1. The Era of CJ Roberts: The Agricultural Law Decisions Drew L. Kershen Earl Sneed Centennial Prof. Emeritus University of Oklahoma, College of Law AALA Albuquerque, October 2014

2. Roberts Era Cases Decided by Term

3. Roberts Era Statistics 17 th Chief Justice; Senate confirmation on 29 Sept 2005 October Term 2005 through July 2014 – 611 full opinions – Kershen search terms related to agricultural law 15 cases with direct agricultural law implications 2.4% of all full opinions

4. Roberts Era: Agricultural Law Cases 1.IBP, Inc. v. Alvarez, 126 S. Ct. 514 (2005) (Fair Labor Standards Act – meat packing – compensable time). 2.Rapanos v. United States 126 S. Ct. 2208 (2006) (Clean Water Act – EPA enforcement – waters of the United States). 3.Wilkie v. Robbins, 127 S. Ct. 2588 (2007) (Bivens Claims – RICO – Suit against Bureau of Land Management). 4.Graham County Soil and Water Conservation Dist. v. U.S. ex rel., 130 S. Ct. 1396 (2010) (False Claims Act – Qui tam public disclosure --Soil & Water Conservation Districts). 5.Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743 (2010) (National Environmental Policy Act – APHIS partial deregulation – judicial power to use remedy of injunction).

5. Roberts Era Agricultural Law Cases 6.Montana v. Wyoming, 131 S. Ct. 1765 (2011) (Interstate Compact Clause – water law – agricultural prior appropriation. 7.National Meat Ass’n v. Harris, 132 S. Ct. 965 (2012) (Federal Meat Inspection Act – federal preemption –animal welfare). 8.Sackett v. E.P.A., 132 S. Ct. 1367 (2012) (Clean Water Act – administrative law – final agency action). 9.Hall v. United States, 132 S. Ct. 1882 (2012) (Chapter 12 bankruptcy – tax law – IRS tax lien priority on capital gains). 10.Arkansas Game and Fish Com’n v. United States 133 S. Ct. 511 (2012) (Takings clause -- eminent domain – temporary flowage easement).

6. Roberts Era: Agricultural Law Cases 11.Decker v. Northwest Environmental Defense Center, 133 S. Ct. 1326 (2013) (Clean Water Act – NPDES – stormwater runoff on logging roads). 12.Bowman v. Monsanto Co., 133 S. Ct. 1761 (2013) (Patents – patent exhaustion – infringement by planting post-harvest seeds purchased from elevator). 13.Horne v. U.S. Dept. of Agriculture, 133 S. Ct. 2053 (2013) (Raisin Marketing Order – administrative law -- takings claim from enforcement proceeding). 14.Association for Molecular Pathology v. Myriad Genetics, 133 S. Ct. 2107 (2013) (Patents – patentable subject matter – products of nature). 15.Koontz v. St. Johns River Water Management District, 133 S. Ct. 2586 (2013) (Takings clause – eminent domain – monetary exactions for land use permit).

7. Classification One Approach Constitutional Law (5) – Monetary claims: Takings clause (3); Bivens (1) – Federal Preemption (1) Environmental law (4) – CWA (3); NEPA (1) Patents (2) Bankruptcy (1) False Claims Act (1) Labor Law (1) Water Law (1) (original jurisdiction; state law)

8. Three Cases Rapanos v. United States – 4-1-4 decision – substantial nexus test ( J. Kennedy) – EPA Proposed Rule – Waters of the United States Monsanto Co. v. Geertson Seed Farms – GM alfalfa – deregulation – judicial remedy of injunction – GM alfalfa deregulated after EIS – adopted by 90%+ of U.S. alfalfa growers Montana v. Wyoming – next several slides

9. History Procedural Posture Yellowstone River Compact, 1950 – Montana, North Dakota, Wyoming – Negotiations from 1932 until 1950 The 1950 Agreement is fourth try Montana v. Wyoming – Original jurisdiction – January 2007 filed – Barton H. Thompson, Special Master http://www.stanford.edu/dept/law/mvn 1 st Interim Report of Special Master on February 20, 2010 – 131 S. Ct. 1765, 179 L.Ed.2d 799 (U.S. 2011) – Hearings Oct & Dec ‘13; Post-Hearing Briefs Mar & Apr ‘14 – Awaiting Special Master’s Judgment & Opinion – New Motion to Dismiss filed by Wyoming at Supreme Ct.

10. Special Master Rulings on Structure of the Compact Part V(A) pre-1950 water uses – senior to all other water uses post January 1, 1950 – No unified priority list for pre-1950 Montana and Wyoming water users – Seniority within each state to be applied within each state Part V(B) post January 1, 1950 uses are subject to call of the river, if pre-1950 uses cannot be satisfied – Seniority within each state first to protect the pre- 1950 uses – Call of the river across state lines only if pre-1950 uses cannot be satisfied by state within borders senior protection

11. Montana’s Claims # 1: Increased consumption of water on existing acres of irrigated land in Wyoming; # 2: New groundwater withdrawals, particularly associated with coal-bed methane production, in Wyoming; # 3: Construction and Use of new and expanded storage facilities on Wyoming tributaries # 4: Irrigation of new acres in Wyoming

12. Special Master Rulings on Montana’s Claim # 1 # 1: Increased consumption of water on existing acres of irrigated land in Wyoming – Wyoming irrigators have changed from ditch irrigation to sprinkler irrigation – much less runoff into the streams – Changes in method of diversion – concept of “no injury” rule (point of diversion, purpose of use, and place of use) – Changes in water efficiency by water user – Recapture and reuse of runoff Holding: no violation by Wyoming or its irrigators

13. Supreme Court 2011 Opinion Supreme Court (Justice Thomas) decided appeals of Special Master Holdings only as to: – Structure of the Compact; Montana’s Claim # 1 – All other issues remanded – Compact does not guarantee Montana a specific amount of water at its border % of divertible flow measured on an annual basis Holding:Affirmed the rulings of Special Master

14. Thank you