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


ANNOUNCEMENT: Join us next Wednesday, September 5th, at 12 noon (ET) for the next Agricultural & Food Law Consortium webinar: Be In The Know:  Legal Tips for Your Ag Start-Up. Details available here.


JUDICIAL: Includes environmental, secured transactions, and labor issues.

UNITED STATES OIL RECOVERY SITE POTENTIALLY RESPONSIBLE PARTIES GROUP, Plaintiff-Appellee v. RAILROAD COMMISSION OF TEXAS; Stephen F. Austin State University; Texas A&M University; Texas Department of Criminal Justice; Texas Department of Transportation; Texas General Land Office; Texas Southern University; Texas State University System; University of Houston; the University of Texas System, Defendants-Appellants, No. 17-20361, 898 F.3d 497 (5th Cir. August 1, 2018) concerned environmental remediation costs regarding cleanup of a superfund site. Plaintiffs made claims under the Comprehensive Environmental Resources, Compensation, and Liability Act (CERCLA) and the Texas Solid Waste Disposal Act (TSWDA) seeking contribution for cleanup costs from a host of defendants, including state agencies and universities. Defendants appealed after their motion to dismiss was denied. Appellate court found that “agencies and universities were all ‘arms of the state,’ and thus, entitled to sovereign immunity from CERCLA claim.” The court also concluded lower court did not have “supplemental jurisdiction” over plaintiff’s TSWDA claims. Reversed and remanded.

In SOUTH DAKOTA WHEAT GROWERS ASSOCIATION; Plaintiff, v. CHIEF INDUSTRIES, INC.; Gateway Building Systems, Inc.; and Heyer Engineering, P.C., Defendants, 1:14-CV-01008-CBK, 2018 WL 4100525 (D.S.D. August 28, 2018), a group of wheat growers sued a grain bin manufacturer after cracks and tears allegedly occurred in the stem wall of the bin at issue. Plaintiff sued for negligence in design, and for misrepresentation of the bin’s “snow and wind loads,” among a host of allegations. Court determined the UCC was applicable to the issues presented and considered “whether the economic loss doctrine bars any available tort causes of action.” Court reasoned that “there is a genuine issue of material fact as to whether [defendant], as a professional engineering firm, was negligent in its design of the foundation and aeration tunnels and the plate repair fix,” and denied summary judgment on plaintiff’s claims for “professional negligence.”

In Keith FAIRCHILD, Plaintiff, v. KUBOTA TRACTOR CORPORATION, Defendant, 1:18CV69, 2018 WL 4038126 (W.D.N.C. August 23, 2018), plaintiff bought a tractor manufactured by defendant and experienced problems with the tractor’s hydraulic system. Plaintiff was unable to get the tractor repaired and sued for “breach of the New Motor Vehicles Warranties Act, breach of the Magnuson-Moss Warranty Act (MMWA), . . . [and] breach of an express warranty.” Defendant countered that the Magnuson-Moss Warranty Act “is inapplicable in this case because the tractor is not a consumer product.” The court observed that per the [MMWA], a “’consumer product’ is defined as any tangible personal property normally used for family, personal, or household purposes that is distributed in commerce.” Plaintiff’s evidence failed to show the tractor in question “was personal property used for family, personal, or household purposes,” and court granted defendant’s motion to dismiss plaintiff’s MMWA claim.

In Gaudencio GARCIA-CELESTINO, individually and on behalf of all other persons similarly situated, Raymundo Cruz-Vicencio, individually and on behalf of all other persons similarly situated, Raul Ismael Estrada-Gabriel, individually and on behalf of all other persons similarly situated, Daniel Ferro-Nieves, individually and on behalf of all other persons similarly situated, Jose Manuel Ferro-Nieves, individually and on behalf of all other persons similarly situated, et al., Plaintiffs-Appellees, v. RUIZ HARVESTING, INC., Defendant, Consolidated Citrus Limited Partnership, Defendant-Appellant, No. 17-12866, 898 F.3d 1110 (11th Cir. August 2, 2018), migrant farm workers employed under H-2A visa program brought class action suit alleging breach of contract and Fair Labor Standards Act (FLSA) violations against a contractor and a fruit grower. Lower court dismissed claims against contractor, but found for workers on their breach-of-contract claim against the grower. Grower appealed, and issue for appellate court was whether grower was a “common law employer.” Appellate court concluded that grower “did not have control over the manner and means of Plaintiffs’ work.” Court also observed that the contractor, and not the grower, determined the workers’ specific starting and ending work times.


