JUDICIAL:

TOWNSHIP OF FRASER, Plaintiff-Appellee, v. HARVEY HANEY & RUTH ANN HANEY, Defendants-Appellants., No. 337842, 2018 WL 6711290 (Mich. Ct. App. Dec. 20, 2018) Plaintiff filed the suit seeking injunctive relief to abate a public nuisance. Plaintiff claimed that defendants’ piggery violated the zoning ordinance applicable to their property (the land was zoned as “commercial” and not “agricultural”). Defendants filed a motion for summary disposition.  The trial court denied defendants’ motion, holding that this was an action in rem and that the statute of limitations therefore did not apply. Defendants appeal by leave granted. The court reverses the decision of the trial court and remand the case in order to allow defendants to amend their responsive pleading to include the statute of limitations as an affirmative defense.
Org. for Competitive Markets v. U.S. Dep’t of Agric., No. 17-3723, 2018 WL 6713255 (8th Cir. Dec. 21, 2018) The Organization for Competitive Markets and three of its members petition for review of 2017 United States Department of Agriculture (“USDA”) orders withdrawing an interim final rule and two proposed regulations promulgated under the Packers and Stockyards Act.  The court denied the petition for review.

IN RE SYNGENTA AG MIR162 CORN LITIGATION THIS DOCUMENT RELATES TO ALL CASES EXCEPT: Louis Dreyfus Co. Grains Merch. LLC v. Syngenta AG, et al., No. 16-2788-JWL-JPO Trans Coastal Supply Co., No. 214MD02591JWLJPO, 2018 WL 6710081 (D. Kan. Dec. 7, 2018)  On April 10, 2018, the Court granted, pursuant to Federal Rule of Civil Procedure (“Rule”) 23(e), Plaintiffs’ motion for preliminary approval of a class-action settlement agreement.  That settlement agreement, titled the Agrisure Viptera/Duracade Class Settlement Agreement (“Settlement” or “Settlement Agreement”) and executed on February 26, 2018, had been entered into between proposed Settlement Class and Subclass Counsel, MDL Co-Lead and Litigation Class Counsel, and the Court-appointed Plaintiffs’ Settlement Negotiation Committee (“PNC”) on behalf of producer and non-producer plaintiffs in this multidistrict and a number of cognate litigations in other federal and state courts (collectively, “Plaintiffs”) and Defendants Syngenta AG, Syngenta Crop Protection AG, Syngenta Corporation, Syngenta Crop Protection, LLC, Syngenta Seeds, Inc. (now known as Syngenta Seeds, LLC), and Syngenta Biotechnology, Inc. (now merged with Syngenta Crop Protection, LLC, with Syngenta Crop Protection, LLC, as the remaining entity) (collectively, “Syngenta” or “Defendants”). Plaintiffs and Syngenta are collectively referred to herein as the Settling Parties.

In a declaration filed with the Court, the Notice Administrator has advised that the Class Notice was directly mailed to over 652,000 prospective members of the Settlement Class, reaching more than 99% of the Settlement Class. In addition, dissemination of the Class Notice was augmented by an extensive campaign of Court-approved summary Publication Notice in various national and state-specific publications, such as industry publications, specifically selected to target prospective Settlement Class members, as well as dissemination of the Publication Notice to various corn trade organizations. It was further supplemented by digital banner advertisements in various social media outlets, including those specifically targeting individuals with an interest in farming; radio ads; the distribution of a party-neutral press release; and by the establishment of a toll-free number and dedicated Settlement website (www.CornSeedSettlement.com) maintained by BrownGreer, whereby prospective Class members could obtain information and copies of the Class Notice, Settlement Agreement, and various Orders, the operative Producer and Non-Producer Plaintiffs’ Consolidated Fourth Amended Class Action Master Complaint, and sundry other papers filed with the Court. Beginning approximately six weeks prior to the claims deadline, two additional direct-mail reminders were also sent to those prospective Class members who had not opted out and had not completed a Claim Form.

