A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions HERE.


JUDICIAL: Includes pesticides, cooperatives, business organizations, and water law issues.

IN RE SYNGENTA MASS TORT ACTIONS This Document Relates to: Poletti, et al. v. Syngenta AG, et al, No. 3:15-cv-01221-DRH, No. 3:15-cv-01221-DRH, 2017 WL 1277898 (S.D. Ill. April 3, 2017) concerned the mass tort action against Syngenta regarding the company’s Viptera brand corn seed containing genetically modified traits. Here, Syngenta moved to dismiss, arguing that plaintiffs’ claims are “preempted’ by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), and the court observed that “FIFRA preempts any state rule that imposes any requirement for labeling or packaging that is in addition to, or different, than those required under the Act.” Sygnenta argued that any claims asserted by plaintiffs based on alleged risks in growing Viptera corn “should reasonably be interpreted to include a claim that Syngenta failed to warn purchasers of the risk of its products, including any risk of the loss of the Chinese market.” Plaintiffs argued they have not “directly asserted a failure to warn claim.” On this issue, court ruled that, “In addition to any claims preempted under the GSA, certain claims of plaintiffs’, to the extent they implicate failure to provide warnings on product labels, are also preempted under FIFRA.”

In FARMERS COOPERATIVE, A COOPERATIVE CORPORATION ORGANIZED UNDER THE LAWS OF THE STATE OF NEBRASKA, APPELLANT, V. STATE OF NEBRASKA ET AL., APPELLEES, FRONTIER COOPERATIVE COMPANY, A COOPERATIVE CORPORATION ORGANIZED UNDER THE LAWS OF THE STATE OF NEBRASKA, APPELLANT, V. STATE OF NEBRASKA ET AL., APPELLEES, Nos. S-16-312, S-16-313, 296 Neb. 347 (D. Neb. April 7, 2017), Farmers Cooperative appealed a denial of their requested refunds of sales and use taxes paid on the purchase of repairs and parts for agricultural equipment. Issue was how the phrase “depreciable repairs or parts,” contained in the applicable statute, should be interpreted. Court noted state legislature did not incorporate the phrase “capital expenses” into the statute and found phrase “depreciable repairs or parts” ambiguous. Appellate court ruled district court “did not err in affirming partial denial of the Cooperatives’ requested refunds” based upon its interpretation of the statute.

In Farm Credit of Southern Colorado, ACA; and Farm Credit of Southern Colorado, FLCA, Plaintiffs-Appellees, v. James C. Mason, a/k/a Jim Mason, Defendant-Appellant, Court of Appeals No. 15CA0852, 2017 WL 1279716 (Colo. App. April 6, 2017), plaintiff, Farm Credit, refused to loan defendant additional funds for his farming operations after defendant’s father took control of crops that constituted collateral for defendant’s loans. Plaintiff sued and trial court found defendant liable for converting the collateral and awarded damages. Appellate court agreed with trial court that “the basic thrust of the underlying action was equitable,” and found that “if no right to a jury trial exists because the basic thrust of the action is equitable, as it is here, no party may invoke that right.” Judgment for plaintiff affirmed.

DANIEL ESTERMANN, APPELLANT, v. BILL BOSE ET AL., BOARD MEMBERS OF NEBRASKA COOPERATIVE REPUBLICAN PLATTE ENHANCEMENT PROJECT, A POLITICAL SUBDIVISION OF THE STATE OF NEBRASKA, AND NEBRASKA COOPERATIVE REPUBLICAN PLATTE ENHANCEMENT PROJECT, A POLITICAL SUBDIVISION OF THE STATE OF NEBRASKA, APPELLEES, No. S-15-1022, 296 Neb. 228 (Neb. April 7, 2017) involved a “water augmentation project” by a political subdivision (N-CORPE) that resulted in an eminent domain controversy. Plaintiff sued after his property was flooded and his crops damaged by defendant’s water project. After prolonged litigation, court found that defendant “had the authority to exercise the power of eminent domain, that N-CORPE did not need certain permits and approvals as alleged by plaintiff,” and that defendant “is not prohibited by common law from removing ground water from overlying land.” Plaintiff’s suit dismissed.


LEGISLATIVE:

H.R. 2083: To amend the Marine Mammal Protection Act of 1972 to reduce predation on endangered Columbia River salmon and other nonlisted species. Bill referred to the House Committee on Natural Resources.

H.R. 2085: To approve an agreement between the United States and the Republic of Palau, and for other purposes. Bill referred to the House Committee on Foreign Affairs and House Committee on Natural Resources.


REGULATORY: Includes USDA, APHIS, EPA, FWS, FNS, and NOAA rules and notices.

AGRICULTURE DEPARTMENT:

Notice USDA submitted information collection requirement(s) to OMB for review. Title: Food Distribution Program on Indian Reservations (FDPIR) Paraprofessional Nutrition Training Assessment for Indian Tribal Organizations (ITOs). Info here.

Notice USDA announces a meeting of the National Agricultural Research, Extension, Education, and Economics Advisory Board. Info here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE: Notice APHIS will prepare an environmental impact statement evaluating the environmental impacts that may result from the potential approval of an application from Southern Gardens Citrus Nursery, LLC. Details here.

ENVIRONMENTAL PROTECTION AGENCY: Rule establishes time-limited tolerances for residues of acetamiprid in or on sugarcane, cane and sugarcane, molasses. Details here.

FISH AND WILDLIFE SERVICE: Notice FWS seeks comment on applications to conduct certain activities with endangered or threatened species. Details here.

FOOD AND NUTRITION SERVICE:

Notice FNS seeks comment on a proposed information collection burden for the Supplemental Nutrition Assistance Program (SNAP), Employment and Training (E&T) Program. Info here.

Notice announces FNS’s annual adjustments to the Income Eligibility Guidelines to be used in determining eligibility for free and reduced price meals and free milk. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Notice that four direct take permits have been issued pursuant to section 10(a)(1)(A) for programs rearing and releasing spring Chinook salmon in the Methow River basin of Washington state. Info here.

Notice the South Atlantic Fishery Management Council will hold a meeting of its Law Enforcement AP in Charleston, SC. Info here.

Notice NOAA issued an incidental harassment authorization to the Alaska Department of Transportation and Public Facilities to incidentally harass seven species of marine mammals during activities related to the implementation of a Ferry Terminal Improvements Project in Gustavus, Alaska. Info here.