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


ANNOUNCEMENT: Join us Wednesday, September 6, at 12 noon (ET) for an Agricultural & Food Law Consortium webinar: “Water Law Update.” Details available here.


JUDICIAL: Includes CWA, food labeling, cooperatives, landowner liability, agritourism, and climate change issues.

In DELAWARE RIVERKEEPER NETWORK; MAYA VAN ROSSUM, the Delaware Riverkeeper, Petitioners v. UNITED STATES ARMY CORPS OF ENGINEERS, Respondent, Tennessee Gas Pipeline Co., Intervenor, No. 17-1506, 2017 WL 3611780 (3d Cir. August 23, 2017), the US Army Corps of Engineers (Corps) issued a permit to Tennessee Gas to build an interstate pipeline project. Petitioners argued Corps acted arbitrarily and capriciously by rejecting a “compression” alternative. Court observed that, “While the compression alternative would disturb less land, its impact would be mostly permanent. The pipeline project would disturb more land, but its impact would be mostly temporary.” Court found that Corps considered the compression alternative and that “the agency’s discretion was at its apex.” Petition for review denied.

SONIA PEREZ, individually, and on behalf of a class of similarly situated individuals, Plaintiff, v. THE KROGER CO.; and DOES 1–10, Defendants, No. 2:17-cv-02448-ODW (AGR), 2017 WL 3601998 (C.D. Cal. August 18, 2017) involved a consumer product class action wherein plaintiff argued Kroger’s use of the statement “No Sugar Added” on its apple juices does not comply with Food and Drug Administration (FDA) regulations. Kroger argued for dismissal because plaintiff “failed to allege facts showing that a reasonable consumer would be deceived or misled by the ‘No Sugar Added’ labeling on Kroger Apple Juice.” Court noted that plaintiff did not name which competitors’ products “did not contain the ‘No Sugar Added’ label” and failed to allege “which of the three varieties of Kroger Apple Juice she actually purchased.” Court stated plaintiff “must allege which specific product she purchased as a result of Kroger’s purported misrepresentations,” and dismissed plaintiff’s fraud and False Advertising Law (FAL) claims.

