Annotations 06/2010

(plaintiff facially challenged defendant’s nationwide discharge permit on basis that defendant lacked jurisdiction over discharges into non-tidal, upland ditches; defendant argued that a ditch could be a point-source pollutant and a navigable water; court held that plaintiff failed to show there was no possibility under which discharge permit would be valid). 

(oil drilling operators not liable for deaths of migratory birds under MBTA to the extent that operators did not have adequate notice that their conduct violated the MBTA; while MBTA is strict liability statute, due process only satisfied if defendant proximately caused harm to protected birds; case arose from discovery by government officials that defendants' heater-treaters (devices used to separate oil from water when pumped from ground) were trapping and killing migrating or nesting birds; conviction of one defendant reversed because defendant unaware of heater-treater problems and no reasonable person would have concluded that exhaust pipes of heater-treaters would lead to deaths of migratory birds). 

(state income tax refund includible in petitioners' income (married couple) and not excluded under tax benefit rule; petitioners also had CODI upon credit union's cancellation of debt wife owed on unpaid loan).

(environmental group alleged NEPA violation in attempt to stop defendant's timber sale and sought preliminary injunction; court upheld trial court denial of injunction because plaintiffs had very low likelihood of succeeding on the merits).

(Second Amendment applies to the states via the 14th Amendment; right to bear arms is fundamental to Nation's scheme of ordered liberty and is deeply rooted in Nation's history and tradition; self-defense is a fundamental constitutional right and the right to keep and bear arms is enforceable against the states because it is a privilege of American citizenship recognized by Sec. 1 of the 14th Amendment).

(in 5-4 opinion, court holds that public university not required to subsidize campus groups that don't comport with university's political views; dissent points out that ruling means "no freedom for expression that offends prevailing standards of political correctness in our country's institutions of higher learning"). 

(defendant, deputy sheriff, violated plaintiff's Fourth Amendment rights in seizing plaintiff's horse without probable cause that it had been mistreated; but, defendant shielded from liability under 42 U.S.C. Sec. 1983 because reasonable law enforcement officer could have mistakenly believed that probable cause existed; defendant entitled to JML on plaintiff's Fourteenth Amendment claim because plaintiff had adequate post-deprivation remedies to challenge the taking of the horse).

("black liquor" sold or used before Jan. 1, 2010, meets EPA registration requirements for fuel and fuel additives under I.R.C. Sec. 40(b)(6)(E)(i)(II) for purposes of I.R.C. Sec. 40(b)(6) cellulosic biofuel tax credit; black liquor not required to be registered by EPA). 

(PACA trust protections do not extend to brokers of PACA sellers; the Congress intended to protect unpaid cash sellers as the exclusive beneficiaries of the PACA trust).

(plaintiff seeks sanction against defendant for failure to timely provide final agency determination in response to plaintiff's request for interpretation of agency policy and procedure by Risk Management Agency, a division of defendant; defendant did respond (after loss at subsequent administrative hearing), but sanctions not imposed because RMA's response was "response" within meaning of statute and regulations governing matter; court affirmed - agency's interpretation of it's own regulations entitled to deference). 

(trust language intended to create two trusts upon decedent’s death – marital trust and family trust; decedent intended to divide family trust equally between the couple’s two children with the farm, if possible, passing to the son entirely; because farm exceeded half of value of gross estate, son could not receive entire farm entirely, so farm divided into fractional interests between siblings).

(defendant sold approximately 284 calves to plaintiffs that defendant represented as “milk-producing replacement heifers,” but turned out to be freemartins; plaintiff sued for breach of contract, breach of warranty of fitness for a particular purpose, violation of the PSA and fraud; during litigation, in attempt to find additional parties who were similarly affected as potential witnesses, plaintiff placed ads in farm publication stating “Wanted dairymen who bought replacement heifers that turned out to be freemartins from Holmes Livestock, Steve Holmes, Mervin Mishler and Levi Graber, please call 419-852-2269”; defendant sued for defamation and plaintiff moved for summary judgment; summary judgment granted as to flyer appearing at livestock because no evidence that plaintiff published flyer; summary judgment not granted as to ad even though plain language not defamatory, makes no affirmative charge of wrong-doing on defendant’s part, and no evidence that plaintiff published ad with defamatory intent; court believed that ad imputes misconduct in defendant’s trade or business and is, therefore, presumed defamatory; irrelevant that ad caused no damage to defendant because damages are presumed; even though ad makes no mention that defendant is deceiving its customers and is merely seeking similarly situated parties, if any, court believed that ad could not rule that ads, as a matter of law, were true).

