Annotations 07/2008

(Wyoming State Board of Equalization rules that, for severance and ad valorem tax purposes, the statutory point of valuation should be used to determine the taxable value of coal bed methane and not the point where the coal is delivered to a third party for transportation).


(broad facial challenge to state regulations of N.J. Department of Agriculture setting standards governing the raising, keeping and marketing of domestic livestock rejected, with sole exception of regulation involving the practice of tail docking).


(plaintiff claims that defendant dairy emitted hazardous pollutants in violation of the CWA; court holds that plaintiff waived claim as to any CWA violations before July 1999, that CWA permit shield provision prohibited the action as to any claims between July 1999 and December 2006, and that plaintiff’s RCRA claims are prohibited under RCRA’s non-duplication provision; court holds that defendant did not need CWA permit to construct stock pond on land already used in farming under 33 U.S.C. §1344(f)(2)).


(plaintiff’s adverse possession claim fails because plaintiff’s usage of subject area was not hostile; plaintiff role with respect to the subject acreage was essentially one of trustee that maintained the parcel for the benefit of the residential lot owners). 


(plaintiffs motion for redetermination of damages in rail-to-trail case denied; proper measure of damages is not difference in affected property’s value before and after the taking, but rather incremental difference between value of land burdened by recreational trail and value of land burdened by railroad easement as stated in court’s 2003 order).


(trial court’s declaratory judgment setting aside deed amounting to gift of farmland to two sons upheld; evidence sufficient that mother of unsound mind at time deed executed).


(EPA acted properly in authorizing state-level operating permits for six coal-fired power plants in Illinois; by law, EPA only has 45 days to object to permits and Congress did not intend EPA to fully investigate and resolve all allegations in the permitting context; power plants had not applied for new source review permit, so had not violated permit requirements; state attorney general lacked standing to join suit because injuries from supposed “global warming” unclear).


(defendant’s conviction and sentence resulting from 20 counts of animal cruelty upheld; convictions supported by evidence that horses had insufficient grass, grain or hay to eat and were not adequately sheltered from sun).


(plaintiff must refund $2.5 million in FICA taxes paid by defendant on its residents' stipends; residents are excepted from FICA taxation under I.R.C. §3121(b)(10) because the facility qualified as a school, college or university and the residents were students).


(defendant’s order requiring destruction and removal of all dwelling units, outhouses and docks erected by plaintiff on Golden Isle affirmed; plaintiff in violation of land use ordinance limiting urban development in County to 35 percent of its land, reserving the remaining 65 percent for agriculture, open space, wetlands, parks and other non-urban uses).


(temporary restraining order issued which stops grazing and hay production on 24 million acres of land enrolled in the Conservation Reserve Program; defendant (USDA Secretary) may not open CRP land without an environmental assessment; plaintiffs’ clearly showed that defendant’s decision to authorize haying and grazing could cause irreparable harm to wildlife habitat; arguments on motion for preliminary injunction set for July 17).


(grant of conditional use permit for construction of wind farm upheld; zoning board’s determination that wind farm constitutes public utility for zoning law purposes entitled to deference and not shown to be unreasonable or not rationally based; zoning board considered various environmental impact studies submitted by wind farm and held public hearings).


(interest earned on condemnation funds deposited with court in eminent domain action that were placed in local government’s general fund constituted taking under Fifth Amendment; condemnation deposits are private property to the extent private party entitled to condemnation deposit and private party similarly entitled to interest earned on deposited amount).


(preliminary injunction against defendant for violating restrictive covenant reversed; covenant did not meet requirements of a covenant running with the land or of an equitable servitude because there was nothing in recorded instrument reflecting original grantor’s intent that restrictive covenant bind subsequent purchasers).


(EPA exceeded its authority under the Clean Water Act in exempting marine vessel discharges from the CWA permit requirements).


(dispute involving issues surrounding decedent’s estate, including challenge to lower court’s decision to allow personal representative to sell farmland in the estate).


(plaintiff need not prove adverse effect on competition to prevail in lawsuit alleging violation of Packers and Stockyards Act Sections 202(a)-(b) (7 U.S.C. §§192(a)-(b)); statutory language is plain, clear and unambiguous and other court opinions finding a requirement that a plaintiff prove adverse effect on competition reached well beyond the PSA’s clear and unambiguous text).


(contract dispute involving alleged misapplication of fertilizer by plaintiff and refusal to pay by defendant).


(son failed to prove that he had oral contract for deed to buy land from his parents based on alleged agreement that son return to farm with parents and would receive farm after parents’ deaths; son’s possession of land consistent with a lease; parent refused to execute written contract; no significant improvements installed).