LEGISLATIVE:

S. 3402: A bill to designate the National Airmail Museum at Smith Air Field in Fort Wayne, Indiana. Referred to the Senate Committee on Energy and Natural Resources.

S. 3393: A bill to establish the Council on Rural Community Innovation and Economic Development. Bill referred to the Senate Committee on Agriculture, Nutrition, and Forestry.

S. 3397: A bill to promote conservation, improve public land, and provide for sensible development in Douglas County, Nevada. Referred to the Senate Committee on Energy and Natural Resources.

H.R. 6682: Protection and Transparency for Adjacent Landowners Act. Referred to the House Committee on Agriculture and House Committee on Natural Resources.

H.R. 6687: To direct the Secretary of the Interior to manage the Point Reyes National Seashore in the State of California consistent with Congress’ longstanding intent to maintain working dairies and ranches on agricultural property. Referred to the House Committee on Natural Resources.

S. 3394: A bill to establish a national mercury monitoring program. Referred to the Senate Committee on Environment and Public Works.


REGULATORY: Includes APHIS, EPA, FWS, NASS, NOAA, RHS, and RUS rules and notices.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE:

Notice APHIS is advising the public of our decision to concur with the World Organization for Animal Health’s (OIE) bovine spongiform encephalopathy (BSE) risk designations for four regions. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is approving a state implementation plan (SIP) revision submitted by the District of Columbia (the District) that pertains to the good neighbor and interstate transport requirements of the Clean Air Act for the 2008 ozone national ambient air quality standards. Info here.

Rule EPA is approving portions of State Implementation Plan (SIP) submissions from Colorado, Montana, North Dakota, South Dakota and Wyoming addressing the Clean Air Act interstate transport SIP requirements for the 2010 sulfur dioxide National Ambient Air Quality Standard. Details here.

Rule EPA is approving a state implementation plan (SIP) revision submission from Maryland addressing the infrastructure requirements of section 110 of the Clean Air Act (CAA) for the 2012 annual fine particulate matter National Ambient Air Quality Standard. Details here.

Rule EPA is approving certain changes to the Michigan State Implementation Plan. Info here.

Rule EPA is proposing to approve portions of three state implementation plan (SIP) revisions submitted by the State of California to meet Clean Air Act requirements for the 2008 8-hour ozone national ambient air quality standards in the San Joaquin Valley, California ozone nonattainment area. Info here.

Rule EPA is proposing three distinct actions, including Emission Guidelines for Greenhouse Gas Emissions from Existing Electric Utility Generating Units. Details here.

FISH AND WILDLIFE SERVICE:

Notice of the availability of a draft habitat conservation plan in support of an application from MidAmerican Energy Company (applicant) for an incidental take permit for the federally endangered Indiana bat, federally threatened northern long-eared bat, and federally protected bald eagle. Details here.

NATIONAL AGRICULTURAL STATISTICS SERVICE:

Notice NASS will request revision and extension of a currently approved information collection, the Stocks Reports. Details here.

Notice NASS will request revision and extension of a currently approved information collection, the Egg, Chicken, and Turkey Surveys. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS proposes regulations to implement measures in Amendment 20 to the Atlantic Mackerel, Squid, and Butterfish Fishery Management Plan and corrections to existing regulations. Info here.

Notice NMFS has issued an incidental harassment authorization to Lamont-Doherty Earth Observatory of Columbia University to incidentally take, by Level A and/or Level B harassment, marine mammals during a Marine Geophysical Survey in the North Pacific Ocean. Info here.

RURAL HOUSING SERVICE: Rule RHS is proposing to amend its regulations for the direct and guaranteed single family housing loan and grant programs. Info here.

RURAL UTILITIES SERVICE: Notice RUS announces the depreciation rates for telecommunications plant for the period ending December 31, 2017. Details here.