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


JUDICIAL: Includes renewable energy, Urb & Ag, landowner liability, climate change and patent issues.

M & G SERVICES, INC., et al., Respondents, v. BUFFALO LAKE ADVANCED BIOFUELS, LLC, et al., Appellants, Minnesota Energy, Respondent, K & S Millwrights, Inc., Respondent, Beaver Creek Transport, Inc., Respondent, A16-1347, 2017 WL 1375312 (Minn. Ct. App. April 17, 2017) involved a mechanic’s lien foreclosure. Issue was whether “removal and distribution of excess thin stillage contribute to the improvement of real estate by performing labor, or furnishing skill, material, or machinery for the erection, alteration, repair, or removal of any building.” On appeal, court concluded that district court “erred in enforcing M & G’s lien against West Ventures because Minnesota law does not recognize the removal of a byproduct generated from the operation of a business as an improvement to real property under the statute.” Reversed for defendant.

In TOWN OF MUKWONAGO, PLAINTIFF-APPELLANT, v. RALINDA L. HOWARD AND ALH IRREVOCABLE TRUST, DEFENDANTS-RESPONDENTS, No. 2016AP1651-FT, 2017 WL 1180658 (Wis. Ct. App. March 29, 2017), plaintiff appealed order holding defendant in contempt for “violating a stipulation and a provision of the Town’s zoning code by having ‘kept’ more than seven horses on defendant’s property on three occasions.” Circuit court sanctioned defendant ALH and defendant Howard together and made them jointly and severally liable. Plaintiff argued circuit court “should have found twenty-four separate violations and that the sanction should be imposed against ALH and Howard separately.” Appellate court considered definition of the term “kept” and affirmed ruling of circuit court.

In ANDREW H. COHN1 as TRUSTEE OF OYSTER POND EP TRUST; RICHARD L. FIREDMAN; ALLEN W. NORTON; JUDITH A. NORTON and MELISSA NORTON VINCENT as TRUSTEES OF THE QUIET OAKS REALTY TRUST; ALBERT WHITE, TONI W. HANOVER, and SHAUNA WHITE SMITH, as TRUSTEES OF THE QUAMPACKY TRUST; MARK B. NORTON; SHAUNA WHITE SMITH; DEBRA WHITE SCOTT; and LISA WHITE Plaintiffs v. MICHAEL D. MYEROW, as TRUSTEE OF BOTAR REALTY TRUST, RABOR REALTY TRUST and TAROB REALTY TRUST; JEFFREY FLYNN, PATRICIA POST, and RICHARD B. KEELER, as TRUSTEES OF THE POHOGONOT TRUST; PAMELA KOHLBERG, as TRUSTEE OF THE JOB’S NECK TRUST; ANDREW KOHLBERG, as TRUSTEE OF THE HIGH ROAD TRUST; and SHORT POINT HOLDINGS, LLC Defendants, 04 MISC 303223 (JCC), 2017 WL 1425373 (Mass. App. Ct. April 19, 2017), plaintiffs claimed deeded rights in a stretch of beach and/or prescriptive rights to use the beach. Lower court found plaintiffs held no deeded interest in the beach and “had not met their burden of proof to establish the existence of the prescriptive easements they claim in this action.” Appellate court found plaintiffs did not establish prescriptive beach rights, “either because their various uses of the beach were occasional and sporadic, did not continue uninterrupted for the full, requisite twenty-year period, and/or were not substantially confined to a regular part or parts of the beach.” Judgment for defendants.

In CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. U.S. FISH & WILDLIFE SERVICE, et al., Defendants, No. 15–cv–05754–JST, 2017 WL 1150250 (N.D. Cal. March 28, 2017), plaintiff submitted a petition to the Fish and Wildlife Service (FWS) requesting that the coastal marten be listed as an endangered or threatened species. FWS concluded that the coastal marten population is “not small enough or isolated enough” to pose a threat to its existence and plaintiffs disputed the findings. Considering the FWS analysis, the Court found that “Even if [FWS] sufficiently explained away the wildfire, climate change, and rodenticide risks, if it failed to recognize the California population’s isolation and small and declining numbers, it could not have properly assessed whether that sub-population was, as the Species Report found, ‘especially vulnerable to extirpation.’” Defendants’ motion for summary judgment denied.

In GREENBROZ, INC., a Nevada corporation, Plaintiff, v. LAEGER BUILT, LLC d/b/a Trimbros.com, an Oregon limited liability company; Jeffery Laeger, an individual; Does 1-10, Defendants, No.: 3:16-cv-2946-CAB (BLM), 2017 WL 1427139 (S.D. Cal. April 21, 2017), plaintiff, owner of a design patent for a blade for trimming agricultural products, sued defendants alleging patent infringement and California trademark infringement. Plaintiff’s complaint alleged defendants “manufacture, import, use, and/or sell at least one agricultural product trimmer that employs substantially the same ornamental look and appearance of the Plaintiff’s blade assemble,” and defendant countered it was not subject to personal jurisdiction. Court considered “purposefully directed activities” by defendant and noted defendant attended a marketing convention in California and distributed flyers about the product. Defendant’s motion to dismiss denied.


REGULATORY: Includes USDA, BOC, EPA, FWS, FDA, ITA, RBCS and RUS rules and notices.

AGRICULTURE DEPARTMENT:

Notice USDA will submit information collection requirement(s) to OMB for review. Title: Organic Handler Market Promotion Assessment Exemption. Details here.

Notice USDA will submit information collection requirement(s) to OMB for review. Title: Advanced Meat Recovery Systems. Info here.

Notice USDA will submit information collection requirement(s) to OMB for review. Title: Special Use Administration. Info here.

CENSUS BUREAU: Notice BOC seeks comment on a proposal to change the classification of limited-access highways in the Census Bureau’s Master Address File/Topologically Integrated Referencing and Encoding System. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule establishes a tolerance for residues of benzobicyclon in or on rice, grain. Details here.

Rule establishes an exemption from the requirement of a tolerance for residues of Bacillus simplex strain BU288 when used as an emulsifier in pesticide formulations applied to growing crops and raw agricultural commodities. Info here.

FISH AND WILDLIFE SERVICE: Notice FWS received an application from Phillips 66 Pipeline LLC, for an incidental take permit under the Endangered Species Act. Info here.

FOOD AND DRUG ADMINISTRATION:

Notice FDA will submit to OMB a request to review and approve a new collection of information: Certification of Identity for Freedom of Information Act and Privacy Act Requests. Info here.

Notice FDA submitted a proposed collection of information to OMB for review. Title: Institutional Review Boards. Details here.

Notice FDA Center for Drug Evaluation and Research is sponsoring a 2-day public conference entitled “FDA Small Business and Industry Assistance Regulatory Education for Industry (REdI) Spring Conference.” Info here.

INTERNATIONAL TRADE ADMINISTRATION: Notice Department of Commerce preliminarily determines that countervailable subsidies are being provided to producers and exporters of hardwood plywood from China. Info here.

RURAL BUSINESS-COOPERATIVE SERVICE: Notice RBCS seeks approval of a revision to a currently approved information collection for the Advanced Biofuel Payment Program. Details here.

RURAL UTILITIES SERVICE: Notice RUS seeks approval of a revision to a currently approved information collection. Title: RUS Specification for Quality Control and Inspection of Timber Products. Info here.