(contract dispute involving hog production contract; assignment clause in contract did not constitute security agreement).


(taxpayer had cancelled debt income equal to the difference between settlement amount and amount owed at time of settlement).


(amount of domestic production deduction (I.R.C. §199) for patronage distributions qualifying under I.R.C. §1382(b) that is paid to a Subchapter T cooperative in money must be computed at the cooperative level to prevent double counting; no distributions will eligible for I.R.C. §199 in the patron's hands).


(case involves battle over assets to be included in decedent’s estate; heirs claim that additional assets should be included in estate and that surviving spouse should not have permitted surviving spouse to claim the homestead and spousal allowances due to lack of need; court ruled that surviving spouse co-owned contested farm equipment and cattle with decedent, had sole interest in leases as sole owner of farm property, and that surviving spouse was entitled to farmstead allowance and deserved spousal allowance under Kansas law).


(plaintiffs’ motion for preliminary injunction granted which results in the reinstatement of Endangered Species Act protections for the northern Rocky Mountain gray wolf during the pendency of the litigation).


(amount of payment under group risk insurance policy properly calculated based on county average rather than plaintiff's calculation of historical production yield; defendant properly applied statewide payment rate because USDA's Risk Management Agency had not established a nationwide rate).


(case involves Freedom of Information Act request for records concerning production of foie gras at specified farms; records at issue consist of handwritten notes and memoranda authored by a veterinarian in connection with veterinarian’s role in investigation of presence of low pathogenic avian influenza; information in handwritten notes is factual data not exempt from disclosure, but disclosure of telephone numbers to be redacted).


(Tennessee landowners hold easement over field-access road across wildlife refuge, and defendant lacks authority to regulate easement).


(evidence insufficient to establish title to undeveloped, waterfront lot by adverse possession).


(three questions certified to the Oregon Supreme Court: (1) whether Oregon law precludes irrigation districts and landowners from acquiring beneficial or equitable interests in water rights acquired by the United States (Klamath Basin Water); (2) whether landowners and/or irrigation districts who receive water from the Klamath Basin Reclamation Project and put the water to beneficial use have a beneficial or equitable property interest appurtenant to their land in the water right acquired by the United States; and (3) whether Oregon law recognizes any property interest (legal or equitable) in the use of the Klamath Basin water that is not subject to adjudication in the Klamath Basin Adjudication in situations where surface water rights were appropriated before Feb. 24, 1909, and were not within any previously adjudicated area of the Klamath Basin.


(plaintiff injured in fall from wheelchair at state park operated by defendant; Missouri Recreational Land Use Statute held applicable with result that defendant did not owe plaintiff any duty of care to keep land safe for recreational use or give any general or specific warning concerning any natural or artificial condition).


(three questions certified to the Oregon Supreme Court: (1) whether Oregon law precludes irrigation districts and landowners from acquiring beneficial or equitable interests in water rights acquired by the United States (Klamath Basin Water); (2) whether landowners and/or irrigation districts who receive water from the Klamath Basin Reclamation Project and put the water to beneficial use have a beneficial or equitable property interest appurtenant to their land in the water right acquired by the United States; and (3) whether Oregon law recognizes any property interest (legal or equitable) in the use of the Klamath Basin water that is not subject to adjudication in the Klamath Basin Adjudication in situations where surface water rights were appropriated before Feb. 24, 1909, and were not within any previously adjudicated area of the Klamath Basin.


(property owner challenges County method of land valuation as not conforming to state law; court holds that Property Tax Commission did not err when it confirmed the County’s valuation method).


(court issued order requiring debtor to comply with provision in parties’ joint settlement agreement which prohibited debtor from taking any action to create any lien or encumbrance on farmland; immediately before scheduled auction of farmland, debtor’s partner filed Notice of Suit with Register of Deeds as to subject land and court ruled that such filing would place cloud on title in violation of settlement agreement).


(plaintiff challenges defendant’s regulations concerning the use of methyl bromide; court affirmed trial court’s writ of mandamus directing defendant to comply with state law in determining potential health risks before using methyl bromide).


(trespass action against defendant, the holder of a mortgage on the property that permitted defendant to take any action necessary to protect property’s value and defendant’s security interest; trespass action does not require that damages be sustained; plaintiff retained title to property during six-month redemption period and defendant had no separate explicit agreement authorizing entry onto property during redemption period; while defendant had reasonable belief that farmhouse abandoned and steps needed to be taken to secure the property, placement of locking devices interfered with plaintiff’s right of exclusive possession).


