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


JUDICIAL: Includes class action, water rights, bankruptcy, environmental, and landowner liability issues.

ROBERT BRISENO, individually and on behalf of all others similarly situated, Plaintiff-Appellee, v. CONAGRA FOODS, INC., Defendant-Appellant, No. 15-55727, D.C. No. 2:11-cv-05379-MMM-AGR, 2017 WL 24618 (9th Cir. Jan. 3, 2017) concerned class certification in class actions against ConAgra Foods in eleven states by consumers who purchased cooking oil labeled “100% Natural.” Plaintiffs argued the “100% Natural” label was misleading “because Wesson oils are made from bioengineered ingredients that plaintiffs contend are ‘not natural.’” Defendant argued for reversal of district court’s class certification because the court did not require plaintiff to “proffer an administratively feasible way to identify members of the certified classes.” District court held Federal Rule of Civil Procedure 23 “neither provides nor implies that demonstrating an administratively feasible way to identify class members is a prerequisite to class certification.” Appellate court found that, “A separate administrative feasibility prerequisite to class certification is not compatible with the language of Rule 23.” The court also noted that “Rule 23’s enumerated criteria already address the policy concerns that have motivated some courts to adopt a separate administrative feasibility requirement.” District court ruling affirmed.

In CLAIMANT: United States of America, (Bureau of Land Management) OBJECTORS: Barthelmess Ranch Corporation; Double O Ranch, Inc.; Lela M. French; William R. French; Conni D. French; Craig R. French; M Cross Cattle Company, DA 15-0533, 2016 WL 7451383 (Mont. Dec. 28, 2016), the Bureau of Land Management (BLM) filed water right claims related to five reservoirs. The reservoirs are located on federal land and BLM claimed the right to use each “for stockwatering by its grazing permittees and for wildlife.” Water Court granted summary judgment to BLM and on appeal, court considered whether Water Court “erred in concluding that [BLM] holds stockwatering rights under Montana law in reservoirs constructed on federal land for the use of permittees.” Court noted “there is no ‘public service corporation rule,’ but only the recognition of a public policy of the state of Montana to allow and even encourage individuals . . . to appropriate water and make it available for use by others.” Court found that “storage of water as BLM has done is a beneficial use” and concluded BLM “was entitled to proceed under Montana law to appropriate water in its reservoirs for use by grazing permittees and others.” Decision of Water Court affirmed.

In re: MATTHEW LOWELL HOWLAND and MEAGAN LARAE HOWLAND, Debtors. PHAEDRA SPRADLIN, Appellant, v. BEADS AND STEEDS INNS, LLC, Appellee, No. 16-5499, 2017 WL 24750 (6th Cir. Jan. 3, 2017) involved a bankruptcy after a corporate entity purchased a 133-acre farm. Trustee sued to avoid a fraudulent transfer of property between two third-party corporations. Trustee argued third-party transferor was only an “alter ego” of the debtors and maintained that either “reverse corporate veil piercing” or “substantive consolidation” permitted trustee to treat the property as the debtors’ and avoid the transfer. Court disagreed and concluded trustee “may not use Kentucky’s veil piercing doctrine to merge a debtor and its alter ago into a single entity.” Affirmed for appellee.

In Connecticut Energy Marketers Association v. Department of Energy and Environmental Protection et al, (SC 19620) 2016 WL 7508166 (Conn. Dec. 29, 2016), appellate court considered whether defendant’s approval of a plan expanding use of natural gas in the state constituted “actions which may significantly affect the environment’” triggering requirements for written evaluation of the plan’s environmental impact. Plaintiff claimed defendant violated the Environmental Policy Act when the department issued a comprehensive energy strategy that “contemplated a significant expansion of the use of natural gas” in the state, and failed to consider environmental impact of an increase in the use of natural gas. Defendants filed motions to dismiss claiming no environmental impact evaluation was required. Trial court found defendants’ activities did not constitute “actions which may significantly affect the environment,” and appellate court affirmed.

Andrea OCHALL et al., Plaintiffs–Appellants/Cross–Appellees, v. William M. McNAMER et al., Defendants–Appellees, Mark McMillen et al., Defendants–Appellees/Cross–Appellants, No. 15AP–772, 2016 WL 7493692 (Ohio, Ct. App. Dec. 29, 2016) involved landowner liability issues after plaintiff was injured watching go-kart races on defendant’s property. A go-kart driver lost control and struck plaintiff sending her into the air. Plaintiff appealed after trial court applied “assumption of the risk” doctrine and found no evidence of “reckless or intentional misconduct.” Appellate concluded that no evidence suggested defendant “knew or had reason to know of facts which would have lead them to realize that placing a bench near their go-kart track created an unreasonable risk of physical harm to another, or amounted to conduct substantially greater than negligent conduct.” Ruling for defendant affirmed.