(IRS provides guidance on tax impacts of oil well leak in Gulf of Mexico on impacted businesses and individuals;  any payments received from British Petroleum for lost income on account of the leak must be reported in income and are subject to tax in manner similar to the wages or income that they replace; but, if payment is for physical injury or property loss, such amounts would generally not be subject to tax; IRS to hold "Tax Assistance Day" on July 17 in seven locations along the Gulf Coast). 

(gym fees deductible if paid to use gym to treat specifically diagnosed disease). 

(individual can be a member of Wyo. LLC without evidence of having made a contribution to capital - issuance of certificate of organization is sufficient; under state LLC Act, economic and noneconomic rights of company members vest in proportion to contributions to capital and pursuant to articles of organization; there is a distinction between contributions to capital as initially listed in articles of organization and as reflected on books and records).

(operator of large-scale dairy farm applied to local town for approval of expanded livestock facility; application approved but additional conditions imposed which, on appeal to Livestock Facility Siting Review Board, were dropped; on further appeal court affirmed the removal of the additional conditions as they were in violation of state law - Wis. Stat. Sec. 93.90; local governing body lacked authority to impose conditions inconsistent with state law).

(would exempt from tax first $3.5 million of value in decedent's estate, establish a progressive rate structure - 45% for taxable values between $3.5 million and $10 million, 50% for taxable values from $10 million to $50 million, 55% for taxable amounts from $50 million to $500 million and 65% for taxable amounts above $500 million; imposes mandatory 10-year minimum term for grantor-retained annuity trusts and restricts planning opportunities that utilize valuation discounts by changing the rules applicable to such discounts; increases agricultural land value reduction under I.R.C. Sec. 2032A to $3 million even for those agricultural estates where the decedent had bolstered wealth during life via receipt of taxpayer-funded farm subsidies; increases maximum exclusion for estate tax purposes for donated conservation easements to $2 million and increases base percentage to 60%; if enacted into law, only Japan would have a higher estate tax rate at the top end; bill sponsors are same Senators that earlier in June reportedly told the Senate Majority Leader that they would block any effort to bring a stand-alone estate tax measure to the floor; most insiders believe that the bill has virtually no chance of becoming law). 

(plaintiff brought federal case against 42 defendants involved in wind power station development in northern Illinois on land adjacent to plaintiff's land based on twelve theories of recovery couched in state and federal constitutional law and on the common law arising from the numerous problems caused by large-scale wind power stations; court upheld lower court's determination that federal court not proper forum to resolve plaintiff's claims; court also affirmed trial court's denial of defendants' motion for stay of administrative proceedings; plaintiff free to pursue claims in state court). 

(operator of large-scale dairy farm applied to local town for approval of expanded livestock facility; application approved but additional conditions imposed which, on appeal to Livestock Facility Siting Review Board, were dropped; on further appeal court affirmed the removal of the additional conditions as they were in violation of state law - Wis. Stat. Sec. 93.90; local governing body lacked authority to impose conditions inconsistent with state law).

(defendant claimed that plaintiff wrongfully withheld over $200,000 in proceeds from sale of thoroughbred horses and sought motion for preliminary injunction; injunction denied; case involves battle over sale contract language concerning whether seller had right to set reserves as to any of the horses it owned that plaintiff was selling; injunctive relief denied because defendant can be made whole by award of monetary damages). 

(the right to use a designation that a vineyard is located inside an American viticultural area is an amortizable intangible asset (because it is a right granted by a governmental unit) in accordance with I.R.C. Sec. 197 (d)(1)(D)). 

(former husband must pay ex-wife alimony for infecting her with sexually transmitted disease (STD) he obtained as a result of his acts of adultery; court awarded ex-wife $250 per month to cover her costs of medication used to treat the STD for the remainder of her life; court affirms trial court judgment authored by Jake Looney, former agricultural lawyer and professor).