GARRETT AND RALPH SITTS, LEON ATWELL, VICTOR BARRICK, DANIEL BAUMGARDER, WILLIAM BOARD, GEORGE BOLLES, ROGER BOLLES, ANDY BOLLINGER, THOMAS BOLLINGER, LOGAN BOWER, DWIGHT BRANDENBURG, BERNARD BROUILLETTE, THOMAS BROUILLETTE, AARON BUTTON, HESTER CHASE, THOMAS CLARK, THOMAS CLATTERBUCK, PAUL CURRIER, GERRY DELONG, PETE AND ALICE DIEHL, MARK DORING, MARK AND BARBARA DULKIS, GLEN EAVES, MIKE EBY, WILLIAM ECKLAND, DOUG ELLIOT, JAMES ELLIOT, WEND ALL ELLIOTT, MICHAEL FAUCHER, DAVID AND ROBIN FITCH, DUANE AND SUSAN FLINT, JOSEPH FULTS, RICHARD GANTNER, STEFAN AND CINDY GEIGER, WILLIAM GLOSS, JOHN GWOZDZ, DAVID AND LAURIE GRANT, JIM AND JOYCE GRAY, DENNIS HALL, ROGER AND JOHN HAMILTON, NEVIN AND MARLIN HILDEBRAND, JAKE AND HARLEN HILLYERD, RICHARD AND TERRI HOLDRIDGE, PAUL HORNING, TERRY AND ROBERT HUYCK, DONALD SCOTT HYMERS, TERRY INCH, RANDY AND LYNETTE INMAN, THEODORE JAYKO, JACK KAHLER, JAMES AND TERESA KEATOR, JIM AND SHARON KEILHOLTZ, GEORGE KEITH, LEE AND ELLEN KLOCK, MIKE AND LISA KRAEGER, FRED LACLAIR, TIM LALYER, FRANK AND JOHN LAMPORT, CORRINE LULL, CHARLES AND GRETCHEN MAINE, THOMAS AND DEBORA MANOS, FRED MATTHEWS, RUSSELL MAXWELL, GERRY MCINTOSH, STEPHEN MELLOTT, JOHN AND DAVID MITCHELL, THOMAS MONTEITH, WALT MOORE, RICHARD AND SHEILA MORROW, DEAN MOSER, MELISSA MURRAY AND SEAN QUINN, THOMAS NAUMAN, CHARLES NEFF, DAVID NICHOLS, MICHAEL NISSLEY, LOU ANN PARISH, DANIEL PETERS, MARSHA PERRY, CAROLYN AND DAVE POST, JUDY LEE POST, SCOTT RASMUSEU, BRIAN REAPE, DAVID AND LYNETTE ROBINSON, BRIAN AND LISA ROBINSON, CALVIN ROES, BRADLEY ROHRER, PAUL AND SARAH ROHRBAUGH, ROBERTA RYAN, SCOTT AND LIN SAWYER, S. ROBERT SENSENIG, THOMAS AND DALE SMITH, DALE AND SUSAN SMITH, DENNIS SMITH, DONALD T. AND DONALD M. SMITH, ROGER AND TAMMY, SMITH, TODD SNYDER, RICHARD SOURWINE, DANNY SOUR WINE, RANDY SOWERS, SHANE STALTER, GEORGE AND SHIRLEY STAMBAUGH, TRACY STANKO, STEPHEN SOURWINE, RICHARD SWANTAK, GEORGE AND PATRICIA THOMPSON, JEREMY THOMPSON, KEN AND JUDY TOMPKINS, DANIEL VAUGHN, MARK VISSAR, ERIC WALTS, EDWARD WALLDROFF, GERALD WETTERHAHN, JR., EUGENE WILCZEWSKI, STEVE WILSON, Plaintiffs, v. DAIRY FARMERS OF AMERICA, INC. and DAIRY MARKETING SERVICES, LLC, Defendants, No. 2:16-cv-287, 2017 WL 3605362 (D. Vt. August 21, 2017) involved 115 dairy farmers who opted out of a class action settlement and sought relief under the Sherman Act for alleged antitrust violations by defendants. Defendants countered that “each Plaintiff fails to plausibly allege antitrust standing with respect to their monopolization and monopsonization claims.” Court considered the recent decision in re Aluminum Warehousing Antitrust Litigation, 833 F.3d 151 (2d Cir. 2016) and noted that, “Plaintiffs allege a single market for raw Grade A milk in which both they and Defendants participate. They have thus not ‘disavowed’ participation in the very market they allege Defendants restrained.” Motion to dismiss denied.

In IN RE: WTE–S & S AG ENTERPRISES, LLC, Debtor. WTE–S & S Ag Enterprises, LLC, Plaintiff, v. GHD, Inc. n/k/a DVO, Inc., Defendant, Bankruptcy No. 16 B 09913, 2017 WL 3600401 (N.D. Ill. August 18, 2017), plaintiff (debtor) sued defendant for breach of a contract to design and construct a “cow-manure digester,” a “green-energy” technology used on dairy farms to convert cattle waste into usable products. Plaintiff claimed the digester “was improperly designed and constructed, depriving the plaintiff of the expected economic benefits of the digester and ultimately driving it into bankruptcy.” Regarding plaintiff’s breach of contract claims, the court concluded defendant breached the digester contract “when it failed to competently supervise construction of the Vessel by allowing it to be left uncovered during freezing temperatures,” and found defendant liable for damages.

In VICTORVILLE WEST LIMITED PARTNERSHIP, Appellant, v. THE INVERRARY ASSOCIATION, INC., a Florida Non–Profit Corporation, Appellee, No. 4D16–2266, 2017 WL 3616397 (S.D. Fla. August 23, 2017), appellant purchased a golf course with a restrictive covenant limiting its use to strictly “recreational purposes,” including horseback riding. Appellant sought to cancel the covenant because the golf course was unprofitable and argued there was “a substantial change in circumstances such that the covenant’s purpose can no longer be carried out and that the covenant is an unlawful restraint on alienation.” Court considered “whether a property owner may cancel a restrictive covenant when that covenant has become financially onerous.” Court concluded that a restrictive covenant “may not be cancelled because it remains beneficial to the dominant estate holders and does not create an unlawful restraint on alienation.”