(7 U.S.C. §1508(j)(3) does not provide for a cause of action for indemnification of insurance company from FCIC; insurer may only seek indemnification from FCIC for a loss claim made against insurance company by a producer; trial court award of $950,025 to plaintiff reversed; case arose from FCIC's addition of prevented planting coverage to all multi-peril crop insurance policies).


(taxpayer does not qualify for exemption from federal income tax under I.R.C. §521 as a farmers’ cooperative; taxpayer’s activity of harvesting, processing and marketing of brine shrimp does not constitute engagement in farming activity).


(special countywide assessment to fund open space program violates Proposition 218 because assessment did not comply with statutory special benefit and proportionality requirements). 


(decedent’s daughter and her spouse exerted undue influence over decedent in “one of the clearest cases of undue influence we have seen”; 1995 deed to Wyoming farm upheld as valid as being delivered to and accepted by grantee, and fact that second deed written and executed by daughter and spouse (under power of attorney) in 1998 does not obviate 1995 deed).


(amount of revenue protection provided under adjusted gross revenue (AGR) policy determined by reference to procedures in FCIC handbook rather than insured's expected revenue; definition of approved AGR under the policy gave defendant discretion to adjust insured's average gross revenue and required use of indexing formulas from FCIC handbook).


(Private Road Act constitutional, and landowner with landlocked tract entitled to private road across Homeowner Association property; even though landowner would benefit privately from opening of road, public benefited by allowing the public road because it was not in the public interest to have land that could not be used).


(EPA exceeded its authority to create Clean Air Act Interstate Rule, which included a cap and trade program to purportedly to reduce emissions of sulfur dioxide and nitrogen oxide from power plants in 28 states and D.C.; EPA cannot base emission caps on number of coal, oil and gas-fired electric power plants a state has compared to other states; court stated that EPA’s plan “beyond salvageable”).


(levee of process pond of olive-growing operation failed and flooded neighboring property with salt-water/brine wastewater which inundated 40 acres of defendant’s olive orchards and another defendant’s 40-acres of grapes, killing the olive trees and grape vines; levee failure was due to insured’s negligent failure to properly inspect and maintain process pond; plaintiff denied coverage and defendant obtained default judgment of over $70 million; insured then filed bankruptcy and plaintiff sought declaratory judgment that policies provided no coverage via a “pollution exclusion” clause; pollution exclusion clause held applicable – widespread flooding of substantial amount of saltwater/brine from commercial process pond onto adjacent agricultural land commonly thought of as pollution and environmental pollution).


(cattle company placed in involuntary receivership and Chapter 7 bankruptcy upon $1.7 million in losses and $200,000 in bankruptcy litigation expenses sustained by fourteen cattle investors who were fattening cattle and storing grain at cattle company’s feedlot; cattle investors sued defendant, feedlot’s primary lender under RICO claiming that defendant misled them into continuing to do business with feedlot by concealing feedlot’s true financial condition; jury found defendant liable on all claims and district court denied defendant’s post-verdict motion for judgment as a matter of law; on appeal court reversed trial court’s denial of motion for judgment as a matter of law on RICO claim, but trial court verdict on various fraud claims affirmed in part and reversed in part).


(defendant not liable for injuries sustained by plaintiff (an unauthorized guest passenger of plaintiff’s spouse) in traffic accident involving defendant’s truck driven by plaintiff’s spouse (employee of defendant); plaintiff’s evidence failed to establish any basis on which a reasonable jury could decide that plaintiff was an authorized passenger and whether plaintiff’s spouse had either actual or apparent authority to invite plaintiff to travel in the truck).


(Under Oregon water law, plaintiff (irrigation district) is holder of water rights pursuant to water right certificate, rather than farmer-member of irrigation district; member’s application for change in point of diversion denied because not “holder” of water rights).


(no boundary by acquiescence where fence between adjoining tracts located in woods, woven from tree-to-tree and origin and purpose of fence not determined; no acquiescence in law or fact).


(permanent injunction entered against defendant for falsely advertising that users of Chinese Diet Tea would be “guaranteed” weight loss; damages to be determined following subsequent hearing; defendant conceded liability as to false advertising concerning second product, Bio Slim Patch).


(Under Oregon water law, plaintiff (irrigation district) is holder of water rights pursuant to water right certificate, rather than farmer-member of irrigation district; member’s application for change in point of diversion denied because not “holder” of water rights).


(defendant failed to offer evidence to establish that access route to landlocked parcel was the "only practicable way" to reach plaintiff's property; trial court's award of summary judgment for defendant reversed).


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