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


JUDICIAL: Includes environmental law, landowner liability, urb & ag, food labeling, and national organic program issues.

Michelle BARNES, an individual; Patrick Conry, an individual; Blaine Ackley, an individual; David Barnes, an individual; James Lubischer, an individual; Oregon Aviation Watch, an Oregon non-profit organization, Petitioners, v. FEDERAL AVIATION ADMINISTRATION, Respondent; Port of Portland, Intervenor-Respondent, No. 14-71180, 2017 WL 3297704 (9th Cir. August 3, 2017) involved a challenge to an environmental assessment done for an airport runway project. An environmental assessment concluded that the new runway would “cause at most a small increase in air traffic and also determined that, even if the runway did induce a growth in traffic, any impact on air quality would be immaterial.” The Federal Aviation Administration (FAA) issued a finding that the new runway would have no significant impact on the environment. Petitioners challenged the FAA’s conclusions, but appellate court denied their petition for review.

In SUZANNE BRUDE, Plaintiff and Appellant, v. SHANE BREEN d/b/a YELLOW JACKET IRRIGATION AND LANDSCAPING, Defendant, Third-Party Plaintiff, and Appellee, v. GREGORY AND ELIZABETH JAMISON, Third-Party Defendants, 28064-r-GAS, 2017 WL 3297727 (S.D. August 2, 2017), plaintiff sued alleging defendant negligently constructed a retaining wall which injured plaintiff. Defendant moved for summary judgment claiming plaintiff’s action was barred by the statute of repose, and district court agreed. Plaintiff appealed, arguing the ten-year limitation in the statute of repose had not expired. Court observed that the language of the statute at issue “clearly provides that it will only apply to this case if the injury arose out of the construction of an improvement to real property.” Court reversed lower court ruling, concluding that, “Regardless of whether the work in 2011/2013 constituted a repair or an improvement to real property, {statute] does not bar the claim at issue.”

In Daniel MATTHIEs and Heather Matthies, Plaintiffs–Respondents, v. Charles DIETRICH and Mary Dietrich, Defendants–Appellants, 2017 WL 3297454 (N.J. Super. Ct. App. Div August 3, 2017), defendants appealed judgment that required removing trees from an easement. In a contract dispute involving sale of land, trial court found the deed restriction “restricts the right to remove trees and ground cover. Although defendants did not remove any trees, they planted them. The planting of the trees removed the ground cover, thereby violating the easement.” Appellate court reversed trial court, concluding that the trees planted in the easement were “present in and produced in nature. The fact they are not native to the area or were planted in a certain pattern is irrelevant.”

In Steven SAPHIRSTEIN, Yocheved Carlbach, Cindy Levy, and Judy Kahn, individually and on behalf of all others similarly situated, Plaintiffs, v. MAUZONE MANIA LLC, Palace Foods LLC, Falcone Cookieland, Ltd., Falcone Baking Corp., ABC Corporations 1-10, and John Does 1-10, Defendants, 15-CV-7264 (ERK)(RML), 2017 WL 3278893 (E.D.N.Y. July 31, 2017), plaintiff clamed defendants misrepresented the nutritional information on their products, alleging the misrepresentations “induced consumers to purchase defendants’ . . .  products at inflated prices and/or induced consumers to purchase the products when they would not have done so if they knew the truth.” Court dismissed plaintiff’s common law fraud claims against defendant, reasoning that plaintiffs did not state the “purchase price of [defendant’s] products, the prices of comparable products, and the exact products purchased.”

In re: Xochitl, Inc., Respondent, OFPA Docket No. 16-0108, 2017 WL 3284767 (U.S.D.A.) July 20, 2017) involved a proceeding under the Organic Foods Production Act alleging that respondent “willfully violated the National Organic Program Regulations.” AMS discovered responded was selling agricultural products as organic without certification. Administrative law judge ordered respondent to “cease and desist from violating the OFPA and the USDA organic Regulations” and suspended respondent’s organic certification for two years.


LEGISLATIVE:

S. 756: SOS Act of 2017. Passed Senate with amendments by Unanimous Consent.

H.R. 3646: To amend the Food Security Act of 1985 to authorize the Secretary of Agriculture to carry out a precision conservation pilot program. Bill referred to the House Committee on Agriculture.

H.R. 374: To remove the sunset provision of section 203 of Public Law 105-384. Bill’s text for status Passed Congress/Enrolled Bill (Aug 5, 2017) and is now available.


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

AGRICULTURE DEPARTMENT: Notice USDA submitted information collection requirement(s) to OMB for review. Title: USDA/HSI Scholars Program Applications. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is correcting an omission in revisions requested to Performance Specification 2 in the “revisions” rule published August 30, 2016. Details here.

Rule EPA is proposing to approve a State Implementation Plan (SIP) revision submitted by the Commonwealth of Kentucky through the Kentucky Energy and Environment Cabinet, Division of Air Quality on September 17, 2014. Details here.

Rule EPA proposes amendments to the National Emission Standards for Hazardous Air Pollutants for Off-Site Waste and Recovery Operations. Details here.

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

INTERNATIONAL TRADE ADMINISTRATION:

Notice ITA is conducting an administrative review of the antidumping duty order on pasta from Turkey. Info here.

Notice ITA finds that revocation of the antidumping duty order on fresh garlic would be likely to lead to continuation or recurrence of dumping. Details here.

Notice ITA is conducting an administrative review of the antidumping duty order on monosodium glutamate (MSG) from China. Details here.

Notice ITA is conducting an administrative review of the antidumping duty order on xanthan gum from China. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is adjusting the Atlantic bluefin tuna General category daily retention limit from four large medium or giant BFT per vessel per day/trip to two large medium or giant BFT per vessel per day/trip for the remainder of the 2017 fishing year. Info here.

Rule NMFS proposes regulations under the Tuna Conventions Act to implement Resolution C-16-05 of the Inter-American Tropical Tuna Commission adopted in July 2016. Info here.