In CENTRAL OREGON LANDWATCH, an Oregon non-profit corporation; WATERWATCH OF OREGON, an Oregon non-profit corporation, Plaintiffs-Appellants, v. KENT CONNAUGHTON, in his official capacity as Regional Forester of Region 6; et al., Defendants-Appellees, and CITY OF BEND, Intervenor-Defendant-Appellee, No. 15-35089, 2017 WL 3616386 (9th Cir. August 23, 2017), US Forest Service (FS) allowed City to operate an intake facility and pipeline for withdrawing water on the Deschutes National Forest. Plaintiff sued after FS approved issuance of a Special Use Permit (SUP) authorizing City to “upgrade its intake facility, construct a new pipeline, and operate the system for 20 years.” Plaintiffs appealed grant of summary judgment and argued that the project “violates Inland Native Fish Strategy (INFISH) guidelines” and “is not consistent with the Deschutes National Forest Plan.” Court noted the FS determined that the project “would improve conditions in Tumalo Creek and would therefore comply with INFISH by “trending toward attainment” of the [Riparian Management Objectives].” The court also recognized FS “was not required to impose minimum instream flow requirements in authorizing the SUP.” Affirmed.


LEGISLATIVE:

H.R. 339: Northern Mariana Islands Economic Expansion Act. Bill enacted after being signed by the President on August 22, 2017.


REGULATORY: Includes USDA, EPA, FWS, FDA, FSIS, FS, NIFA, and NOAA rules and notices.

AGRICULTURE DEPARTMENT:

Notice the Office of the Assistant Secretary for Civil Rights (OASCR) will request a renewal of a currently approved information collection. Info here.

Notice USDA has submitted information collection requirement(s) to OMB for review. Title: Report of Supplemental Nutrition Assistance Program Issuance and Report of Commodity Distribution for Disaster Relief. Details here.

ENVIRONMENTAL PROTECTION AGENCYRule EPA is taking direct final action to approve a revision to the State Implementation Plan (SIP) submitted by the State of Iowa for the purpose of incorporating an amendment to the Administrative Consent Order (ACO) for Grain Processing Corporation (GPC), Muscatine, Iowa. Info here.

FISH AND WILDLIFE SERVICE: Notice FWS issued permits to conduct certain activities with endangered species, marine mammals, or both. Details here.

FOOD AND DRUG ADMINISTRATION: Rule FDA is announcing the availability of a guidance for industry entitled “Mitigation Strategies to Protect Food Against Intentional Adulteration: What You Need To Know About the FDA Regulation: Small Entity Compliance Guide.” Details here.

FOOD SAFETY AND INSPECTION SERVICE:

Notice FSIS is sponsoring a public meeting on October 11, to provide information and receive public comments on agenda items and draft United States positions to be discussed at the 49th Session of the Codex Committee on Food Hygiene (CCFH) of the Codex Alimentarius Commission (Codex), which will take place in Chicago, Illinois, November 13-17, 2017. Info here.

Notice FSIS is sponsoring a public meeting on September 13, to provide information and receive public comments on agenda items and draft United States positions to be discussed at the 44th Session of the Codex Committee on Food Labeling (CCFL) of the Codex Alimentarius Commission (Codex), which will take place in Asuncion, Paraguay, October 16-20, 2017. Info here.

FOREST SERVICE: Notice FS will prepare an Environmental Impact Statement. Evanston-Mountain View Ranger District of the Uinta-Wasatch-Cache National Forest will treat the streams in the West Fork Smiths Fork drainage including some waters within the High Uintas Wilderness and High Uintas Inventoried Roadless Area with rotenone to remove non-native fish species and enhance habitat for native Colorado River cutthroat trout. Info here.

NATIONAL INSTITUTE OF FOOD AND AGRICULTURE: Notice NIFA will request approval to extend the currently approved information collection in support of authorizations to use the 4-H Club Name and/or Emblem. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Notice Commerce seeks comment on proposed and/or continuing information collections. Title: National Sea Grant College Program. Details here.

Notice the South Atlantic Fishery Management Council (Council) will hold meetings of the: Advisory Panel Selection Committee (Closed); Habitat Protection and Ecosystem-Based Management Committee; Southeast Data, Assessment and Review (SEDAR) Committee; Snapper Grouper Committee; Personnel Committee (Closed); Mackerel Cobia Committee; and Executive Finance Committee. Info here.

Notice of Membership of the NOAA Performance Review Board. Details here.