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


ANNOUNCEMENT: Mark your calendar for the next Agricultural & Food Law Consortium webinar, Tuesday, January 16th, 2018: “The New Deal: Understanding and Negotiating Dairy Supply Contracts.” Details available here.


JUDICIAL: Includes PACA, urb & ag, ag leases, and food labeling issues.

In TOPASHAW FARMS PROCESSING, LLC d/b/a Topashaw Farms Packing, MS, et al., Plaintiff, v. FOREST CITY–WEINGART PRODUCE CO., INC., Andrew J. Weingart, and James B. Weingart, Defendants, No. 1:17CV00552, 2017 WL 6374063 (N.D. Ohio December 13, 2017), plaintiff asserted various claims under the Perishable Agricultural Commodities Act (PACA) to collect payment for produce sold to defendant. Court established a PACA trust fund and a third party (Farm-Wey) filed motion to intervene to also collect from defendant. Defendants argued that “[a]llowing Farm–Wey to intervene when its application was not timely, when intervention would negatively impact the claimants who did file timely claims, and given that the ability to participate was solely within Farm–Wey’s exclusive control, and it simply failed to act, necessitates denial of the Motion.” Court, after extensive analysis, determined Farm-Wey’s interests “will not be adequately represented by the parties already before the Court.” Motion to intervene granted.

STATE EX REL. TOWN OF TIVERTON v. James PELLETIER. State ex rel. Town of Tiverton v. Melissa Pelletier. James Pelletier et al. v. Town of Tiverton, No. 2014–123–C.A. (N3/09–238A), No. 2014–124–C.A.(N3/09–238B), No. 2014–298–Appeal. (NC 09–443), 2017 WL 6395807 (R.I. December 15, 2017) involved right-to-farm issues wherein defendants manufactured compost on their property and were convicted of violating a zoning ordinance prohibiting the practice on their property. Defendant argued that “no manufacturing process was taking place on the property because . . . compost was not being packaged and sold as a product off-site.” They also argued that producing compost on their property is an ‘accessory use to their permitted nursery activities.” Court considered the evidence and concluded that defendants “procured truckloads of waste materials to be transported to the property, actively combined these materials with industrial equipment, and produced finished compost that was used off-site.” Conviction affirmed.

In ROBERT CHATELAIN and JANET CHATELAIN, Plaintiffs, v. COUNTRY MUTUAL INSURANCE CO. Defendant, No. 3:15-cv-02013-MO, 2017 WL 6402938 (D. Or. December 15, 2017), plaintiffs leased their farm, an operational dairy, to a third party. Third party defaulted on the lease and after plaintiffs took the farm back, they realized the property was vandalized and cattle were missing. Plaintiffs filed a claim with their insurance company, were denied recovery, and sued for breach of contract. Just awarded damages to plaintiff and defendant filed motion for remittitur. Court considered vandalism charges and stated, “the Oregon Supreme Court held that ‘property has been damaged willfully and maliciously’ if the damage results from an intentional act from which damage manifestly would or could result.” Court concluded jury’s reasoning was sound and denied defendant’s motion.

In EDWIN SEGOVIA, on behalf of himself and all others similarly situated, Plaintiff, v. VITAMIN SHOPPE, INC., Defendant, 14-CV-7061 (NSR), 2017 WL 6398747 (S.D.N.Y. December 12, 2017), plaintiff alleged defendant’s labels misrepresented the function of their protein supplement products and their ability to aid in “protein absorption.” Defendant argued its label is not misleading “because it correctly informs consumers that the product generally contains an ingredient that may aid in the absorption of protein—Aminogen.” Court considered whether a “reasonable consumer” would find the labels deceptive. Plaintiff did not “provide the prices of competing products for comparison,” and did not testify that  “but for Defendant’s lactase-specific claims, he would have been unwilling to pay Defendant’s price.” Defendant’s motion for summary judgment granted.


LEGISLATIVE:

S. 2243: A bill to amend the Food Security Act of 1985 to authorize funding for the voluntary public access and habitat incentive program. Bill referred to the Senate Committee on Agriculture, Nutrition, and Forestry.

H.R. 1350: To modify the boundary of Voyageurs National Park in the State of Minnesota. This bill’s text for status Reported by House Committee (Dec 18, 2017) is now available.

