreme Court issued a ruling paving the way for landowners to seek compensation when government authorities make arbitrary and excessive demands in exchange for land-use permits, known as “exactions”. The Court reversed a Florida Supreme Court opinion, holding that government’s demand for real property, money, or services as a condition for a land-use permit must be related to the purpose of the land-use permit and proportionate to the impact of the proposed project. These requirements apply even when the permit application is

denied or the applicant refuses to accept the unreasonable permit conditions. Importantly, the Court acknowledged that money or services, and not merely real property, can constitute private property that may be compensated when taken by government for a public purpose. In this 5-4 decision, the majority opined that a contrary ruling would allow an “unconstitutional extortionate demand” by government and violate the protections afforded to property owners by the Fifth Amendment.

In this case, Florida landowner Koontz applied for a land-use permit to develop 3.7 acres of an 11.4 acre parcel in an area containing wetlands and development restrictions overseen by the St. Johns River Water Management District. The District denied the permit after Koontz refused to agree to certain mitigation measures found in the proposed permit conditions, including a requirement to pay for improvements to Districtowned wetlands located 50 miles from his property. Believing that the District’s demands were excessive in light of the limited environmental effects that his building proposal would have caused, Koontz sued the District in Florida state court, arguing that the “exaction” of his private property was an impermissible “regulatory taking”.

Status: The case was remanded back to the Florida courts for further proceedings.

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17. Mingo Logan Mine v. EPA, No. 125150, U.S. Court of Appeals, District of Columbia (EPA Retroactive Permit Veto Authority) AFBF Involvement: AFBF joined an industry amicus brief in support of a West Virginia coal company’s defense of a favorable district court decision that nullified EPA’s veto of a CWA permit issued by the U.S. Army Corps of Engineers.

Court Decision: On April 23, 2013, a unanimous three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled that §404(c) of the CWA authorizes EPA to retroactively veto a §404 “dredge and fill” permit issued by the Corps, effectively granting EPA authority to halt mountaintop mining disposal activities. Reversing a favorable ruling by the district court, the court ruled that the CWA grants EPA limitless authority to veto a permit’s disposal specification, an action that effectively revokes a permit issued by the Corps. EPA may act whenever it determines that the Corps permit will have an “unacceptable adverse effect” – even if that determination is made years after the permit has issued, and despite the permittee’s compliance with the permit.

This case arose after the Corps issued Mingo Logan a §404 permit in 2007, authorizing the use of several streams as fill disposal sites for mountaintop mining removal activities at the controversial West Virginia Spruce No.1 mine.

Two years, and over the Corps’ objections, EPA asserted authority under §404(c) to unilaterally revoke the permit. EPA’s novel assertion of a retroactive veto will greatly expand EPA’s authority over §404 permits and will decrease the level of certainty otherwise afforded to farmers and ranchers who rely on §404 nationwide and individual dredge and fill permits for farm activities.

Status: Mingo Logan filed a petition for U.S. Supreme Court review. AFBF will join an amicus coalition in support of Mingo Logan.

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18. National Mining Association v. EPA, No. 12-5310, U.S. Court of Appeals, D.C. Circuit (Regulation through Guidance) AFBF Involvement: AFBF joined with industry allies in an amicus brief urging the court of appeals to reject efforts by EPA to use guidance to amend procedural and substantive CWA requirements.

Summary: In 2010, Kentucky, West Virginia and mining interests challenged EPA guidance that expanded its role in the environmental permitting of Appalachian coal surface mines under the CWA. The EPA guidance redirected to itself screening and review processes by which the Corps reviewed applications for CWA §404 “dredge and fill” permits for Appalachian coal mines. The guidance also established a new numeric “benchmark” for conductivity (limiting the ability of water to conduct electricity) which arguably set a numeric water quality standard that EPA claimed must be incorporated into state-issued NPDES permits.

Combined, the procedural and substantive mandates in the guidance changed the regulatory process for issuing §404 and state-issued NPDES permits in Appalachia and resulted in widespread delays in mining permit approvals. The district court ruled that the guidance was unlawful on several grounds and that EPA effectively amended the CWA by conferring additional reviewing and substantive authority to itself—authority that the CWA reserves solely for the Corps.

EPA claims that the CWA grants the agency an open-ended authority to review and insert substantive requirements into permits issued by other federal and state agencies in order to achieve the CWA’s goals. A favorable ruling in this case would provide helpful precedent on the issue of EPA’s CWA authority and on the issue of agency efforts to change the law through “guidance”. The joint AFBF amicus brief urged the court to reject efforts by EPA to use guidance to grant itself a broad new authority to review and dictate the terms of CWA §404 permits issued by the Corps and state-issued §402 NPDES permits.

Status: This case is fully briefed and oral argument has not been scheduled.

19. Northwest Environmental Defense Center v. EPA, No. 13-70057, U.S. Court of Appeals, Ninth Circuit (New EPA “Forest Roads” Regulation) AFBF Involvement: AFBF joined with forestry allies to intervene in a lawsuit challenging the new EPA “Forest Roads” regulation.

Summary: This is the second lawsuit filed

by NEDC seeking to require CWA permits for stormwater associated with timber harvesting activities (e.g. stormwater from forest roads.)

NEDC filed this lawsuit primarily as a “protective appeal” to reserve its right to challenge a new EPA forest roads regulation finalized in December 2012 while the related case, Decker v. NEDC, was still pending before the U.S. Supreme Court. The new forest roads rule provides that stormwater discharges from logging and forest roads do not constitute stormwater associated with “industrial

activities” and therefore do not require CWA permits. Although NEDC has indicated in its court filings that it intends to resolve further permitting requirements for forest roads in the context of another lawsuit (Decker v. NEDC on remand as noted above), AFBF intervened to guard against a court ruling that could expand the universe of farming and forestry activities that require a CWA permit.