A total of only nine objections to the Settlement, from 15 objectors, were filed. In addition, according to the Notice Administrator, a total of sixty-five requests for exclusion from the Settlement Class were received, of which twenty-nine were either untimely or incomplete, leaving only thirty-six timely and valid opt-out requests. With the Settling Parties’ consent, nineteen of the thirty-six Class Members with timely and valid opt-out requests revoked their requests for exclusion.
In accordance with the schedule prescribed by the Court in its Preliminary Approval Order, on October 17, 2018, Plaintiffs filed a motion for final approval of the Settlement. Also in accordance with that schedule, the Court held a Final Approval (or “Fairness”) Hearing pursuant to Rule 23(e)(2) on November 15, 2018, at which it heard from counsel for the Settling Parties and those objectors (or their counsel) who had, in their objections, requested the opportunity to present argument.
The Court having reviewed Plaintiffs’ motion for final approval and other relief and the memorandum in support thereof, and having considered all of the written objections to the Settlement and the arguments presented at the Fairness Hearing, both in favor and in opposition to the Settlement’s final approval, in accordance with the reasons set forth on the record of the Final Approval Hearing and in the Court’s Memorandum and Order of December 7, 2018, it is now hereby approved.

Cty. of Butte v. Dep’t of Water Res., No. C071785, 2018 WL 6696075 (Cal. Ct. App. Dec. 20, 2018)The Department of Water Resources (DWR) applied to the Federal Energy Regulatory Commission (FERC or Commission) to extend its federal license to operate Oroville Dam and its facilities as a hydroelectric dam. The project is referred to as the Oroville Facilities Project (sometimes also Project or Settlement Agreement (SA) ) by which the affected parties agree to the conditions for the extended license. “The SA includes Appendix A, which incorporates all of the … measures that the Settling Parties believe to be under FERC’s jurisdiction.” The objective of the Project is the continued operation of the Oroville Facilities for power generation and the implementation of conditions for the extended license.

The plaintiffs brought this action in the superior court to stay the license procedure on the premise the environmental effects of relicensing the dam concern the operation of the dam and that jurisdiction to review the matter lies in the state courts pursuant to the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.; hereinafter CEQA). They claim that a CEQA document offered to support the DWR’s application to FERC failed to consider the impact of climate change on the operation of the dam for all the purposes served by the dam. The superior court dismissed the complaint on the ground that predicting the impact of climate change is speculative. The plaintiffs appealed.
CYNTHIA CARDARELLI PAINTER, individually & on behalf of other members of the general public similarly situated, Plaintiff-Appellant, v. BLUE DIAMOND GROWERS, a California corporation & DOES, 1-100, inclusive, Defendants-Appellees., No. 17-55901, 2018 WL 6720560 (9th Cir. Dec. 20, 2018) Cynthia Painter appeals the district court’s order dismissing her complaint with prejudice on grounds of preemption and failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). On behalf of a putative class, Painter claims that Blue Diamond Growers (“Blue Diamond”) mislabeled its almond beverages as “almond milk” when they should be labeled “imitation milk” because they substitute for and resemble dairy milk but are nutritionally inferior to it. The court has jurisdiction under 28 U.S.C. § 1291 and review the district court’s dismissal de novo. The court affirms.

REZAC LIVESTOCK COMMISSION CO., INC., Plaintiff, v. PINNACLE BANK, et al., Defendants., No. 15-4958-DDC-KGS, 2018 WL 6725386 (D. Kan. Dec. 21, 2018)

 Plaintiff Rezac Livestock Commission Company, Inc., has alleged that it sold defendant Dinsdale Bros., Inc., (“Dinsdale”) nearly $1 million worth of cattle in September 2015, but that Dinsdale never has paid for them. Plaintiff also contends that defendant Pinnacle Bank (“Pinnacle”) acted as Dinsdale’s accomplice and wrongfully seized funds belonging to plaintiff. Attempting to recover its funds, plaintiff asserts three claims against Dinsdale (breach of contract, conversion, and quantum meruit), one claim against Pinnacle (conversion), and two claims against Dinsdale and Pinnacle together (unjust enrichment and civil conspiracy).
This matter comes before the court on three motions. Defendant Pinnacle has filed a Motion for Summary Judgment. Defendant Dinsdale also has filed a Motion for Summary Judgment. And plaintiff has filed its own Motion for Summary Judgment.  The court denies defendant Pinnacle Bank’s Motion for Summary Judgment in its entirety. The court grants defendant Dinsdale’s Motion for Summary Judgment in part and denies it in part. Specifically, the court grants summary judgment against plaintiff’s breach of contract claim but denies summary judgment against plaintiff’s conversion, civil conspiracy, and unjust enrichment claims. And the court denies plaintiff’s Motion for Summary Judgment in its entirety.