H.R. 4667: Making further supplemental appropriations for the fiscal year ending September 30, 2018, for disaster assistance for Hurricanes Harvey, Irma, and Maria, and calendar year 2017 wildfires. Bill referred to the House Committee on Appropriations and House Committee on the Budget.

H.R. 4671: To assist and incentivize organic agriculture by expanding its access to, and eligibility for, Federal rural development and agricultural loan programs. Bill referred to the House Committee on Agriculture.


REGULATORY: Includes AMS, EPA, FWS, FS, NOAA, and RHS rules and notices.

AGRICULTURAL MARKETING SERVICE: Rule that this document contains a correction to the final rule which was published on December 11, 2017. In the final rule, the Regulatory Information Number (RIN) appears as RIN 0581-AD74. This number is incorrect. The correct number is 0581-AD76. Info here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is proposing to approve revisions to the San Diego County Air Pollution Control District portion of the California State Implementation Plan. Info here.

Rule EPA is taking final action to approve revisions to the Placer County Air Pollution Control District (PCAPCD) and Ventura County Air Pollution Control District (VCAPCD) portions of the California State Implementation Plan (SIP). Info here.

Rule EPA is approving a State Implementation Plan (SIP) revision submitted by the State of Rhode Island. Details here.

Rule establishes an exemption from the requirement of a tolerance for residues of amines, coco alkyl, ethoxylated, compds. with acrylic acid-Bu acrylate-methylstyrene-styrene polymer, ammonium salts (CAS Reg. No. 1186094-73-4) also known as amine salt of styrene acrylic polymer, ammonium salt when used as an inert ingredient in a pesticide chemical formulation. Info here.

FISH AND WILDLIFE SERVICE:

Rule announcing 90-day findings on several petitions to list or reclassify wildlife or plants under the Endangered Species Act. Info here.

Notice FWS invite the public to comment on applications for permits to conduct activities intended to enhance the propagation or survival of endangered species. Details here.

Notice announcing the receipt and availability of a draft Habitat Conservation Plan (HCP) and draft environmental assessment (EA), which evaluates the impacts of, and alternatives to, the proposed Hinkley Groundwater Remediation Project. Info here.

Notice FWS invite the public to comment on the following applications to conduct certain activities with endangered and threatened species. Info here.

FOREST SERVICE:

Notice FS is seeking comments from all interested individuals and organizations on a new generic information collection request, Generic Clearance for Citizen Science Projects. Details here.

Notice FS is seeking comments from all interested individuals and organizations on the renewal of the National Woodland Owner Survey information collection. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS is adjusting the 2018 total allowable catch (TAC) amounts for the Bering Sea and Aleutian Islands (BSAI) pollock, Atka mackerel, and Pacific cod fisheries. Info here.

Rule NMFS is adjusting the 2018 total allowable catch (TAC) amounts for the Gulf of Alaska (GOA) pollock and Pacific cod fisheries. Info here.

Rule NMFS is reallocating the projected unused amount of the 2017 Bering Sea subarea and Eastern Aleutian Island District (BS/EAI) Atka mackerel total allowable catch (TAC) assigned to the Bering Sea and Aleutian Islands (BSAI) trawl limited access sector to the Amendment 80 cooperative in the BS/EAI of the BSAI. Details here.

Rule NMFS proposes a 2017 annual catch limit (ACL) of 3,500 lb for Hawaii Kona Crab, and an accountability measure (AM) to correct or mitigate any overages of catch limits. Info here.

Notice the Deepwater Horizon Federal and State natural resource trustee agencies for the Louisiana Trustee Implementation Group (Louisiana TIG) have prepared the Draft Strategic Restoration Plan and Environmental Assessment #3: Restoration of Wetlands, Coastal, and Nearshore Habitats in the Barataria Basin, Louisiana. Details here.

Notice NOAA announces its intention to prepare an EA, in accordance with the National Environmental Policy Act of 1969, for a new space lease to be occupied by the NOAA/OAR Geophysical Fluid Dynamics Laboratory. Info here.

Notice NMFS publishes the individual fishing quota (IFQ) standard prices and fee percentage for cost recovery for the IFQ Program for the halibut and sablefish fisheries of the North Pacific (IFQ Program). Info here.

RURAL HOUSING SERVICE: Notice announces the Rural Housing Service (RHS), the Rural Business-Cooperative Service (RBS), and Rural Utilities Service (RUS) intention to request an extension for a currently approved information collection in support of compliance with Civil Rights laws. Info here.