The death last week of Supreme Court Justice Antonin Scalia, the bulwark of the conservative side of the nation's highest court, shoved congressional and election politics into an even higher gear, confusing the outlook for a number of priority agriculture cases likely to come before the Supreme Court.  

The heart of the political tug-of-war is who should nominate a replacement justice, President Obama or, because it's an election year, whoever is elected in the November election?  Both parties are well aware the jurist who replaces Scalia - based on political and judicial leanings - will help shape Supreme Court decisions for possibly decades.  At the same time, the high stakes political dice game over Scalia's replacement has significant consequences for both parties going into the general election.

National agriculture groups have stayed largely out of the debate over the next Supreme Court nominee.  However, the American Farm Bureau Federation said, "The next nominee to the Supreme Court should have a track record in the area of administrative law, and that track record should show a tendency to hold federal agencies accountable to operate within the boundaries set by Congress, including respect for those regulatory powers reserved for the states."

Within hours of Scalia's death, conservative Republican lawmakers - particularly those in tough reelection battles - lined up to announce the Senate would not take up an Obama Supreme Court nominee under any circumstances.  Senate Majority Leader Mitch McConnell (R, KY) led the fray by saying he would not schedule a vote on any White House nominee, arguing the President sworn in next January should fill the high court vacancy.    

The President said he will nominate a qualified candidate, admonishing critics "the Constitution is clear" as to his responsibility and authority.  However, advisors both inside and outside the White House have counseled his nominee should be a moderate federal court jurist, one who was vetted and approved by the Senate by as close to a unanimous confirmation vote as possible to mitigate the political rancor.

Presidential hopefuls weighed in as well.  Former Sen. Hillary Clinton (D, NY) and Sen. Bernie Sanders (I, VT) said Obama should nominate the next justice and the Senate should vet that nominee and vote the nomination up or down. The GOP presidential wannabes were nearly unanimous in their assertion the newly elected president should name Scalia's replacement, with Sen. Marco Rubio (R, FL) echoing McConnell and Sen. Ted Cruz (R, TX) vowing to filibuster any Obama nominee.

However, Senate Democrats reacted to the McConnell-Cruz vows to block an Obama nominee by threatening to do likewise to Senate business, targeting the appropriations process and specifically refusing to vote for cloture on the inevitable continuing resolution (CR) needed to keep the government operating when the current FY2016 spending package runs out September 30.

The fate of lawsuits now residing among the various federal courts, but which are expected to eventually wind up before the Supreme Court is now unknown.  The eight remaining justices are seen representing a four-four split between conservative and liberal, and any tied decisions uphold lower court rulings.

Water cases winding their way through the system are likely most affected by Scalia's death.  Scalia is credited with "waking up the court" to regulatory overreach by federal agencies, particularly EPA and the U.S Army Corps of Engineers, when it comes to Clean Water Act (CWA) authority.  In 2000, the court ruled 5-4 limiting the Corps' move to regulate wetlands not connected to a major river system.  In 2006, the court ruled again against the Corps and its move on wetlands and streams subject to the CWA, with Scalia arguing the Corps "exercises the discretion of an enlightened despot" in permitting decisions, the CWA deemed to apply only to flowing rivers, streams and lakes.  However, while siding with the majority, Justice Anthony Kennedy wrote a separate opinion - resulting in a 4-1-4 decision - that set the stage for the current battle over EPA's "waters of the U.S. (WOTUS)" rulemaking.

Legal experts say it's too early to tell whether Scalia's departure will affect how or if WOTUS is handled by the Supreme Court.  The states which want the rule vacated argue it interferes with their authority to regulate their own waters, while industry, including agriculture, says the rule violates the Administrative Procedures Act (APA).  Environmental groups, upset the final rule eased some wetland regulation, say the agencies violated the National Environmental Policy Act (NEPA). 

Sen. Charles Grassley (R, IA), chair of the Senate Judiciary Committee, says it's most likely a new justice will be firmly in place by the time a lower federal court decides how the WOTUS rule, now on hold by federal court order, should be heard, and the inevitable appeals on one side or the other of the process issue are filed.  

The AFBF federal court appeal - part of an action joined by 22 states and 92 members of Congress - of EPA's ruling on total maximum daily load (TMDL) for the Chesapeake Bay - TMDL under the CWA sets the maximum amount of a pollutant a body of water can receive and still meet water quality standards - is likely off the court's calendar, say experts, leaving in place a lower court decision on the controversial multi-state clean up rule that sets a precedent for how EPA regulates and permits other water sheds.  The final decision will be made this week as the remaining justices conference over the court's schedule for the rest of the year.  Also in play is a more narrow case involving the U.S. Army Corps of Engineers application of CWA criteria to wetlands.

The fate of the President's Clean Power Plan is also up in the air, particularly EPA rulemakings to force new and existing power plants to find alternative fuels to coal as part of carbon/CO2 recapture and control.  Last week, just before Scalia's death, the court voted 5-4 to formally hold up implementation of the plan and the rulemaking while the DC Circuit Court of Appeals reviews the plan and the Supreme Court decides whether to hear the challenge brought by states and industry. 