REXING QUALITY EGGS, Plaintiff, v. REMBRANDT ENTERPRISES, INC., Defendant. REMBRANDT ENTERPRISES, INC., Counter Claimant,, No. 317CV00141JMSMPB, 2018 WL 6728039 (S.D. Ind. Dec. 21, 2018)

In 2016, Rembrandt Enterprises, Inc. (“Rembrandt”) entered into an agreement to sell cage-free eggs to Rexing Quality Eggs (“Rexing”), the doing-business-as designation for Leo and Joseph Rexing’s egg selling partnership. The contract required Rembrandt to provide Rexing with approximately 3,240,000 eggs per week for one year, subject to possible extensions. But cracks quickly formed in parties’ relationship, which ultimately spoiled, leaving 16 weeks-worth of ordered eggs (over 50 million eggs) on Rembrandt’s kitchen table. This lawsuit followed. Rexing alleges that its continued performance was excused and that Rembrandt sold deficient eggs. Rembrandt counterclaims, alleging that Rexing breached the contract by refusing egg shipments and repudiating the purchase agreement.
Rembrandt’s partial Motion for Summary Judgment, currently pends before the Court. After unscrambling the hundreds of pages of briefing and exhibits filed by the parties, what remains is a relatively straightforward matter of contract interpretation. The contract and undisputed evidence demonstrate that Rexing’s nonperformance was not excused by the change in economic demand, and that Rembrandt did not breach any express warranty. Rather, Rexing unilaterally terminated the contract after determining that the deal was not all that it was cracked up to be. However, Rembrandt’s claim for summary judgment on damages does not even begin to penetrate the eggshell. The Court therefore granted in part and denied Rembrandt’s Motion.
GREGORY ACKERMAN, Plaintiff, v. UNITED STATES DEPARTMENT OF AGRICULTURE, et al Defendant. Additional Party Names: Fed. Crop Ins. Corp.., Risk Mgmt. Agency, No. 17-CV-11779, 2018 WL 6727038 (E.D. Mich. Dec. 21, 2018)
On June 5, 2017, a group of farmers and incorporated farms filed suit against a number of insurance companies, the United States Department of Agriculture, the Risk Management Agency, and the Federal Crop Insurance Corporation. The Plaintiffs are dry bean farmers in Michigan, Minnesota, and North Dakota who have not received indemnity for crop insurance to which they believe they are entitled.
On November 22, 2017, the Federal Defendants and Insurance Defendants both filed motions to dismiss. On March 8, 2018, Plaintiffs filed a motion for leave to file a second amended complaint correcting the names of certain Plaintiffs. On April 18, 2018, the Court issued an order granting the motions to dismiss and also granting the motion for leave to file an amended complaint. In that order, the Court dismissed without prejudice all Plaintiffs who do not farm or reside in the Eastern District of Michigan. The Court also dismissed all Insurance Defendants after concluding that Plaintiffs had not complied with the contractual requirements for bringing suit found within the insurance policies. On April 30, 2018, Plaintiffs filed a second amended complaint.
On May 2, 2018, Plaintiffs filed a motion for reconsideration of the Court’s order to dismiss. In the motion, Plaintiffs argued that the plaintiffs from outside the Eastern District of Michigan should have been transferred to the proper venue instead of dismissed. The motion was granted in part and the Minnesota Plaintiffs were transferred to the District of Minnesota.
On October 31, 2018, Plaintiffs filed a motion for supplementation of the administrative record. Plaintiffs contend that certain information was excluded from the administrative record that is necessary for this Court to make a determination as whether Defendants acted arbitrarily and capriciously. The motions for supplementation of the administrative record was denied.
ROBERT TRENT HOLLINGSWORTH, ET AL v. TOM VILSACK, ET AL. Additional Party Names: Jerry Traylor, Jonathan Cade Pilcher, Louisiana Sportsmen All., LLC, Thomas Tidwell, Tony Tooke, United States Dep’t of Agric., United States Forest Serv., No. 1:16-CV-675, 2018 WL 6729687 (W.D. La. Dec. 21, 2018)This case concerns an amendment to the Kisatchie National Forest Revised Land and Resource Management Plan (“Forest Plan”) banning the age-old tradition of hunting deer with dogs (“dog-deer hunting”) in the Kisatchie National Forest (“KNF”). This is the second instance in which the Court has reviewed the propriety of a dog-deer hunting ban in KNF. The prior challenge, in which Louisiana Sportsmen Alliance, LLC (“Alliance”), acted as the sole plaintiff, was ultimately dismissed for lack of jurisdiction.
Before the Court is a Motion for Summary Judgment filed by the Plaintiffs, Robert Trent Hollingsworth, Jonathan Cade Pilcher, Jerry Traylor, and Louisiana Sportsmen Alliance, LLC, a Cross Motion and Response to Plaintiffs’ Motion for Summary Judgment filed by the Defendants, the United States Department of Agriculture, the United States Forest Service, Tom Vilsack, Thomas Tidwell, and Tony Tooke (in their official capacities) (hereinafter collectively referred to as the “Forest Service”), a Memorandum in Opposition to the Forest Service’s Motion for Summary Judgment and Reply in Support of Plaintiffs’ Motion for Summary Judgment  filed by Plaintiffs, and a Reply in Response to Plaintiffs’ Opposition to Cross Motion for Summary Judgment filed by the Forest Service. Plaintiffs’ motion was denied, the Forest Service’s motion was granted, and the case was dismissed with prejudice.

