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, Wednesday, February 21st: Agricultural Nutrient Management: State Innovations and Local Responsibility. Details available here.


JUDICIAL: Includes environmental, pesticides, and urb & ag issues.

UNITED STATES OF AMERICA and STATE OF INDIANA, Plaintiffs, v. ATLANTIC RICHFIELD COMPANY and E.I. DU PONT DE NEMOURS AND COMPANY, Defendants, NO. 2:14CV312-PPS/PRC, 2018 WL 798188 (N.D. Ind. February 9, 2018) concerned the Environmental Protection Agency’s (EPA) efforts to clean some residential areas in Indiana “known to be polluted by the defendants.” Court approved lower court’s consent decree and closed the case. Two years passed before cleanup work began on the impacted areas. A community group formed and sought to intervene in the lawsuit after becoming frustrated with lack of cleanup by EPA. Lower court denied the motion to intervene as “untimely” since it came more than two years after the case was closed. Appellate court concluded that “[i]ntervention in a case that has been closed for two years, and where there are settled expectations by the parties, strikes me as a dubious proposition.” Motion to intervene denied.

In TRACY E. MESECHER, husband; CHARICE A. MESECHER, wife; and MIKAYALA M. REYNOLDS, Plaintiffs, v. LOWES COMPANIES, INC, a corporate entity; MONSANTO, a corporate entity; and HD HUDSON MANUFACTURING COMPANY, Defendants, NO: 2:17-CV-299-RMP, 2018 WL 793613 (E.D. Wash. February 8, 2018), plaintiffs bought Roundup herbicide and claim they received “life threatening bodily injuries” after applying the substance to their yard. They sued defendants for product liability, claiming the companies failed to “adequately warn consumers purchasing Roundup of its inherently dangerous nature and alleged failure to take measures to prevent injurious exposure to it.” Defendants Lowe’s and Monsanto moved to dismiss. Court observed that plaintiffs failed to allege any facts “indicating how the Roundup allegedly malfunctioned, contained a defect, or was unsafe in its construction.” Plaintiffs also failed to allege how the warnings on the product “failed to inform consumers about Roundup’s alleged toxicity or the inherent dangers associated with using the product.” Defendants Lowe’s and Monsanto dismissed from the case.

In LONNY R. GEIER, Appellee, v. GERALD SIMON, Trustee of THE GERALD AND ROSEMARY SIMON REVOCABLE TRUST, and JERRY SIMON, Individually, Appellants, No. 117,400, 2018 WL 793331 (Kan. Ct. App. February 9, 2018), plaintiff sold defendant some land and made notes on the back of the contract giving him farming and hunting rights under certain conditions. A dispute arose regarding the hunting rights and lower court ruled the agreement gave plaintiff “broad hunting rights.” On appeal, defendant argued that lower court wrongly interpreted the word “retains” to mean “exclusive” in the agreement. Appellate court observed that plaintiff “wrote into the separate lease a provision allowing him to personally continue to hunt if the lease payments are timely made. He did not in that way take back rights equal to those he gave up in the Sale Agreement and deed.” Reversed for defendant.


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

AGRICULTURE DEPARTMENT: Notice USDA has submitted information collection requirement(s) to OMB for review. Title: Standard Reinsurance Agreement. Details here.

ENVIRONMENTAL PROTECTION AGENCY: Rule EPA is proposing to update a portion of the Outer Continental Shelf (OCS) Air Regulations applying to OCS sources located within 25 miles of states’ seaward boundaries which must be promulgated into the regulations and updated periodically to remain consistent with the requirements on the corresponding onshore area. Details here.

FISH AND WILDLIFE SERVICE: Notice FWS seeks comment on applications for permits to conduct activities intended to enhance the propagation or survival of endangered species. Info here.

FOOD SAFETY AND INSPECTION SERVICE: Rule FSIS is proposing to amend the egg products inspection regulations by requiring official plants that process egg products to develop and implement Hazard Analysis and Critical Control Point (HACCP) Systems and Sanitation Standard Operating Procedures and to meet other sanitation requirements consistent with the meat and poultry regulations. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule approves regulations to implement the Northeast Skate Complex Fishery Management Plan Framework Adjustment 4 management measures. Info here.

Rule that NMFS proposes management measures to implement special management zones for 13 New Jersey artificial reefs under the black sea bass provisions of the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan. Details here.