(plaintiffs, adjacent property owners sued defendant for inverse condemnation and private nuisance for damages to their properties caused by landslide alleged to have resulted from discharge of surface waters flowing though leaking corrugated metal pipe running length of their properties; no inverse condemnation because pipe and easement in which pipe laid was on plaintiffs' privately-owned property and defendant had rejected developer's offer of dedication). 

(county agricultural society can use tax revenues to pay for the monthly costs of operating county's fairgrounds).

(drainage district dissolution case; state law bars trial courts from granting dissolution unless court first determines that public welfare will be enhanced; trial court improperly based its public welfare finding on local towns' willingness to assume drainage responsibilities, lack of popular support for drainage district, and hostile and acrimonious relationship between landowners and the district). 

(defendant, who was charged and plead guilty to being a felon in possession of a firearm, used or possessed firearm in connection with felony offense of cruelty to animals by killing pit bull that bit defendant's son; killing of dog not necessary to abate nuisance even though dog had bitten its owner on prior occasions and had acted in vicious manner toward passers-by in prior six to seven months; dog owner had agreed to address dog's behavior after defendant's son bitten; four-level enhancement to defendant's sentence for possessing firearm in connection with another felony offense warranted - 60-month prison sentence upheld).

(IRS announcement of proposed regulations implementing a  $50 fee for individuals who apply for preparer tax identification number; additional fee to be charged by third-party vendor to operate new online application system for PTIN program). 

(plaintiff, owners of beachfront property, permitted to amend complaint to add claim for inverse condemnation so as to pursue valuation of their property at time of taking that occurred in or around 1965 when government constructed dune on their property).

(plaintiff's motion for preliminary injunction against enforcement of defendant's May 27, 2010, decision to suspend oil drilling in Gulf of Mexico in depths of over 500 feet granted; defendant (Secretary of Interior) directed by President to conduct review of rig blowout and report within 30 days what action, if any, should be taken; defendant's report resulted in May 27 decision; court determined that defendant side-stepped required comment period and failed to note that all active deepwater drilling rigs passed an immediate re-inspection after single rig exploded (first time a deepwater rig had (out of several thousand) ever exploded); court noted presence of "political or social agendas" in Gulf oil drilling and, as a result, defendant falsified Executive Summary of report by inserting statement that certain experts supported the drilling ban after experts had signed the document when, in fact, experts did not support drilling ban even though they did support safety recommendations;  court stated that defendant's drilling ban "simply cannot justify the immeasurable effect on the plaintiffs, the local economy , the Gulf region and the critical present-day aspect of the availability of domestic energy in this country"; defendant's decision not based on rationale threat/safety analysis and was arbitrary and capricious - "the Court is unable to divine or fathom a relationship between the findings and the immense scope of the moratorium...the report patently lacks any analysis of the asserted fear of threat of irreparable injury or safety hazards posed by the thirty-three permitted rigs also reached by the moratorium" - no irreparable harm specified, no implementation timetable specified for proposed safety measures and, as such, violates the Outer Continental Shelf Lands Act). 

(deed reformation case; 15-year statute of limitations applied to plaintiff's claims and those claims accrued before 1988; case dismissed as time-barred). 

(plaintiff, owners of beachfront property, permitted to amend complaint to add claim for inverse condemnation so as to pursue valuation of their property at time of taking that occurred in or around 1965 when government constructed dune on their property).

(plaintiff's insurance policy providing workers' compensation coverage for defendant' funeral business does not provide workers' compensation coverage for employees of defendant's ranch; defendant not named insured on policy, only the corporation is the named insured). 

(because state statute defines "wild animals" as "living creatures," regulations governing private possession and acquisition of property interests in "wild animals" had no application to bear carcasses when animal's death not caused by regulated human conduct and bear carcass not property of state - here defendant found dead black bear on his property and took the carcass to a taxidermist for preparation for display). 

(case involves dispute concerning joint operating agreement for oil properties dating back to 1971; essentially a contract interpretation case; defendant's obligation to offer plaintiff a share in new leases in particular area has expired and plaintiff entitled to nothing from defendant). 