REGULATORY: Includes APHIS, EPA, FSA, FWS, FDA, FSIS, FS, ITA, NOAA, and RHS rules and notices. 

ANIMAL AND PLANT HEALTH INSPECTION SERVICE: Notice APHIS will request a renewal and revision of an information collection associated with the regulations for the commercial transportation of equines for slaughter. Details here.

ENVIRONMENTAL PROTECTION AGENCY:

Rule EPA is updating the existing regulation concerning the certification of applicators of restricted use pesticides. Info here.

Rule establishing exemptions from the requirement of a tolerance for residues of methyl isobutyrate and for residues of isobutyl isobutyrate when used as solvents applied to growing crops or raw agricultural commodities after harvest. Details here.

Rule EPA approves the Commonwealth of Kentucky’s Underground Injection Control Class II Program for primacy. Info here.

Rule EPA proposes amendments to the National Emission Standards for Hazardous Air Pollutant for the Manufacturing of Nutritional Yeast source category. Details here.

FARM SERVICE AGENCYNotice Commodity Credit Corporation (CCC) announces that funding is available to pay a BPI to companies that are refining biofuel in the United States from certain domestically grown feedstocks converted to drop-in biofuel. Details here.

FISH AND WILDLIFE SERVICE:

Notice FWS sent an Information Collection Request to OMB for review. Title: Electronic Duck Stamp Program. Info here.

Notice seeking comment on applications to conduct certain activities with endangered species, marine mammals, or both. Info here.

FOOD AND DRUG ADMINISTRATION:

Notice FDA announces availability of a draft guidance for industry #242 entitled “In-Use Stability Studies and Associated Labeling Statements for Multiple-Dose Injectable Animal Drug Products.” Details here.

Notice FDA Center for Tobacco Products is announcing several actions regarding batteries used in electronic nicotine delivery systems, including electronic cigarettes. Details here.

FOOD SAFETY AND INPSECTION SERVICE: Notice FSIS announces 2017 rates it will charge meat and poultry establishments, egg products plants, and importers and exporters for providing voluntary, overtime, and holiday inspection and identification, certification, and laboratory services. Info here.

FOREST SERVICE:

Notice the Bridger-Teton Resource Advisory Committee will meet in Kemmerer, Wyoming and Afton, Wyoming. Details here.

Notice the Okanogan-Wenatchee National Forest advises the public of a 30-day extension to the public comment period on the Pack and Saddle Stock Outfitter Guide Special Use Permit Issuance Draft Supplemental Environmental Impact Statement. Info here.

Notice the Sitka/Tenakee Springs/Port Alexander Resource Advisory Committee will meet in Sitka, Alaska. Infohere.

Notice providing the list of newspapers that will be used by the Pacific Northwest Region to publish legal notices. Details here.

INTERNATIONAL TRADE ADMINISTRATION: Notice the Department of Commerce (the Department) rescinds the administrative review of the countervailing duty order on certain pasta from Italy. Details here.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION:

Rule the South Atlantic Fishery Management Council submitted Amendment 36 to the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region for review by NMFS. Info here.

Rule the Coastal Pelagic Species Fishery Management Plan states that each year the Secretary will publish in the Federal Register the final specifications for all stocks in the actively managed stock category, including Pacific mackerel. Info here.

Rule NMFS issues regulations to implement Amendment 101 to the Fishery Management Plan for Groundfish of the Gulf of Alaska for the sablefish individual fishing quota fisheries in the Gulf of Alaska. Details here.

Rule in accordance with the Atlantic Herring Fishery Management Plan adjusting the 2017 catch limits in the four herring management areas to account for underages in those areas during 2015. Info here.

Rule increasing the possession and trip limits for Southern New England/Mid-Atlantic yellowtail flounder and reducing the possession and trip limits for Georges Bank cod in place for Northeast multispecies common pool vessels for the remainder of the 2016 fishing year. Details here.

Notice the New England Fishery Management Council will prepare a draft environmental impact statement consistent with the National Environmental Policy Act. Details here.

RURAL HOUSING SERVICE: Notice RHS will request an extension for an approved information collection in support of the program for 7 CFR part 1942, subpart A, “Community Facility Loans.” Details here.