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


JUDICIAL: Includes agritourism, USDA, environmental, and biosecurity issues.

In DONALD EAGER and CAROL EAGER, Plaintiffs-Appellants, v. CECILIA PEASLEY, Individually and as Trustee of the CECILIA L. KAURICH TRUST, Defendant-Appellee, and JEFFREY CAVANAUGH and SANDRA CAVANAUGH, Defendants, No. 336460, 2017 WL 5907310 (Mich. Ct. App. November 30, 2017), plaintiffs sued for violation of restrictive covenants after defendant, a neighboring property owner, rented out their lake house for “transient short-term use.” Plaintiffs argued the rentals violated the restrictive deed covenants “limiting defendant’s use of the premises to ‘private occupancy’ and prohibiting ‘commercial use’ of the premises.” Lower court found the restrictive covenant “ambiguous” and that “the law required free use of the property including transient short-term rentals.”  Appellate court focused on the term “commercial use” and found “no such ambiguity” in the covenants and reversed for plaintiffs.

In MICHAEL DEJOHN, Plaintiff, v. UNITED STATES DEPARTMENT OF AGRICULTURE, Defendant, No. 1:17-cv-01289-DAD-JLT, 2017 WL 5900047 (E.D. Cal. November 30, 2017), plaintiff claimed a U.S. Forest Service (FS) tanker truck drove onto his land to access a water source and crushed his underground plastic septic tank, which now leaks sewage. Plaintiff filed a small claims actions against USDA and defendant removed case to federal court and filed motion to dismiss. Court observed that plaintiff’s claims arise under the Federal Tort Claims Act (FTCA) and that the FTCA “reserves exclusive jurisdiction for civil actions for property damages to the federal courts.” Court concluded it lacked jurisdiction and dismissed the case.

In SOUTHERN INDUSTRIAL CONTRACTORS, LLC PLAINTIFF v. NEEL-SCHAFFER, INC.; T.L. WALLACE CONSTRUCTION, INC.; THOMPSON ENGINEERING, INC.; CH2M HILL, INC.; W.G. YATES & SONS CONSTRUCTION COMPANY; ROY ANDERSON CORP.; YATES ANDERSON, JV; QUALITY ENGINEERING SERVICES, INC.; and MISSISSIPPI DEVELOPMENT AUTHORITY DEFENDANTS, NO. 1:17CV255-LG-JCG, 2017 WL 5906040 (S.D. Miss. November 30, 2017), plaintiff, a contractor for a pier facility project in Gulfport, Mississippi, sued project’s owner for failing to tell plaintiff about a “large underground debris field at the project site.” Plaintiff alleges excavation of the debris has made the project more expensive. Mississippi Development Authority (MDA) moved to dismiss, asserting sovereign immunity under Eleventh Amendment. Court observed that it “must strictly construe MDA’s purported waiver of sovereign immunity, ‘in terms of its scope, in favor of the sovereign.’” Court concluded MDA “did not waive its sovereign immunity for lawsuits filed by contractors seeking monetary damages for expenses incurred during a construction project.” Case dismissed.

In Rembrandt Enterprises, Inc., Plaintiff, v. Illinois Union Insurance Company, Defendant, No. 15-2913 (PAM/HB), 2017 WL 5905510 (D. Minn. November 30, 2017), plaintiff, a large egg producer, sought order preventing defendant from claiming that “highly pathogenic avian influenza (HPAI)” is a “naturally occurring material.” Plaintiff argued the “naturally occurring material exception in the insurance policy [at issue] is ambiguous as a matter of law.” Court denied plaintiff’s motion after concluding that “this exclusion was not ambiguous.” Court further parties ordered to “establish whether the exclusion for naturally occurring materials applies and whether the HPAI virus spread to Plaintiff’s facilities as a result of human activity.”


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

AGRICULTURE DEPARTMENT:

Rule amends USDA’s civil monetary penalty regulations by making inflation adjustments as mandated by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. Details here.

Notice the Office of the Chief Information Officer, as part of its continuing effort to reduce paperwork and respondent burden, invites the public to comment on the “Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery” for approval under the Paperwork Reduction Act. Details here.

ANIMAL AND PLANT HEALTH INSPECTION SERVICE:

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 baby squash and baby courgettes from Zambia into the continental United States. Info here.

Notice APHIS has prepared an environmental assessment relative to permitting the release of Aceria drabae for biological control of hoary cress in the continental United States. Info here.

Notice APHIS received a petition from Texas A&M AgriLife Research seeking a determination of nonregulated status of cotton designated as event TAM66274, which has been genetically engineered for ultra-low gossypol levels in the cottonseed. Details here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is conditionally approving a revision to the New York State Implementation Plan (SIP) addressing requirements of the Cross-State Air Pollution Rule (CSAPR). Info here.

Rule EPA is withdrawing the direct final rule published on Monday, October 16, 2017, to approve revisions to the West Virginia state implementation plan (SIP). Info here.

Rule establishes an exemption from the requirement of a tolerance for residues of 1,3-dibromo-5,5-dimethylhydantoin in or on food when used in antimicrobial pesticide formulations applied to food contact surfaces in public eating places, dairy processing equipment, and/or food processing equipment and utensils. Details here.

Rule EPA is proposing to approve a State Implementation Plan (SIP) revision submitted by the Commonwealth of Massachusetts. Info here.

Rule EPA is proposing to approve a state implementation plan (SIP) revision submitted by the State of West Virginia. Details here.

FISH AND WILDLIFE SERVICE:

Notice FWS announces a change in a regional partner, representing the Upper Copper River region, on the Alaska Migratory Bird Co-management Council. Details here.

Notice FWS seeks comment on federally listed American burying-beetle incidental take permit (ITP) applications. Info here.

INTERNATIONAL TRADE ADMINISTRATION: Notice that on August 3, 2017, the Department of Commerce (the Department) published the preliminary results of the antidumping duty administrative review of certain pasta (pasta) from Italy. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule NMFS announces that the 2017 summer flounder commercial quota allocated to the State of New Jersey has been harvested. Info here.

Rule all owners of vessels participating in a NOAA Vessel Monitoring System (VMS) program are required to acquire a NMFS-approved Enhanced Mobile Transmitting Unit (EMTU) or Mobile Transmitting Unit (MTU) to comply with the Vessel Monitoring System requirements. Details here.