(CEO of petitioner can claim deduction for entire amount of compensation (slightly over $2 million paid by corporation in one year - amount reasonable for that year; but, partial deduction allowed for subsequent year - amount of compensation unreasonable because revenues fell and compensation not tied to corporate revenues; no accuracy-related penalty because accountant's bad advice reasonably relied upon). 

(court affirms water court's decision affirming State Engineer's modification of plaintiff's replacement well permit; state has authority to modify previously issued well permits; when decree adjudicating groundwater right is silent as to location of use, use of water right is defined by beneficial use to which water put at time of appropriation; water right, when appropriated, that was applied to one parcel cannot be additionally applied to new parcel without water court decree allowing change of use). 

(settlement agreement involving water usage between parties is valid no-call agreement; city of Englewood has no right to maintenance of stream conditions created by placement of call and city's claim not entitled to presumption of injury).

(plaintiff's mature, producing avocado trees destroyed or damaged in 2007 fire; plaintiff claims trees covered by agribusiness policy issued by defendant insuring plaintiff against lost income resulting from fire; defendant denied coverage under the policy; plaintiff required to produce federal and state tax returns for 2003 through 2008 for inspection by defendant's lawyers and experts;  annual farm income at issue and disclosure of tax return information not privileged due to nature of lawsuit).

(plaintiff sued ski resort for injuries sustained in fall from ski lift and for spouse's loss of consortium; suit barred by release form that plaintiff signed and by plaintiff's voluntary assumption of risk under state statute; plaintiff's injuries arose from general risk of falling from ski lift - an inherent risk of skiing for which defendant owed plaintiff no duty of protection). 

(reliance on Turbo Tax and associated professionals does not excuse petitioner from accuracy-related penalties under I.R.C. Sec. 6662(a); "Turbo Tax defense" successfully utilized by Treasury Secretary Timothy Geithner not available to petitioner). 

(father's entire mortgage payment for rental property was an ordinary and necessary expense that should be deducted from gross income for purposes of computing child support). 

(land developer successfully appeals imposition of off-site mitigation fee assessed under Vermont law due to presence of 10.85 acres of "primary agricultural soils" on site of proposed development area; cost of removing trees should have been determined when classifying land as primary agricultural soils; case remanded to Environmental Court). 

(purchasers of tract of land claimed title to disputed land against claim of another party who claimed title via adverse possession; adverse possession claim failed).

(land developer successfully appeals imposition of off-site mitigation fee assessed under Vermont law due to presence of 10.85 acres of "primary agricultural soils" on site of proposed development area; cost of removing trees should have been determined when classifying land as primary agricultural soils; case remanded to Environmental Court). 

(case involves discharges of pollutants onto real property that had been farmland that became residential property; landowner's case may proceed on negligence theory, but not on trespass or nuisance theories). 

(plaintiff lacks standing in its attempt to get declaratory and injunctive relief against two TX agencies for failing to perform environmental consistency review and for not allowing public comment on private construction of wind power stations along TX Gulf Coast; court finds no basis to recognize preemptive federal "procedural rights" under Coastal Zone Management Act (16 U.S.C. Sec. 1451, et seq.) that would force TX agencies to conduct consistency review and allow for public comment before authorizing private construction of wind power stations). 

(petitioner's application for site plan approval to operate farm winery on petitioner's property zoned agricultural denied and court upheld denial; determination that petitioner's proposed use of land did not fit within definition of agriculture upheld as rational; at time application filed, petitioner's property consisted of two acres of land containing their home and an additional two acres which had no vines, grapes or any other crops growing or being harvested; proposed use was more akin to retail business than agricultural usage). 

(trial court correct in holding that land contained in bankruptcy estate need not be sold at public auction). 

(full amount of decedent's stock held only in decedent's name (decedent is a non-U.S. resident) included in gross estate as decedent's separate property; no late filing penalty assessed). 

(owners of beach front property sued local government and state claiming that beach restoration projects involving placement of sand along beaches seaward from mean high-water line (which was the boundary between state's submerged land and owner's properties) were unconstitutional takings of their private property, but FL Supreme Court held that no taking occurred; U.S. Supreme Court affirmed - change in mean high-water line resulted from sudden avulsion rather than gradual accretion, thus newly exposed land remained property of state since boundary remained fixed).