While proponents of federal legislation to preempt state laws requiring labeling of foods/feeds with genetically engineered (GE) ingredients expected Sen. Pat Roberts (R, KS), chair of the Senate Agriculture Committee, to release a draft of Senate legislation early this week, by week's end there was no word on when such a compromise draft bill would be available.

Roberts is in head-to-head discussions with his committee's ranking member, Sen. Debbie Stabenow (D, MI), over just how much information food/feed companies must place on a label to allow consumers to find out if GE ingredients are used in a product, and whether that "on-pack" information can be voluntary.

Both Stabenow and Roberts agree a patchwork of state laws requiring GE labeling would be a marketplace disaster, and both seek a bipartisan federal solution.  However, Stabenow demands all foods with GE ingredients carry mandatory quick reference (QR) codes that allow consumers to scan for information on GE ingredients.  Roberts prefers giving USDA authority to create a voluntary labeling regime that provides information to consumers who want it.

Stabenow told reporters this week she's working with other unnamed Senators and believes a compromise bill is possible.  The key to Senate passage of any bill is Democrat support, insiders say.

In a related development, reports surfaced late this week that the Organic Consumers Assn. (OCA) is alleged Stabenow, Secretary of Agriculture Tom Vilsack and a major New England organic dairy are working to "stall" a Vermont labeling law set to take effect July 1.  The effort is apparently to take pressure off lawmakers seeking a bipartisan solution to the labeling battle.  All parties say the allegations are false and one Politico report quotes OCA as denying it has any role in Capitol Hill negotiations. 

The arguments were scheduled in an appeal by 11 states, led by the Georgia attorney general, of a decision by a District Court judge that the states' federal action rightly belonged before the federal appeals court, not the district court.  It was the 6th Circuit Court of Appeals where such cases are consolidated, which ruled in October to stay the WOTUS rule nationally.  That court is expected to decide any time on whether it should hear the WOTUS cases or whether they should first go through the district court process.

The U.S. Department of Agriculture Wildlife Services shared knowledge during a workshop on nonlethal tools ranchers may use to try to protect their livestock from predators.

In a workshop in Shasta County last week, Wildlife Services outlined what nonlethal methods are available to producers to prevent or reduce predation to their livestock. While the meeting addressed predators in general, much of the discussion focused on wolves, which are on the minds of producers, with establishment of a gray wolf pack in Northern California.

Federal officials also shared information on whom to contact and what procedures to follow should ranchers encounter a wolf or experience what is believed to be wolf activity involving livestock.

Gray wolves are protected under both state and federal Endangered Species Acts, which prohibit lethal take and harassment of the animal. Under state law, "take" means to "hunt, pursue, catch, capture or kill," or to attempt any of those actions. The state ESA prohibits take except in a few limited exceptions.

The federal law defines "take" to mean "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect, or to attempt to engage in any such conduct." Under the federal definition, "harass" also means "an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such as extent as to significantly disrupt normal behavioral patterns" that include breeding, feeding or sheltering.

To discourage wolf presence, Wildlife Services said ranchers should change their property or habitat so that it is less attractive to wolves. That includes removing diseased or dying animals from areas where they can attract wolves. Ranchers should dispose of carcasses and bone piles so they are not readily accessible to wolves and other scavengers.

Officials also offered tools that they say are most effective when used in combination, so that discouragement is consistent rather than sporadic and one tool reinforces the effectiveness of another tool.

These include placing barriers such as fences and/or fladry, which may be electric. Fladry is a series of cloth flags hung at intervals along a rope or fence line. Officials said wolves can be reluctant to cross fladry lines for 30 to 60 days.

Another nonlethal and noninjurious method is hazing. Suggestions include installing flashing lights, triggered by motion sensors, around the perimeter of calving and other sensitive areas. Lights should be moved regularly to increase effectiveness, officials said. Producers may also use air horns, spotlights or cracker shells. If a wolf is seen testing or chasing livestock or nearby, producers may scare the wolf by firing shots in the air, making loud noises or confronting the wolf.

Wildlife Services also suggested using range riders or herders for areas where livestock are in open range. Maintaining greater human presence is recommended in more localized areas.

Livestock guard dogs can be effective at alerting people to the presence of wolves, but not in actually keeping wolves away, officials said. Guard dogs are effective, they noted, depending on their breeding and training. Having multiple dogs is best, they said, but they should not be allowed to chase wolves because dogs are seen as competition to wolves, and that may result in injury or death to the dogs.

If ranchers suspect wolf depredation, they should report to Karen Kovacs or Pete Figura at the California Department of Fish and Wildlife by calling 530-225-2312; Elizabeth Willy at U.S. Fish and Wildlife Service, 541-885-2525; and Jim Shuler at USDA Wildlife Services, 530-336-5623.

To protect the scene, ranchers should avoid walking in and around the area; keep dogs and other animals away to avoid disturbing the area; place a tarp or other cover over the carcass; and, if possible, use cans or other objects to cover tracks and scats that can confirm the depredator.

Meanwhile, the deadline to submit comments on DFW's draft plan to manage gray wolves is Feb. 15. The plan, released late last year, emphasizes nonlethal methods for minimizing livestock losses and outlines management steps the department would take as the state's wolf population increases. DFW held three public workshops in the last several weeks on the regulatory proposal.