A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions to: camarigg at uark.edu


ANNOUNCEMENT: Join us Wednesday, February 15, at 12 noon (ET) for our next Agricultural & Food Law Consortium webinar: Legal Checkup on Checkoffs: Recent & Emerging Legal Issues in Federal & State Checkoff Programs. Details available here.


JUDICIAL: Includes labeling, food safety, compensatory mitigation, and conservation issues.

In Mary ESPOSITO, Plaintiff–Appellant, v. CONTEC, INC., Defendant–Respondent, et al., Defendants, 2017 WL 460284 (N.Y. Feb. 3, 2017), plaintiff sued for injuries sustained from use of defendant’s fungicide product. Plaintiff argued Supreme Court erred in dismissing her complaint on grounds that it is preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Considering preemption, the court noted that, “The Supreme Court thus recognized that a state rule is not preempted merely because it relates to labeling and packaging while merely imposing requirements ‘equivalent’ or ‘parallel’ to those imposed by FIFRA. The Court held, however, that nonfederal rules are preempted to the extent that they impose ‘competing state labeling standards.’” Court concluded that the court “properly granted defendant’s motion to dismiss, on preemption grounds, plaintiff’s . . . causes of action . . . asserting failure to warn claims.”

In re: Application for an Order for Inspection of David Berglund and Lake View Natural Dairy, 140 County Road 56, Grand Marais, MN 55604, 2017 WL 474431, A16-0820 (Minn. Ct. App. Feb. 6, 2017) concerned inspections of appellant’s farm by the state ag department. Appellant claimed the Minnesota Department of Agriculture (the MDA) “has no statutory authority to regulate the sale of raw milk or to inspect his farm and that any regulation of the sale of raw milk to his customers or inspection of his farm violates his constitutional rights.” Court found that the MDA “has statutory authority to inspect appellant’s farm, and there is no constitutional violation from the MDA’s authority to regulate appellant’s sale of raw milk and raw-milk products.” The court, in affirming the lower court’s decision ruled that “an inspection of appellant’s farm by the MDA supported by a validly issued warrant does not violate appellant’s Fourth Amendment rights.”

ECOSYSTEM INVESTMENT PARTNERS, Plaintiff, v. The UNITED STATES, Defendant, and Crosby Dredging, LLC, Defendant–Intervenor, No. 16–1549C, 2017 WL 475706 (Fed. Cl. Feb. 3, 2017) involved compensatory mitigation issues. Plaintiff protested Army Corps of Engineers’ (Corps) award of a contract to intervenor for “the provision of dredging and construction services as part of a compensatory environmental mitigation plan to offset other work the Corps was doing to safeguard against possible future storm damage.” Issue was whether “a challenge to the Corps’ actions in connection with developing a plan to mitigate its own environmental impacts can be heard as a bid protest.” Plaintiff claimed Corps violated federal law by not complying with a “regulatory preference for mitigation credits” when it adopted a restoration project as part of its mitigation plan. Court, however, agreed with defendant and concluded that “settling on an appropriate compensatory mitigation plan involves trying to maximize ecological benefits in light of a number of ecological factors which are wholly unrelated to the proper procurement of services by the government.” Case dismissed.

In Gary N. Morgan v. Craig Stephen Pardue, et al, 16–667, 206 So.3d 280 (La. Ct. App. Jan. 18, 2017), plaintiff filed suit against purchasers to dissolve sale of eighty acres of land placed into the Conservation Reserve Program (CRP) through the Farm Service Agency (FSA). Defendant appealed trial court decision dissolving sale of the “immovable property.” Evidence showed purchaser’s former husband, who was liable for performance on credit deed, did not get a government contract that deprived plaintiff of annual payments he was entitled to under a conservation reserve program (CRP). Court observed that, “The right to dissolution of a sale of an immovable for nonpayment is not contingent on the absence of a third party purchaser. A vendor seeking dissolution of the sale may do so even after the property has left the hands of the original purchaser.” Trial court judgment affirmed.


REGULATORY: Includes ITA and NOAA rules and notices.

INTERNATIONAL TRADE ADMINISTRATION: Notice The Department of Commerce is conducting the seventh administrative review of the antidumping duty order on citric acid and citrate salts from China. Info here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule delaying the effective date of the final rule NMFS published on January 12, 2017. Details here.

Rule In accordance with the memorandum of January 20, 2017 entitled “Regulatory Freeze Pending Review,” this action delays the effective date of the final rule NMFS published on January 19, 2017. Details here.

Rule that on December 8, 2016, NMFS published a proposed rule to list the Gulf of Mexico Bryde’s whale as an endangered species. NMFS has decided to reopen the public comment period by an additional 15 calendar days. Details here.

Notice the Department of Commerce invites the general public to comment on proposed and/or continuing information collections. Info here.