 

REGULATORY:

Notice of intent: Animal and Plant Health Inspection Service, USDA; Pursuant to the Federal Advisory Committee Act, we are giving notice that the Secretary of Agriculture intends to reestablish the National Wildlife Services Advisory Committee for a 2-year period. The Secretary has determined that the Committee is necessary and in the public interest. Info HERE

New information collection; comment request: Animal and Plant Health Inspection Service, USDA; In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service’s intention to request approval of a new information collection associated with volunteer service agreements and volunteer service time and attendance record. Info HERE

Revision to and extension of approval of an information collection; comment request: In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service’s intention to request a revision to and extension of approval of an information collection associated with the regulations for the importation of tomatoes from Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama. Info HERE

Revision to and extension of approval of an information collection; comment request: Animal and Plant Health Inspection Service, USDA. In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service’s intention to request a revision to and extension of approval of an information collection required by the Lacey Act for the importation of certain plants and plant products. Info HERE

Final rule: Agricultural Marketing Service, USDA; This rule implements a recommendation from the Kiwifruit Administrative Committee (Committee) to decrease the assessment rate established for the 2018-2019 and subsequent fiscal periods. The assessment rate will remain in effect indefinitely unless modified, suspended, or terminated. Info HERE

Notice: Environmental Protection Agency (EPA); EPA is seeking public comment on a petition from the Center for Food Safety (CSF) requesting that the Agency either initiate a rulemaking or issue a formal Agency interpretation for planted seeds treated with systemic insecticides. CSF believes that the Agency has improperly applied the treated article exemption in exempting these products from registration and labeling requirements under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Info HERE

Notice: Environmental Protection Agency (EPA); EPA has received applications to register new uses for pesticide products containing currently registered active ingredients. Pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), EPA is hereby providing notice of receipt and opportunity to comment on these applications. Info HERE

Notice: Environmental Protection Agency (EPA); EPA has received applications to register pesticide products containing active ingredients not included in any currently registered pesticide products. Pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), EPA is hereby providing notice of receipt and opportunity to comment on these applications. Info HERE

Notice: Environmental Protection Agency (EPA); This notice announces EPA’s receipt of application 73049-EUP-RN from Valent BioSciences LLC, requesting an experimental use permit (EUP) for aminoethoxyvinylglycine. EPA has determined that the permit may be of regional or national significance. Therefore, because of the potential significance, EPA is seeking comments on this application. Info HERE

Final rule: Environmental Protection Agency (EPA); This regulation establishes an exemption from the requirement of a tolerance for residues of chlorate in or on cantaloupe and tomato under the Federal Food, Drug, and Cosmetic Act (FFDCA). Info HERE

LEGISLATIVE:

H.R. 5025: To amend the Western and Central Pacific Fisheries Convention Implementation Act to limit the imposition of penalties against a person fishing on a United States flag fishing vessel in certain areas of the Pacific Ocean based on a report by an observer on such a vessel. Info HERE

H.R. 6355: PETITION Act of 2018; To amend the Endangered Species Act of 1973 to define petition backlogs and provide expedited means for discharging petitions during such a backlog. Info HERE

H.R. 4689: To authorize early repayment of obligations to the Bureau of Reclamation within the Northport Irrigation District in the State of Nebraska. Info HERE