Status: On October 31, 2013, plaintiffs voluntarily dismissed this case, while preserving their right to file another challenge to the rule in the future.

20. Sierra Club v. IGC Hazard, Inc., No. 135086, U.S. Court of Appeals, Sixth Circuit (Scope of CWA General Permit Shield) AFBF Involvement: AFBF joined with industry allies in an amicus brief urging the court not to narrow the CWA permit shield for permittees who obtain coverage under a general, as opposed to an individual, permit.

Summary: This case presents the first time a

Photo by Dustin Mielke, OKFB

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court of appeals will determine whether the scope of the so-called NPDES “permit shield” applies equally to both individual and general permits issued under the CWA. The plaintiff in this case challenged the general permit issued by the state of Kentucky to a coal mining company after water samples demonstrated elevated levels of selenium at the mine. The plaintiff contends that the mine violated its general permit because the permit does not specifically authorize selenium discharges. Unlike the broad scope of permit coverage afforded to dischargers who seek individual permits, the plaintiff argues that general permits authorize pollutants only if they are within the specified scope of the general permit.

The district court disagreed, refusing to distinguish between the scope of the permit shield afforded to general and individual permits. The court held that so long as the permitting agency issuing the general permit seeks the information from the limited class of entities eligible for general permit coverage (during permit development or through notices of intent), the disclosure requirements and subsequent analysis are the same and permittees are afforded broad coverage from CWA liability.

AFBF filed an amicus brief supporting the mine on appeal because the scope of the permit shield is important for CAFO operators who hold stateissued NPDES general permits and farmers who depend on pesticide general permits for crop protection.

Status: This case is fully briefed and argued and awaiting decision.

21. The Aransas Project v. Brian Shaw, No. 2:10-cv-75, U.S. District Court, Southern District of Texas; No. 13-40317, U.S. Court of Appeals, Fifth Circuit (“Duty to Regulate” Water Rights) AFBF Involvement: AFBF joined with several state Farm Bureaus in two amicus briefs supporting the Texas Commission on Environmental Quality (TCEQ) before the district

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court, and then in its appeal of a ruling requiring the state to use all of its regulatory authorities to divert water to protect the endangered Whooping Crane and its habitat.

Court Decision: On March 11, 2013, the District Court for the Southern District of Texas concluded that TCEQ violated the §9 of the ESA when it failed to use its regulatory authority over state surface water flows to prevent the “take” of 23 endangered Whooping Cranes during a severe 2009 drought. The court concluded that the ESA’s prohibition of any unauthorized “take” of listed species applies broadly to actions (or inaction) by TCEQ and other state agencies, which administer state regulatory programs and approve actions by third parties (such as farmers’ and ranchers’ use of irrigation and stock watering) that result in a “take” of listed species. The court also held that state laws and regulations that conflict with the ESA’s “take” prohibitions (e.g. TCEQ authorization of water diversions) are preempted by federal law by the Supremacy Clause to the U.S. Constitution.

Unless the district court’s decision is reversed on appeal, Texas (and other states in the jurisdiction of the appellate court) would be required to impose restrictions on surface water flows to protect listed species, including vested and exempt water rights, which are property rights under the doctrine of prior appropriation common in the Western U.S. This would have serious negative implications for all landowners who depend on surface waters, as well as for other potentially regulated activities that may affect listed species.

Status: TCEQ filed an appeal with the U.S. Court of Appeals for the Fifth Circuit. The appellate court stayed the district court’s judgment pending appeal and oral arguments were heard on August 8, 2013.

A decision could come at any time.

General Counsel Advisory Committee AFBF’s General Counsel Advisory Committee (GCAC) serves as a sounding board and source of direction and advice for the Office of General Counsel in strategic decisions

on new and ongoing litigation. The General Counsel consults with the GCAC on each new litigation matter to ensure that AFBF resources are devoted to issues of real

consequence to America’s farmers and ranchers. The GCAC includes eight state Farm Bureau staff members appointed by the AFBF President. The Committee includes a mix of administrators, attorneys, and public policy professionals, with representation from AFBF’s four geographic regions. Members serve in staggered two-year terms, with each member serving no more than two consecutive terms.

We extend our appreciation to the outgoing Committee members, and we look forward to the advice and counsel of the 2014 GCAC.

2013 GCAC

Jake Cummins, Executive Vice President—Montana Farm Bureau Elizabeth Dribusch, General Counsel—New York Farm Bureau Christina Gruenhagen, Gov. Relations Counsel—Iowa Farm Bureau Ken Hamilton, Executive Vice President—Wyoming Farm Bureau Garrett Hawkins, Dir. of National Legislative Programs—Missouri Farm Bureau Jon Huffmaster, Legislative Director—Georgia Farm Bureau Marla Peek, Director of Regulatory Affairs—Oklahoma Farm Bureau Pam Bakerian, Executive Director—Delaware Farm Bureau

2014 GCAC

Jake Cummins, Executive Vice President—Montana Farm Bureau Elizabeth Dribusch, General Counsel—New York Farm Bureau Christina Gruenhagen, Gov. Relations Counsel—Iowa Farm Bureau Garrett Hawkins, Dir. of National Legislative Programs—Missouri Farm Bureau Jon Huffmaster, Legislative Director—Georgia Farm Bureau Ed Lancaster, General Counsel— Tennessee Farm Bureau John Stuhlmiller, Chief Executive Officer—Washington Farm Bureau Pam Bakerian, Executive Director—Delaware Farm Bureau

© 2013 AMERICAN FARM BUREAU FEDERATION® 600 Maryland Ave, SW, Suite 1000W Washington, DC 20024 Phone: 202-406-3600 www.fb.org